CURRENT REPORT FOR ISSUERS SUBJECT TO THE
1934 ACT REPORTING REQUIREMENTS
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act
October 9, 2012
Date of Report
(Date of Earliest Event Reported)
DYNARESOURCE, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
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000-30371 |
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94-1589426 |
(State or other jurisdiction of incorporation or organization) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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222 W. Las Colinas Blvd., Suite 744 East Tower,
Irving, Texas 75039
(Address of principal executive offices (zip
code))
(972) 868-9066
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 3.02 Unregistered Sales of Equity Securities.
The following summarizes
all sales of unregistered securities by DynaResource, Inc. (the “Company”) since August 29, 2009.
On October 9, 2012, the
Company completed a private placement offering to investors of 1,258,430 shares of Common Stock, for aggregate consideration of
$5,125,304.03. On March 23, 2015, the Company completed a private placement offering to investors of 544,500 shares of Common Stock,
for aggregate consideration of $1,361,250.00. Investors in these private placement offerings also received warrants contemplating
the purchase of an aggregate of 2,028,000 shares of common stock.
On June 30, 2014, the Company
completed a private placement offering to investors of 608,100 shares of Series B Preferred Stock, for aggregate consideration
of $3,040,500.00.
On September 5, 2014, the
Company completed a private placement offering to investors of $1,808,308 in aggregate principal amount of promissory
notes convertible into Common Stock.
The sales of the securities identified above
were made pursuant to privately negotiated transactions that did not involve a public offering of securities and, accordingly,
the Company believes that these transactions were exempt from the registration requirements of the Securities Act pursuant to Section
4(2) thereof. Each investor represented that such investor either (A) is an “accredited investor,” (B) has such knowledge
and experience in financial and business matters that the investor is capable of evaluating the merits and risks of acquiring the
shares of the Company’s common stock or preferred stock, or (C) has appointed an appropriate person to act as the investor’s
purchaser representative in connection with evaluating the merits and risks of acquiring the securities. All of the foregoing securities
are deemed restricted securities for purposes of the Securities Act.
Item 5.03 Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year.
On April 28,
2015, and pursuant to authority granted to the Board of Directors in the Company’s certificate of incorporation, as
amended to date, the Board of Directors adopted Amended and Restated Bylaws for the Company. The Amended and Restated Bylaws
are consistent with Delaware state law, as such law has been amended. Additionally, the Amended and Restated Bylaws are
more suitable for public company status.
The Amended and Restated Bylaws
are attached as Exhibit 3.7 and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
Annual Meeting
Results
On
December 29, 2014, DynaResource, Inc. (the “Company”) held its annual meeting of shareholders (the “Annual Meeting”).
At the Annual Meeting, the Company’s shareholders voted on the election of directors and the other proposals described in
the Company’s Proxy Statement as filed on Schedule 14A on November 13, 2014. For purposes of the Annual Meeting, 12,469,330
shares of common stock were treated as outstanding and eligible to vote.
The
number of votes cast for and against and the number of abstentions and broker non-votes with respect to each matter voted on are
set forth below.
1.
Election of Class I Directors. At the Annual Meeting, the holders of Series A Preferred Stock were eligible to vote for the
Class I Directors and elected each Class I director nominee to the Board of Directors by the following votes:
Nominee | |
Votes For | |
Votes Withheld |
K. W. Diepholz | |
| 1,000 | | |
| 0 | |
Robert Allender, Jr. | |
| 1,000 | | |
| 0 | |
Dr. Jose Vargas Lugo | |
| 1,000 | | |
| 0 | |
2.
Election of Class II Directors. At the Annual Meeting, the holders of common stock were eligible to vote for the Class II Directors
and elected each Class II director nominee to the Board of Directors by the following votes:
Nominee | |
Votes For | |
Votes Withheld |
David S. Hall | |
| 6,622,467 | | |
| 231,568 | |
Pedro Ignacio Teran Cruz | |
| 6,622,467 | | |
| 231,568 | |
3.
Advisory Vote on Executive Compensation. The shareholders approved, on an advisory, non-binding basis, the compensation of
the Company’s named executive officers by the following vote:
Votes For | |
Votes Withheld |
| 5,750,857 | | |
| 1,108,178 | |
4.
Advisory Vote on Frequency of Shareholder Advisory Vote on Executive Compensation. The shareholders approved, on an advisory,
non-binding basis, the frequency of an advisory vote on the compensation of the Company’s named executive officers by the
following vote:
One
Year |
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Two
Years |
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Three
Years |
5,393,243 |
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289,773 |
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1,177,019 |
Item 9.01. Financial Statements
and Exhibits.
(d) Exhibits.
Exhibit Number |
Description |
3.1 * |
Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on December 8, 1997 |
3.2 * |
First Amendment to Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 13, 1998 |
3.3 * |
Certificate of Amendment of Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on October 3, 2007 |
3.4 * |
Certificate of Amendment of Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 15, 2012 |
3.5 * |
Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on November 28, 2012 |
3.6 * |
Certificate of Designation of Series B Series B Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on August 28, 2013 |
3.7 * |
Amended
& Restated Bylaws of the Company. |
4.1* |
Promissory
Note - Series I |
4.2* |
Promissory
Note - Series I, Amendment |
4.3* |
Promissory
Note - Series II |
4.4* |
Extension
to Note Series I and Series II |
10.1 * |
April 15, 2005 Mining and Production Services Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.2 * |
September 15, 2006 Amending Agreement to the Mining Services Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.3 * |
July 15, 2011 Second Amendment to the Contract Mining Services and Mineral Production Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.4 * |
May 15, 2013 Exploitation Amendment (Third Amendment) to the Contract Mining Services and Mineral Production Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.5 * |
May 15, 2005 Provision of Personnel Services Agreement between Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, and DynaResource Operaciones de San Jose de Gracia, S.A. de C.V. , a subsidiary of the Company |
10.6 * |
September 15, 2006 Amending Agreement to Personnel Services Agreement between Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, and DynaResource Operaciones de San Jose de Gracia, S.A. de C.V. , a subsidiary of the Company |
21 * |
List of subsidiaries |
_______________
* Filed herewith
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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DYNARESOURCE, INC. |
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(Registrant) |
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By: |
/s/ K.W. Diepholz |
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Name: K.W. Diepholz |
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Titla: Chairman and CEO |
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EXHIBIT INDEX
Exhibit Number |
Description |
3.1 * |
Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on December 8, 1997 |
3.2 * |
First Amendment to Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 13, 1998 |
3.3 * |
Certificate of Amendment of Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on October 3, 2007 |
3.4 * |
Certificate of Amendment of Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 15, 2012 |
3.5 * |
Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on November 28, 2012 |
3.6 * |
Certificate of Designation of Series B Series B Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on August 28, 2013 |
3.7 * |
Amended
& Restated Bylaws of the Company. |
4.1* |
Promissory
Note - Series I |
4.2* |
Promissory
Note - Series I, Amendment |
4.3* |
Promissory
Note - Series II |
4.4* |
Extension
to Note Series I and Series II |
10.1 * |
April 15, 2005 Mining and Production Services Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.2 * |
September 15, 2006 Amending Agreement to the Mining Services Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.3 * |
July 15, 2011 Second Amendment to the Contract Mining Services and Mineral Production Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.4 * |
May 15, 2013 Exploitation Amendment (Third Amendment) to the Contract Mining Services and Mineral Production Agreement between DynaResource de Mexico S.A. de C.V., a subsidiary of the Company, and Mineras de DynaResource S.A. de C.V., a subsidiary of the Company |
10.5 * |
May 15, 2005 Provision of Personnel Services Agreement between Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, and DynaResource Operaciones de San Jose de Gracia, S.A. de C.V., a subsidiary of the Company |
10.6 * |
September 15, 2006 Amending Agreement to Personnel Services Agreement between Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, and DynaResource Operaciones de San Jose de Gracia, S.A. de C.V., a subsidiary of the Company |
21 * |
List of subsidiaries |
_______________
* Filed herewith
Exhibit
3.1
DYNARESOURCE,
INC.
"ARTICLES
OF INCORPORATION"
State
of Delaware
Office
of the Secretary of State
I, EDWARD
J. FREEL, SECRETARY OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED
IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF
"DYNARESOURCE,
INC.", FILED IN THIS OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D.
1997, AT
9 O'CLOCK A.M.
GREAT
SEAL OF THE STATE OF DELAWARE
(Graphic
Omitted)
SEAL OF
DELAWARE SECRETARY'S OFFICE
(Graphic
Omitted)
/S/ Edward
J. Freel
Edward J.
Freel, Secretary of State
AUTHENTICATION:
8795882
DATE: 12-08-97
CERTIFICATE
OF INCORPORATION
OF
DYNARESOURCE,
INC.
The
undersigned, a natural person of the age of eighteen years or more,
acting as
the Incorporator of a corporation under the Delaware Corporation Laws,
hereby adopts
the following Articles of incorporation for such corporation:
ARTICLE
I
The
name of the corporation Is Dynaresource, Inc.
ARTICLE
II
The
address of the corporation's initial registered office is 1013
Centre
Road, Wilmington, Delaware, and the name of the corporation's
Initial
registered agent at such address is Corporation Service
Company,
in New Castle County.
ARTICLE
III
The
purpose or purposes for which the corporation is organized shall be
and
include the transaction of any or all lawful business for which
coporations
may be incorporated under the General Corporation Law of
the
State of Delaware.
ARTICLE
IV
The
corporation shall have authority to issue fifty million
(50,000.000)
shares of its common stock each having a par value of
$.0001.
Fully paid common shares of the corporation shall not be
liable
for further call or assessment. The authorized common shares of
the
corporation shall be Issued at the discretion of the Board of
Directors
of the corporation.
ARTICLE
V
The
name and address of the incorporator of the corporation is James J.
Panipinto,
10440 N. Central Expressway, Ste. 1440, Dallas, Texas 75231.
The
powers of the incorporator are to terminate upon the filing of this
Certificate
of Incorporation.
ARTICLE
VI
The
names and mailing addresses of the persons who are to serve as
directors
until the first annual meeting of stockholders or until (a)
his
successors have been elected and qualified, as provided In the
Bylaws
of the corporation, or (b) his earlier death or resignation is
as
follows:
Name
Mailing Address
Douglas
Metcalf 46 Lake Shore Drive North
Westford,
Massachusetts 01886
Koy
W. (K.D.) Diepholz 5215 Williams Square Ste. 200
Irving,
Texas 75039
Melvin
E. Tidwell 4804 Pickadilly Place
Tyler,
Texas 75703
Wayne
C. Henderson 5506 Lafayette Lane
Frisco,
Texas 75035
ARTICLE
VII
The
period of the corporations duration is perpetual.
ARTICLE
VIII
The
right to accumulate votes in the Election of directors, and/or
cumulative
voting by any shareholder of the corporation, is hereby
expressly
denied.
ARTICLE
IX
The
right to preemptive rights to acquire additional, unissued, or
treasury
shares of the corporation, or securities of the corporation
convertible
into or carrying a right to subscribe to or acquire
additional
shares of the corporation is hereby expressly denied.
ARTICLE
X
All
of the corporation's directors and officers and former directors
and
officers and all persons who may have served at the corporation's
request
as a director or officer of another corporation in which the
corporation
is a creditor or substantial shareholder, shall be
indemnified
against expenses actually and necessarily incurred by them
in
connection with the defense of any action, suit or proceeding, in
which
they, or any of them, are made parties, or a party by reason of
being
or having been directors or officers or a director or officer of
the
corporation, or of such other corporation, except in relation to
matters
as to which any such director or officer or former director or
officer
shall be adjudged in such action, suit or proceeding to be
liable
for negligence or misconduct. The foregoing right to indemnity
shall
include reimbursement of the amounts and expenses paid or
incurred
in settlement thereof or a plea of nolo contendere (or other
plea
of substantially the same import and effect) which, in the opinion
of
counsel for the corporation, appears to be in the interest of the
corporation.
Such indemnification shall not be deemed exclusive of any
other
rights to which those indemnified may be entitled by law or under
any
bylaws, agreement, vote of stockholders or otherwise.
ARTICLE
XI
No
contract or other transaction between the corporation and any
person,
firm; association or corporation and no act of the
corporation
shall, in the absence of fraud, be invalidated or in any
way
affected by the fact that any of the directors of the corporation
are
pecuniarily or otherwise interested, directly or indirectly, in
such
contract, transaction or act, or are related to or interested in
such
person, firm, association or corporation as a director,
shareholder,
officer, employee, member or otherwise any director so
interested
or related who is present at any meeting of the Board of
Directors
or committee of directors at which action on any such
contract,
transaction or act is taken may be counted in determining
the
presence of a quorum at such meeting and may vote at such meeting
with
respect to such contract, transaction or act with like force and
effect
as if he or she were not so interested or related. No director
so
interested or related shall, because of such interest or
relationship,
be disqualified from holding his or her offiee or be
liable
to the corporation or to any shareholder or creditor thereof
for
any loss incurred by the corporation under or by reason of such
contract,
transaction or act, or be accountable for any gains or
profits
he may have realized therein.
THESE ARTICLES
OF INCORPORATION OF DYNARESOURCE, INC. ARE HEREBY EXECUTED this
December
5, 1997.
/S/ James
Panipinto
James J.
Panipinto
Incorporator
STATE OF
TEXAS
COUNTY OF
DALLAS
THIS INSTRUMENT
WAS ACKNOWLEDGED before me J. PANIPINTO, on this December 5,
1997
/S/ M.L.
Hilberth
Notary Public,
State of Texas
(Notary
Stamp)
================================================================================
ORGANIZATIONAL
RESOLUTIONS
OF
THE BOARD OF DIRECTORS OF
DYNARESOURCE,
INC.
The
undersigned, being each of the duly and validly constituted
directors
listed in the Certificate of Incorporation of DynaResource, Inc., a
Delaware
corporation (hereinafter referred to as the "Corporation"), acting
pursuant
to authority granted by the Delaware General Corporation Act, hereby
consents
that, when the undersigned has executed this consent or an exact
counterpart
thereof, the resolutions hereinafter set forth shall be deemed to
have been
adopted to the same extent and with the same force and effect as if
adopted
at a formal meeting of the Board of Directors of the Corporation, duly
called,
noticed and held for the purpose of acting upon proposals to adopt such
resolutions:
Articles
of Incorporation
RESOLVED,
that the duplicate original of the Certificate of
Incorporation
as filed with the Secretary of State of Delaware on
December
7,1997, and the evidence of such filing be inserted in the
minute
book of this Corporation; and
Minute
Book; Bylaws; Stock Certificate; Corporate Seal
RESOLVED,
that the Bylaws submitted to the Board of Directors of this
Corporation
on this date are hereby adopted as and for the Bylaws of
this
Corporation, and that the Secretary of this Corporation is hereby
instwcted
to cause the same to be inserted in the minute book of the
Corporation;
the Secretary is further ordered to certify a copy of
those
Bylaws and maintain them in the principal office of the
Corporation
for the transaction of its business, open for inspection by
the
shareholders at all reasonable time during office hours;
and
RESOLVED,
FURTHER, that the Corporation shall maintain, as part of
its
corporate record, a minute book which shall include, but not
limited
to, a record of the Corporation's Articles of Incorporation and
amendments
thereto, its Bylaws and amendments thereto, minutes of all
meetings
of its directors, and minutes of all meetings of its
shareholders;
the time and place of such meetings, whether a meeting
was
regular or special, and if special, how the meeting was authorized,
the
notice given, the names of those present at directors' meetings,
the
number of shares present or represented at shareholders' meetings,
and
the proceedings at the meetings; and
RESOLVED,
FURTHER, that the form of stock certificates of the
Corporation
shall be in substantially the form as those previously
issued
by West Coast Mines, Inc., together with such changes as shall
be
reasonably required to reflect the name of the Corporation, its
state
of incorporation and the par value of the stock, all as shall be
acceptable
to the President of the Corporation with the advice of
counsel;
and
RESOLVED,
FURTHER, that the stock certificates shall be consecutively
numbered
beginning with Number 1; that the certificates shall be issued
only
when the signatures of the President and Secretary, or a facsimile
thereof,
and the corporate seal or a facsimile, are affixed thereto or
impnnted
thereon; that each certificate shall state on its face the
name
of the person to whom the shares representing the certificate are
issued,
the number and class of shares and the designation of the
series,
if any, that the certificate represents, the par value of each
share
represented by the certificate or the fact that the shares are
without
par value, that the corporation is organized under the laws of
Texas;
and that the certificates shall set forth in full or in summary
form,
or shall incorporate by reference, such statements as are
required
by the Articles of Incorporation or the Delaware General
Corporation
Laws.
RESOLVED,
FURTHER, that the seal affixed at this place is hereby
adopted
as the official seal of the Corporation; and
Election
of Officers
RESOLVED,
that the following persons are hereby elected to be officers
of
the Corporation, to hold the office set opposite their respective
names
for a period of one year from the date hereof and for so long
thereafter
until their respective successors are chosen and qualified,
or
until their earlier death, resignation or removal:
Chairman,
President & CEO Koy W. (K. D.) Diepholz
Vice
President - Mineral Properties Wayne Henderson
Vice
President - Investor Relations Brad J. Saulter
Secretary
Douglas W. Metcalf
Treasurer
Koy W. (K. D.) Diepholz
Issuance
of Stock
RESOLVED,
that the offers of the following person(s) (hereinafter
called
the "Purchaser(s)") to purchase the number of shares of the
authorized
and unissued $0.0001 par value common capital stock of the
Corporation
set opposite the name(s) of such Purchaser(s), for the
amount
set opposite the name(s) of such Purchaser(s):
PURCHASER
NO. SHARES AMOUNT
West
Coast Mines 1000 $1.00 dollar per share
is/are
hereby accepted, such offer(s) being, in the judgment of the
Board
of Directors of the Corporation, fair and adequate consideration;
RESOLVED,
FURTHER, that the President and Secretary of the Corporation
are
hereby instructed, upon receipt of payment from the aforesaid
Purchaser(s),
to prepare, execute and deliver to such Purchaser(s)
certificates
for the number of shares of the Corporation's $0.01 par
value
common capital stock set forth opposite such Purchaser(s)'
name(s)
above; and
Fiscal
Year
RESOLVED,
that the fiscal year of the Corporation shall be the twelve
month
period ending December 31 of each calendar year; and
Bank
Account
RESOLVED,
that the officers of the Corporation are hereby authorized to
select
such bank or banks, hereinafter collectively referred to as the
"Bank,"
as depository of the funds of the Corporation and to establish
and
maintain, in the name of and on behalf of the Corporation, such
demand
deposit accounts with the Bank as may be necessary to conduct
the
business of the Corporation, subject to such terms and conditions
that
the officers may from time to time agree to with the Bank; that in
connection
with the establishment of such accounts, the officers may
execute
the Bank's regular corporate resolution forms which are
incorporated
by reference in and made a part of this resolution; and
the
Secretary is hereby directed to attach a copy of each executed
corporate
resolution form to these resolutions; and
RESOLVED,
FURTHER, that the Secretary of the Corporation is hereby
authorized
and directed to certify to the Bank that such resolutions
have
been duly adopted and are in conformity with the Articles of
Incorporation
and Bylaws of the Corporation, to verify to the Bank the
names
and specimen signatures of the present officers of the
Corporation
authorized to sign on such accounts, and if and when any
new
officer is elected or appointed, to verify the fact of that change
and
the name and specimen signature of each new officer duly authorized
by
the Board of Directors to sign on such accounts; and
Corporate
Office
RESOLVED,
that offices of the Corporation be established and maintained
at
Towers at Williams Square, 5215 N. O'Connor Blvd., Ste 200, Irving,
TX
75039.
Transaction
of Business
RESOLVED,
that the officers of the Corporation are hereby directed to
obtain,
in the name of the Corporation, such licenses and tax permits
as
may be required for the conduct of the business of the Corporation
by
any federal, state, county or municipal governmental statute,
ordinance
or regulation, and to do all things necessary or convenient
to
qualify the Corporation to transact its business in compliance with
the
laws and regulations of any appropriate federal, state, or
municipal
governmental authority; and
RESOLVED,
that the Treasurer of the Corporation is hereby authorized to
pay
all charges and expenses incident to or arising out of the
organization
of the Corporation and to reimburse any person who has
made
any disbursement therefor; and
RESOLVED,
that the Corporation recognizes that James J. Panipinto has
acted
as incorporator of the Corporation solely for the purpose of
incorporating
the Corporation, and as an accommodation to the
Corporation
and that the Corporation, for such consideration and
action,
hereby agrees to indemnify and hold harmless James J. Panipinto
from
and against any and all claims and liabilities of any kind which
may
be brought against him by reason of his acting on behalf of the
Corporation
in such capacities; and such indemnification is provided
for
pursuant to the provisions of the Texas Business Corporation Act.
DATED
as of January 15, 1998.
/S/
Douglas Metcalf
/S/
Koy W. (K. D.) Diepholz
/S/
Melvin E. Tidwell
/S/
Wayne C. Henderson
Exhibit
3.2
ARTICLES
OF AMENDMENT
DYNARESOURCE,
INC.
"ARTICLES
OF AMENDMENT"
State
of Delaware
Office
of the Secretary of State
I,
EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY
THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT
OF "DYNARESOURCE, INC.", FILED IN THIS OFFICE ON THE THIRTENNTH DAY OF FEBRUARY, A.D. 1998, AT 9 O'CLOCK A.M.
Great
Seal of the State of Delaware
[graphic
omitted]
/S/ Edward
J. Freel, Secretary of State
AUTHENTICATION:
8928486
DATE: 02-19-98
FIRST
AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
DYNARESOURCE,
INC.
(PURSUANT
TO SECTION 241)
1. Article
IV of the Certificate of Incorporation of DynaResource, Inc.,
filed
pursuant to the Delaware Corporation Laws on December 8, 1997.
has
been amended in its entirety, as follows:
The
corporation shall have authority to issue twelve million
five
hundred thousand (12,500,000) shares of its common stock
each
having a par value of $.O1. Fully paid common shares of
the
corporation shall not be liable for further call or
assessment
The authorized common shares of the corporation
shall
be issued at the discretion of the Board of Directors of
the
corporation.
2. DynaResource,
Inc. has not received any payment for any of its stock.
3. The
amendment to the Certificate of Incorporation was adopted by a
majority
of the Directors named in the Certificate of Incorporation.
EXECUTED
this 02-06-98
/S/
K.D. Diepholz
President
STATE OF TEXAS |
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COUNTY OF DALLAS |
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THIS
INSTRUMENT WAS ACKNOWLEDGED before me by K.D. Diepholz, on this
February
6, 1998, who being known to me stated that he was President of
DynaResource,
Inc., that this instrument was the act and said of said
corporation,
and that the facts set forth above are true.
/S/
Janice E. Haley
Notary
Public, State of Texas
Comm.
Exp. 05-16-99
Notary Stamp
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Dynaresource,
Inc., resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling for a meeting of the stockholders of said corporation for consideration thereof.
