dynr_ex41





  Exhibit 4.1











 



THIS NOTE AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF IN VIOLATION OF SECURITIES
LAWS. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.


 



CONVERTIBLE PROMISSORY NOTE


 


	
US
$2,500,000

	
 May ___,
2020

No.
1








 


FOR
VALUE RECEIVED, DynaResource,
Inc., a
Delaware corporation (the “Company”),
hereby promises to pay to the order of Golden Post Rail, LLC, a
Texas limited liability company (the “Holder”), or
its assigns, the aggregate principal sum of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000.00), together with
interest on the unpaid principal balance of this convertible
promissory note (this “Note”) at a
simple interest rate equal to ten percent (10%) (computed on the
basis of the actual number of days elapsed in a 365-day year) per
annum, paid quarterly. Interest shall accrue from the date hereof
and shall continue to accrue on the outstanding principal balance
of this Note until paid in full or converted. Except as expressly
provided herein, all payments of principal and interest by the
Company under this Note shall be made in United States dollars in
immediately available funds to an account specified by the Holder.
Payment shall be credited first to the accrued interest then due
and payable and the remainder applied to principal.


 


This
Note is one of a series of Notes (collectively, the
“Notes”) that
may be purchased pursuant the Purchase Agreement (as defined
below). This Note is a secured obligation of the Company pursuant
to the terms of the Pledge Agreement (as defined
below).


 

1. Definitions. Capitalized terms
used herein shall have the respective meanings ascribed thereto in
the Purchase Agreement unless otherwise defined herein. Unless the
context otherwise requires, when used herein the following terms
shall have the meaning indicated:

 


“Affiliate”
means with respect to any person or entity, any person or entity
that, directly or indirectly, controls, is controlled by, or is
under common control with such person or entity, as the case may
be.


 


“Common Stock”
means the Company’s common stock, par value $0.01 per
share.


 


“Conversion
Price” means $2.00 per share of Conversion
Shares.


 


“Company Sale”
means (a) a sale by the Company of all or substantially all of its
assets, (b) a merger of the Company with or into another entity (if
after such merger the holders of a majority of the Company’s
voting securities immediately prior to the transaction do not hold
a majority of the voting securities of the successor entity) or (c)
the transfer of more than 50% of the Company’s voting
securities to a person or group, other than in connection with a
bona fide equity financing.


 


“Conversion
Shares” means shares of a new class of preferred stock
of the Company issued to the Holder, that is pari passu to the
Series C Preferred Stock and having the same rights, privileges,
preferences and restrictions as the shares of Series C Preferred
Stock (including, but not limited to, the same anti-dilution
protections of the Series C Preferred Stock), other than with
respect to: (i) the per share liquidation preference; and (ii) the
conversion price for purposes of price-based anti-dilution
protection and/or conversion into Common Stock, which will be equal
to the Conversion Price.


 


“Maturity Date”
means May 14, 2022.


 


“Outstanding
Balance” means all Outstanding Principal Amount and
any accrued and unpaid interest due thereon.


 


“Outstanding Principal
Amount” means all outstanding principal under the
Note.


 


“Person” means
an individual, corporation, partnership, limited liability company,
trust, business trust, association, joint stock company, joint
venture, sole proprietorship, unincorporated organization,
governmental authority or any other form of entity not specifically
listed herein.


 



 

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“Pledge
Agreement” means the Pledge Agreement, dated as of May
14, 2020, as such agreement may be amended from time to time, by
and among the Company, the Holder and K.D. Diepholz.


 


“Purchase
Agreement” means the Note Purchase Agreement, dated as
of May 14, 2020, as such agreement may be amended from time to
time, by and among the Company, the Holder and the other
“Purchasers” defined therein, pursuant to which the
Company issues and sells the Notes (including this
Note).


 


“SEC Rule 144”
means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act.


 


“Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.


 


“Series C Preferred
Stock” means the Series C Preferred Stock of the
Company, par value $0.0001 per share.


 


“Transaction
Documents” means, collectively, the Notes, the GPR
Warrant, the Pledge Agreement, and the Purchase
Agreement.


 

2. Purchase Agreement;
Transfer.

 

(a) This Note is
subject to the terms and conditions of, and entitled to the benefit
of, the provisions of the Purchase Agreement.

