Exhibit 10.02
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated October 10, 2014, is
made by and between DOMINOVAS ENERGY CORPORATION a Nevada corporation
("Company"), and KODIAK CAPITAL GROUP, LLC, a Delaware limited liability company
(the "Investor").
RECITALS
WHEREAS, upon the terms and subject to the conditions of the Equity Purchase
Agreement ("Purchase Agreement"), between the Investor and the Company, the
Company has agreed to issue and sell to the Investor shares (the "Put Shares")
of its common stock, $0.0001 par value per share (the "Common Stock") from time
to time for an aggregate investment price of up to Three Million Dollars
($3,000,000) (the "Registered Securities"); and
WHEREAS, to induce the Investor to execute and deliver the Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "Securities Act"), and
applicable state securities laws with respect to the Registered Securities;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor
hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall have the following
meaning:
(i) "Subscription Date" means the date of this Agreement.
(ii) "Investor" has the meaning set forth in the preamble to this Agreement.
(iii) "Register," "registered" and "registration" refer to a registration
effected by preparing and filing a Registration Statement or Statements in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a delayed or
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(iv) "Registered Securities" will have the same meaning as set forth in the
Purchase Agreement.
(v) "Registration Statement" means the Company's registration statement on Form
S-1, or any similar registration statement of the Company filed with SEC under
the Securities Act with respect to the Registered Securities.
(vi) "XXXXX" means the SEC's Electronic Data Gathering, Analysis and Retrieval
System.
(vii) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the SEC
thereunder, all as the same will then be in effect.
(b) Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Purchase Agreement.
2. [RESERVED]
3. Obligation of the Company. In connection with the registration of the
Registered Securities, the Company shall do each of the following:
(a) Prepare promptly and file with the SEC within thirty (30) days after the
date hereof, a Registration Statement with respect to not less than the maximum
allowable under Rule 415 of Registered Securities, and thereafter use all
commercially reasonable efforts to cause such Registration Statement relating to
the Registered Securities to become effective within five (5) business days
after notice from the Securities and Exchange Commission that such Registration
Statement may be declared effective, and keep the Registration Statement
effective at all times prior to the termination of the Purchase Agreement until
the earliest of (i) the date that is three months after the completion of the
last Closing Date under the Purchase Agreement, (ii) the date when the Investor
may sell all Registered Securities under Rule 144 without volume limitations, or
(iii) the date the Investor no longer owns any of the Registered Securities
(collectively, the "Registration Period"), which Registration Statement
(including any amendments or supplements, thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to keep
the Registration Statement effective at all times during the Registration
Period, and to comply with the provisions of the Securities Act with respect to
the disposition of all Registered Securities of the Company covered by the
Registration Statement until the expiration of the Registration Period.
(c) With respect to the Registered Securities, permit counsel designated by
Investor to review the Registration Statement and all amendments and supplements
thereto a reasonable period of time (but not less than two (2) business days)
prior to their filing with the SEC, and not file any document in a form to which
such counsel reasonably objects.
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(d) As promptly as practicable after becoming aware of the following facts, the
Company shall notify Investor and Investor's legal counsel identified to the
Company and (if requested by any such person) confirm such notice in writing no
later than one (1) business day thereafter (i): (A) when a prospectus or any
prospectus supplement or post-effective amendment to the Registration Statement
is filed; (B) with respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of the Registration Statement
covering any or all of the Registered Securities or the initiation of any
proceedings for that purpose; and (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registered Securities for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose.
(e) Unless available to the Investor without charge through XXXXX, the SEC's
website or the Company's website, furnish to Investor, promptly after the same
is prepared and publicly distributed, filed with the SEC, or received by the
Company, one (1) copy of the Registration Statement, each preliminary prospectus
and the prospectus, and each amendment or supplement thereto;
(f) Use all commercially reasonable efforts to (i) register and/or qualify the
Registered Securities covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as the Investor may reasonably
request and in which significant volumes of shares of Common Stock are traded,
(ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Registration Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualification in effect at all
times during the Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registered Securities for sale in such
jurisdictions: provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (A) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(f), (B) subject itself to general taxation in any such
jurisdiction, (C) file a general consent to service of process in any such
jurisdiction, (D) provide any undertakings that cause more than nominal expense
or burden to the Company or (E) make any change in its charter or by-laws or any
then existing contracts, which in each case the Board of Directors of the
Company determines to be contrary to the best interests of the Company and its
stockholders;
(g) As promptly as practicable after becoming aware of such event, notify the
Investor of the happening of any event of which the Company has knowledge, as a
result of which the prospectus included in the Registration Statement, as then
in effect, includes any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading ("Registration Default"), and promptly prepare a supplement or
amendment to the Registration Statement or other appropriate filing with the SEC
to correct such untrue statement or omission, and take any other commercially
reasonable steps to cure the Registration Default, and, unless available to the
Investor without charge through XXXXX, the SEC's website or the Company's
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website, deliver a number of copies of such supplement or amendment to the
Investor as the Investor may reasonably request.