The resolution setting forth the proposed amendment is as follows:
RESOLVED: That the Certificate of Incorporation be amended
by changing the Article thereof numbered IV so that, as amended, the Article shall be and read as follows:
The corporation shall have authority to issue twelve million
five hundred thousand (12,500,000) shares of its common stock each having a par value of $.01. Fully paid common shares of the
corporation shall not be liable for further call or assessment. The authorized common shares of the corporation shall be issued
at the discretion of the Board of Directors of the corporation.
The corporation shall have authority to issue ten thousand
(10,000) shares of its Series A preferred stock each having a par value of $1.00. Fully paid preferred shares of the corporation
shall not be liable for further call or assessment. The authorized preferred shares of the corporation shall have the authority
to elect a majority of the Board of Directors of the
corporation.
SECOND: That
thereafter, pursuant to resolution of its Board of Directors, the annual meeting 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.
THIRD: That said amendment
was duly adopted in accordance with the provisions of Sections 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said
corporation has caused this certificate to be signed this third day of October, 2007.
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By: ___________________________ |
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Title: Chairman / CEO |
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Name: K.D. Diepholz |
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Exhibit
3.4
STATE
OF DELAWARE
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
The
corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST:
That at a meeting of the Board of Directors of Dynaresource, Inc., resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling for a
meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED:
That the Certificate of Incorporation be amended by changing the Article thereof numbered IV so that, as amended, the Article
shall be and read as follows:
The
corporation shall have authority to issue twenty five million (25,000,000) shares of its common stock each having a par value
of $.01. Fully paid common shares of the corporation shall not be liable for further call or assessment. The authorized common
shares of the corporation shall be issued at the discretion of the Board of Directors of the corporation.
The
corporation shall have authority to issue ten thousand (10,000) shares of Series A preferred stock each having a par value of
$1.00. Fully paid preferred shares of the corporation shall not be liable for further call or assessment. The authorized preferred
shares of the corporation shall have the authority to elect a majority of the Board of Directors of the corporation.
SECOND:
That thereafter, pursuant to resolution of its Board of Directors, the annual meeting was duly called and held on December
27, 2011, 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.
THIRD:
That said amendment was duly adopted in accordance with the provisions of Sections 222 of the General Corporation Law of the
State of Delaware.
IN
WITNESS WHEREOF, said corporation has caused this certificate to be signed on this fifteenth day of February, 2012.
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By: ______________________________ |
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Title: Chairman / CEO |
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Name: K.D. Diepholz |
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Exhibit
3.5
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
Of
DYNARESOURCE,
INC.
DynaResource,
Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
FIRST:
The name of the corporation is DynaResource, Inc. (the “Corporation”). The original Certificate of Incorporation
of the Corporation (the “Original Certificate”) was filed with the Secretary of State of the State of Delaware
on December 8, 1997 and further amended on February 13, 1998, October 3, 2007, and February 15, 2012.
SECOND:
This Amended and Restated Certificate of Incorporation restates and integrates and also amends the Original Certificate as amended
in accordance with Section 245 of the General Corporation Law of the State of Delaware (the “General Corporation Law”).
The Corporation certifies that the amendments effected by this Amended and Restated Certificate of Incorporation have been adopted
in accordance with Section 242 of the General Corporation Law.
THIRD:
The text of the Original Certificate, as restated and integrated and also amended hereby, shall read in its entirety as follows:
ARTICLE
I
The
name of the corporation is DynaResource, Inc.
ARTICLE
II
The
address of the corporation’s registered office is 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware
19808, and the name of the corporation’s registered agent at such address is Corporation Service Company.
ARTICLE
III
The
purpose or purposes for which the corporation is organized shall be and include the transaction of any or all lawful business
for which corporations may be incorporated under the General Corporation Law of the State of Delaware.
ARTICLE
IV
1. Authorized
Capital. The total number of shares of all classes of capital stock which the corporation shall have the authority to
issue is 45,001,000 shares, consisting of (i) twenty-five million (25,000,000) shares of Common Stock, par value $.01 per share
(“Common Stock”), and (ii) 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.
2. Common
Stock.
a. Dividends.
Subject to the rights, if any, of the holders of Preferred Stock with respect to the payment of dividends and the requirements,
if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts for the benefit of such
holders and subject to any other conditions that may be fixed in or pursuant to the provisions of this Article IV, the holders
of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors
on the Common Stock out of assets which are legally available therefore. Any such dividends shall be divided among the holders
of the Common Stock on a pro rata basis.
b. Liquidation.
In the event of any liquidation of the corporation, after payment or provision for payment of the debts and liabilities of the
corporation and after distribution to the holders of Preferred Stock of the amounts fixed in or pursuant to the provisions of
this Article IV, the holders of the Common Stock shall be entitled to receive all the remaining assets of the corporation, tangible
and intangible, of whatever kind available for distribution to stockholders. Any such assets shall be divided among the holders
of Common Stock on a pro rata basis.
c. Voting.
Except as may otherwise be required by law and subject to the rights of the holders of Preferred Stock fixed in or pursuant to
this Article IV, each holder of Common Stock shall have one vote for each share of Common Stock held by such holder on each matter
submitted to a vote of the stockholders.
3. Preferred
Stock.
a. General.
Shares of the Preferred Stock may be issued from time to time in one or more series, the shares of each series to have any designations
and powers, preferences and rights, and qualifications, limitations and restrictions thereof, as are stated and expressed in this
Article IV and in any resolution or resolutions providing for the issue of such series adopted by the Board of Directors as hereinafter
prescribed (a “Preferred Stock Designation”).
b.
Authority of Board of Directors; Preferred Stock Designation. In addition to the series of Preferred Stock authorized
pursuant to paragraph 4 of this Article IV, authority is hereby expressly granted to and vested in the Board of Directors to authorize
the issuance of the Preferred Stock from time to time in one or more series, and with respect to each series of the Preferred
Stock, to fix and state by the resolution or resolutions from time to time adopted providing for the issuance thereof the following:
(1) whether
or not the series is to have voting rights, full, special or limited, or is to be without voting rights, and whether or not such
series is to be entitled to vote as a separate class either alone or together with the holders of one or more other classes or
series of stock;
(2)
the number of shares to constitute the series and the designations thereof;
(3)
the preferences and relative, participating, optional, or other special rights, if any, and the qualifications, limitations
or restrictions thereof, if any, with respect to any series;
(4)
whether or not the shares of any series shall be redeemable at the option of the corporation or the holders thereof or upon
the happening of any specified event, and, if redeemable, the redemption price or prices (which may be payable in the form of
cash, notes, securities or other property), and the time or times at which and the terms and conditions upon which such shares
shall be redeemable and the manner of redemption;
(5)
whether or not the shares of a series shall be subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for retirement, and, if such retirement or sinking fund or funds are to be established,
the periodic amount thereof, and the terms and provisions relative to the operation thereof;
(6)
the dividend rate, whether dividends are payable in cash, stock of the corporation or other property, the conditions upon
which and the times when such dividends are payable, the preference to or the relation to the payment of dividends payable on
any other class or classes or series of stock, whether or not such dividends shall be cumulative or noncumulative, and if cumulative,
the date or dates from which such dividends shall accumulate;
(7)
the preferences, if any, and the amounts thereof which the holders of any series thereof shall be entitled to receive upon
the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the corporation;
(8)
whether or not the shares of any series, at the option of the corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for the shares of any other class or classes or of any other series
of the same or any other class or classes of stock, securities or other property of the corporation and the conversion price or
prices or ratio or ratios or the rate or rates at which such conversion or exchange may be made, with such adjustments, if any,
as shall be stated and expressed or provided for in such resolution or resolutions; and
(9)
any other special rights and protective provisions with respect to any series that the Board of Directors may deem advisable.
c.
Separate Series; Increase or Decrease in Authorized Shares. The shares of each series of Preferred Stock may vary from
the shares of any other series thereof in any or all of the foregoing respects and in any other manner. The Board of Directors
may increase the number of shares of Preferred Stock designated for any existing series by a resolution adding to such series
authorized and unissued shares of Preferred Stock not designated for any other series. Unless otherwise provided in the Preferred
Stock Designation, the Board of Directors may decrease the number of shares of Preferred Stock designated for any existing series
by a resolution subtracting from such series authorized and unissued shares of Preferred Stock designated for such existing series,
and the shares so subtracted shall become authorized, unissued and undesignated shares of Preferred Stock.
4. Series
A Preferred Stock. There shall be authorized a series of Preferred Stock which shall have the designation and powers,
preferences and rights, and qualifications, limitations and restrictions thereof, set forth in this Article IV. The designation
of this series of Preferred Stock (“Series A Preferred Stock”) shall be “Series A Preferred Stock”,
and the total number of authorized shares of such series shall be 1,000. Subject to the provisions of the Certificate of Incorporation,
such number of shares may be increased or decreased from time to time by resolution of the Board of Directors; provided, however,
that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares
of such series then issued and outstanding, plus the number of shares of such series reserved for issuance upon the exercise of
outstanding options, warrants or rights or the conversion or exchange of outstanding indebtedness or other securities issued by
the corporation. Shares of Series A Preferred Stock shall have no dividend, voting or other rights except for the right to elect
Class I Directors as set forth in Article V below.
ARTICLE
V
The
Board of Directors shall be divided into two classes of directors, Class I Directors and Class II Directors, all of whom shall
be eligible for election at each annual meeting of the stockholders. The Board of Directors shall have the right to fix the number
of directors from time to time; provided that the number of Class I Directors shall always be equal to the number of Class II
Directors plus one. 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 the Class II 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. To the extent that no shares of Series
A Preferred Stock are issued and outstanding, then all 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.
ARTICLE
VI
The
period of the corporation’s duration is perpetual.
ARTICLE
VII
The
right to accumulate votes in the election of directors, and/or cumulative voting by any stockholder of the corporation, is hereby
expressly denied.
ARTICLE
VIII
The
right to preemptive rights to acquire additional, unissued, or treasury shares of the corporation, or securities of the corporation
convertible into or carrying a right to subscribe to or acquire additional shares of the corporation, is hereby expressly denied.
ARTICLE
IX
All
of the corporation’s directors and officers and former directors and officers and all persons who may have served at the
corporation’s request as a director or officer of another corporation in which the corporation is a creditor or substantial
stockholder, shall be indemnified against expenses actually and necessarily incurred by them in connection with the defense of
any action, suit or proceeding, in which they, or any of them, are made parties, or a party by reason of being or having been
directors or officers or a director or officer of the corporation, or of such other corporation, except in relation to matters
as to which any such director or officer or former director or officer shall be adjudged in such action, suit or proceeding to
be liable for negligence or misconduct. The foregoing right to indemnity shall include reimbursement of the amounts and expenses
paid or incurred in settlement thereof or a plea of nolo contendere (or other plea of substantially the same import and effect)
which, in the opinion of counsel for the corporation, appears to be in the interest of the corporation. Such indemnification shall
not be deemed exclusive of any other rights to which those indemnified may be entitled by law or under any bylaws, agreement,
vote of stockholders or otherwise.
ARTICLE
X
No
contract or other transaction between the corporation and any person, firm, association or corporation and no act of the corporation
shall, in the absence of fraud, be invalidated, or in any way affected by the fact that any of the directors of the corporation
are pecuniarily or otherwise interested, directly or indirectly, in such contract, transaction or act, or are related to or interested
in such person, firm, association or corporation as a director, stockholder, officer, employee, member or otherwise. Any director
so interested or related who is present at any meeting of the Board of Directors or committee of directors at which action on
any such contract, transaction or act is taken may be counted in determining the presence of a quorum at such meeting and may
vote at such meeting with respect to such contract, transaction or act with like force and effect as if he were not so interested
or related. No director so interested or related shall, because of such interest or relationship, be disqualified from holding
his office or be liable to the corporation or to any stockholder or creditor thereof for any loss incurred by the corporation
under or by reason of such contract, transaction or act, or be accountable for any gains or profits he may have realized therein.
ARTICLE
XI
The
business and affairs of the corporation shall be managed by or under the direction of the Board of Directors. In furtherance and
not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal
the Bylaws of the corporation; provided, however, that the grant of such authority shall not divest the stockholders of
the power, nor limit their power to adopt, amend or repeal the Bylaws. In addition to the authority and powers hereinabove or
by statute conferred upon the directors, the directors are hereby authorized and empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the corporation, subject to the provisions of the General Corporation
Law, this Certificate of Incorporation and any Bylaws adopted by the stockholders of the corporation; provided, however,
that no Bylaws hereafter adopted by the stockholders of the corporation shall invalidate any prior act of the directors that would
have been valid if such Bylaws had not been adopted.
IN
WITNESS WHEREOF, the undersigned have executed this Amended and Restated Certificate of Incorporation as of July 6, 2012.
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DYNARESOURCE, INC. |
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By: __________________________ |
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Name: K.W. (“K.D.”) Diepholz |
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Title: President |
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Attest: |
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__________________________ |
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Charles Smith |
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Secretary |
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Exhibit
3.6
DYNARESOURCE,
INC.
CERTIFICATE
OF DESIGNATION
OF
SERIES
b CONVERTIBLE PREFERRED STOCK
____________________________________________
DynaResource,
Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does
hereby certify that, pursuant to the authority conferred upon the Board of Directors of the Corporation by its Certificate of
Incorporation, as amended and restated to date (the “Certificate of Incorporation”), and in accordance with
Section 151(g) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation adopted the
following resolution establishing a series of one million (1,000,000) shares of Preferred Stock of the Corporation designated
as “Series B Convertible Preferred Stock”:
RESOLVED,
that pursuant to the authority conferred on the Board of Directors of the Corporation by its Certificate of Incorporation, a series
of Preferred Stock, par value $0.0001 per share, of the Corporation is hereby established and created, and that the designation
and number of shares thereof and the voting and other powers, preferences and relative, participating, optional or other rights
of the shares of such series and the qualifications, limitations and restrictions thereof are as follows:
1.
Designation. The series of preferred stock established hereby shall be designated “Series B Convertible Preferred
Stock” (and shall be referred to herein as the “Series B Preferred Shares”).
2.
Number. The authorized number of Series B Preferred Shares shall be one million (1,000,000). The number of Series B Preferred
Shares may be decreased by resolution of the Board; provided, however, that no decrease shall reduce the number of Series B Preferred
Shares to less than the number of shares then issued and outstanding.
3.
Rank. The Series B Preferred Shares shall rank senior to the Corporation’s Common Stock. The Series B Preferred Shares
shall, with respect to rights upon the occurrence of a Liquidation Event (as defined in Section 6 below), rank senior to the Corporation’s
Common Stock to the extent of $5.00 per Series B Preferred Share and on a parity with the Corporation’s Common Stock as
to amounts in excess thereof as provided in Section 6. The Series B Preferred Shares shall rank (a) senior to any other class
or series of capital stock of the Corporation hereafter created specifically ranking junior to the Series B Preferred Shares as
to the payment of dividends and/or rights upon the occurrence of a Liquidation Event (collectively, “Junior Stock”);
and (b) junior to any class or series of capital stock of the Corporation hereafter created specifically ranking senior to the
Series B Preferred Shares as to the payment of dividends and/or rights upon the occurrence of a Liquidation Event (collectively,
“Senior Stock”).
4.
Voting Rights. The holders of Series B Preferred Shares shall not have voting rights.
5.
Dividends. The holders of the Series B Preferred Shares shall not be entitled to receive a dividend. As long as any Series
B Preferred Shares remain outstanding, no dividends shall be declared on any Junior Stock without the consent in writing of holders
of at least a majority of the Series B Preferred Shares then outstanding.
6.
Liquidation Right and Preference. In the event of the liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary (a “Liquidation Event”), the holders of Series B Preferred Shares shall be entitled
to receive in cash, out of the assets of the Corporation available for distribution to stockholders, an amount per share for each
outstanding Series B Preferred Share equal to $5.00 (the “Liquidation Value”) after any payments shall be made
or any assets shall be distributed to the holders of Senior Stock, but before any payments shall be made or any assets shall be
distributed to the holders of the Corporation’s Common Stock or any Junior Stock. As long as any Series B Preferred Shares
remain outstanding, no amounts shall be paid upon Liquidation Event to any Junior Stock without the consent in writing of holders
of at least a majority of the Series B Preferred Shares then outstanding. If, upon any Liquidation Event, the assets of the Corporation
are insufficient to pay the Liquidation Value to which the holders of such Series B Preferred Shares are entitled, the holders
of such Series B Preferred Shares shall share pro rata in any such distribution in proportion to the full amounts to which they
would otherwise be respectively entitled. Neither the merger or consolidation of the Corporation into or with any other corporation
nor the merger or consolidation of any other corporation into or with the Corporation nor the sale, lease, exchange or other disposition
(for cash, shares of stock, securities or other consideration) of all or substantially all the assets of the Corporation shall
be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, of the Corporation.
7.
Conversion. The holders of Series B Preferred Shares shall have conversion rights and obligations as follows:
(i) At
any time on or after April 1, 2014, holders of Series B Preferred Shares may voluntarily, and at any time following June 30, 2015
the holders shall at the option of the Corporation, upon request and notification by the Corporation, convert any whole number
of Series B Preferred Shares in accordance with this Section 7. The Series B Preferred Shares shall be convertible into Common
Stock plus Common Stock Purchase Warrants, if applicable (each, a “Warrant”) at the rates set forth in the
following table (the “Conversion Rate”). The shares of Common Stock issuable upon conversion of the Series
B Preferred Shares shall be referred to herein as the “Conversion Shares.” Each Warrant issuable upon conversion
of the Series B Preferred Shares shall have an exercise price of $7.50 and shall expire two (2) years following the date of issuance.
Conversion
Rate Table
Conversion
Period |
Conversion
Rate |
April
2014 to June 30, 2014 |
For
each Series B Preferred Share, two (2) shares of Common Stock plus no Warrants |
July
2014 to December 31, 2014 |
For
each Series B Preferred Share, one and one-half (1-1/2) shares of Common Stock, plus a Warrant to purchase three-fourths (3/4)
share of Common Stock |
January
2015 to June 30, 2015 |
For
each Series B Preferred Share, one (1) share of Common Stock, plus a Warrant to purchase one (1) share of Common Stock |
July
2015 to December 31, 2015 |
For
each Series B Preferred Share, one (1) share of Common Stock |
(ii) The
conversion right provided above may be exercised only by a holder, in whole or in part, by execution and delivery of a Notice
of Conversion (herein so called) and the surrender of the share certificates representing the Series B Preferred Shares to be
converted at the principal office of the Corporation, against delivery of the Conversion Shares and the Warrants, if applicable.
Each Series B Preferred Shares certificate surrendered for conversion shall be endorsed by its holder. In the event of exercise
of the conversion right, (i) share certificates representing the Conversion Shares and the Warrants, if applicable shall be delivered
to such holder within 10 business days after receipt by the Corporation of the original Notice of Conversion and the certificates
representing the Series B Preferred Shares (the tenth business day after receipt of such original documents, not counting the
date of receipt, being the “Delivery Date”), and (ii) unless the Series B Preferred Shares has been fully converted,
a new share certificate representing the Series B Preferred Shares not so converted shall also be delivered to such holder on
or before such Delivery Date, or carried on the Corporation’s ledger, at the holder’s option. Any holder may exercise
its right to convert the Series B Preferred Shares by delivering an executed and completed Notice of Conversion to the Corporation,
accompanied by the certificates representing the Series B Preferred Shares. The Corporation will cause delivery of the Conversion
Shares and the Warrants, if applicable (together with the certificates representing the Series B Preferred Shares not so converted,
if requested) to the holder via express courier on or before the Delivery Date if the Corporation has received the original Notice
of Conversion and Series B Preferred Shares certificates being so converted.
(iii) All
Conversion Shares will, upon issuance, be duly issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof.
(iv) Notwithstanding
the provisions hereof, in no event shall a holder be entitled to convert any Series B Preferred Stock in excess of that number
of shares upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a holder and its
affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted
portion of the Preferred Stock), and (2) the number of Conversion Shares with respect to which the determination of this proviso
is being made, would result in beneficial ownership by a holder and its affiliates of more than 4.9% of the outstanding shares
of Common Stock. For purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with
Rule 13d-3 promulgated by the Securities and Exchange Commission, except as otherwise provided in the parenthetical language contained
in clause (1) of such sentence. To the extent that the limitation contained in this Section 7(iv) applies, the determination of
whether shares of Series B Preferred Stock are convertible (in relation to other securities owned by a holder) and of which shares
of Series B Preferred Stock are convertible shall be in the sole discretion of such holder, and the submission of shares of Series
B Preferred Stock for conversion shall be deemed to be such holder’s determination that such shares of Series B Preferred
Stock are convertible (in relation to other securities owned by such holder) and such holder’s determination of which shares
of Series B Preferred Stock are convertible, in each case subject to such aggregate percentage limitation, and the Corporation
shall have no obligation to verify or confirm the accuracy of such determination. The provisions of this Section 7(iv) may be
waived by a holder as to itself (and solely as to itself) upon not less than 65 days prior notice to the Corporation, and the
provisions of this Section 7(iv) shall continue to apply until such 65th day (or later, if stated in the notice of waiver).
8.
Notices of Record Date. In the event that the Corporation shall propose at any time to merge or consolidate with or into
any other entity, or sell all or substantially all its property or business, or to liquidate, dissolve or wind up, then, in connection
with each such event, the Corporation shall send to the holders of the Series B Preferred Shares reasonable prior written notice
by first class mail, postage prepaid, addressed to the holders of Series B Preferred Shares at the address for each such holder
as shown on the books of the Corporation. Any such proposed action shall at all times be subject to the rights, preferences and
privileges of the Series B Preferred Shares.
9.
Reservation of Common Stock. The Corporation shall, at all times when the Series B Preferred Shares shall be outstanding,
reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Series
B Preferred Shares, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding Series B Preferred Shares.
10.
Cancellation of Preferred Shares. All Series B Preferred Shares surrendered for conversion shall no longer be deemed to
be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices, shall forthwith cease
and terminate except only the right of the holders thereof to receive Conversion Shares and the Warrants, if applicable, in exchange
therefore. Any Series B Preferred Shares so converted shall be retired and canceled and shall not be reissued by the Corporation;
provided, however, that each such share, after being retired and canceled, shall be restored to the status of an
authorized but unissued share of preferred stock without designation as to Series and may thereafter be issued as a share of preferred
stock not designated as Series B Preferred Shares; and the Corporation may from time to time take such appropriate action as may
be necessary to reduce the authorized Series B Preferred Shares accordingly.
11.
No Impairment. The Corporation will not, by amendment of its Certificate of Incorporation or this Certificate of Designation
or through any reorganization, transfer of assets, merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation
but will at all times in good faith assist in the carrying out of all the provisions of this Certificate of Designation and in
the taking of all such action as may be necessary or appropriate in order to protect against impairment of the rights described
herein to of the holders of the Series B Preferred Shares.
12.
Preemptive Rights. Holders of Series B Preferred Shares shall have no preemptive rights with respect to any future issuances
of securities by the Corporation.
13.