 

(b) Subject to the
restrictions on transfer described in the Purchase Agreement, the
rights and obligations of the Company and Holder shall be binding
upon and benefit the successors, assigns, heirs, administrators and
transferees of the parties.

 

(c) From and after the
date hereof and through and including the Maturity Date, subject to
the satisfaction of the conditions in this Section 2(c), the principal
amount under the Note will be advanced by Holder in minimum amounts
of $62,500 to pay amounts specified in a Draw Request (as defined
below) received and approved by Holder. All advances under this
Note are subject to satisfaction of the following
conditions:

 

(i) the Company shall
have used the proceeds of any prior Draw Requests in accordance
with the Draw Summary and the Budget attached to the Purchase
Agreement;

 

(ii) the
Company shall have delivered to Holder a draw request in form and
substance acceptable to Holder (and, for the avoidance of doubt,
Holder shall be satisfied with the use of proceeds set forth
therein) (including, without limitation, the purpose of the draw
request) in accordance with Section 1.6 of the Purchase
Agreement (a “Draw
Request”);

 

(iii) the
Company shall certify that (A) any proceeds advanced under this
Note to the Company in connection with previous Draw Requests have
been used by the Company in accordance with Section 1.6 of the Purchase
Agreement, including, without limitation, the Draw Summary and the
Budget, in each case, attached to the Purchase Agreement, and (B)
the proceeds advanced under this Note to the Company in connection
with the Draw Request such certification is being delivered with
will be used by the Company in accordance with Section 1.6 of the Purchase
Agreement, including, without limitation, the Draw Summary and the
Budget, in each case, attached to the Purchase
Agreement;

 

(iv)  such
Draw Request shall be signed by K.D. Diepholz and Rene
Mladosich;

 

(v) as of the date such
Draw Request is delivered and as of the funding date of such
advance, no event shall have occurred and be continuing or would
result from the making of such advance that would constitute a
Event of Default or that with notice or lapse of time, or both,
would constitute an 
Event of Default;

 

(vi) as
of the date such Draw Request is delivered and as of the funding
date of such advance, the representations and warranties contained
herein and in the other Transaction Documents shall be true and
correct on and as of each such date, except to the extent such
representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date;
and

(vii) after
giving effect to such advance, the Outstanding Principal Amount of
this Note shall not exceed $2,500,000 (the “Maximum
Amount”).

 



 

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In no
event shall the Company submit a Draw Request more than one (1)
time in any calendar month. With respect to all amounts advanced
pursuant to a Draw Request that are used to pay third-party
contractors or vendors, the Company shall promptly (but no later
than 48 hours following payment of such third-party contractors or
vendors, as applicable) submit to Holder written evidence that such
contractor or vendor has received the amounts specified in such
Draw Request. Notwithstanding anything to the contrary in this
Note, the obligation of Holder to advance any funds pursuant to
this Section 2
shall not exceed, in the aggregate, 50% of the Maximum Amount of
this Note unless the Company obtains the Shareholder Approval (as
defined in the Purchase Agreement) by the Shareholder Meeting
Deadline (as defined in the Purchase Agreement). For the avoidance
of doubt, in the event the Company is unable to obtain the
Shareholder Approval by the Shareholder Meeting Deadline and file
the Charter Amendments (as defined in the Purchase Agreement)
within one (1) business day thereafter, such failure shall
constitute an Event of Default hereunder and Holder shall not be
required to advance any other funds to the Company pursuant to this
Section
2.


 

(d) The Company shall
have the right to redeem this Note at a purchase price equal to the
Outstanding Balance as of the date of redemption (the
“Option”);
provided, that, the
Option may be exercised by the Company solely to the extent (i)
such redemption by the Company of this Note is on a pari passu
basis with the Notes of all other holders of Notes, (ii) to the
extent the Option is exercised prior to the first year anniversary
of the date hereof, the purchase price shall be increased by an
amount equal to (A) the product of (1) the Outstanding Principal
Amount, multiplied by (2) 10%, less (B) any accrued but unpaid
interest as of the date of the redemption (the “Premium”), and
(iii) the Company delivers notice to the Holder pursuant to the
provisions of Section 8.5 of the Purchase Agreement, and the Holder
shall have 10 business days from receipt thereof to elect to
convert such Note into Conversion Shares pursuant to Section 4(b) of the Note in
lieu of having such Note redeemed by the Company. Upon exercise of
the Option, the Company shall deliver
to the Holder or its designated Affiliate the purchase price as
increased by clause (ii) of this Section 2(d) and the
Holder, upon receipt of such purchase price, shall return to the
Company the original copy of this Note. The Company shall mark this
Note received from the Holder in connection with its exercise of
the Option as “cancelled”.