(h) [INTENTIONALLY OMITTED];
(i) Use its commercially reasonable efforts, if eligible, either to (i) cause
all the Registered Securities covered by the Registration Statement to be listed
on a national securities exchange and on each additional national securities
exchange on which securities of the same class or series issued by the Company
are then listed, if any, if the listing of such Registered Securities is then
permitted under the rules of such exchange, or (ii) secure designation of all
the Registered Securities covered by the Registration Statement as a National
Association of Securities Dealers Automated Quotations System ("Nasdaq")
security within the meaning of Rule 1 1 Aa2-1 of the SEC under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the
Registered Securities on the Nasdaq Capital Market; or if, despite the Company's
commercially reasonable efforts to satisfy the preceding clause (i) or (ii), the
Company is unsuccessful in doing so, to use its commercially reasonable efforts
to secure authorization of the Financial Industry Regulatory Authority ("FINRA")
and quotation for such Registered Securities on the over-the-counter bulletin
board and, without limiting the generality of the foregoing;
(j) Provide a transfer agent for the Registered Securities not later than the
Subscription Date under the Purchase Agreement;
(k) Cooperate with the Investor to facilitate the timely preparation and
delivery of certificates for the Registered Securities to be offered pursuant to
the Registration Statement and enable such certificates for the Registered
Securities to be in such denominations or amounts as the case may be, as the
Investor may reasonably request and registration in such names as the Investor
may request; and, within five (5) business days after a Registration Statement
which includes Registered Securities is ordered effective by the SEC, the
Company shall deliver, and shall cause legal counsel selected by the Company to
deliver, to the transfer agent for the Registered Securities (with copies to the
Investor) an appropriate instruction and opinion of such counsel, if so required
by the Company's transfer agent; and
(1) Take all other commercially reasonable actions necessary to expedite and
facilitate distribution to the Investor of the Registered Securities pursuant to
the Registration Statement.
4. Obligations of the Investor. In connection with the registration of the
Registered Securities, the Investor shall have the following obligations;
(a) It shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registered Securities of the Investor that the Investor shall timely furnish to
the Company such information regarding itself, the Registered Securities held by
it, and the intended method of disposition of the Registered Securities held by
it, as shall be reasonably required to effect the registration of such
Registered Securities and shall timely execute such documents in connection with
such registration as the Company may reasonably request.
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(b) The Investor by such Investor's acceptance of the Registered Securities
agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of the Registration Statement
hereunder; and
(c) The Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(d)(ii) or (iii) or
3(g) above, the Investor will immediately discontinue disposition of Registered
Securities pursuant to the Registration Statement covering such Registered
Securities until the Investor receives the copies of the supplemented or amended
prospectus contemplated by Section 3(d)(ii) or (iii) or 3(g) and, if so directed
by the Company, the Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Investor's possession, of the prospectus covering such
Registered Securities current at the time of receipt of such notice.
5. Expenses of Registration. All reasonable expenses incurred in connection with
registrations, filings or qualifications pursuant to Section 3 including,
without limitation, all registration, listing, and qualifications fees, printers
and accounting fees, the fees and disbursements of counsel for the Company shall
be borne by the Company.