Loss, Theft, Destruction of Series B Preferred Shares. Upon receipt of evidence satisfactory to the Corporation of the
loss, theft, destruction or mutilation of certificates representing Series B Preferred Shares and, in the case of any such loss,
theft or destruction, upon receipt of indemnity or security reasonably satisfactory to the Corporation, or, in the case of any
such mutilation, upon surrender and cancellation of the Series B Preferred Shares, the Corporation shall make, issue and deliver,
in lieu of such lost, stolen, destroyed or mutilated certificates representing Series B Preferred Shares, new certificates representing
Series B Preferred Shares of like tenor.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate to be signed on its behalf, this Twentieth day of August, 2013.
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DYNARESOURCE, INC. |
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A DELAWARE
CORPORATION |
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By: ____________________________ |
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K.W. (“K.D.”) Diepholz |
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President |
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Exhibit
3.7
AMENDED
AND RESTATED
BYLAWS
OF
DYNARESOURCE,
INC.
*****
ARTICLE
I
OFFICES
Section 1.01. Registered
Office. The address of the registered office of DynaResource, Inc. (the “Corporation”) in the
State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808.
Section 1.02. Other
Offices. The Corporation may also have offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 1.03. Books. The
books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section 2.01. Time
and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the
State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman
in the absence of a designation by the Board of Directors).
Section 2.02. Annual
Meetings. An annual meeting of stockholders shall be held for the election of directors and to transact such other
business as may properly be brought before the meeting.
Section 2.03. Special
Meetings. A special meeting of stockholders may be called only by the Board of Directors acting pursuant to a
resolution adopted by a majority of the Whole Board (as defined below) or by the President of the Corporation and may not be called
by any other person.
Section 2.04. Conduct
at Meetings. The Chairman of the Board of Directors or the President of the Corporation shall act as chairman or co-chairman,
as applicable, of any meetings of stockholders. The Secretary or Assistant Secretary of the Corporation shall act as secretary
of the meeting. If neither the Secretary nor an Assistant Secretary is present, the chairman of the meeting shall appoint a secretary
of the meeting. The Board of Directors may adopt such rules and regulations for the conduct of the meeting of stockholders as
it shall deem appropriate. Unless otherwise determined by the Board of Directors prior to the meeting, the chairman of the meeting
shall determine the order of business and shall have the authority in his or her discretion to regulate the conduct of any such
meeting, including, without limitation, convening the meeting and adjourning the meeting (whether or not a quorum is present),
announcing the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote,
imposing restrictions on the persons (other than stockholders of record of the Corporation or their duly appointed proxies) who
may attend any such meeting, establishing procedures for the dismissal of business not properly presented, maintaining order at
the meeting and safety of those present, restricting entry to the meeting after the time fixed for commencement thereof and limiting
the circumstances in which any person may make a statement or ask questions at any meeting of stockholders.
Section 2.05. Notice
of Meetings and Adjourned Meetings; Waivers of Notice.
(a) Whenever
stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall
state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Unless otherwise provided by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (the “DGCL”), such notice shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
The Board of Directors or the chairman of the meeting may adjourn the meeting to another time or place (whether or not a quorum
is present), and notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and voting at such meeting, are announced
at the meeting at which such adjournment is made. At the adjourned meeting, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
(b)
A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. Unless
otherwise provided under the Corporation’s Certificate of Incorporation or these Bylaws and subject to the DGCL, the presence,
in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a
meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the chairman of the meeting or a majority in voting interest of the stockholders
present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business
may be transacted that might have been transacted at the meeting as originally notified.
Section 2.07. Voting.
(a) Unless
otherwise provided by the DGCL or the Certificate of Incorporation, each stockholder shall be entitled to one vote for each outstanding
share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the
Corporation shall have no voting rights. Except as otherwise provided by the DGCL, the Certificate of Incorporation or these Bylaws,
in all matters other than the election of directors, the affirmative vote of the majority of the shares of capital stock of the
Corporation present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders. Subject to the rights of the holders of any series of preferred stock to elect directors under specific circumstances,
the Class II directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present
in person or represented by proxy at the meeting and entitled to vote on the election of directors.
(b)
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing
without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any
means of electronic communication permitted by law, which results in a writing from such stockholder or by his attorney, and delivered
to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides
for a longer period.
(c)
In determining the number of votes cast for or against a proposal or nominee, shares abstaining from voting on a matter and votes
by a broker that have not been directed by the beneficial owner will be counted for purposes of determining a quorum but not for
purposes of determining the number of votes cast.
Section 2.08. Permitted
Actions by Written Consent. Unless otherwise provided in the Certificate of Incorporation, an action to be taken at any annual
or special meeting of stockholders may not be taken without a meeting, without prior notice or without a vote.
Section 2.09. Organization. At
each meeting of stockholders, the Chairman of the Board of Directors, if one shall have been elected, or in the Chairman’s
absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at
such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the
person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep
the minutes thereof.
Section 2.10. Order
of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the
meeting.
Section 2.11. Voting
Lists. The officer or agent having charge of the transfer book for stock of the Corporation shall make, at least ten (10) days
before such meeting, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order, with
the address of and the number of shares of stock held by each, available for inspection by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at the
Corporation’s principal executive offices or at the place where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the entire meeting, and may be inspected by any stockholder who is present
at the meeting. The original stock transfer books (or any duplicates thereof maintained by the Corporation) shall be the only
evidence of the identity of the stockholders entitled to examine such list or transfer books or to vote at any meeting of stockholders.
Section 2.12. Advance
Notice of Stockholder Nominations and Proposals.
(a) Timely
Notice. At an annual meeting of the stockholders, only such nominations of persons for the election to the Board of Directors
shall be considered and such other business shall be conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, nominations or such other business must be: (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the
meeting by or at the direction of the Board of Directors or (iii) otherwise properly brought before an annual meeting by
a stockholder (A) who is a stockholder of record of the Corporation (and, with respect to any beneficial owner, if different,
on whose behalf such business is proposed or such nomination or nominations are made, only if such beneficial owner is the beneficial
owner of shares of the Corporation) both at the time such notice of meeting is delivered and on the record date for the determination
of stockholders entitled to vote at the annual meeting of stockholders, (B) who is entitled to vote at the meeting and (C) who
complies with the notice procedures set forth in this Section 2.12. In addition, any proposal of business (other
than the nomination of persons for election to the Board of Directors) must be a proper matter for stockholder action. For nominations
or other business to be properly brought before an annual meeting by a stockholder, the stockholder or stockholders of record
intending to propose the business (the “Proposing Stockholder”) must have given timely notice thereof pursuant
to this Section 2.12(a) or Section 2.12(c) below, as applicable, in writing to the
Secretary of the Corporation. To be timely, a Proposing Stockholder’s notice must be delivered to or mailed and received
at the principal executive offices of the Corporation: (x) not later than the close of business on the ninetieth (90th) day,
nor earlier than the close of business on the one hundred and twentieth (120th) day in advance of the anniversary
of the previous year’s annual meeting if such meeting is to be held on a day which is not more than thirty (30) days
in advance of the anniversary of the previous year’s annual meeting or not later than seventy (70) days after the anniversary
of the previous year’s annual meeting; and (y) with respect to any other annual meeting of stockholders, not later
than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the close
of business on the tenth (10th) day following the date of Public Disclosure of the date of such meeting. In no
event shall an adjournment, deferral or postponement of an annual meeting or Public Disclosure thereof commence a new notice time
period (or extend any notice time period) for the giving of a stockholder’s notice as described above. For purposes of this Section 2.12(a),
“Public Disclosure” shall mean a disclosure made in a press release reported by the Dow Jones News Services,
The Associated Press or a comparable national news service or in a document filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations promulgated thereunder.
(b) Stockholder
Nominations. For the nomination of any person or persons for election to the Board of Directors, a Proposing Stockholder’s
notice to the Secretary of the Corporation shall set forth such information concerning each such nominee as would be required
to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a director in an election contest
(even if an election contest is not involved) or that is otherwise required to be disclosed, under Section 14(a) of the Exchange
Act. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine
the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a
reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(c) Other
Stockholder Proposals. For all business other than director nominations, a Proposing Stockholder’s notice to the Secretary
of the Corporation shall set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting: (i) a
brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) any other information relating to such stockholder and beneficial owner, if any, on whose behalf
the proposal is being made, required to be disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the
rules and regulations promulgated thereunder and (iii) the information required by Section 2.12(b) above.
(d) Proxy
Rules. Notwithstanding the foregoing provisions of this Section 2.12, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth
in this Section 2.12. Nothing in this section shall be deemed to (i) affect any rights of stockholders to request
inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor
rule thereto), (ii) confer upon any stockholder a right to have a nominee or any proposed business included in the Corporation’s
proxy statement, or (iii) affect any rights of the holders of any series of preferred stock to elect directors pursuant to
any applicable provisions of the Certificate of Incorporation.
(e) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as is a proper matter
for stockholder action under the DGCL and as shall have been brought before the meeting pursuant to the Corporation’s notice
of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the
Board of Directors or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting,
by any stockholder of the Corporation who (A) is a stockholder of record of the Corporation (and, with respect to any beneficial
owner, if different, on whose behalf such nomination or nominations are made, only if such beneficial owner is the beneficial
owner of shares of the Corporation) both at the time the notice provided for in this Section 2.12 is delivered
to the Secretary of the Corporation and upon the record date for the determination of stockholders entitled to vote at the meeting,
(B) who is entitled to vote at the meeting and upon such election and (C) who complies with the notice procedures set
forth in this Section 2.12. In the event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors
may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s
notice of meeting, if the stockholder’s notice required by this Section 2.12 shall be delivered to
the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day
prior to such special meeting and not earlier than the close of business on the later of the one hundred and twentieth (120th) day
prior to such special meeting or the tenth (10th) day following the date of Public Disclosure of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the Public Disclosure
of an adjournment or postponement of a special meeting commence a new time period (or extend any notice time period) for the giving
of a stockholder’s notice as described above.
(f) Effect
of Noncompliance. Notwithstanding anything in these Bylaws to the contrary: (i) no nominations shall be made or business
shall be conducted at any annual or special meeting except in accordance with the procedures set forth in this Section 2.12,
and (ii) unless otherwise required by law, if a Proposing Stockholder intending to propose business or make nominations at
an annual or special meeting pursuant to this Section 2.12 does not provide the information required under this Section 2.12 to
the Corporation promptly following the later of the record date or the date notice of the record date is first publicly disclosed,
or the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present
the proposed business or nominations, such business or nominations shall not be considered, notwithstanding that proxies in respect
of such business or nominations may have been received by the Corporation. The requirements of this Section 2.12 shall
apply to any business or nominations to be brought before an annual or special meeting by a stockholder whether such business
or nominations are to be included in the Corporation’s proxy statement pursuant to Rule 14a-8 of the Exchange Act or presented
to stockholders by means of an independently financed proxy solicitation. The requirements of the Section 2.12 are
included to provide the Corporation notice of a stockholder’s intention to bring business or nominations before an annual
or special meeting and shall in no event be construed as imposing upon any stockholder the requirement to seek approval from the
Corporation as a condition precedent to bringing any such business or make such nominations before an annual meeting.
ARTICLE
III
DIRECTORS
Section 3.01. General
Powers. Except as otherwise provided by the DGCL or the Certificate of Incorporation, the business and affairs
of the Corporation shall be managed by or under the direction of the Board of Directors.
Section 3.02. Number,
Election and Term of Office. As set forth in Article V of the Certificate of Incorporation, as amended to date,
the Board of Directors shall be divided into two classes of directors, Class I Directors and Class II Directors, all of whom shall
be eligible for election at each annual meeting of the stockholders. The Board of Directors shall have the right to fix the number
of directors from time to time; provided that the number of Class I Directors shall always be equal to the number of Class II
Directors plus one. 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. Subject to the rights of the holders of any series of preferred stock
to elect directors under specific circumstances, the Class II 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. Each director shall hold office until such director’s
successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. Directors
need not be stockholders.
Section 3.03. Quorum
and Manner of Acting. Unless the Certificate of Incorporation or these Bylaws require a greater number, a majority
of the Whole Board shall constitute a quorum for the transaction of business at any meeting of the Board of Directors and, except
as otherwise expressly required by the DGCL, the Certificate of Incorporation or these Bylaws, the act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board of Directors. For purposes of these Bylaws, the
term “Whole Board” shall mean the total number of directors currently serving, without taking into effect any
vacancies. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given
of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting.
If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat shall adjourn the meeting,
from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.04. Time
and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without
the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the
absence of a determination by the Board of Directors).
Section 3.05. Annual
Meeting. The Board of Directors shall meet for the election of officers and the transaction of other business,
as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of
the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time
as shall be specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver
of notice thereof signed by any director who chooses to waive the requirement of notice.
Section 3.06. Regular
Meetings. Regular meetings of the Board of Directors may be held without notice being given at such time and at
such place as shall from time to time be determined by resolution of the Board of Directors.
Section 3.07. Special
Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or
by the President and shall be called by the Chairman of the Board of Directors or by the President on the written request of a
majority of the Whole Board. Notice of special meetings of the Board of Directors shall be given to each director at least twenty-four
(24) hours before the date of the meeting in such manner as is determined by the Board of Directors.
Section 3.08. Committees. The
Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present
at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal
of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in
reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter
expressly required by the DGCL to be submitted to the stockholders for approval or (b) adopting, amending or repealing the
Bylaws of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 3.09. Committee
Rules. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided
by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. Unless
otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary
to constitute a quorum. In the event that a member is absent or disqualified, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any such absent or disqualified member.
Section 3.10. Action
by Consent. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission,
and the writings or electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee.
Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes
are maintained in electronic form.
Section 3.11. Telephonic
Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board
of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or
such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the
meeting.
Section 3.12. Resignation. Any
director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors, the Chairman
of the Board of Directors, the Chief Executive Officer, the President or the Secretary of the Corporation. The resignation of
any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice, and
unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.13. Vacancies. Subject
to the Certificate of Incorporation, vacancies on the Board of Directors resulting from death, resignation, removal or otherwise
shall be filled as follows: (i) vacancies in a Class I directorship shall be filled by the vote of the holders of the issued and
outstanding shares of Series A Preferred Stock, voting together as a single class; and (ii) subject to the rights of the holders
of any series of preferred stock to elect directors under specific circumstances, vacancies in a Class II directorship shall be
filled by a majority of the directors then in office (although less than a quorum) or by the sole remaining director, and each
director so elected shall hold office for a term that shall coincide with the term of the Class to which such director shall have
been elected. Newly created directorships resulting from any increase in the number of directors shall be filled in a manner consistent
with the Certificate of Incorporation, with regard to the rights of the holders of the issued and outstanding shares of Series
A Preferred Stock and the rights of the holders of any series of preferred stock to elect directors under specific circumstances.
Section 3.14. Removal. No
director may be removed from office by the stockholders except for cause with the affirmative vote of the holders of not less
than a majority of the total voting power of all outstanding securities of the Corporation then entitled to vote generally in
the election of directors, voting together as a single class.
Section 3.15. Compensation. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have authority to fix the
compensation of directors, including fees and reimbursement of expenses.
Section 3.16. Preferred
Stock Directors. Notwithstanding anything else contained herein, whenever the holders of one or more classes or
series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term
of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of the resolutions
applicable thereto adopted by the Board of Directors pursuant to the Certificate of Incorporation, and such directors so elected
shall not be subject to the provisions of Section 3.14 of this Article III unless otherwise provided
in such resolutions.
ARTICLE
IV
OFFICERS
Section 4.01. Principal
Officers. The principal officers of the Corporation shall be a Chief Executive Officer, a President, a Chief Financial
Officer, one or more Vice Presidents, a Treasurer and a Secretary who shall have the duty, among other things, to record the proceedings
of the meetings of stockholders and directors in a book kept for that purpose. The Board of Directors may, by resolution, designate
the Chairman of the Board of Directors of the Corporation as a principal officer. The Corporation may also have such other principal
officers, including one or more Controllers, as the Board of Directors may in its discretion appoint. One person may hold the
offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform
the duties of President and Secretary.
(a) Chief
Executive Officer. The Chief Executive Officer of the Corporation (the “Chief Executive Officer”) shall
perform such duties as may be assigned to him from time to time by the Board of Directors. Subject to the direction of the Board
of Directors, he shall have, and exercise, direct charge of, and general supervision over, the business and affairs of the Corporation
and shall be its chief policy making officer. He shall from time to time report to the Board of Directors all matters within his
knowledge that the interests of the Corporation may require to be brought to its notice, and shall also have such other powers
and perform such other duties as may be specifically assigned to him from time to time by the Board of Directors. The Chief Executive
Officer shall see that all resolutions and orders of the Board of Directors are carried into effect, and in connection with the
foregoing, shall be authorized to delegate to a Vice President and the other officers such of his powers and such of his duties
as the Board of Directors may deem to be advisable. The Chief Executive Officer shall possess the power to sign all contracts,
certificates and other instruments of the Corporation as the Board of Directors from time to time may prescribe.
(b) President.
The President of the Corporation (the “President”) shall perform such duties as may be assigned to him from
time to time by the Board of Directors. Subject to the direction of the Board of Directors, he shall perform all duties incident
to the office of a president in a corporation organized under the DGCL. The President shall see that all resolutions and orders
of the Board of Directors are carried into effect, and in connection with the foregoing, shall be authorized to delegate to a
Vice President and the other officers such of his powers and such of his duties as the Board of Directors may deem to be advisable.
The President may execute and deliver certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts or other
instruments that the Board of Directors has authorized to be executed and delivered, except in cases where the execution and delivery
thereof shall be expressly delegated solely to another officer or delivery thereof shall be otherwise required by law to be executed
and delivered by another person.
(c)
Treasurer. The Treasurer of the Corporation (the “Treasurer”) shall have the custody of the Corporation’s
funds and securities and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation,
in such depositories as may be designated by the Board of Directors or by any officer authorized by the Board of Directors to
make such designation. The Treasurer shall exercise such powers and perform such duties as generally pertain or are necessarily
incident to his office and shall perform such other duties as may be specifically assigned to him from time to time by the Board
of Directors, the Chief Executive Officer, the President or any Vice President. The Treasurer may sign and execute in the name
of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors and may execute
and deliver such documents, certificates and such other instruments that the Board of Directors has authorized to be executed
and delivered, except in cases where the execution and delivery thereof shall be expressly delegated to another officer or as
otherwise required by law to be executed and delivered by another person.
(d) Vice
Presidents. The Vice President of the Corporation (a “Vice President”), or if there be more than one, the
Vice Presidents, shall perform such duties as may be assigned to them from time to time by the Board of Directors or as may be
designated by the Chief Executive Officer or the President. In case of the absence or disability of the President, the duties
of the office shall, if the Board of Directors or the President has so authorized, be performed by the Vice President, or if there
be more than one Vice President, by such Vice President as the Board of Directors shall designate. Certain Vice Presidents may
from time to time be designated by the Board of Directors or the Chief Executive Officer or the President as Executive Vice Presidents
or Senior Vice Presidents, which positions shall have such varying degrees of authority as the Board of Directors, the Chief Executive
Officer or the President shall prescribe.
(e) Chief
Financial Officer. The Chief Financial Officer of the Corporation (the “Chief Financial Officer”) shall
keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Chief Financial Officer
shall exercise such powers and perform such duties as generally pertain or are necessarily incident to his office and shall perform
such other duties as may be specifically assigned to him from time to time by the Board of Directors, the Chief Executive Officer,
the President, the Treasurer or any Vice President. The Chief Financial Officer may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors and may execute and deliver such
documents, certificates and such other instruments that the Board of Directors has authorized to be executed and delivered, except
in cases where the execution and delivery thereof shall be expressly delegated to another officer or as otherwise required by
law to be executed and delivered by another person.
(f) Secretary.
The Secretary of the Corporation (the “Secretary”) shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose and
shall perform like duties for any committee when required. He shall give, or cause to be given, notice of all meetings of stockholders
and, when necessary, special meetings of the Board of Directors. The Secretary shall exercise such powers and perform such duties
as generally pertain or are necessarily incident to his office, and he shall perform such other duties as may be assigned to him
from time to time by the Board of Directors, the President or by any Vice President. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if
there be no Assistant Secretary, then either the Board of Directors or the Chairman of the Board of Directors may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or
an Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors
may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.
Section 4.02. Appointment,
Term of Office and Remuneration. The principal officers of the Corporation shall be appointed annually by the
Board of Directors at the annual meeting thereof. Each such officer shall hold office until his successor is appointed, or until
his earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of
Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.
Section 4.03. Subordinate
Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation
may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers,
agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board
of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint
and to remove any such subordinate officers, agents or employees or delegate the powers or duties of any officer to any other
officer or agent, notwithstanding any provision hereof.
Section 4.04. Removal. Any
officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors or by other principal
officers upon whom such power of removal may have been conferred by the Board of Directors.
Section 4.05. Resignations. Any
officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors
has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall
take effect upon receipt of notice thereof or at such later time as shall be specified in such notice, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.06. Powers
and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of
their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of
Directors.
Section 4.07. Compensation.
Compensation of all executive officers shall be approved by the Board of Directors, and no officer shall be prevented from receiving
such compensation by virtue of his or her also being a director of the Corporation; provided, that compensation of some
or all executive officers may be determined by a committee established for that purpose if so authorized by the Board of Directors
or as required by applicable law or any applicable rule or regulation, including any rule or regulation of any stock exchange
upon which the Corporation’s securities are then listed for trading.
ARTICLE
V
CAPITAL
STOCK
Section 5.01. Certificates
For Stock; Uncertificated Shares. The shares of the Corporation shall be represented by certificates; provided,
that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes
or series of its stock may be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Except as otherwise provided by law, the rights and obligations of the
holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same
class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate
signed by, or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the Chief Executive
Officer, President or Vice President, and by the Chief Financial Officer, Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of such Corporation representing the number of shares registered in certificate form. Any or all of
the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.
Section 5.02. Transfer
of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation
by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed
or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s
duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless
waived by the Corporation.
Section 5.03. Authority
for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all
such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated
shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may be lost or
destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and
in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the registrars of its
stock against any claims arising in connection therewith.
Section 5.04. Lost,
Stolen or Destroyed Stock Certificates. The Corporation may issue a new stock certificate in the place of any certificate
previously issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or such owner’s legal representative, to agree to indemnify the Corporation and/or to give
the Corporation a bond sufficient to indemnify it, against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new certificate.
Section 5.05 Consideration
for Shares. Subject to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration,
having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from
time to time by the Board of Directors. The consideration may consist of any tangible or intangible property or benefit to the
Corporation including, but not limited to, cash, promissory notes, services performed, contracts for services to be performed
or other securities. Shares may not be issued until the full amount of the consideration has been paid, unless upon the face or
back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation
in the case of partly paid uncertificated shares, there will have been set forth the total amount of the consideration to be paid
therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated
shares are issued.
ARTICLE
VI
INDEMNIFICATION
OF OFFICERS, DIRECTORS AND OTHERS
Section 6.01. General.
The Corporation shall, to the fullest extent permitted by law, indemnify and hold harmless any person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason
of the fact that he is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation,
partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to an employee
benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director or officer in any other
capacity while serving as a director or officer, against all expenses, liability and loss (including attorneys’ fees and
related disbursements, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974,
as amended from time to time (“ERISA”), and any other penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal
action or proceeding, have reasonable cause to believe that the person’s conduct was unlawful.