 

(e) For so long as
Holder holds any Notes, the Company shall not issue any shares of
Series D Preferred Stock to any Person (other than the Holder of
this Note or the holders of any other Notes issued under the
Purchase Agreement upon conversion of such Notes in accordance with
their respective terms) without the prior written consent of the
Requisite Holders.

 

3. Payment of Principal and Interest;
Prepayment.

 

(a) Interest on this
Note shall accrue from the date hereof and be payable, in arrears,
on March 31, June 30, September 30 and December 31 of each calendar
year, and the Outstanding Balance shall be payable, in arrears,
upon demand by the Holder at any time on or after the Maturity
Date, unless prepaid pursuant to Section 3(b) hereof or earlier
converted pursuant to Section 4 hereof.

 

(b) The Company shall
not prepay all or any portion of the principal amount or accrued
but unpaid interest on any of the Notes without the prior written
consent of the Requisite Holders (as defined below); provided, that, any such
permitted prepayment shall be applied ratably and proportionately
on all outstanding Notes on the basis of the original principal
amount of outstanding Notes and made in accordance with
Section 9
hereof.

 

4. Conversion.

 

(a) Voluntary Conversion at Company
Sale. In the event that prior to the repayment in full of
this Note or conversion of this Note in accordance with its terms,
there is a Company Sale, the Holder, at the Holder’s sole
discretion, shall either (i) be repaid the accrued but unpaid
interest under this Note, plus 1.25 times the Outstanding Principal
Amount, in cash or (ii) convert the Oustanding Balance of this Note
into Conversion Shares at a price per share equal to the Conversion
Price; provided,
that any payment or conversion of the Note pursuant to this
Section 4(a) shall
occur immediately prior to consummation of the Company
Sale.

 

(b) Voluntary Conversion. At any
time for so long as the Note remains outstanding, the Holder, at
the Holder’s sole option, may elect to convert the
Outstanding Balance into Conversion Shares at a price per share
equal to the Conversion Price. In the event the Holder wishes to
convert this Note upon the Maturity Date, then the Holder shall
notify the Company thereof at least three (3) days prior to the
Maturity Date and the Company, upon receipt of such notice, shall
not repay the Note or any portion of the Note on the Maturity Date
and shall instead take such actions as necessary to cause the
conversion thereof.

 



 

3







 





 

(c) Mechanics and Effect of
Conversion.

 

(i) Upon conversion of
this Note, the Note will be deemed fully satisfied and discharged
and the Company will automatically be released from all of its
obligations and liabilities hereunder; and

 

(ii) No
fractional shares of the Company’s Conversion Shares will be
issued upon conversion of this Note. In lieu of any fractional
share to which the Holder would otherwise be entitled, the Company
will pay to the Holder in cash the amount of the unconverted
Outstanding Balance that would otherwise be converted into such
fractional share. Upon conversion of this Note pursuant to this
Section 4, the
Holder shall surrender this Note, duly endorsed, at the principal
offices of the Company or any transfer agent of the Company. The
Company will, at its expense, as soon as practicable thereafter,
issue and deliver to the Holder, at Holder’s principal
office, a certificate or certificates for the securities to which
the Holder is entitled upon such conversion, together with any
other securities and property to which the Holder is entitled upon
such conversion under the terms of this Note, including a check
payable to the Holder for any cash amounts payable as described
herein.

