dynr_ex45





  Exhibit 4.5











 



FIRST AMENDMENT TO COMMON STOCK PURCHASE WARRANT


 


THIS
FIRST AMENDMENT TO COMMON STOCK PURCHASE WARRANT (this
“Amendment”) is
dated May ___, 2020, by and between DynaResource, Inc., a Delaware
corporation (the “Corporation”)
and Golden Post Rail, LLC, a Texas limited liability company
(“Warrantholder”).
Capitalized terms used herein that are not otherwise defined shall
have the meanings set forth in the Warrant (defined
below).


 



RECITALS


 


WHEREAS, in
connection with that certain Securities Purchase Agreement, dated
as of May 6, 2015, the Corporation issued to Warrantholder a
warrant to purchase two million one hundred sixty-six thousand five
hundred and twenty-seven (2,166,527) shares of the
Corporation’s common stock, par value $0.01 per share, dated
as of June 30, 2015 (the “Warrant”);
and


 


WHEREAS, in
connection with that certain Note Purchase Agreement, dated as of
the date hereof, by and among the Corporation, the Warrantholder,
and the other parties listed on Exhibit A thereto, the
Corporation and Warrantholder have agreed to amend the Warrant as
more specifically set forth below.


 


NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto, intending to be legally
bound, hereby agree as follows:


 

1. AMENDMENT TO
WARRANT.

 




a)

The introductory
paragraph of the Warrant is amended in its entirety to read as
follows:












“THIS COMMON
STOCK PURCHASE WARRANT (this “Warrant”)
certifies that, for value received, Golden Post Rail, LLC or its
assigns (the “Holder”) is
entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Issuance
Date”) and on or prior to the close of business on the
five (5) year anniversary of the Initial Issuance Date (the
“Termination
Date”) to subscribe for and purchase from
DynaResource, Inc., a Delaware corporation (the “Company”), up
to 2,166,527 shares (as subject to adjustment hereunder, the
“Warrant
Shares”) of the Company’s common stock, par
value $0.01 per share (the “Common
Stock”). The purchase price of one Warrant Share of
Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b). Notwithstanding anything herein
to the contrary, if this Warrant has not been exercised in full by
the Termination Date, the Company shall, effective one Business Day
after the Termination Date, issue to Holder a new common stock
purchase warrant, substantially in the same form of this Warrant,
for the same number of Warrant Shares that went unexercised on the
Termination Date pursuant to this Warrant and with a maturity date
that is two years from the Termination Date hereof (the
“New
Warrant”). The Holder waives any anti-dilution rights
it may have under this Warrant, that certain Common Stock Purchase
Warrant, dated May 13, 2020, and the Certificate of Designations,
in each case, resulting from or arising out of the issuance by the
Company of such New Warrant in accordance with the terms
hereof.”


 



 

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b)

Section 2 of the
Warrant is amended to add Section 2(d), which will read as
follows:













“(d)            

Holder’s Exercise
Limitations. The Company shall not effect any exercise of
this Warrant, and a Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 2 or otherwise, to the
extent that after giving effect to such issuance after exercise as
set forth on the applicable Notice of Exercise, the Holder
(together with the Holder’s Affiliates, and any other Persons
acting as a group together with the Holder or any of the
Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates and Attribution
Parties shall include the number of shares of Common Stock issuable
upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned
by the Holder or any of its Affiliates or Attribution Parties and
(ii) exercise or conversion of the unexercised or nonconverted
portion of any other securities of the Company (including, without
limitation, any other Common Stock Equivalents) subject to a
limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the
preceding sentence, for purposes of this Section 2(d), beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is
not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained
in this Section 2(d) applies, the determination of whether this
Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Notice of
Exercise shall be deemed to be the Holder’s determination of
whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and
Attribution Parties) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or
confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. For purposes of
this Section 2(d), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most
recent periodic or annual report filed with the U.S. Securities and
Exchange Commission, as the case may be, (B) a more recent public
announcement by the Company or (C) a more recent written notice by
the Company or the transfer agent setting forth the number of
shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within one Trading Day
confirm orally and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder or its Affiliates or
Attribution Parties since the date as of which such number of
outstanding shares of Common Stock was reported. The
“Beneficial Ownership
Limitation” shall be 9.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of this
Warrant. The Holder, upon notice to the Company, may increase or
decrease the Beneficial Ownership Limitation provisions of this
Section 2(d), provided that the Beneficial Ownership Limitation in
no event exceeds 19.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2(d) shall continue to
apply. Any increase in the Beneficial Ownership Limitation will not
be effective until the 61st day after such notice is delivered to
the Company. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(d) to correct this paragraph (or
any portion hereof) which may be defective or inconsistent with the
intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this
Warrant.”