Section 6.02. Actions
by or in the Right of the Corporation. The Corporation shall, to the fullest extent permitted by law, indemnify and hold harmless
any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether
the basis of such proceeding is alleged action in an official capacity as a director or officer in any other capacity while serving
as a director or officer, against all expenses, liability and loss (including attorneys’ fees and related disbursements,
judgments, fines, excise taxes or penalties under ERISA, and any other penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation
and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State Delaware or the
court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery of the State Delaware or such other court shall deem proper.
Section 6.03. Indemnification
Against Expenses. To the extent that a present or former director or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in Sections 6.01 and 6.02
hereof, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 6.04. Board
Determinations. Any indemnification under Sections 6.01 and 6.02 hereof (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable
standard of conduct set forth in Sections 6.01 and 6.02 hereof. Such determination shall be
made with respect to a person who is a director or officer at the time of such determination: (a) by a majority vote of the
directors who were not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of
such directors designated by majority vote of such directors, even though less than a quorum; (c) if there are no such disinterested
directors, by independent counsel in a written opinion to the Board; or (d) by the stockholders.
Section 6.05. Advancement
of Expenses. Expenses (including attorneys’ fees) incurred by an officer or director of the Corporation in defending
any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer
to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation
as authorized by law or in this Section. Such expenses (including attorneys’ fees) incurred by former directors and officers
or other employees and agents of the Corporation or persons serving at the request of the Corporation as directors, officers,
employees or agents of another corporation, partnership, limited liability company, joint venture, trust or other enterprise may
be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
Section 6.06. Nonexclusive.
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of
Incorporation, these Bylaws, or under any agreement, vote of stockholders or disinterested directors or otherwise, both as to
action in such person’s official capacity and as to action in another capacity while holding office, and shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent of the
Corporation and shall inure to the benefit of the heirs, executors and administrators of such person.
Section 6.07. Insurance.
The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the Corporation as director, officer, employee or
agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, against any expense, liability or loss asserted against such person and incurred by
such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions of the DGCL, the Certificate of Incorporation or
this Article VI.
Section 6.08. Other
Indemnification. The Corporation may, by action of the Board of Directors, provide indemnification to employees and agents
of the Corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers.
Section 6.09. Certain
Definitions. For purposes of this Article VI, (a) references to “the Corporation” shall include, in addition
to the Corporation and its subsidiaries, any constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under the provisions
of this Article VI with respect to the resulting or surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued; (b) references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation”
shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to any employee benefit plan, its participants, or beneficiaries; and
(d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the Corporation.”
Section 6.10. Change
in Governing Law. In the event of any amendment or addition to Section 145 of the DGCL or the addition of any other section
to such law which shall limit indemnification rights thereunder, the Corporation shall, to the fullest extent permitted by the
DGCL, indemnify and hold harmless to the fullest extent authorized or permitted hereunder, any person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation), by reason
of the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, against
all expenses, liability and loss (including attorneys’ fees and related disbursements, judgments, fines, excise taxes or
penalties under ERISA, and any other penalties and amounts paid or to be paid in settlement) actually and reasonably incurred
by him in connection with such action, suit or proceeding.
Section 6.11. Repeal
or Modification of Indemnification. All rights to indemnification and to the advancement of expenses under this Article VI
shall be deemed to be a contract between the Corporation and each director, officer, employee, fiduciary or agent who serves or
served in such capacity at any time while this Article VI is in effect. Any repeal or modification of this Article VI or any repeal
or modification of relevant provisions of the DGCL or any other applicable laws shall not in any way diminish any rights to indemnification
and advancement of expenses of such indemnitee or the obligations of the Corporation arising hereunder with respect to any proceeding
arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such repeal or modification.
ARTICLE
VII
GENERAL
PROVISIONS
Section 7.01. Fixing
the Record Date.
(a) In
order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the
resolution fixing such record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting; provided, that the Board of Directors may
in its discretion or as required by law fix a new record date for the adjourned meeting.
(b)
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than
sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
(c)
In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting,
the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request the
Board of Directors to fix a record date. The Board of Directors shall promptly, but in all events within ten (10) days after
the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten (10) days of the date upon which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors
is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place
of business, or any officer or agent of the Corporation having custody of the book in which proceedings of stockholders’
meeting are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors
is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the Board of Directors adopts the resolution taking such
prior action.
Section 7.02. Dividends. Subject
to limitations contained in the DGCL and the Certificate of Incorporation, the Board of Directors may declare and pay dividends
upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the
capital stock of the Corporation.
Section 7.03. Year. Except
as otherwise determined by the Board of Directors, the fiscal year of the Corporation shall commence on January 1 and end
on December 31 of each year.
Section 7.04. Corporate
Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization
and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed,
affixed or otherwise reproduced.
Section 7.05. Voting
of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation,
to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in
which the Corporation may hold stock.
Section 7.06. Amendments. These
Bylaws or any of them may be altered, amended or repealed, or new Bylaws may be made, by the stockholders entitled to vote thereon
at any annual or special meeting thereof or by the Board of Directors. Unless a higher percentage is required by the Certificate
of Incorporation as to any matter that is the subject of these Bylaws, all such amendments must be approved by the affirmative
vote of the holders of not less than a majority of the total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a single class, or by a majority of the Whole Board.
Section 7.07. Headings.
Section or paragraph headings are inserted herein only for convenience of reference and shall not be considered in the construction
of any provision hereof.
Exhibit
4.1
PROMISSORY
NOTE
Series
I
Borrower: |
|
DynaResource, Inc. |
|
|
|
222 W. Los Colinas Blvd. |
|
|
|
Suite 744 East Tower |
|
|
|
Irving, Texas 75039 |
|
PRINCIPAL AMOUNT: |
$ |
|
|
|
|
|
|
|
|
|
|
DATE of the NOTE: |
|
MARCH, 2013 |
|
PROMISE
TO PAY. DynaResource, Inc. , office address in Irving Texas as set forth above (“Borrower”) hereby
promises to pay to (“LENDER”) in lawful money of the United States of America, the principal amount of
________________________ ($_____________), together with interest at the rate of 12.5% per annum on the unpaid principal balance
from the date of the note until maturity.
The
loan will accrue interest for the first twelve (12) months with the accrued interest added to principal. After the first 12 months,
Interest will be paid Quarterly in arrears, with the first payment due in Month Sixteen (16) and continuing until maturity unless
redeemed earlier.
PAYMENT. Borrower
will pay interest only, quarterly in arrears starting in month Sixteen and continuing until the note is paid in full. The annual
interest rate for this Note is computed on a simple interest basis at 12.5% per annum. Borrower will pay Lender at Lender’s
address as shown on this loan document, or at such other place as Lender may designate in writing.
ADDITIONAL
PAYMENT. Borrower will pay additional amounts to Lender equal to ten percent (10%) of the net profits generated from
the pilot plant operations on the first fifty thousand tons processed through the pilot plant. Such 10 % of net profits will be
calculated after deducting all expenses related to the production and after prior deduction of thirty- three percent (33%) from
the net profits, to be deposited into a sinking fund cash reserve. The additional payment is projected to be paid quarterly.
PREPAYMENT. Borrower
may Pre-Pay the Note and any unpaid Accrued Interest, by giving thirty (30) day notice to Lender, and with paying a ten percent
(10%) penalty fee on the unpaid principal amount owed hereunder. All prepayments shall be applied to the indebtedness in such
order and manner as Lender may from time to time determine in its sole discretion. Borrower agrees not to send Lender payments
marked “paid in full”, “without recourse”, or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender’s rights under this Note, and Borrower will remain obligated to pay any further
amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument
that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions
or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: DynaResource, Inc., 222 W. Las Colinas
Blvd, Suite 744 East Tower, Irving, Texas 75039.
Upon
receiving thirty day notice of intent to pre pay by Borrower, Lender may convert principal and any accrued interest on the terms
listed in the section titled “CONVERTIBILITY”.
CONVERTIBILITY. The
Lender may, at any time prior to maturity or prepayment, Convert any unpaid principal and accrued interest into common stock of
DynaResource, Inc. at the conversion price of $5.00 per share. Additionally, on conversion, lender would receive a Warrant exercisable
into the Company’s common stock at $7.50, such warrant expiring on December 31, 2015.
POST
MATURITY RATE. Upon the occurrence of any Event of Default, or if this Note is not paid at final maturity, Lender,
at Lender’s option, may add any unpaid accrued interest to the principal and such sum will bear interest therefrom until
paid, at the Post Maturity Rate provided in this Note. The Post Maturity Rate on this Note is 12.5% per annum. Borrower will pay
interest on all sums due after final maturity, whether by acceleration or otherwise, at that rate. Borrower also will pay interest
at the Post Maturity Rate on the principal amount of each past due installment from the due date until paid.
DEFAULT.
Each of the following shall constitute an event of default (“Event of Default”) under this Note.
Payment
Default. Borrower
fails to make any payment when due under this Note.
Other
Defaults. Borrower
fails to comply with or to pay or perform any other term, obligation, covenant or condition contained in this note or to comply
with or to pay or perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower.
Transfer
of Assets. Borrower leases, sells, or otherwise
conveys, or agrees to lease, sell, or otherwise convey, a material part of its assets or business outside of the ordinary course
of business.
False
Statements. Any warranty, representation
or statement made or furnished to Lender by Borrower or on Borrower’s behalf under this Note is false or misleading in any
material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.
Judgments
or Decrees. One or more judgments or decrees shall be entered against the Borrower and such judgments or
decree shall not have been vacated, discharged, stayed or bonded pending appeal.
Failure
to Comply with Laws. Borrower fails to comply with all applicable statues, laws, ordinances and governmental
rules, regulations and orders to which it is subject or which are applicable to its business, property and assets.
LENDER’S
RIGHTS. Upon the occurrence of any Event of Default, Lender may declare the entire unpaid principal balance on this
Note and the Indebtedness and all accrued unpaid interest immediately due, without notice, and then Borrower will pay that amount.
Borrower shall be liable for any deficiency remaining after disposition of any collateral which Lender may choose to realize upon.
ATTORNEYS’
FEES: EXPENSES. Lender may hire an attorney to help collect this Note if Borrower does not pay, and Borrower will
pay Lender’s reasonable attorneys’ fees. Borrower also will pay Lender all other amounts Lender actually incurs as
court costs, lawful fees for filing, recording, releasing to any public office any instrument securing this Note; the reasonable
cost actually expended for repossessing, storing, preparing for sale, and selling any security; and fees for noting a lien on
or transferring a certificate of title to any motor vehicle offered as security for this Note, or premiums or identifiable charges
received in connection with the sale of authorized insurance.
GOVERNING
LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the
State of Texas. This Note has been accepted by Lender in the State of Texas.
CHOICE
OF VENUE. If there is a lawsuit, Borrower and Lender agree to submit to the jurisdiction of the courts of Dallas County,
State of Texas.
DISHONORED
CHECK CHARGE. Borrower will pay a processing fee of $25.00 if any check given by Borrower to Lender as a payment on
this loan is dishonored.
COLLATERAL.
Borrower acknowledges this Note is secured by the full faith and credit of DynaResource, Inc. and common stock of
DynaResource, Inc. at the conversion rate of $5.00 per share.
ENFORCEABILITY
AND ORGANIZATION. Borrower is duly authorized to transact business in all states in which Borrower is doing business,
having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business.
Borrower’s execution, delivery and performance of this Note have been duly authorized by all necessary Corporate officers
and Directors of Borrower. This Note constitutes a legal, valid and binding obligation of Borrower enforceable against Borrower
in accordance with their respective terms. If applicable, Borrower is an entity which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the state of its organization.
INFORMATION
WAIVER. Lender may provide, without any limitation whatsoever, to any one or more purchasers, potential purchasers,
or affiliates, any information or knowledge Lender may have about the undersigned or about any matter relating to this document
and the undersigned hereby waives any right to privacy the undersigned may have with respect to such matters.
INDEBTEDNESS.
The word “indebtedness” means all principal, interest, and other amounts, costs and expenses payable under
the Note, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note.
PURPOSE.
Borrower agrees that no advances under this Note shall be used for personal, family or household purposes and that
all advances hereunder shall be used solely for business, commercial, agricultural or other similar purposes.
ARBITRATION.
Undersigned and Lender agree that all disputes, claims and controversies between them whether individual, joint, or
class in nature, arising from this document or otherwise, including without limitation contract and tort disputes, shall be arbitrated
pursuant to the Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either
party. No act to take or dispose of any Collateral securing this document shall constitute a waiver of this arbitration agreement
or be prohibited by this arbitration agreement. This includes, without limitation, obtaining injunctive relief or a temporary
restraining order; invoking a power of sale under any deed of trust or mortgage; obtaining a writ of attachment or imposition
of a receiver; or exercising any rights relating to personal property, including taking or disposing of such property with or
without judicial process pursuant to applicable law. Any disputes, claims, or controversies concerning the lawfulness or reasonableness
of any act, or exercise of any right, concerning any Collateral or Property securing this document, including any claim to rescind,
reform, or otherwise modify any agreement relating to the Collateral or Property securing this document, shall also be arbitrated,
provided however that no arbitrator shall have the right or the power to enjoin or restrain any act of any party. Judgment upon
any award rendered by any arbitrator may be entered in any court having jurisdiction. Nothing in this document shall preclude
any party from seeking equitable relief from a court of competent jurisdiction. The statue of limitations, estoppel, waiver, laches,
and similar doctrines which would otherwise be applicable in an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of arbitration shall be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.
JURY
WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR
AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, OR ANY RELATIONSHIP BETWEEN OR AMONG THE
UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT.
BORROWER
CERTIFICATIONS. By execution of this Note Borrower hereby certifies to Lender that as of the date hereof:
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there has been no adverse change in Borrower’s financial condition, organization,
operations or fixed assets since the date the Loan application for the indebtedness for
this Note was signed; and |
| (2) | Borrower
is/are current on all federal, state, and local taxes, including but not limited to income
taxes, payroll taxes, real estate taxes, and sales taxes. |
GENERAL
PROVISIONS.
NOTICE: Under
no circumstances (and notwithstanding any other provisions of this Note shall the interest charged, collected, or contracted for
on this Note exceed the maximum rate permitted by law. The term “maximum rate permitted by law” as used in this Note
means the greater of (a) the maximum rate of interest permitted under federal or other law applicable to the indebtedness evidenced
by this Note, or (b) the higher, as of the date of this Note, of the “Weekly Ceiling” or the “Quarterly Ceiling”
as referred to in Sections 303.201 and 303.202 of the Texas Finance Code and Articles 1D.002, 1D.003 and 1D.006 of the Texas Credit
Title respectively. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Borrower does
not agree or intend to pay, and Lender does not agree or intend to contract for, charge, collect, take, reserve or receive (collectively
referred to herein as “charge or collect”), any amount in the nature of interest or in the nature of a fee for this
loan, which would in any way or event (including demand, prepayment, or acceleration) cause Lender to charge or collect more for
this loan than the maximum Lender would be permitted charge or collect by federal law or the law of the State of Texas (as applicable).
Any such excess interest or unauthorized fee shall, instead of anything stated to the contrary, be applied first to reduce the
principal balance of this loan, and when the principal has been paid in full, be refunded to Borrower. The right to accelerate
maturity of sums due under this Note does not include the right to accelerate any interest which has note otherwise accrued on
the date of such acceleration, and Lender does not intend to charge or collect any unearned interest in the event of acceleration.
All sums paid or agreed to be paid to Lender for the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of the loan evidenced by this
Note until payment in full so that the rate or amount of interest on account of the loan evidenced hereby does not exceed the
applicable usury ceiling. If any part of this Note cannot be enforced, this fact will not affect the rest of this Note. It is
agreed that any payment which would otherwise for any reason be deemed unlawful interest under applicable law shall be deemed
to have been applied to the unpaid principal balance of this Note, or to other indebtedness. The unpaid balance owing on this
Note at any time may be evidenced by endorsements on this Note or by Lender’s internal records, including daily computer
print-outs. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment,
notice of dishonor, notice of intent to accelerate the maturity of this Note, and notice of acceleration of the maturity of this
Note. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note,
whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. Unless specifically permitted
otherwise by the terms and conditions of this Note, no alteration of or amendment to this Note shall be effective unless given
in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Borrower agrees and
consents to Lender’s sale or transfer, whether now or later, of this Note, or the sale or transfer of any participation
interest in this Note or to one or more purchasers, whether related or unrelated to the Lender. Borrower waives any and all notices
of sale of this Note, the sale or transfer of any participation interests, as well as any notices of any repurchases of this Note,
the , or of any participation interests. The obligations under this Note are joint and several.
PRIOR
TO SIGNING THIS NOTE, BORROWER AND LENDER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF
THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
Signatures
on Page Following:
SIGNATURES:
BORROWER:
DynaResource,
Inc.
By: |
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CHARLES SMITH; CFO |
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K.D. DIEPHOLZ; Chairman / CEO. |
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LENDER:
Exhibit
4.2
[DynaResource,
Inc. Letterhead]
JUNE
20, 2013
TO:
DynaResource, Inc. Promissory Note holder
RE:
Revision to Promissory Note; Your acknowledgement
Dear Note
holder:
During
the most recent review conducted by the Auditing Firm, The Hall Group, CPA’s a question was raised by a reviewer regarding
the language used in the Promissory Note. The language in question is contained in Section of the Note Titled “Additional
Payment”; which Section is copied and pasted here below:
ADDITIONAL
PAYMENT. Borrower will pay additional amounts to Lender equal to ten percent (10%) of the net profits generated
from the pilot plant operations on the first fifty thousand tons processed through the pilot plant. Such net profits will be calculated
after deducting all expenses related to the production and after deducting thirty three percent (33%) from the net profits, to
be deposited into a sinking fund.
One
interpretation of this language as described by the reviewed was that each and every note holder would receive ten percent of
the net profits after certain deductions. Obviously, this interpretation is illogical, and simple reason would not support the
view. However, the reviewed has requested that the Company obtain the Written Consent of Each Note Holder to a simple revision
of this Section of the Note.
The revised
language for this Section of the Note is proposed below:
ADDITIONAL
PAYMENT (Revised). Borrower will pay additional amounts to Lender (referring to All Promissory Note Holders as
a Group), so that each Lender shall receive their portion in accordance with their percentage of the total from all Lenders),
such additional payment equal to ten percent (10%) of the net profits generated from the pilot plant operations on the first fifty
thousand tons processed through the pilot plant. Such net profits will be calculated after deducting all expenses related to the
production and after deducting thirty three percent (33%) from the net profits, to be deposited into a sinking fund.
Your
written acknowledgement below will confirm your agreement with the Language of Section “Additional Payment (Revised)”
as set forth above.
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Name |
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Address |
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City, State & Zip Code |
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PROMISSORY NOTE AMOUNT |
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Exhibit 4.3
PROMISSORY
NOTE
Series
II
Borrower: |
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DynaResource, Inc. |
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222 W. Los Colinas Blvd. |
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Suite 744 East Tower |
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Irving, Texas 75039 |
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PRINCIPAL AMOUNT: |
$ |
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DATE of the NOTE: |
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SEPTEMBER (1ST),
2013 |
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PROMISE
TO PAY. DynaResource, Inc. , office address in Irving Texas as set forth above (“Borrower”) hereby
promises to pay to (“LENDER”) in lawful money of the United States of America, the principal amount of
($_____________), together with interest at the rate of 12.5% per annum on the unpaid principal balance from the date
of the note until maturity. The loan will accrue interest for twelve months with the accrued interest added to principal. After
the First Year, Interest will be paid quarterly in arrears, with the first payment due in Month Sixteen and continuing until maturity
unless redeemed earlier.
PAYMENT. Borrower
will pay interest only, quarterly in arrears starting in month sixteen. Interest will accrue for twelve months and paid in month
sixteen, and being paid quarterly in arrears thereafter and continuing until the note principal is paid in full. The annual interest
rate for this Note is computed on a simple interest basis at 12.5% per annum. Borrower will pay Lender at Lender’s address
as shown on this promissory note document or at such other place as Lender may designate in writing.
ADDITIONAL
PAYMENT. Borrower will pay additional amounts to Lender (referring to All Promissory Note Holders dated September
1, 2013 as a Group; in the Maximum Amount of $ 1.5 M, so that each Lender shall receive their proportionate percentage in accordance
with their percentage of the total of $ 1.5 M), such additional payment equal to ten percent (10%) of the net profits generated
from the pilot plant operations on the SECOND Fifty Thousand Tons (Tonnage 50,001 – 100,000 Tons) processed through the
pilot plant. This additional payment will be paid quarterly in arrears based on the net profits for the prior quarter. Such net
profits will be calculated after deducting all expenses related to the production and after deducting thirty three percent (33%)
from the net profits, to be deposited into a sinking fund.
MATURITY
DATE. DECEMBER 31, 2016.
PREPAYMENT. Borrower
may Pre-Pay the Note and Accrued Interest, with a thirty (30) day notice, with a ten percent (10%) penalty fee on the principal
amount, all or a portion of the principal amount owed hereunder. All prepayments shall be applied to the indebtedness in such
order and manner as Lender may from time to time determine in its sole discretion. Borrower agrees not to send Lender payments
marked “paid in full”, “without recourse”, or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender’s rights under this Note, and Borrower will remain obligated to pay any further
amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument
that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions
or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: DynaResource, Inc., 222 W. Las Colinas
Blvd, Suite 744 East Tower, Irving, Texas 75039.
Upon
thirty day notice of intent to pre pay by Borrower, Lender may convert principal and any accrued interest on the terms listed
in the section titled “CONVERTIBILITY”.
CONVERTIBILITY. The
Lender may, at any time prior to maturity or prepayment, Convert any unpaid principal and accrued interest into common stock of
DynaResource, Inc. at the conversion price of $5.00 per share. Additionally, on conversion, lender would receive a Warrant exercisable
into the Company’s common stock at $7.50, such warrant expiring within 2 years of issue date.
POST
MATURITY RATE. Upon the occurrence of any Event of Default, or if this Note is not paid at final maturity, Lender,
at Lender’s option, may add any unpaid accrued interest to the principal and such sum will bear interest therefrom until
paid, at the Post Maturity Rate provided in this Note. The Post Maturity Rate on this Note is 12.5% per annum. Borrower will pay
interest on all sums due after final maturity, whether by acceleration or otherwise, at that rate. Borrower also will pay interest
at the Post Maturity Rate on the principal amount of each past due installment from the due date until paid.
DEFAULT.
Each of the following shall constitute an event of default (“Event of Default”) under this Note.
Payment
Default. Borrower
fails to make any payment when due under this Note.
Other
Defaults. Borrower
fails to comply with or to pay or perform any other term, obligation, covenant or condition contained in this note or to comply
with or to pay or perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower.
Transfer
of Assets. Borrower leases, sells, or otherwise
conveys, or agrees to lease, sell, or otherwise convey, a material part of its assets or business outside of the ordinary course
of business.