 

5. Event of Default. The
occurrence of any of following events shall constitute an
“Event of
Default” hereunder:

 

(a) The failure of the
Company to pay any amounts due under the Notes or any of the other
Transaction Documents when due;

 

(b) Any representation
or warranty of the Company in the Transaction Documents is
incorrect in any material respect;

 

(c) The Company’s
failure to perform any of the covenants, agreements or obligations
set forth in the Transaction Documents and such failure shall
continue for ten (10) business days after the Company’s
receipt of written notice to the Company of such
failure;

 

(d) (i) the filing of a
petition in bankruptcy or under any similar insolvency law by the
Company, (ii) the making of an assignment for the benefit of
creditors, including execution by the Company of a general
assignment for the benefit of creditors, (iii) the filing by or
against the Company of a petition in bankruptcy or under any
similar insolvency law or any petition for relief under the federal
bankruptcy act or the continuation of such petition without
dismissal for a period of 90 days or more, or (iv) the dissolution
of the Company;

 

(e) the failure of the
Company to obtain the Shareholder Approval by the Shareholder
Meeting Deadline and file the Charter Amendments within one (1)
business day thereafter; or

 

(f) the failure of the
Company to pay and discharge in full any amounts due and owing to
Breen Lyden on or prior to December 31, 2020, pursuant to that
certain convertible promissory note, dated April 1, 2013 (as
amended from time to time).

 


Upon
the occurrence of any Event of Default under clause (d) above, the
Outstanding Balance shall become immediately due and payable, and
upon any other Event of Default, the Outstanding Balance shall
become due and payable upon election of the Holder. Upon the
occurrence of any Event of Default, the Holder may, in addition to
declaring all amounts due hereunder to be immediately due and
payable, pursue any available remedy, whether at law or in
equity.


 

6. Notice of Company Sale. The
Holder shall be entitled to ten (10) business days’ prior
written notice from the Company of any Company Sale.

 

7. Amendments in Writing; Waiver.
Any term of this Note may be amended, modified or waived upon the
written consent of the Company and the holders of a majority in
aggregate principal amount of the Notes, which majority shall
include Holder for so long as Holder holds any Notes (collectively,
the “Requisite
Holders”). No such waiver or consent in any one
instance shall be construed to be a continuing waiver or a waiver
in any other instance unless it expressly so provides. No delay or
omission on the part of the Holder in exercising any right under
this Note shall operate as a waiver of such right or of any other
right of the Holder, nor shall any delay, omission or waiver on any
one occasion be deemed a bar to or waiver of the same or any other
right on any future occasion.

 



 

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8. No Rights as a Stockholder.
This Note does not by itself entitle the Holder to any voting
rights or other rights as a stockholder of the Company. In the
absence of conversion of this Note, no provisions of this Note, and
no enumeration herein of the rights or privileges of the Holder,
shall cause the Holder to be a stockholder of the Company for any
purpose.

 

9. Ranking. The Notes shall rank
equally without preference or priority of any kind over one
another, and all payments on account of principal and interest with
respect to any of the Notes shall be applied ratably and
proportionately on all outstanding Notes on the basis of the
original principal amount of outstanding Notes. While the Notes are
outstanding, the Company shall not issue any convertible debt
security that is, or amend any existing convertible indebtedness
such that it is, senior or pari passu to the Notes in right of
payment without the Requisite Holders’ prior written
consent.

 

10. Waivers. The Company hereby
forever waives presentment, demand, presentment for payment,
protest, notice of protest, notice of dishonor of this Note and all
other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note.

 

11. Costs. In the event any party
is required to engage the services of any attorneys for the purpose
of enforcing this Note, or any provision thereof, the prevailing
party shall be entitled to recover its reasonable expenses and
costs in enforcing this Note, including attorneys’
fees.

 

12. Counterparts. This Note may be
executed in any number of counterparts, each of which will be
deemed to be an original and all of which together will constitute
a single agreement.

 



 [Signature Page Follows]


 




 

5








 






 


IN
WITNESS WHEREOF, the parties have executed this Note effective as
of the date first above written.


 


	

 

	
COMPANY:

	

 


	

 

	

 

	

 
DYNARESOURCE,
INC.

	

 


	
Date

	
By:  

	
 

	

 


	

 

	

Name: 

	
 

	

 


	

 

	

Title:

	

 

	

 


	

 

	

 

	

 

	

 


	

 

	

 
Address:

	

 



222 W.
Las Colinas Blvd.


Suite
1910 North Tower

Irving,
TX 75039  



	

 







 







IN
WITNESS WHEREOF, the parties have executed this Note effective as
of the date first above written.


 


HOLDER:


 


GOLDEN
POST RAIL, LLC 


 



By:
_________________________
                                                    








Name:                                                      


Title: 


 


 


 


 


 


 


 


 





Signature Page to Convertible Promissory Note

6