c)

Sections 3(d) and
(e) of the Warrant are amended in their entirety to read as
follows:













“(d)            

Subsequent Rights Offerings. If
the Company, at any time while this Warrant is outstanding, shall
issue rights, options or warrants to all holders of Common Stock
entitling them to subscribe for or purchase shares of Common Stock
(the “Purchase
Rights”), then, upon any exercise of this Warrant, the
Holder will be entitled to acquire, upon the terms applicable to
such Purchase Rights, the aggregate Purchase Rights that the Holder
could have acquired if the Holder had held the number of Warrant
Shares issued upon such exercise of this Warrant (without regard to
any limitations on exercise hereof, including without limitation,
the Beneficial Ownership Limitation) immediately before the date on
which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of
which the record holders of shares of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights
(provided,
however, that, to
the extent that the Holder’s right to participate in any such
Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to
participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such
Purchase Right to such extent) and such Purchase Right to such
extent shall be held in abeyance for the Holder until such time, if
ever, as its right thereto would not result in the Holder exceeding
the Beneficial Ownership Limitation). For the term of this Warrant,
the Company shall hold such Purchase Rights for the benefit of the
Holder until the Holder exercises this Warrant or any portion
thereof.”







 

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“(e)

Pro Rata Distributions. If the
Company, at any time while this Warrant is outstanding, shall
distribute to all holders of Common Stock evidences of its
indebtedness or assets (including cash and cash dividends) or
rights or warrants to subscribe for or purchase any security other
than the Common Stock (a “Distribution”),
then, upon any exercise of this Warrant, the Holder shall be
entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had
held the number of Warrant Shares issued upon such exercise of this
Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for such
Warrant, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for
the participation in such Distribution (provided, however, that, to the extent
that the Holder’s right to participate in any such
Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the
beneficial ownership of any shares of Common Stock as a result of
such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the
Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Beneficial Ownership
Limitation). For the term of this Warrant, the Company shall hold
such Distribution for the benefit of the Holder until the Holder
exercises this Warrant or any portion thereof.”











2. Except to the
extent modified or amended by this Amendment, all terms and
provisions of the Warrant shall continue in full force and effect
and shall remain enforceable and binding in accordance with their
respective terms.

 

3. This Amendment may
be executed by one or more of the parties hereto in any number of
separate counterparts, each of which shall be deemed an original
and all of which, taken together, shall be deemed to constitute one
and the same instrument. Delivery of an executed counterpart of
this Amendment by electronic transmission shall be as effective as
delivery of a manually executed counterpart hereof.

 


[Signature
pages follow]


 




 

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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
written above.


 


	

 

	CORPORATION:	

 


	

 

	DYNARESOURCE,
INC.  	

 


	

 

	a
Delaware corporation
	

 


	

 

	

 

	

 

	

 


	



	
By:  

	
 

	

 


	

 

	

 

	
Name: K.W.
(“K.D.”) Diepholz  

	

 


	

 

	

 

	

Title:
Chairman &
CEO  

	

 








[Signatures
continue on following page]


 




 

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	WARRANTHOLDER:
	

 


	

 

	 
	

 


	

 

	GOLDEN
POST RAIL, LLC, 	

 


	

 

	a Texas limited
liability company
	

 


	

 

	

 

	

 

	

 


	



	
By:  

	
 

	

 


	

 

	

 

	
Name:
Matthew
K. Rose

	

 


	

 

	

 

	

Title:
President

	

 







 


 




 

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