False
Statements. Any warranty, representation
or statement made or furnished to Lender by Borrower or on Borrower’s behalf under this Note is false or misleading in any
material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.
Judgments
or Decrees. One or more judgments or decrees shall be entered against the Borrower and such judgments or
decree shall not have been vacated, discharged, stayed or bonded pending appeal.
Failure
to Comply with Laws. Borrower fails to comply with all applicable statues, laws, ordinances and governmental
rules, regulations and orders to which it is subject or which are applicable to its business, property and assets.
LENDER’S
RIGHTS. Upon the occurrence of any Event of Default, Lender may declare the entire unpaid principal balance on this
Note and the Indebtedness and all accrued unpaid interest immediately due, without notice, and then Borrower will pay that amount.
Borrower shall be liable for any deficiency remaining after disposition of any collateral which Lender may choose to realize upon.
ATTORNEYS’
FEES: EXPENSES. Lender may hire an attorney to help collect this Note if Borrower does not pay, and Borrower will
pay Lender’s reasonable attorneys’ fees. Borrower also will pay Lender all other amounts Lender actually incurs as
court costs, lawful fees for filing, recording, releasing to any public office any instrument securing this Note; the reasonable
cost actually expended for repossessing, storing, preparing for sale, and selling any security; and fees for noting a lien on
or transferring a certificate of title to any motor vehicle offered as security for this Note, or premiums or identifiable charges
received in connection with the sale of authorized insurance.
GOVERNING
LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the
State of Texas. This Note has been accepted by Lender in the State of Texas.
CHOICE
OF VENUE. If there is a lawsuit, Borrower and Lender agree to submit to the jurisdiction of the courts of Dallas County,
State of Texas.
DISHONORED
CHECK CHARGE. Borrower will pay a processing fee of $25.00 if any check given by Borrower to Lender as a payment on
this loan is dishonored.
COLLATERAL.
Borrower acknowledges this Note is secured by the full faith and credit of DynaResource, Inc. and common stock of
DynaResource, Inc. at the conversion rate of $5.00 per share.
ENFORCEABILITY
AND ORGANIZATION. Borrower is duly authorized to transact business in all states in which Borrower is doing business,
having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business.
Borrower’s execution, delivery and performance of this Note have been duly authorized by all necessary Corporate Officers
and Directors of Borrower. This Note constitutes a legal, valid and binding obligation of Borrower enforceable against Borrower
in accordance with their respective terms. If applicable, Borrower is an entity which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the state of its organization.
INFORMATION
WAIVER. Lender may provide, without any limitation whatsoever, to any one or more purchasers, potential purchasers,
or affiliates, any information or knowledge Lender may have about the undersigned or about any matter relating to this document
and the undersigned hereby waives any right to privacy the undersigned may have with respect to such matters.
INDEBTEDNESS.
The word “indebtedness” means all principal, interest, and other amounts, costs and expenses payable under
the Note, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note.
PURPOSE.
Borrower agrees that no advances under this Note shall be used for personal, family or household purposes and that
all advances hereunder shall be used solely for business, commercial, agricultural or other similar purposes.
ARBITRATION.
Undersigned and Lender agree that all disputes, claims and controversies between them whether individual, joint, or
class in nature, arising from this document or otherwise, including without limitation contract and tort disputes, shall be arbitrated
pursuant to the Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either
party. No act to take or dispose of any collateral securing this document shall constitute a waiver of this arbitration agreement
or be prohibited by this arbitration agreement. This includes, without limitation, obtaining injunctive relief or a temporary
restraining order; invoking a power of sale under any deed of trust or mortgage; obtaining a writ of attachment or imposition
of a receiver; or exercising any rights relating to personal property, including taking or disposing of such property with or
without judicial process pursuant to applicable law. Any disputes, claims, or controversies concerning the lawfulness or reasonableness
of any act, or exercise of any right, concerning any Collateral or Property securing this document, including any claim to rescind,
reform, or otherwise modify any agreement relating to the Collateral or Property securing this document, shall also be arbitrated,
provided however that no arbitrator shall have the right or the power to enjoin or restrain any act of any party. Judgment upon
any award rendered by any arbitrator may be entered in any court having jurisdiction. Nothing in this document shall preclude
any party from seeking equitable relief from a court of competent jurisdiction. The statue of limitations, estoppel, waiver, laches,
and similar doctrines which would otherwise be applicable in an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of arbitration shall be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.
JURY
WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR
AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, OR ANY RELATIONSHIP BETWEEN OR AMONG THE
UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT.
BORROWER
CERTIFICATIONS. By execution of this Note Borrower hereby certifies to Lender that as of the date hereof:
| (1) | that
there has been no adverse change in Borrower’s financial condition, organization,
operations or fixed assets since the date the Loan application for the indebtedness for
this Note was signed; and |
| (2) | Borrower
is/are current on all federal, state, and local taxes, including but not limited to income
taxes, payroll taxes, real estate taxes, and sales taxes. |
GENERAL
PROVISIONS.
NOTICE: Under
no circumstances (and notwithstanding any other provisions of this Note shall the interest charged, collected, or contracted for
on this Note exceed the maximum rate permitted by law. The term “maximum rate permitted by law” as used in this Note
means the greater of (a) the maximum rate of interest permitted under federal or other law applicable to the indebtedness evidenced
by this Note, or (b) the higher, as of the date of this Note, of the “Weekly Ceiling” or the “Quarterly Ceiling”
as referred to in Sections 303.201 and 303.202 of the Texas Finance Code and Articles 1D.002, 1D.003 and 1D.006 of the Texas Credit
Title respectively. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Borrower does
not agree or intend to pay, and Lender does not agree or intend to contract for, charge, collect, take, reserve or receive (collectively
referred to herein as “charge or collect”), any amount in the nature of interest or in the nature of a fee for this
loan, which would in any way or event (including demand, prepayment, or acceleration) cause Lender to charge or collect more for
this loan than the maximum Lender would be permitted charge or collect by federal law or the law of the State of Texas (as applicable).
Any such excess interest or unauthorized fee shall, instead of anything stated to the contrary, be applied first to reduce the
principal balance of this loan, and when the principal has been paid in full, be refunded to Borrower. The right to accelerate
maturity of sums due under this Note does not include the right to accelerate any interest which has note otherwise accrued on
the date of such acceleration, and Lender does not intend to charge or collect any unearned interest in the event of acceleration.
All sums paid or agreed to be paid to Lender for the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of the loan evidenced by this
Note until payment in full so that the rate or amount of interest on account of the loan evidenced hereby does not exceed the
applicable usury ceiling. If any part of this Note cannot be enforced, this fact will not affect the rest of this Note. It is
agreed that any payment which would otherwise for any reason be deemed unlawful interest under applicable law shall be deemed
to have been applied to the unpaid principal balance of this Note, or to other indebtedness. The unpaid balance owing on this
Note at any time may be evidenced by endorsements on this Note or by Lender’s internal records, including daily computer
print-outs. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment,
notice of dishonor, notice of intent to accelerate the maturity of this Note, and notice of acceleration of the maturity of this
Note. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note,
whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. Unless specifically permitted
otherwise by the terms and conditions of this Note, no alteration of or amendment to this Note shall be effective unless given
in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Borrower agrees and
consents to Lender’s sale or transfer, whether now or later, of this Note, or the sale or transfer of any participation
interest in this Note or to one or more purchasers, whether related or unrelated to the Lender. Borrower waives any and all notices
of sale of this Note, the sale or transfer of any participation interests, as well as any notices of any repurchases of this Note,
the , or of any participation interests. The obligations under this Note are joint and several.
PRIOR
TO SIGNING THIS NOTE, BORROWER AND LENDER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF
THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
SIGNATURES:
BORROWER:
DynaResource,
Inc.
By: |
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CHARLES SMITH; CFO |
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K.D. DIEPHOLZ; Chairman / CEO. |
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LENDER:
Exhibit
4.4
ALLONGE
(Extension) TO PROMISSORY NOTE
Dated
_____________________________________ , 2013,
In
the original amount of $ _____________________________________ ,
Having
DynaResource, Inc. as Borrower and _____________________________________ as Lender
(the
"Note")
1. The provision of the Note entitled "Promise to Pay" is amended in its entirety, to read as follows:
PROMISE
TO PAY. DynaResource, Inc., office address in Irving Texas as set forth above ("Borrower")
hereby promises to pay to ______________ ("LENDER") in lawful money of the United States of America, the principal
amount of ________________________________ ($______________), together with interest at the rate of 12.5% per annum
on the unpaid principal' balance from the date of the note until maturity.
The
loan will accrue interest for twelve months with the accrued interest added to principal. After the First Year, Interest will
be paid Quarterly, in arrears, with the first payment due in Month sixteen and continuing until maturity unless redeemed earlier.
Notwithstanding, the 2nd and 3"1- scheduled quarterly interest payments (quarter ended September 30,
2014 and December 31, 2014) will continue to accrue and be paid July 15, 2015.
| 2. | The
provision of the Note entitled "Payment" is amended in its entirety, to read
as follows: |
PAYMENT,
Borrower will pay interest only, quarterly in arrears starting in month sixteen. Interest will accrue for fifteen months and
paid in month sixteen, and being paid quarterly in arrears thereafter and continuing until the note principal is paid in full.
The annual interest rate for this Note is computed on a simple interest basis at 12.5% per annum. Borrower will pay Lender at
Lender's address as shown on this loan document, or at such other place as Lender may designate in writing.
| 3. | The
provision of the Note entitled "Maturity Date" is amended in its entirety, to read as follows: |
MATURITY DATE. December 31, 2016.
4.
The provision of the Note entitled "Convertibility" is amended in its entirety, to read as follows:
CONVERTIBILITY.
The Lender may, at any time prior to maturity or prepayment, Convert any unpaid principal and accrued interest into common
stock of DynaResource, Inc. at the conversion price of $5.00 per share. Additionally, on conversion, lender would receive a Warrant
exercisable into the Company's common stock at $7.50, such warrant expiring on December 31, 2016.
In
addition, until March 31, 2015, the Lender may convert any unpaid principal and accrued interest into common stock at a conversion
price of $2.50 per share.
| 5. | In
all other respects, the terms and conditions of the Note shall remain unchanged. |
SIGNATURES:
BORROWER:
DynaResource,
Inc.
a
Delaware corporation
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By: |
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K.D. DIEPHOLZ |
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Chairman/CEO |
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LENDER:
Exhibit 10.1
“VERSION
EN INGLES”
MINING
and PRODUCTION SERVICES AGREEMENT
THIS
AGREEMENT is made and entered on this the 15th day of APRIL, 2005.
AMONG:
DYNARESOURCE
DE MEXICO, S.A. DE C.V. herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board of Directors
holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter referred
to as the “Company”),
OF
THE FIRST PART,
AND
MINERAS
DE DYNARESOURCE, S.A. DE C.V., herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board
of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter
referred to as the “Mining and Production Services Contractor” / “Contractor”);
OF
THE SECOND PART.
WHEREAS:
| A) | the
Company is a limited liability company (S. A. de C.V.) validly subsisting and duly incorporated
pursuant to the laws of the United Mexican States, having its business and affairs the
exploration and exploitation of minerals within the territory of Mexico, |
| B) | the
Company is the legal and beneficial recorded owner of all of the mining concessions comprised
in the San Jose de Gracia Project, located in the Township of San Jose de Gracia, Municipality
of Sinaloa de Leyva, Sinaloa (the “San Jose de Gracia Project), |
| C) | the
Contractor is a limited liability company (S. A. de C.V.) validly subsisting and duly
incorporated pursuant to the laws of the United Mexican States, having its business and
affairs the provision of mining services to any person within the territory of Mexico,
and it has personnel duly qualified, competent and accredited to carry out and provide
to the Company the Mining Services described in Schedule A hereto, |
| D) | the
Company desires to engage the Contractor to perform the Mining and Production Services
in or related to the San Jose de Gracia Project, and the Contractor desires to render
the Mining and Production Services to the Company in consideration of the Compensation
(described in Schedule B hereto), subject to the terms and conditions herein set forth.
|
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual warranties and representations herein contained, the
parties agree as follows:
PART
1. ENGAGING OF CONRACTOR.
1.1. The
Company hereby engages the Contractor to render the Services set out in schedule A hereto (the “Mining and Production Services”
/ “Services”). The Contractor hereby agrees to perform the Services for the Company in a professional, competent and
efficient manner and in accordance with the terms and conditions set out in Schedule A hereto and as required from time to time
by the Company.
1.2. In
consideration for the provision of the Services, the Company shall pay to the Contractor the Compensation set out in schedule
B hereto (the “Compensation”).
1.3. Subject
to the provisions of Part 10 hereof, this Agreement shall be in force for a period of ONE (1) YEAR commencing on MAY 1, 2005 (the
“Term of the Agreement”), and may be renewed by the parties for like terms, or as agreed or amended by the parties.
1.4.
The Contractor shall furnish all labour, supervision, materials, supplies, services, and incidentals necessary (except where specifically
to be provided by the Company) to carry out the Services hereunder.
1.5. The
Company shall furnish the Mining Assets, as provided in Part 2 hereto.
1.6. Contractor’s
responsibilities shall include, but not be limited to:
(a) | | transportation of personnel,
material, and equipment to and within the San Jose de Gracia Project or to and within any other area specifically designated by
the Company from time to time (the “Site”); |
(b) | | prompt uploading, handling
and storage of all material and equipment to be used by the Contractor; |
(c) | | Mining and Milling Operations
as designated by the Company; |
(d) | | clean-up and minimization of
its debris and surplus material; |
(e) | | the providing of experienced
and efficient personnel for the execution and supervision of the Services and shall, during the execution of the Services, maintain
at the Site a competent full time Representative and any necessary assistants. |
1.7. All
personnel engaged by the Contractor shall have sufficient skill and experience to properly perform the tasks assigned to them.
Personnel engaged in special tasks or skilled tasks will have appropriate qualifications, permits or licenses, experience with
such tasks and the operation of equipment required to perform all such tasks properly and satisfactorily to completion. The Contractor
shall promptly terminate or cause to be terminated any person employed by the Contractor or by any subcontractor who does not
perform its tasks in a proper and skilled manner, or who is intemperate or disorderly. Additionally, any such person shall, at
written request of the Company, be removed forthwith by the Contractor or Subcontractor employing such person and will not be
employed again in any portion of the Services, without the prior written approval of the Company. Should the Contractor fail to
furnish suitable and sufficient personnel for proper execution of the Services, or fail to remove such person or persons as required
above, the Company may suspend the Services by written notice until such orders are complied with.
1.8. Subject
to the provisions of Clause 8.1 the Company, without invalidating this Agreement, may make changes by altering, adding to, or
deducting from the responsibilities set out as Services, the contract sum being adjusted accordingly. All such revised, added
or deducted responsibilities shall be executed under the conditions of the Agreement except that any claim for extension or reduction
of time caused thereby shall be adjusted at the time of ordering such change. No change shall be made unless authorized in writing
by the Company. The Contractor shall not claim for loss of profits or anticipated profits or damages at any time due to any decision
to reduce or delete any part of the Services, provided that the Contractor will be compensated for any materials brought to the
Site and the Services partially completed prior to the order requesting the deletion or reduction.
The
value of any change shall be determined by the parties upon mutual agreement negotiated in good faith.
1.9. Except
as may be otherwise expressly set out herein, the Contractor shall clean up the work performed as part of the Services as it progresses
and ensure that the premises are at all times kept free from the accumulation of waste material and rubbish resulting from the
Contractor’s Activities, removing debris from the Site from day to day, and when the Services are finished shall similarly
remove all tools, equipment, machinery, fuel drums and hazardous substances, and machinery which are his property or the property
of any Subcontractor and all rubbish and waste materials, and shall leave the Site in a clean and safe condition, free and clear
of all obstructions and hindrances. Should the Contractor refuse or neglect to comply with the provisions of this paragraph, the
Company shall have the right to do the cleaning and charge the Contractor with the costs thereof.
PART
2. MINING ASSETS.
2.1. For
the strict provision of the Services by the Contractor and/or its Subcontractors, employees or independent contractors (the “Related
Persons”) as provided hereunder, the Company shall furnish all of the equipment, machinery, rights and facilities set out
in the inventory of assets attached as schedule C hereto and incorporated herein for reference (the “Mining Assets”).
2.2. It
is acknowledged and agreed by the Contractor, in its behalf and on behalf of the Related Persons that the Mining Assets:
(a) | | shall remain the property of
the Company during and on termination of this Agreement; for purposes hereof, the Contractor shall be deemed as a lessee of such
Mining Assets and the holder of the rights of use and enjoyment thereof as provided hereunder, |
(b) | | shall be dedicated exclusively
for the provision of the Services; the Contractor being responsible and liable to the Company for any use of the Mining Assets
other that as provided in this Agreement. |
2.3.
The Contractor shall, during the Term of the Agreement and until such time as the Company accepts full delivery of the Mining
Assets, be fully responsible and liable to the Company for the proper up keeping, maintenance and safeguarding of the Mining Assets;
the Contractor shall directly or indirectly conduct in a timely and workmanlike manner, all repairs and period maintenance work
as required to maintain the Mining Assets in optimal operating condition. The Contractor shall endeavour to provide competent,
licensed and accredited personnel to operate the mining machinery and equipment comprised in the Mining Assets.
2.4. The
Contractor agrees to indemnify and hold harmless the Company and its directors, officers, employees, agents, representatives and
related corporations (the “Indemnified Persons”) from and against any claims, demands, judgments, liabilities, expenses,
damages, fines, charges, costs (including legal costs) and losses of every and any kind whatsoever, whether direct or indirect
and whether to person or property (including the Services contemplated herein) or otherwise, which at any time or from time to
time are directly or indirectly incurred or suffered by any of the Indemnified Parties in connection with, as a result of or arising
out of the operation, administration or maintenance of the Mining Assets by the Contractor or any of the Related Persons.
2.5. The
Contractor agrees to maintain the Mining Assets free and clear of all charges, encumbrance or limitation of ownership rights of
any kind whatsoever that may result or arise out of any claims, demands or judgments filed by or issued to the benefit of the
Contractor, the Related Persons or any third party.
PART
3. RELATIONSHIP.
3.1. The
parties hereto acknowledge and agree that this Agreement:
| (a) | is
of a mercantile nature; |
| (b) | does
not create a partnership or association of any kind between the parties; and, |
| (c) | is
not subject to the provisions of the Federal Labour Act of Mexico, the Social Security
Act or any other legislation applicable to a labour relationship. |
3.2. The
parties hereby acknowledge and agree that there is no labour relationship between or among themselves or between or among the
employees or contractors of one of the parties in respect to the other party; therefore, the parties expressly agree that each
party shall individually bear all obligations or responsibilities imposed to each of them under applicable labour and tax legislation,
or imposed to each party in respect to such party’s employees or contractors. Further, the parties agree to indemnify and
hold each other harmless from, against and in respect to, any suit, demand or complaint claimed or filed before any labour, administrative
or judicial authority by one of the party’s employees or contractors against the other party.
3.3. The
parties acknowledge that the Contractor will be required to retain or engage the services of personnel in order to assist it in
the performance of the Services; such persons to be engaged by the Contractor as its employees or independent contractors. The
Contractor agrees that it is solely and exclusively responsible for payment of salaries and/or professional fees, income tax,
IMSS and INFONAVIT withholdings or payments applicable under the laws of Mexico in respect to any person engaged by the Contractor
in the performance of the Services.
PART
4. INDEMNITY.
4.1. The
Contractor hereby assumes, except as may be expressly set out in this Contract, entire responsibility and liability for any and
all damage, loss or injury of any kind or nature whatsoever to person or property arising out of or connected in any manner with
the execution or purported execution of the Services. Without limitation, the Contractor agrees to indemnify and hold harmless
the Company and its directors, officers, employees, agents, representatives and related corporations (collectively the “Indemnified
Parties”) from and against any claims, demands, judgments, liabilities, expenses, damages, fines, charges, costs (including
legal costs) and losses (collectively “Losses”) of every and any kind whatsoever, whether direct or indirect and whether
to person or property (including the Services contemplated herein) or otherwise, which at any time or from time to time are directly
or indirectly incurred or suffered by any of the Indemnified Parties in connection with, as a result of or arising out of:
| (a) | any
act or omission on the part of the Contractor, any Subcontractor (as hereinafter defined)
or any director, officer, agent, employee of the Contractor or any Subcontractor (collectively
the “Contractor’s Activities”); |
| (b) | any
misrepresentation or untrue warranty of the Contractor; |
| (c) | any
breach, default or non-performance of any covenant to be performed by the Contractor
under this Contract; or, |
| (d) | without
limiting sub-clause (a) above and except for any manners which are expressly stated to
be the responsibility of the Company, the performance by or on behalf of the Company
of any obligations imposed by applicable Mexican laws (the “Laws”) relating
to the environment (including reclamation or closure) or the taking of any steps by or
on behalf of the Company to protect against or remediate (including reclamation) any
harm, damage, degradation or adverse effect on the environment which directly or indirectly
results from the performance of the Services by the Contractor. |
4.2. Environmental
Matters. - The Contractor covenants, represents and warrants to the Company that:
| (a) | the
Contractor will review, be familiar with and verify the existence of all permits which
are held by or which are necessary for the Contractor to perform its obligations pursuant
to this Contract; |
| (b) | the
Contractor will identify and obtain and maintain any other permits which may be required
pursuant to environmental Laws in connection with the performance of this Agreement; |
| (c) | the
Contractor is familiar with all applicable Laws relating to the environment and that
the Contractor’s Activities will be conducted in compliance with all environmental
Laws and permits and so as not to give rise to any breach or non-compliance thereof by
the Company or any of its directors, officers, employees, agents, representatives or
related corporations; |
| (d) | all
employees of the Contractor have been properly trained with respect to environmental
concerns directly or indirectly associated with the Contractor’s Activities and
methods and systems for preventing any harm, damage, degradation or adverse effect on
the environment; |
| (e) | the
Contractor will exercise due care in preventing environmental harm and without limitation,
the Contractor shall implement such systems and procedures and provide all such equipment
and facilities necessary so as to prevent accidental occurrences which may result in
environmental harm; and, |
| (f) | the
Contractor shall be fully responsible for all acts and omissions of any subcontractors
and other employees, agents and representatives, and the Contractor shall ensure that
any subcontractor shall comply with the provisions of this Clause 3.2. and any other
provisions of this Agreement which directly or indirectly relate to environmental matters
as if such subcontractor was the Contractor hereunder. |
No
provision of this Clause 4.2. shall limit the generality of any other provision mandated by Law or any other provision of this
Agreement.
PART
5. INSURANCE.
5.1. The
Contractor shall have the following obligations:
| (a) | The
Contractor, or any proper sub-contractors, shall be registered as an employer with the
National Social Security Institute of Mexico (IMSS), and it shall pay all and any sums
which he may be required to contribute to IMSS under the IMSS Act and to the National
Housing Institute of Mexico (INFONAVIT). |
| (b) | The
Contractor at his own expense and cost shall insure and keep insured during the term
of this Contract with an insurer acceptable to and approved by the Company the following
insurance with the Company being named as an additional named insured: |
(i) | | Comprehensive General Liability
Insurance which shall include all Operations, Contractor’s Protective, Contractual Products and Completed Operations, and
non-owned Automobile Liability, with a bodily injury and/or death limit of not less than $2,000,000 for each occurrence and a
property damage limit of not less than $2,000,000 per occurrence, and in the aggregate with respect to products and completed
operations liability. |
(ii) | | Automobile (owned). The insurer’s
limit of liability shall not be less than the following: |
$2,000,000
per bodily injury and/or death for each occurrence, and not less than $2,000,000 per occurrence for property damage.
(iii) | | A certificate of insurance
certifying that the Contractor has insurance as required under Clauses (i) and (ii) shall be filed with the Company upon acceptance
of the Contract terms. |
(iv) | | The Contractor shall arrange
that such insurance shall not be cancelled without 30 days’ prior written notice to the Company by the insurers. |
PART
6. DESIGNATION OF REPRESENTATIVES.
6.1. Upon
signing this Agreement, the Contractor shall designate in writing a competent representative acceptable to Company who, on behalf
of the Contractor, will have complete charge of the Services and shall be authorized to make agreements binding the Contractor.
The designation of the representative shall be subject to approval in writing by the Company and the Contractor will not change
its representative without prior consultation and written permission from Company. Such approval may be withdrawn by Company,
in which event the Contractor shall remove the representative from the Site and shall not employ him again on the Site in any
capacity, and shall promptly replace him with another representative approved by Company. All expenses associated with such removal
or replacement shall be paid by Contractor.
The
Contractor designates Koy Wilber Diepholz as its representative and it will advise the Company in writing of the name of each
individual appointed to replace the representative of the Contractor designated under this Contract.
The
designated representatives are to be available at all reasonable times and the parties will communicate through those representatives.
A representative may be changed by subsequent written notice.
PART
7. INSPECTION OF MINING SERVICES.
7.1. All
Services shall be performed in a professional, competent, and efficient manner. Inspection of all the Services will be carried
out by the Company while such Services are in progress. Notwithstanding such inspection, the Contractor will be held responsible
for the completion of the Services in accordance with the terms and conditions of the Contract.
The
Company and its representatives will, at all times, have access to the Services whenever it is in preparation or progress. The
Company will perform said inspection in such manner as not to delay the Services unnecessarily.
PART
8. FINAL ACCEPTANCE OF THE SERVICES.
8.1. The
Company may retain the final payment, or any Percentage of Bonus Compensation, as described in Schedule B, to the full total or
a partial amount thereof as the Company in its sole discretion determines to be reasonable to assure full compliance by Contractor
with the Contract.
8.2 Monthly, Periodically, or at any time as the Company may determine, the Company will carry out an inspection of the Services.
The Services performed hereunder may be accepted as whole or in separately defined parts. If all of the Services have been completed
to the satisfaction of the Company, the Company will provide written notice to the Contractor stating “all Services under
the Contract are accepted,” and the notice will be marked “FINAL ACCEPTANCE”. At the Delivery of this “Final
Acceptance Notice”, the Company shall complete and make final payment, including any Bonus payment.
8.3 In the event the notice includes only a part of the Services, the notice will contain a list of items that must be completed in
order to reach Final Acceptance. In the event that the Contractor disagrees with the items listed, the Contractor may reserve
his rights as defined in this document.
The
Contractor’s liability after Final Acceptance will be limited to the guarantees, warranties and conditions made a part of
the Contract.
PART
9. CHANGED AND EXTRA MINING SERVICES.
9.1. The
Company may from time to time order changes in the description of the Services set out in Schedule A hereto. If such changes involve
extra cost to the Contractor or will adversely affect the Services, the Contractor shall promptly so advise the Company in writing
in such detail as the Contractor considers reasonable, including an estimate of the effect of the change on time and performance,
prior to beginning the Services but not later than five (5) business days after the change is ordered. If such notice is not given
it shall be deemed that no additional compensation or other adjustment in favour of the Contractor is due to the Contractor. If
such notice is given or if, in the opinion of the Company, such change involves a reduction in the amount of expense of the Contractor,
the Company and the Contractor shall negotiate in good faith with a view to reaching upon an adjustment to the affected terms
of the Contract, including the Contract Compensation set out in Schedule B hereto. Changes in the Contract Compensation or Contractor’s
obligations agreed to by the Company will only be effective if made by a Contract Change Agreement signed by the Company and the
Contractor.
PART
10. SUBCONTRACTS.
10.1. The
Contractor shall not subcontract to any person (the “Subcontractor”) any part of the Services without prior written
approval of the Company, and in each individual instance, the scope of the Mining Services to be subcontracted will be subject
to prior approval of the Company, which approval shall not be unreasonably withheld.
10.2. The
Contractor agrees that it is as fully responsible to the Company for the acts and omissions of its Subcontractors and of persons
either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by it.
10.3. Nothing
contained in this Contract shall create any contractual relationship between any Subcontractor and the Company. Each subcontract
shall provide that it is subject to termination for the convenience of the Company, in which event the Company’s liability
shall be limited to Services done or material supplied prior to cancellation.
PART
11. SUSPENSION OR TERMINATION FOR CONVENIENCE.
11.1. The
Company reserves the right to suspend or terminate this Contract, or any part thereof, at any time and for any reason it deems
fit, including for its convenience. Such suspension or termination will be made in writing and may include the whole or any specified
part of the Contract.
11.2. Upon
receipt of any such notice, the Contractor will, unless the notice requires otherwise:
| (a) | Immediately
discontinue the Services on the date and to the extent specified in the notice. |
| (b) | Place
no further orders or Subcontracts for material, services, or facilities with respect
to the suspended Services other than to the extent required in the notice. |
| (c) | Promptly
make every reasonable effort to obtain suspension upon terms satisfactory to the Company
of all orders and Subcontracts to the extent required in the notice. |
| (d) | Use
its best efforts to utilize its plant, labour and equipment in such a manner as to minimize
costs associated with suspension. |
| (e) | Unless
otherwise specifically stated in the notice, the Contractor will continue to protect
and maintain the Services, including those portions on which the Services has been suspended. |
11.3. As
full compensation for suspension, the Contractor will be reimbursed for the following costs, reasonably incurred, without duplication
of any item, to the extent that such costs result from such suspension of the Services:
| (a) | A
standby charge to be paid to the Contractor during the period of suspension, which standby
charge will be sufficient to compensate the Contractor for keeping, to the extent required
in the Company’s notice of suspension, its organization and equipment committed
to the Project in a standby status. |
| (b) | All
reasonable costs associated with the demobilization and remobilization of Contractor’s
plant, forces and equipment to the extent required in the notice. |
11.4. Upon
receipt of notice to resume suspended Services, the Contractor will immediately resume the suspended Services to the extent required
in the notice. If, as a result of any such suspension of the Services, the cost to the Contractor of subsequently performing the
Services is substantially increased or decreased, the Company will make an equitable adjustment in its payment for any remaining
portion of the Services. Further, the time of performance of the Contract will be subject to extension as necessitated by the
suspension, plus a reasonable additional period for remobilization. The Contract will, accordingly, be amended by a Contract Change
Agreement, provided, however, that any claim by the Contractor for an adjustment hereunder must be asserted within thirty (30)
calendar days after receipt of written notice to resume the Services.
11.5. If
this Contract, or a specified part thereof, is terminated for the convenience of the Company, the Company shall pay the Contractor
for Services performed before the effective date of termination.
PART
12. TERMINATION FOR CAUSE.
12.1. If
the Contractor shall become bankrupt or insolvent, or if the Company has reasonable grounds to believe that the Contractor is
bankrupt or insolvent or unable to pay its debts as they become due, the Company may terminate all or part of the Contractor’s
performance and/or further rights hereunder for cause, as the Company may elect.
12.2. If
the Contractor fails to commence the Services within the time specified and prosecute it continuously with sufficient properly
skilled personnel and equipment to ensure its completion within the specified time, or fails to perform the Services in the manner
required by this Contract, or fails to carry on the Services in an acceptable manner, or defaults in any of the obligations herein,
the Company may elect to give notice in writing of such default, specifying the same and the corrective steps to be taken.
12.3. If
the Contractor, within a period of 72 hours after delivery of such notice, shall fail to proceed in accordance therewith, the
Company may terminate the Contractor’s right to continue with the Services and may complete it with its own forces, contract
with others for its completion, or use such other measures as in the Company’s opinion are necessary for completion, including
the use of the equipment, plant, and other property of the Contractor on the Site. In selecting another contractor(s) for the
purpose of completing the Services, the Company shall be guided by the same selection criteria as utilized by the Company in the
original contract award, and not necessarily by the lowest bid(s).
12.4. In
the event of termination for cause:
| (a) | The
Company shall be entitled to deduct from any and all monies owing to the Contractor hereunder
damages for additional expenses caused by or arising out of breach of warranties and
guarantees hereunder, or of any other default by Contractor; |
| (b) | If
the expense of finishing the Services plus compensation for additional managerial and
administrative services and such other costs and damages with regard to completion of
the Services as the Company may suffer exceeds the unpaid balance, the Contractor shall
promptly pay the difference to the Company, and, |
| (c) | The
Contractor shall not be entitled to receive any further payment until the Services are
completed and any such payments shall exclude all claims and the Contractor shall not
be entitled to any claims for special or consequential damages, including loss of anticipated
profit due to such termination; |
| (d) | No
settlement payment will be made to the Contractor hereunder, until the Contractor has
submitted: |
(i) | | final statement supported by
vouchers; and, |
(ii) | | A full Release and Waiver of
Claim from or other evidence satisfactory to the Company that the Mining Contractor has paid for all labour, materials, equipment,
services, subcontracts, applicable taxes, and other costs and assessments due under the Contract. |
12.5. Upon
termination of the Contract for cause it is agreed:
| (a) | That
the obligation of the Contractor shall continue as to Services already performed and
to materials furnished, and, as to bona fide obligations assumed by the Contractor prior
to the date of termination; |
| (b) | That
the Contractor shall be entitled to compensation for Services already performed, including
material for which it has made firm contracts, it being understood that the Company shall
be entitled to that material. |
12.6. In
the event of termination for cause, written notice will be given to the Contractor at the address set forth in the Contract Agreement.
Subject to the directions set forth in the termination notice, the Contractor shall immediately discontinue Services and the placing
of orders for further services, material and equipment and shall, as directed, effect cancellation of all existing orders and
subcontracts and thereafter perform only such Services as may be necessary to preserve and protect the Services already in progress.
The
termination provision set forth in this Section shall be concurrent with and in addition to, without prejudice to, and not in
lieu of, or in substitution for, any other rights or remedies at law which the Company may have for the enforcement of its rights
under the Contract and its remedies for any default of the Contractor under the conditions hereof.
PART
13. GENERAL PROVISIONS.
13.1. Confidentiality.
The parties hereby agree to maintain confidential the terms and conditions set out in this Contract. Further, the Contractor
hereby agrees on its behalf and/or on behalf of its employees, Subcontractors, directors, officers and representatives (the “Related
Persons”) to maintain confidential and to not disseminate, permit the dissemination or to use for its own benefit or for
the benefit of the Related Persons or for commercial purpose, all or any portion of the information that it or the Related Persons
may obtain or may have access to during or as a result of the performance of the Services. The obligation entered into by the
Contractor hereunder shall be in force for the duration of this Agreement and it shall terminate at the completion of a term of
5 years commencing from the date of termination of this Contract.
13.2. Materials.
The Contractor hereby agrees on its behalf and on behalf of the Related Persons that all materials obtained or prepared during
the performance of the Services, and all confidential information obtained or to which it or the Related Persons have an access
to, is and shall remain the exclusive property of the Company. The Contractor hereby agrees to return to the Company, at its own
expense and within a term of 10 calendar days commencing on the date of termination of this Contract or on the date of receipt
of a written request from the Company, all materials or confidential information in its possession or in possession of the Related
Persons that have been obtained or prepared during or as a result of the performance of the Services.
13.3. Governing
Law. The parties hereby covenant and agree that this Contract shall be construed by and regulated under the provisions of
the Code of Commerce and the Civil Code of the State of Sinaloa, Mexico. The parties hereby agree that the state and federal tribunals
with competent jurisdiction for the City of Mazatlan, State of Sinaloa, United Mexican States, shall have the authority to resolve
any suit or claim arising out of or resulting from the application of this Contract. The parties hereby relinquish their right
to the jurisdiction of any tribunal or court, of any kind or nature, to which they might have or acquire a right or be subject
to by virtue of their current or future domiciles.
13.4. Notices.
Any notice or notification given or required to be given between the parties as a result of the application of this Contract,
including any notification required or permitted to be given in any judicial proceedings, shall be given in writing and personally
delivered to the other party, or delivered by any means that undoubtedly assures its reception or notification, in both cases
with an acknowledgement of receipt thereof, and it shall be directed to the latest domiciles expressed by the parties hereunder,
which domiciles are, until further notice is given, as follows:
If
to Contractor:
MINERAS
DE DYNARESOURCE, S.A. DE C.V.
Attention:
Mr. KOY WILBER DIEPHOLZ
Ave.
Ejercito Mexicano No. 2004, Oficina 204; Col. Insurgentes;
Mazatlan,
Sin. MEXICO
669-983-6625
// 669-986-1306
If
to Company:
DYNARESOURCE
DE MEXICO, S.A. DE C.V.
Attention:
Mr. KOY WILBER DIEPHOLZ
Ave.
Ejercito Mexicano No. 2004, Oficina 204; Col. Insurgentes;
Mazatlan,
Sin. MEXICO
669-983-6625
// 669-986-1306
13.5. Languages.
The parties sign, execute and approve this Contract in the English and Spanish languages. The parties agree that in the event
of discrepancy between the two versions, the Spanish version shall prevail. The parties acknowledge to having read and understood
(through their respective appointed Spanish interpreters) the legal effects and validity of the Spanish and English versions of
this Agreement. The English version is attached as schedule C hereto and made part hereof for all corresponding legal effects.
13.6. Whole
Agreement. This Agreement, Schedules A (“Contractor Services”), B (Compensation) and C (English version) attached
hereto and the documents delivered as set forth hereunder, constitute the entire understanding of the parties in respect to the
subject matter hereof, and they cancel and supersede any other agreement, contract or letter of intent that they may have executed
in respect to the said subject matter.
IN
WITTNESS WHEREOF, the parties hereto after having read and understood the legal effects and validity of the premises set forth
above, have caused this Agreement to be executed on the date and place first-written.
THE
“CONTRACTOR”
MINERAS
DE DYNARESOURCE, S.A. DE C.V.
______________________________________
Per:
KOY WILBER DIEPHOLZ
Its:
President of the Board of Directors
For
and On Behalf of the Board of Directors
THE
“COMPANY”
DYNARESOURCE
DE MEXICO, S.A. DE C.V.
______________________________________
Per:
KOY WILBER DIEPHOLZ
Its:
President of the Board of Directors
For
and on Behalf of the Board of Directors
SCHEDULE
A
“CONTRACTOR
SERVICES”
| 1. | MINING
SERVICES: Described as, Drilling, Blasting, handling of explosives, Moving ore to designated
areas; laying pipelines, operating scoop trams, trucks, dumps, and related equipment;
and all related activities. |
| 2. | MILLING
SERVICES: Described as, Crushing, Grinding and Milling, Screening, collecting and storing
gravity and flotation concentrates, sampling, assaying and reporting, handling and applying
chemicals, handling and movement of tailings, storing and handling of Mill Ore tonnage,
operation of all Mill related equipment and machines, and all related activities. |
| 3. | MAINTENANCE
SERVICES: Described as, servicing, repairing and maintaining of all Camp, Equipment,
and facilities, and all related activities. |
| 4. | GEOLOGY
SERVICES: Described as sampling, assaying, mapping, planning, coordination with Engineering,
Mining, and Milling services, and all related activities; |
| 5. | ENGINEERING
SERVICES: Described as surveying, mapping, coordinating with Geology Services, planning
and development of mine plans, planning and monitoring of mine equipment, monitoring
mining activity for safety, and all related activities; |
| 6. | TRANSPORTATION
/ TRUCKING SERVICES: Described as Hauling of ore, hauling of concentrates, hauling of
water and supplies, movement of equipment, movement of personnel, and all related activities.
|
| 7. | ADMINISTRATIVE
SERVICES; described as, Reporting, record keeping, maintaining payments and accounts,
secretarial services, maintaining of offices, and all related activities. |
| 8. | MANAGEMENT
of PERSONNEL. |
| 9. | SUPPORT;
Described as providing all support and personnel to reasonably accomplish the work objectives.
|
SCHEDULE
B
“COMPENSATION”
BASE
FOR TONNAGE.
$
75 / TON; Reported as MATERIAL processed through the Mill. Tonnage reported from the Mine for Ore NOT Processed through the MILL
is NOT to be included in this BASE Tonnage Calculation.
While
the Mining Contractor’s services include many areas of work that do NOT directly contribute to the Material processed through
the Mill; the Base Compensation is Paid ONLY for the Tonnage Processed through the Mill. // This Base amount is calculated so
as to include compensation for other areas of service.
BONUS
FOR PRODUCTION:
The
Company shall pay a Bonus to the Mining Contractor, this at the Completion of a Campaign, periodically, or at the end of the Term
as decided by the Company. The bonus is Calculated on a percentage of Sales Received by the Company; so in any event, the bonus
Compensation for any period can NOT be calculated until such Sales are received. The bonus Compensation is as follows:
|
For Average
Grade |
|
Percentage of
Sales Receipts |
|
|
(of Concentrate
Produced): |
|
to be Paid to
Mining Contractor: |
|
|
(as Confirmed
by ERSA Assays) |
|
(as received
by Company from Purchaser) |
|
|
|
|
|
|
|
05.00
g/t. - 07.74 g/t.: |
|
0.00
% |
|
|
|
|
|
|
|
07.75 g/t. -
11.60 g/t.: |
|
10.0 % |
|
|
|
|
|
|
|
11.61 g/t. -
15.50 g/t.: |
|
20.0 % |
|
|
|
|
|
|
|
15.51 g/t. -
19.40 g/t.: |
|
30.0 % |
|
|
|
|
|
|
|
19.41 g/t. -
23.30 g/t.: |
|
35.0 % |
|
|
|
|
|
|
|
23.31 g/t. -
27.20 g/t.: |
|
40.0 % |
|
|
|
|
|
|
|
27.21 g/t. -
31.10 g/t.: |
|
45.0 % |
|
|
|
|
|
|
|
31.11 g/t. -
34.90 g/t.: |
|
50.0 % |
|
|
|
|
|
|
|
34.91 g/t. -
38.80 g/t.: |
|
55.0 % |
|
|
|
|
|
|
|
38.81 g/t. -
42.75 g/t.: |
|
60.0 % |
|
|
|
|
|
|
|
42.76 g/t. -
and Up.: |
|
60.0 % |
|
Exhibit 10.2
Amending
Agreement to
”The
Mining Services Agreement”
THIS
AMENDING AGREEMENT is made and entered in the City of Mazatlan, Sinaloa as of this, the Fifteenth (15th) Day of September,
2006.
AMONG:
DYNARESOURCE
DE MEXICO, S.A. DE C.V. herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board of Directors
holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter referred
to as the “Company”),
OF
THE FIRST PART,
AND
MINERAS
DE DYNARESOURCE, S. A. DE C.V., herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board
of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter
referred to as the “Mining and Production Services Contractor” / “Contractor”);
WHEREAS:
I. | | The Company and the Contractor
jointly warrant and represent as follows: |
| A. | Their
legal representative appearing herein in their behalf possesses the legal capacity required
for this act. |
| B. | A
Mining Services and Production of Minerals Agreement (the “Mining Services Agreement”)
was executed on May 15, 2005, to be effective at May 1, 2005, whereby the Company engaged
the Contractor to render the Mining Services described in Schedule A of the Mining Services
Agreement, on payment of the Compensation set out in Schedule B thereto; a copy of the
Mining Services Agreement is attached as Schedule A hereto. |
| C. | As
the mining activities currently carried out by the Contractor in SJG are primarily of
an exploration nature and not milling of ore (which was the basis for setting out the
Compensation described in Schedule B of the Mining Services Agreement), the parties wish
to modify Schedule B of the Mining Services Agreement in accordance with the terms and
conditions set forth hereunder. |
CLAUSES
CLAUSE
1
| 1.1. | The
parties agree that Schedule B of the Mining Services Agreement reads as follows: |
“SCHEDULE
B
“COMPENSATION”
BASE
FOR TONNAGE.
$
75 / TON; Reported as MATERIAL processed through the Mill. Tonnage reported from the Mine for Ore NOT Processed through the MILL
is NOT to be included in this BASE Tonnage Calculation.
While
the Mining Contractor’s services include many areas of work that do NOT directly contribute to the Material processed through
the Mill; the Base Compensation is Paid ONLY for the Tonnage Processed through the Mill. // This Base amount is calculated so
as to include compensation for other areas of service.
BONUS
FOR PRODUCTION:
The
Company shall pay a Bonus to the Mining Contractor, this at the Completion of a Campaign, periodically, or at the end of the Term
as decided by the Company. The bonus is Calculated on a percentage of Sales Received by the Company; so in any event, the bonus
Compensation for any period can NOT be calculated until such Sales are received. The bonus Compensation is as follows:
For Average Grade |
Percentage of Sales Receipts |
|
of Concentrate Produced: |
to be Paid to Mining Contractor: |
|
(as Confirmed by ERSA Assays) |
(as received by Company from Purchaser) |
|
|
|
|
05.00 g/t. - 07.74 g/t.: |
|
0.00 % |
|
|
|
|
|
07.75 g/t. - 11.60 g/t.: |
|
10.0 % |
|
|
|
|
|
11.61 g/t. - 15.50 g/t.: |
|
20.0 % |
|
|
|
|
|
15.51 g/t. - 19.40 g/t.: |
|
30.0 % |
|
|
|
|
|
19.41 g/t. - 23.30 g/t.: |
|
35.0 % |
|
|
|
|
|
23.31 g/t. - 27.20 g/t.: |
|
40.0 % |
|
|
|
|
|
27.21 g/t. - 31.10 g/t.: |
|
45.0 % |
|
|
|
|
|
31.11 g/t. - 34.90 g/t.: |
|
50.0 % |
|
|
|
|
|
34.91 g/t. - 38.80 g/t.: |
|
55.0 % |
|
|
|
|
|
38.81 g/t. - 42.75 g/t.: |
|
60.0 % |
|
|
|
|
|
42.76 g/t. - and Up.: |
|
60.0 %” |
|
CLAUSE
2
2.1. | | The parties covenant and agree
to amend Schedule B of the Mining Services Agreement to hereinafter read as follows: |
“SCHEDULE
B
“COMPENSATION”
The
Company shall pay to the Contractor, in consideration for the execution of the Mining Services set out in Schedule A hereto, a
Management Fee equal to 2.5% of the total amount invoiced by the Contractor to the Company for expenditures incurred in relation
to the mining activities carried out in SJG and the execution of the Mining Services.”
2.2. The
amendments to Schedule B of the Mining Services Agreement agreed upon by the parties hereunder shall form integral part of the
Mining Services Agreement from the date hereof and they shall be binding upon the parties hereto. The parties hereby fully ratify
each and all of the terms and provisions of the Mining Services Agreement, which includes the amendments made hereto.
CLAUSE
3
3.1. Languages.-
The parties sign and approve this Amending Agreement in the English and Spanish languages. The parties agree that in the event
of discrepancy between the two versions, the Spanish version shall prevail. The English version is attached as schedule B hereto
and made part hereof for all corresponding legal effects.
3.2. Whole
Agreement.- The Mining Services Agreement and attachments, this Amending Agreement and attachments, and the documents delivered
by the parties as therein set forth, constitute the entire understanding of the parties in respect to the subject matter thereof.
In
witness whereof, the parties hereto after having read and understood the legal effects and validity of the premises set forth
above, have caused this Agreement to be executed on the date and place above written.
THE
“COMPANY”
DYNARESOURCE
DE MEXICO , S. A. DE C.V.
_ ________________________
KOY
WILBER DIEPHOLZ
ITS:
PRESIDENT
THE
“CONTRACTOR”
MINERAS
DE DYNARESOURCE, S. A. DE C.V.
_________ ________________
KOY
WILBER DIEPHOLZ
ITS:
PRESIDENT
Exhibit
10.3
SECOND
AMENDMENT TO THE CONTRACT MINING SERVICES AND MINERAL
PRODUCTION
AGREEMENT
THIS
SECOND AMENDMENT TO THE CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT, is made and entered this 15th
day of July, 2011 by and among DYNARESOURCE DE MEXICO, S.A. DE C.V., represented hereto by Mr. Koy Wilber Diepholz (hereinafter
referred to as “DYNA”); and MINERAS DE DYNARESOURCE, S.A. DE C.V., represented hereto by Mr. Koy Wilber
Diepholz (hereinafter referred to as “MINERAS”).
WITNESSETH:
WHEREAS,
DYNA and MINERAS entered into an agreement dated as of April 15, 2005 and FIRST amended on September 15, 2006; pursuant to
which DYNA engaged MINERAS to render the Mining Services described in Schedule A of the Mining Services Agreement, as amended
by the First Amendment to said agreement as described herein, where the parties established the manner in which MINERAS were to
exclusively operate and conduct the Subject Business (Mining Services, Milling services, Maintenance Services, Geology Services,
Engineering Services, Transportation / Trucking Services, Administrative Services, Management of Personnel, Support, as well as
other related services, hereinafter referred to as “the services”);
WHEREAS,
with the knowledge of all Shareholders of DYNA; MINERAS has been and is to be held as the exclusive entity entitled to exploit
the Mine and provide the inherent services,
WHEREAS,
as per the services to be rendered, DYNA deems certain terms of the original Agreement to be extensive, thus the need to amend
certain items of said Agreement.
WHEREAS,
as per the resolutions adopted by the Board of Directors of DYNA as described hereinafter, DYNA has discussed with MINERAS
the adoption of said items within the Agreement; and
WHEREAS,
the parties desire to amend the Contract Mining Services and Mineral Production Agreement in the manner hereinafter set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration
of the mutual promises contained herein, the parties agree as follows:
| 1. | Defined
Terms. Except as expressly provided herein, all the terms used herein shall have
the respective meanings set forth in the original CONTRACT MINING SERVICES
AND MINERAL PRODUCTION AGREEMENT and its First Amendment. |
| 2. | Definitions
contained under Part 1, section 1.3 of the Agreement, is hereby amended to read as follows:
|
“1.3.
Subject to the provisions of part 10 hereof, this Agreement shall be in full force and effect for a period of 20 (twenty) years,
commencing as of the date hereof and until its conclusion, unless validly terminated or extended by mutual consent of the parties.”
| 3. | The
parties hereby agree to abrogate, annul and, inherently, suppress and exclude “PART
3. INDEMNITY”, including sub numeral 4.1, subparagraphs (a), (b), (c), (d),
inclusive; and sub numeral 4.2, subparagraphs (a), (b), (c), (d), (e), (f), inclusive
and respectively, from the original CONTRACT MINING SERVICES AND MINERAL PRODUCTION
AGREEMENT. |
| 4. | The
parties hereby agree to abrogate, annul and, inherently, suppress and exclude, exclusively,
sub numeral “10.2”, related to PART 10. SUBCONTRACTS from the
original CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT. |
| 5. | The
parties hereby agree to abrogate, annul and, inherently, suppress and exclude, exclusively,
sub numeral “13.1”, related to PART 13. GENERAL PROVISIONS
from the original CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT. |
| 6. | The
parties recognize, concur and attest to sub numeral “13.3”, related
to PART 13. GENERAL PROVISIONS of the original CONTRACT MINING SERVICES
AND MINERAL PRODUCTION AGREEMENT, to read as follows: |
“13.3.
The parties hereby covenant and agree that this contract shall be construed by and regulated under the provisions of the Code
of Commerce and the Civil code of the State of Sinaloa, Mexico. The parties hereby agree that the state and federal tribunals
with competent jurisdiction for the City of Mazatlan, State of Sinaloa, United Mexican States, shall have the authority to resolve
any suit or claim arising out of or resulting for the application of this Contract. The parties hereby relinquish their right
to the jurisdiction of any tribunal or court, of any kind or nature, to which they might have or acquire a right or be subject
to by virtue of their current or future domiciles.”
6.01. Therefore,
the parties hereby agree to amend the wording and structure of the aforementioned sub numeral “13.3”, related
to PART 13. GENERAL PROVISIONS of the original CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT,
to hereinafter read as follows:
“13.3.
Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the City of Mazatlan, in the State of Sinaloa, Mexico, for any Actions arising out of
or relating to this Agreement, (and agree not to commence any action, suit or proceeding relating thereto except in such courts).
Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any Action arising
out of this Agreement, in the courts of the City of Mazatlan, in the State of Sinaloa, Mexico, and to the norms set forth by the
Commerce Code and Civil Code of such venue, and hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum.”
| 7. | The
Parties hereby expressly accept and adopt in its terms; resolutions seventh and ninth
of the Board of Directors Meeting of DYNA RESOURCES DE MEXICO, S.A. DE C.V., dated July
6th, 2011, therefore, hereinafter, said resolutions will constitute part of this THIRD
Amendment as if represented herein and to the effects related thereto. Thus beginning
on the date of closing of this THIRD Amendment, payment of the 2.5% Service Fee will
be suspended, effective, retroactively, as of July 1st, 2011, therefore from then on
after MINERAS DE DYNARESOURCE, S.A. DE C.V. will receive a monthly gross fee of US $20,000.00
(Twenty Thousand Dollars US CY) or its equivalent in Mexican pesos at the time of payment,
independent of other payments established under the original CONTRACT MINING
SERVICES AND MINERAL PRODUCTION AGREEMENT. |
| 8. | MISCELLANEOUS
PROVISIONS |
8.01
Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed
to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with
written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to
the appropriate addresses set forth below:
If
to the DYNA:
Sierra
Grande #134
Fraccionamiento
Lomas de Mazatlán
Mazatlán,
Sinaloa, México 82110
52-669-983-6625
/ 52-669-986-1306
Attention:
Mr. Koy Wilber Diepholz
If
to MINERAS:
Enrique
Dunant Y 5 de Mayo
#
963 L- 3
Fraccionamiento
Los Parques
Guamuchil,
Sinaloa México 81400
52-673-732-9325
/ 52-673-734-0920
| Attention: | Mr.
Koy Wilber Diepholz |
8.02
Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of City of Mazatlan, in the State of Sinaloa, Mexico, for any Actions arising out of
or relating to this Agreement, (and agree not to commence any action, suit or proceeding relating thereto except in such courts).
Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any Action arising
out of this Agreement, in the courts of the City of Mazatlan, in the State of Sinaloa, Mexico, and to the norms set forth by the
Commerce Code and Civil Code of such venue, and hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum.”
8.03
Governing Law. This Agreement will be construed in accordance with and governed by the laws of Mexico, specifically, the Commerce
and Civil Codes of the State of Sinaloa, Mexico, without regard to conflicts of laws principles thereof.
8.04
Waiver. The rights and remedies of the parties to the original Agreement are cumulative and not alternative. Neither the failure
nor any delay by any party in exercising any right, power or privilege under said Agreement will operate as a waiver of any right,
power or privilege under this Amendment, and no single or partial exercise of any right, power or privilege under this Amendment
will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege
under this Amendment or its original Agreement from it derives thereto. To the maximum extent permitted by Law, (a) no claim
or right arising out of this Amendment and/or its original Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given
by a party will be applicable except in the specific instance for which it is given and will not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure or noncompliance; and (c) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Amendment or its original Agreement from which it derives.
8.05
Entire Amendment and Modification. This Amendment constitutes a complete and exclusive statement of the terms of the original
agreement to be modified between the parties with respect to the subject matter contained herein, and supersedes all prior amendments
of the original agreement between the parties with respect to the items defined and modified hereto and thereto.
8.06
No Oral Modification. This Amendment may not be amended except by a written agreement executed by the parties to be charged
with the amendment. Any attempted amendment in violation of this Section 8.06 will be void ab initio.
8.07 Severability.
If any provision of this Amendment and/or in regards to the original Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Amendment will remain in full force and effect. Any provision of this Amendment
held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
8.08
Counterparts. This Amendment may be executed simultaneously in two or more counterparts, each of which will be deemed to be
an original copy of this Amendment and all of which together will be deemed to constitute one and the same agreement.
IN
WITNESS WHEREOF, this SECOND Amendment to the CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT, has been duly
executed and delivered by the duly authorized officers of DYNA and MINERAS as of the date first written above.
DynaResource
de México, S.A. de C.V.
|
Mineras
de DynaResource, S.A. de C.V. |
By: __________________________
Name: Mr. Koy Wilber Diepholz
Legal Representative: |
By: __________________________
Name: Mr. Koy Wilber Diepholz
Legal Representative: |
Exhibit
10.4
“EXPLOITATION
AGREEMENT”
EXPLOITATION
AMENDMENT (THIRD AMENDMENT) TO THE CONTRACT MINING
SERVICES
AND MINERAL PRODUCTION AGREEMENT
THIS
EXPLOITATION AMENDMENT, being the THIRD Amendment TO THE CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT (The
“Operating Agreement”), is made and entered into this Fifteen (15th) day of May, 2013 by and among
DYNARESOURCE DE MEXICO, S.A. DE C.V., hereinafter referred to as “DYNAMEXICO”); and MINERAS DE DYNARESOURCE,
S.A. DE C.V., represented hereto by Mr. German Perez Alaniz, holding the Power of Attorney for Administrative Acts of the Company
(hereinafter referred to as “MINERAS”).
WITNESSETH:
WHEREAS,
DYNAMEXICO and MINERAS entered into a Contract Mining Services and Mineral Production Agreement (the “Operating Agreement”)
dated as of April 15, 2005, and The FIRST AMENDMENT to the Operating Agreement on September 15, 2006, further amended by the SECOND
AMENDMENT to the Operating Agreement dated July 15, 2011; and pursuant to which DYNAMEXICO engaged MINERAS to render the Mining
Services described in Schedule A of the Operating Agreement, as amended by the First, and Second Amendments to said Operating
Agreement as described herein, whereby the parties established the manner in which MINERAS were to exclusively operate and conduct
the Subject Business (Mining Services, Milling services, Maintenance Services, Geology Services, Engineering Services, Transportation
/ Trucking Services, Administrative Services, Management of Personnel, Support, as well as other related services, hereinafter
referred to as “the services”); And,
WHEREAS,
with the knowledge of current Shareholders of DYNAMEXICO, and the various positions and discussions between the Shareholders
of DYNAMEXICO; MINERAS has been named the exclusive Operating Entity for the Project San Jose de Gracia, and MINERAS is to be
maintained as the Exclusive Operating Entity entitled to Exploit the San Jose de Gracia Mines and provide the inherent services;
And,
WHEREAS,
per the services to be rendered, certain operational costs, including but not limited to; the continued maintenance of the
Property, maintaining Mining Concessions and other inherent services to the upkeep of the Mine, as well as costs related exclusively
to the exploitation and further development of the Mine, with additional consideration given to further exploration of the Project
Area, have arisen which make it imperative for MINERAS to restructure the Agreement with DYNAMEXICO in order to provide for the
Financing for such costs and expenditures as previously discussed and negotiated with DYNAMEXICO; And,
WHEREAS,
the parties desire to further amend the Mining Services and Mineral Production Agreement (the “Operating Agreement”)
in the manner hereinafter set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration
of the mutual promises contained herein, the parties agree as follows:
| 1. | Defined
Terms. Except as expressly provided herein, all the terms used herein shall have
the respective meanings set forth in the original MINING SERVICES AND MINERAL PRODUCTION
AGREEMENT and its First and Second Amendments. |
| 2. | Certain
definitions contained under Schedule B of the original Agreement as amended by the first
amendment to said agreement, is hereby again amended to read as follows: |
“Schedule
B
“Compensation”
DYNAMEXICO
shall pay to MINERAS, in consideration for the Execution of the Mining Services set out in Schedule A hereto, and subsequent to
the reimbursement by DYNAMEXICO to Mineras for all Costs incurred by Mineras under the terms of this Agreement, a Management Fee
equal to:
(A)
Reimbursement of all costs incurred by Mineras under the terms of this Exploitation Amendment Agreement, such Costs incurred by
Mineras and to be charged by billing from Mineras to DynaMexico; Including, but not limited to: payment of costs and expenses,
fees, consulting costs, sub-contacts, equipment costs, rentals, surcharges, personnel payments and other related and inherently
derived from the services of the execution of the Mining Services and Milling Services, and Exploration Costs to be provided in
the San José de Gracia Project;
(B)
After Item A above; 75 % (Seventy-Five percent) of the Total Revenue Amounts Received from the sale of Any and All Minerals Produced,
Extracted, or Sold from the San Jose de Gracia Property; to the point that Mineras has recovered 200 % (Two Hundred Percent) of
Monies Invested by MINERAS; And,
(C)
After Items A and B above; 50 % (Fifty Percent) of the Total Revenue Amounts Received from the sale of Any and All Minerals Produced,
Extracted, or Sold from the San Jose de Gracia Property; After MINERAS has recovered 200 % (Two Hundred Percent) of Monies Invested
by MINERAS, and through the remaining term of this Exploitation Agreement;
Likewise,
a Net Smelter Return (hereinafter the “2.5 % NSR”) of 2.5 % (Two and One Half Percent) is hereby imposed in
favor of MINERAS in retribution and compensation of their services. Said 2.5 % NSR will apply to 100 % (One Hundred Percent) of
Any and All Mineral Sales from the San José de Gracia Project, and shall continue for the Term of the Exploitation Agreement
unless otherwise may be agreed in writing by MINERAS.”
| 3. | MISCELLANEOUS
PROVISIONS |
3.01
Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed
to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopy (with
written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to
the appropriate addresses set forth below:
If
to DYNAMEXICO:
Sierra
Grande #134
Fraccionamiento
Lomas de Mazatlán
Mazatlán,
Sinaloa, México 82110
52-669-983-6625
/ 52-669-986-1306
| Attention: | Dr.
Jose Vargas Lugo; President of Operations – Mexico; |
If
to MINERAS:
Enrique
Dunant Y 5 de Mayo
#
963 L- 3
Fraccionamiento
Los Parques
Guamuchil,
Sinaloa México 81400
52-673-732-9325
/ 52-673-734-0920
Attention:
Mr. German Perez Alaniz, Legal Representative.
3.02
Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of Sinaloa, Mexico, for any Actions arising out of or relating to this Agreement,
(and agree not to commence any action, suit or proceeding relating thereto except in such courts). Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of venue of any Action arising out of this Agreement,
in the courts of the City of Mazatlán, in the State of Sinaloa, Mexico, and to the norms set forth by the Commerce Code
and Civil Code of such venue, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such Action brought in any such court has been brought in an inconvenient forum.”
3.03
Governing Law. This Agreement will be construed in accordance with and governed by the laws of Mexico, specifically, the Commerce
and Civil Codes of the State of Sinaloa, Mexico, without regard to conflicts of laws principles thereof.
3.04
Waiver. The rights and remedies of the parties to the original Agreement are cumulative and not alternative. Neither the failure
nor any delay by any party in exercising any right, power or privilege under said Agreement will operate as a waiver of any right,
power or privilege under this Amendment, and no single or partial exercise of any right, power or privilege under this Amendment
will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege
under this Amendment or its original Agreement from it derives thereto. To the maximum extent permitted by Law, (a) no claim
or right arising out of this Amendment and/or its original Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given
by a party will be applicable except in the specific instance for which it is given and will not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure or noncompliance; and (c) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Amendment or its original Agreement from which it derives.
3.05
Entire Amendment and Modification. This Amendment constitutes a complete and exclusive statement of the terms of the original
agreement to be modified between the parties with respect to the subject matter contained herein, and supersedes all prior amendments
of the original agreement between the parties with respect to the items defined and modified hereto and thereto.
3.06
No Oral Modification. This Amendment may not be amended except by a written agreement executed by the parties to be charged
with the amendment. Any attempted amendment in violation of this Section 3.06 will be void ab initio.
3.07 Severability.
If any provision of this Amendment and/or in regards to the original Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Amendment will remain in full force and effect. Any provision of this Amendment
held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
3.08
Counterparts. This Amendment may be executed simultaneously in two or more counterparts, each of which will be deemed to be
an original copy of this Amendment and all of which together will be deemed to constitute one and the same agreement.
IN
WITNESS WHEREOF, this Exploitation Amendment (THIRD AMENDMENT) to the CONTRACT MINING SERVICES AND MINERAL PRODUCTION AGREEMENT
(“Operating Agreement”) has been duly executed and delivered by the duly authorized officers of DYNAMEXICO and
MINERAS as of the date first written above.
DynaResource
de México, S.A. de C.V. |
Mineras
de DynaResource, S.A. de C.V. |
|
|
Exhibit 10.5
PROVISION
OF PERSONNEL SERVICES AGREEMENT
THIS
AGREEMENT is made and entered on this the 15th day of MAY, 2005.
AMONG:
MINERAS
DE DYNARESOURCE, S.A. DE C.V., herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board
of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter
referred to as the “ “Contractor”);
OF
THE FIRST PART,
AND
DYNARESOURCE
OPERACIONES DE SAN JOSE DE GRACIA, S.A. DE C.V. herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President
of its Board of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration
and Domain (hereinafter referred to as the “Subcontractor”),
OF
THE SECOND PART.
WHEREAS:
| A) | the
Contractor is a limited liability company (S. A. de C.V.) validly subsisting and duly
incorporated pursuant to the laws of the United Mexican States, having its business and
affairs, among others, the exploration and exploitation of minerals within the territory
of Mexico, |
| B) | the
Contractor has executed with Dynaresource de Mexico, S.A. de C.V. (the “Company”)
a Mining Services and Production of Minerals Agreement (the “Mining Services Agreement”)
whereby the Contractor has agreed to render to the Company the Services described in
schedule A attached thereto, in or related to the mining concessions comprised in the
San Jose de Gracia Project, located in the Township of San Jose de Gracia, Municipality
of Sinaloa de Leyva, State of Sinaloa, Mexico (the “San Jose de Gracia Project), |
| C) | the
Subcontractor is a limited liability company (S. A. de C.V.) validly subsisting and duly
incorporated pursuant to the laws of the United Mexican States, having its business and
affairs, among others, the provision of technical and administrative mining services
and personnel to mining corporations operating within the territory of Mexico, and it
has personnel duly qualified, competent and accredited to carry out and provide to the
Contractor the Personnel Services as required under the Mining Services Agreement, |
| D) | the
Contractor desires to engage the Subcontractor to provide the Personnel Services for
the proper and competent execution of the Services described in schedule A of the Mining
Services Agreement, and the Subcontractor desires to provide to the Contractor such Personnel
Services in consideration of the Compensation, subject to the terms and conditions herein
set forth (all terms as defined here-below). |
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual warranties and representations herein contained, the
parties agree as follows:
PART
1. ENGAGING OF SUBCONRACTOR.
1.1. Pursuant
to Part 10 of the Mining Services Agreement and having the consent of the Company as required therein, the Contractor hereby engages
the Subcontractor to provide the Personnel Services described in Section 1.2. (the “Personnel Services”). The Subcontractor
hereby agrees to provide to the Contractor the Personnel Services:
| (a) | in
a professional, competent and efficient manner, |
| (b) | as
required for the proper and competent execution of the Services set out in the Mining
Services Agreement and |
| (c) | as
required from time to time by the Company. |
1.2. The
Subcontractor shall, as required from time to time by the Contractor and the Company and as set out in the Mining Services Agreement,
provide all labour personnel sufficient, competent and accredited to carry out the Services set out in schedule A of the Mining
Services Agreement, including, but not limited to (the “Personnel Services”):
| (a) | general
labourers and miners for the mining activities in or related to the San Jose de Gracia
Project, including mining equipment operators (backhoe, scoop tram, dump trucks, etc..)
and related personnel for the transportation of ore, concentrates, water, personnel and
equipment; |
| (b) | general
labourers and mill operators for the milling activities in or related to the San Jose
de Gracia Project, including the crushing, grinding, screening, collecting and storing
gravity and flotation concentrates, the sampling, assaying and reporting, handling and
applying chemicals, handling and movement of tailings, storing and handling of ore and
the operation of the equipment related to such activities; |
| (c) | geology
personnel for the sampling and assaying of rocks, trenching, drilling, interpretation
of data, coordination with engineering and all related activities; |
| (d) | engineering
personnel for the surveying, mapping, coordinating with geology personnel, planning and
development of mine plans, planning and monitoring of mine equipment, monitoring mining
activity for safety, and all related activities; |
| (e) | management,
maintenance and support personnel for the reporting, record keeping, maintaining payments
and accounts, secretarial services, maintaining of offices, and all related activities;
the servicing, repairing and maintaining of all camp, equipment, and facilities, and
all related activities; all support personnel to reasonably accomplish the work objectives; |
1.2.A. It
is agreed and acknowledged by the Subcontractor that, from May 16, 2005 through the date of effective termination of this Agreement,
it shall be solely liable and legally responsible for all personnel provided to the Contractor while providing the Personnel Services
pursuant to Subsection 1.2. Such liability and legal responsibility of the Subcontractor shall include, but not be limited to,
all rights and benefits acquired by such personnel engaged by the Subcontractor, and all obligations assumed by said Subcontractor,
set forth under the provisions of the Federal Employment Act, the National Workers’ Housing Institute Act, the Mexican Social
Security Institute Act, the Federal Income Tax Act and any other federal or state legislation applicable to a labour relationship.
1.3. In
consideration for the provision of the Personnel Services, the Contractor shall pay to the Subcontractor: The Actual Costs of
Employment for all Personnel, and the Total Cost of Employment Taxes; plus 10 %. (The “Compensation”).
1.4. This
Agreement shall be in full force and effect for a period of ONE (1) YEAR commencing on MAY 16, 2005 and may be renewed by the
parties for like terms, or as agreed or amended by the parties (the “Term of the Agreement”). The Contractor shall
have the right to terminate this Agreement on fifteen days’ written notice to the Subcontractor. In the event of such termination,
this Agreement, except for the obligations of the Contractor incurred prior to the effective date of termination, will be of no
further force and effect. This Agreement shall cease to be in force forthwith on the date of the effective termination of the
Mining Services Agreement.
1.5. All
personnel provided by the Subcontractor shall have sufficient skill and experience to properly perform the tasks assigned to them.
Personnel engaged in special tasks or skilled tasks will have appropriate qualifications, permits or licenses, experience with
such tasks and the operation of equipment required to perform all such tasks properly and satisfactorily to completion. The Subcontractor
shall promptly terminate or cause to be terminated any person who does not perform its tasks in a proper and skilled manner, or
who is intemperate or disorderly. Additionally, any such person shall, at written request of the Company or the Contractor, be
removed forthwith by the Subcontractor employing such person and will not be employed again without the prior written approval
of the Company. Should the Subcontractor fail to furnish suitable and sufficient personnel for proper execution of the Personnel
Services, or fail to remove such person or persons as required above, the Company or the Contractor may suspend the Personnel
Services by written notice until such orders are complied with.
1.6. It
is agreed and acknowledged by the Subcontractor that pursuant to Subsection 1.8. of the Mining Services Agreement the Company,
without invalidating such Agreement, may make changes by altering, adding to, or deducting from the responsibilities set out as
Services under schedule A thereto. In any of such cases, the Subcontractor shall provide all extra or incidental personnel to
fully perform all altered, added or reduced responsibilities. The Subcontractor shall not claim for loss of profits or anticipated
profits or damages at any time due to any decision to reduce or delete any part of the Services set out in schedule A of the Mining
Services Agreement as herein set out.
1.7. Except
as may be otherwise expressly set out herein, the Subcontractor shall clean up the work performed by its personnel as it progresses
and ensure that the premises are at all times kept free from the accumulation of waste material and rubbish resulting from the
Subcontractor’s activities, removing debris from the mine and mill sites from day to day, and when all work is finished
shall similarly remove all tools, equipment, machinery, fuel drums and hazardous substances, and machinery which are its property
or the property of any other person and all rubbish and waste materials, and shall leave the workplace in a clean and safe condition,
free and clear of all obstructions and hindrances. Should the Subcontractor refuse or neglect to comply with the provisions of
this paragraph, the Company and the Contractor shall have the right to do the cleaning and charge the Subcontractor with the costs
thereof.
PART
2. MINING ASSETS.
2.1. It
is agreed and acknowledged by the Subcontractor, in its behalf and in behalf of its employees or independent contractors that
pursuant to Part 2 of the Mining Services Agreement the Company has furnished, for the property and competent execution of the
Services (set out in schedule A of the Mining Services Agreement) all of the equipment, machinery, rights and facilities described
in the inventory of assets attached as schedule C to the Mining Services Agreement (the “Mining Assets”).
2.2. It
is acknowledged and agreed by the Contractor, in its behalf and in behalf of its employees or independent contractors that the
Mining Assets:
| (a) | shall
remain the property of the Company during and on termination of this Agreement; the Contractor
is deemed as a lessee of such Mining Assets and the holder of the rights of use and enjoyment
thereof, |
| (b) | shall
be dedicated exclusively for the provision of the Services set out in schedule A of the
Mining Services Agreement; the Contractor being responsible and liable to the Company
for any use of the Mining Assets other that as provided in such Agreement. |
2.3.
The Contractor shall, during the Term of the Agreement and until such time as the Company accepts full delivery of the Mining
Assets, be fully responsible and liable to the Company for the proper up keeping, maintenance and safeguarding of the Mining Assets;
the Subcontractor shall directly or indirectly conduct in a timely and workmanlike manner, all repairs and period maintenance
work as required to maintain the Mining Assets in optimal operating condition.
2.4. The
Suncontractor agrees to indemnify and hold harmless the Contractor and the Company and their respective directors, officers, employees,
agents, representatives and related corporations (the “Indemnified Persons”) from and against any claims, demands,
judgments, liabilities, expenses, damages, fines, charges, costs (including legal costs) and losses of every and any kind whatsoever,
whether direct or indirect and whether to person or property or otherwise, which at any time or from time to time are directly
or indirectly incurred or suffered by any of the Indemnified Parties in connection with, as a result of or arising out of the
operation, administration or maintenance of the Mining Assets by the personnel provided by the Subcontractor under this Agreement.
2.5. The
Subcontractor agrees to maintain the Mining Assets free and clear of all charges, encumbrance or limitation of ownership rights
of any kind whatsoever that may result or arise out of any claims, demands or judgments filed by or issued to the benefit of any
employee or independent contractor provided by the Subcontractor hereunder.
PART
3. RELATIONSHIP.
3.1. The
parties hereto acknowledge and agree that this Agreement:
| (a) | is
of a mercantile nature, |
| (b) | does
not create a partnership or association of any kind between the Subcontractor and the
Contractor or the Subcontractor and the Company, |
| (c) | is
not subject to the provisions of the Federal Labour Act of Mexico, the Social Security
Act or any other legislation applicable to a labour relationship, and |
| (d) | does
not create any contractual, civil or labour relationship, or any relationship of any
nature whatsoever, between the Subcontractor and the Company. |
3.2. The
parties hereby acknowledge and agree that there is no labour relationship between or among themselves, between or among any or
both of them and the Company or between or among the employees or contractors of the parties or the Company; therefore, the parties
expressly agree that each party shall individually bear all obligations or responsibilities imposed to each of them under applicable
labour and tax legislation, or imposed to each party in respect to such party’s employees or contractors. Further, the parties
agree to indemnify and hold each other harmless from, against and in respect to, any suit, demand or complaint claimed or filed
before any labour, administrative or judicial authority by one of the party’s employees or contractors against the other
party.
3.3. The
Subcontractor acknowledges and agrees that all personnel provided by it pursuant to the provision of this Agreement shall at all
times be retained and engaged by the Subcontractor. The Subcontractor agrees that it is solely and exclusively responsible for
payment of salaries and/or professional fees, income tax, IMSS and INFONAVIT withholdings, payments and fees applicable under
the laws of Mexico in respect to all personnel provided by the Subcontractor pursuant to this Agreement.
PART
4. INDEMNITY.
4.1. The
Subcontractor hereby assumes, except as may be expressly set out in this Agreement, entire responsibility and liability for any
and all damage, loss or injury of any kind or nature whatsoever to person or property arising out of or connected in any manner
with the activities of its personnel in the San Jose de Gracia Project. Without limitation, the Subcontractor agrees to indemnify
and hold harmless the Contractor and the Company and their respective directors, officers, employees, agents, representatives
and related corporations (collectively the “Indemnified Parties”) from and against any claims, demands, judgments,
liabilities, expenses, damages, fines, charges, costs (including legal costs) and losses (collectively “Losses”) of
every and any kind whatsoever, whether direct or indirect and whether to person or property or otherwise, which at any time or
from time to time are directly or indirectly incurred or suffered by any of the Indemnified Parties in connection with, as a result
of or arising out of:
| (a) | any
act or omission on the part of any employee or independent contractor of the Subcontractor; |
| (b) | any
misrepresentation or untrue warranty of the Subcontractor; |
| (c) | any
breach, default or non-performance of any covenant to be performed by the Subcontractor
under this Agreement; or, |
| (d) | without
limiting sub-clause (a) above and except for any manners which are expressly stated to
be the responsibility of the Contractor, the performance by or on behalf of the Subcontractor
of any obligations imposed by applicable Mexican laws (the “Laws”) relating
to the environment (including reclamation or closure) or the taking of any steps by or
on behalf of the Subcontractor to protect against or remediate (including reclamation)
any harm, damage, degradation or adverse effect on the environment which directly or
indirectly results from the activities of the employees or independent contractors of
the Subcontractor. |
4.2. Environmental
Matters. - The Subcontractor covenants, represents and warrants to the Contractor that:
| (a) | it
will review, be familiar with and verify the existence of all permits which are held
by the Company or which are necessary to perform its obligations pursuant to this Agreement; |
| (b) | it
will identify and obtain and maintain any other permits which may be required pursuant
to environmental Laws in connection with the performance of this Agreement; |
| (c) | it
is familiar with all applicable Laws relating to the environment and that the activities
of all of its personnel will be conducted in compliance with all environmental Laws and
permits and so as not to give rise to any breach or non-compliance thereof; |
| (d) | all
of its employees and independent contractors have been properly trained with respect
to environmental concerns directly or indirectly associated with the Company’s
activities and methods and systems for preventing any harm, damage, degradation or adverse
effect on the environment; |
| (e) | it
will exercise due care in preventing environmental harm and without limitation, the Subcontractor
and its employees and independent contractors shall implement such systems and procedures
and provide all such equipment and facilities necessary so as to prevent accidental occurrences
which may result in environmental harm; and, |
| (f) | it
shall be fully responsible for all acts and omissions of any of its employees and/or
independent contractors, and the Subcontractor shall ensure that any of its employees
or independent contractors shall comply with the provisions herein set out and any other
provisions of this Agreement which directly or indirectly relate to environmental matters
as if such person was the Subcontractor hereunder. |
PART
5. INSPECTION OF WORK.
5.1. All
work performed by the employees and independent contractors of the Subcontractor shall be performed in a professional, competent,
and efficient manner. Inspection of all work will be carried out by the Contractor and/or the Company while such work is in progress.
Notwithstanding such inspection, the Subcontractor will be held responsible for the completion of the work in accordance with
the terms and conditions of this Agreement and the Mining Services Agreement.
5.2. The
Contractor and the Company and their respective representatives will, at all times, have access to the work performed by the employees
or independent contractors of the Subcontractor whenever it is in preparation or progress. The Contractor and Company will perform
said inspection in such manner as not to delay the work unnecessarily.
PART
6. SUBCONTRACTS
6.1. The
Subcontractor shall not subcontract to any person any part of the Personnel Services without prior written approval of the Contractor
and the Company, and in each individual instance, the scope of the Personnel Services to be subcontracted will be subject to prior
approval of the Contractor and the Company, which approval shall not be unreasonably withheld.
6.2. The
Subcontractor agrees that it is as fully responsible to the Contractor and the Company for the acts and omissions of its subcontractors
and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed
by it.
6.3. Nothing
contained in this Agreement shall create any contractual relationship between any subcontractor of the Subcontractor and the Contractor
or the Company. Each subcontract shall provide that it is subject to termination for the convenience of the Company, in which
event the Company’s liability shall be limited to work done or material supplied prior to cancellation.
PART
7. SUSPENSION OR TERMINATION FOR CONVENIENCE.
7.1. The
Contractor reserves the right to suspend or terminate this Agreement, or any part thereof, at any time and for any reason it deems
fit, including for its convenience. Such suspension or termination will be made in writing and may include the whole or any specified
part of the Agreement.
7.2. Upon
receipt of notice to resume suspended Services, the Subcontractor will immediately resume the suspended Personnel Services to
the extent required in the notice. If this Agreement, or a specified part thereof, is terminated for the convenience of the Contractor,
the Company shall pay the Subcontractor for Personnel Services performed before the effective date of termination.
PART
8. TERMINATION FOR CAUSE.
8.1. If
the Subcontractor shall become bankrupt or insolvent, or if the Contractor has reasonable grounds to believe that the Subcontractor
is bankrupt or insolvent or unable to pay its debts as they become due, the Contractor may terminate all or part of the Subcontractor’s
performance and/or further rights hereunder for cause, as the Contractor may elect.
8.2. If
the Subcontractor fails to commence the Personnel Services within the time specified and prosecute it continuously with sufficient
properly skilled personnel and equipment to ensure its completion within the specified time, or fails to perform the Personnel
Services in the manner required by this Agreement, or fails to carry on the Personnel Services in an acceptable manner, or defaults
in any of the obligations herein, the Contractor may elect to give notice in writing of such default, specifying the same and
the corrective steps to be taken.
8.3. If
the Subcontractor, within a period of 72 hours after delivery of such notice, shall fail to proceed in accordance therewith, the
Contractor may terminate the Subcontractor’s right to continue with the Personnel Services and may complete it with its
own forces, contract with others for its completion, or use such other measures as in the Contractor’s opinion are necessary
for completion, including the use of the equipment, plant, and other property of the Subcontractor. In selecting another subcontractor(s)
for the purpose of completing the Personnel Services, the Contractor shall be guided by the same selection criteria as utilized
by the Contractor in the original contract award, and not necessarily by the lowest bid(s).
8.4. In
the event of termination for cause:
| (a) | The
Contractor shall be entitled to deduct from any and all monies owing to the Subcontractor
hereunder damages for additional expenses caused by or arising out of breach of warranties
and guarantees hereunder, or of any other default by the Subcontractor; |
| (b) | If
the expense of finishing the Personnel Services plus compensation for additional managerial
and administrative services and such other costs and damages with regard to completion
of the Personnel Services as the Contractor may suffer exceeds the unpaid balance, the
Subcontractor shall promptly pay the difference to the Contractor, and, |
| (c) | The
Subcontractor shall not be entitled to receive any further payment until the Personnel
Services are completed and any such payments shall exclude all claims and the Subcontractor
shall not be entitled to any claims for special or consequential damages, including loss
of anticipated profit due to such termination; |
| (d) | No
settlement payment will be made to the Subcontractor hereunder, until the Subcontractor
has submitted: |
(i) | | final statement supported by
vouchers; and, |
(ii) | | A full Release and Waiver of
Claim from all employees and independent contractors of the Subcontractor or other evidence satisfactory to the Contractor that
the Subcontractor has paid for all labour, materials, equipment, services, subcontracts, applicable taxes, and other costs and
assessments due under this Agreement. |
8.5. In
the event of termination for cause, written notice will be given to the Subcontractor at the address set forth in this Agreement.
Subject to the directions set forth in the termination notice, the Subcontractor shall immediately discontinue the Personnel Services
and the placing of orders for further services, material and equipment and shall, as directed, effect cancellation of all existing
orders and subcontracts and thereafter perform only such Personnel Services as may be necessary to preserve and protect the work
already in progress.
PART
9. GENERAL PROVISIONS.
9.1. Confidentiality.
The parties hereby agree to maintain confidential the terms and conditions set out in this Agreement. Further, the Subcontractor
hereby agrees on its behalf and/or on behalf of its employees, subcontractors, directors, officers and representatives (the “Related
Persons”) to maintain confidential and to not disseminate, permit the dissemination or to use for its own benefit or for
the benefit of the Related Persons or for commercial purpose, all or any portion of the information that it or the Related Persons
may obtain or may have access to during or as a result of the performance of the Personnel Services. The obligation entered into
by the Subcontractor hereunder shall be in force for the duration of this Agreement and it shall terminate at the completion of
a term of 5 years commencing from the date of termination of this Agreement.
9.2. Materials.
The Subcontractor hereby agrees on its behalf and on behalf of the Related Persons that all materials obtained or prepared
during the performance of the work, and all confidential information obtained or to which it or the Related Persons have an access
to, is and shall remain the exclusive property of the Company. The Subcontractor hereby agrees to return to the Company, at its
own expense and within a term of 10 calendar days commencing on the date of termination of this Agreement or on the date of receipt
of a written request from the Company, all materials or confidential information in its possession or in possession of the Related
Persons that have been obtained or prepared during or as a result of the performance of the work.
9.3. Governing
Law. The parties hereby covenant and agree that this Agreement shall be construed by and regulated under the provisions of
the Code of Commerce and the Civil Code of the State of Sinaloa, Mexico. The parties hereby agree that the state and federal tribunals
with competent jurisdiction for the City of Mazatlan, State of Sinaloa, United Mexican States, shall have the authority to resolve
any suit or claim arising out of or resulting from the application of this Contract. The parties hereby relinquish their right
to the jurisdiction of any tribunal or court, of any kind or nature, to which they might have or acquire a right or be subject
to by virtue of their current or future domiciles.
9.4. Notices.
Any notice or notification given or required to be given between the parties as a result of the application of this Agreement,
including any notification required or permitted to be given in any judicial proceedings, shall be given in writing and personally
delivered to the other party, or delivered by any means that undoubtedly assures its reception or notification, in both cases
with an acknowledgement of receipt thereof, and it shall be directed to the latest domiciles expressed by the parties hereunder,
which domiciles are, until further notice is given, as follows:
If
to Contractor:
MINERAS
DE DYNARESOURCE, S.A. DE C.V.
Attention:
Mr. KOY WILBER DIEPHOLZ
Ave.
Ejercito Mexicano No. 2004, Oficina 204
Col.
Insurgentes
Mazatlan,
Sin. MEXICO
669-986-1306
If
to Subcontractor:
DYNARESOURCE
OPERACIONES DE SAN JOSE DE GRACIA, S.A. DE C.V.
Attention:
Mr. KOY WILBER DIEPHOLZ
Ave.
Ejercito Mexicano No. 2004, Oficina 204
Col.
Insurgentes
Mazatlan,
Sin. MEXICO
669-986-1306
9.5. Languages.
The parties sign, execute and approve this Agreement in the English and Spanish languages. The parties agree that in the event
of discrepancy between the two versions, the Spanish version shall prevail. The parties acknowledge to having read and understood
(through their respective appointed Spanish interpreters) the legal effects and validity of the Spanish and English versions of
this Agreement. The English version is attached as schedule C hereto and made part hereof for all corresponding legal effects.
9.6. Whole
Agreement. This Agreement, schedule A (English version) attached hereto and the documents delivered as set forth hereunder,
constitute the entire understanding of the parties in respect to the subject matter hereof, and they cancel and supersede any
other agreement, contract or letter of intent that they may have executed in respect to the said subject matter.
IN
WITTNESS WHEREOF, the parties hereto after having read and understood the legal effects and validity of the premises set forth
above, have caused this Agreement to be executed on the date and place first-written.
THE
“CONTRACTOR”
MINERAS
DE DYNARESOURCE, S.A. DE C.V.
______________________________________
Per:
KOY WILBER DIEPHOLZ
Its:
President of the Board of Directors
THE
“SUBCONTRACTOR”
DYNARESOURCE
OPERACIONES DE SAN JOSE DE GRACIA, S.A. DE C.V.
______________________________________
Per:
KOY WILBER DIEPHOLZ
Its:
President of the Board of Directors
Exhibit 10.6
Amending
Agreement to
Personnel
Services Agreement
THIS
AMENDING AGREEMENT is made and entered in the City of Mazatlan, Sinaloa as of this the Fifteenth (15) Day of September, 2006.
AMONG:
DYNARESOURCE
OPERACIONES DE SAN JOSE DE GRACIA, S.A. DE C.V. herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President
of its Board of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration
and Domain (hereinafter referred to as the “Operaciones”),
OF
THE FIRST PART,
AND
MINERAS
DE DYNARESOURCE, S. A. DE C.V., herein represented by Mr. KOY WILBER DIEPHOLZ, acting in his capacity of President of its Board
of Directors holding General Powers of Attorney for Legal Representation and Collections, Acts of Administration and Domain (hereinafter
referred to as “Mineras”);
WHEREAS:
I. The
parties jointly warrant and represent as follows:
| A. | Their
legal representative appearing herein in their behalf possesses the legal capacity required
for this act. |
| B. | A
Personnel Services Agreement (the “Personnel Services Agreement”) was executed
on May Fifteenth (15th), 2005, whereby Mineras engaged Operaciones to render
the Personnel Services described therein, on payment of the Compensation set out in Section
1.3. thereto; a copy of the Personnel Services Agreement is attached as Schedule A hereto.
|
| C. | As
the mining activities currently carried out by Operaciones in SJG are primarily of an
exploration nature and not milling of ore (which was the basis for setting out the Compensation
described in Section 1.3. of the Personnel Services Agreement), the parties wish to modify
said Section 1.3. of the Personnel Services Agreement in accordance with the terms and
conditions set forth hereunder. |
CLAUSES
CLAUSE
1
| 1.1. | The
parties agree that Section 1.3. of the Personnel Services Agreement reads as follows: |
“…Section
1.3. In consideration for the provision of the Personnel Services, the Contractor shall pay to the Subcontractor “The
Actual Costs of Employment for all Personnel, and the Total Cost of Employment Taxes; plus 10 %. (The “Compensation”).
CLAUSE
2
| 2.1. | The
parties covenant and agree to “AMEND” Section 1.3. of the Personnel
Services Agreement to hereinafter read as follows: |
“…Section
1.3. In consideration for the provision of the Personnel Services, the Contractor shall pay to the Subcontractor The Actual
Costs of Employment for all Personnel, and the Total Cost of Employment Taxes; plus 5 %. (The “Compensation”).
| 2.2. | The
amendments to Section 1.3. of the Personnel Services Agreement agreed upon by the parties
hereunder shall form integral part of the Personnel Services Agreement from the date
hereof and they shall be binding upon the parties hereto. The parties hereby fully ratify
each and all of the terms and provisions of the Personnel Services Agreement, which includes
the amendments made hereto. |
CLAUSE
3
| 3.1. | Languages.-
The parties sign and approve this Amending Agreement in the English and Spanish languages.
The parties agree that in the event of discrepancy between the two versions, the Spanish
version shall prevail. The English version is attached as Section 1.3. hereto and made
part hereof for all corresponding legal effects. |
| 3.2. | Whole
Agreement.- The Personnel Services Agreement and attachments, this Amending Agreement
and attachments, and the documents delivered by the parties as therein set forth, constitute
the entire understanding of the parties in respect to the subject matter thereof. |
In
witness whereof, the parties hereto after having read and understood the legal effects and validity of the premises set forth
above, have caused this Agreement to be executed on the date and place above written.
Signatures
on page following:
“OPERACIONES”
DYNARESOURCE
OPERACIONES DE SAN JOSE DE GRACIA
__________________________
KOY
WILBER DIEPHOLZ
ITS:
PRESIDENT
“MINERAS”
MINERAS
DE DYNARESOURCE, S. A. DE C.V.
_____________________
KOY
WILBER DIEPHOLZ
ITS:
PRESIDENT
Exhibit
21
DynaResource,
Inc.
List
of Subsidiaries
Subsidiary |
Jurisdiction
of Formation |
|
|
DynaResource de México, S.A. de C.V. |
Mazatlan, Sinaloa, México |
|
|
Ownership: |
|
DynaMéxico
Shareholder |
Fixed
Capital
Series
“A” Shares |
Variable
Capital
Series
“B” Shares |
Total
Capital Shares
(Series
A and B) |
Total
Ownership
Percentage |
DynaResource,
Inc. |
099 |
300 |
399 |
79.8% |
Koy
W. Diepholz |
001 |
- |
001 |
0.2% |
Goldgroup
Resources Inc. |
- |
100 |
100 |
20.0% |
Total
Capital Issued |
100 |
400 |
500 |
100% |
Mineras
de DynaResource, S.A. de C.V. |
|
Mazatlan,
Sinaloa, México |
|
|
|
Ownership: |
|
|
DynaResource, Inc. 100% |
|
|
|
|
DynaResource
Operaciones de San Jose de Gracia, S.A. de C.V. |
|
|
|
|
Mazatlan,
Sinaloa, México |
Ownership: |
|
|
DynaResource, Inc. 100% |
|
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