6. Indemnification. After Registered Securities are included in a Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless, the Investor, the directors, if any, of such Investor, the officers,
if any, of such Investor, each person, if any, who controls the Investor within
the meaning of the Securities Act or the Exchange Act (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities or expenses (joint or
several) incurred (collectively, "Claims") to which any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any post-effective amendment thereof or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
contained in the final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to make the
statements made therein, in the light of the circumstances under which the
statements therein were made, not misleading or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act, the Exchange
Act or any state securities law (the matters in the foregoing clauses (i)
through (iii) being collectively referred to as "Violations"). Subject to
Section 6(b) hereof, the Company shall reimburse the Investor, promptly as such
expenses are incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) shall not
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(i) apply to any Claims arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Indemnified Person expressly for use in
connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto, if such prospectus was timely made
available by the Company pursuant to Section 3(b) hereof; (ii) with respect to
any preliminary prospectus, inure to the benefit of any such person from whom
the person asserting any such Claim purchased the Registered Securities that are
the subject thereof (or to the benefit of any person controlling such person) if
the untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, if
such prospectus was timely made available by the Company pursuant to Section
3(b) hereof; (iii) be available to the extent such Claim is based on a failure
of the Investor to deliver or cause to be delivered the prospectus made
available by the Company; or (iv) apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld. The Investor will
indemnify the Company, its officers, directors and agents (including legal
counsel) against any claims arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company, by or on behalf of the Investor, expressly for use in connection
with the preparation of the Registration Statement, subject to such limitations
and conditions set forth in the previous sentence.
(b) Promptly after receipt by an Indemnified Person under this Section 6 of
notice of the commencement of any action (including any governmental action),
such Indemnified Person shall, if a Claim in respect thereof is to be made
against any indemnifying party under this Section 6, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Person, as the case may be; provided,
however, that an Indemnified Person shall have the right to retain its own
counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person and the
indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person and any other party represented by
such counsel in such proceeding. In such event, the Company shall pay for only
one separate legal counsel for the Investor selected by the Investor. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person under this Section 6, except to
the extent that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as such expense, loss, damage or liability is incurred and is due
and payable.
7. Contribution. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that
(a) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
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Section 6; (b) no seller of Registered Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registered Securities who
was not guilty of such fraudulent misrepresentation; and (c) contribution by any
seller of Registered Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registered Securities.
8. Reports under Exchange Act. With a view to making available to the Investor
the benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the SEC that may at any time permit the Investor
to sell securities of the Company to the public without registration ("Rule
144"), the Company agrees to use its commercially reasonable efforts to:
(a) make and keep public information available, as those terms are understood
and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act for so long as the Company
remains subject to such requirements, and the filing of such reports is required
for sales under Rule 144;
(c) furnish to the Investor so long as the Investor owns Registered Securities,
promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act and the
Exchange Act, (ii) unless available to the Investor without charge through
XXXXX, the SEC's website or the Company's website, a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule 144
without registration; and
(d) at the request of any Investor of Registered Securities, give its Transfer
Agent instructions (supported by an opinion of Investor's counsel, if required
or requested by the Transfer Agent) to the effect that, upon the Transfer
Agent's receipt from such Investor of:
(i) a certificate (a "Rule 144 Certificate") certifying (A) that such Investor
has held the shares of Registered Securities which the Investor proposes to sell
(the "Securities Being Sold") for a period of not less than (6) months and (B)
as to such other matters as may be appropriate in accordance with Rule 144 under
the Securities Act, and
(ii) an opinion of Investor's counsel acceptable to the Company that, based on
the Rule 144 Certificate, Securities Being Sold may be sold pursuant to the
provisions of Rule 144, even in the absence of an effective Registration
Statement, the Transfer Agent is to effect the transfer of the Securities Being
Sold and issue to the buyer(s) or transferee(s) thereof one or more stock
certificates representing the transferred Securities Being Sold without any
restrictive legend and without recording any restrictions on the transferability
of such shares on the Transfer Agent's books and records (except to the extent
any such legend or restriction results from facts other than the identity of the
Investor, as the seller or transferor thereof, or the status, including any
relevant legends or restrictions, of the shares of the Securities Being Sold
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while held by the Investor). If the Transfer Agent requires any additional
documentation at the time of the transfer, the Company shall deliver or cause to
be delivered all such reasonable additional documentation as may be necessary to
effectuate the issuance of an unlegended certificate.
9. Miscellaneous.
(a) Registered Owners. A person or entity is deemed to be a holder of Registered
Securities whenever such person or entity owns of record such Registered
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registered Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registered
Securities.
(b) Rights Cumulative; Waivers. The rights of each of the parties under this
Agreement are cumulative. The rights of each of the parties hereunder shall not
be capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any other such
right. Any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a suspension or
any variation of any such right.
(c) Benefit; Successors Bound. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights, and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their successors.
(d) Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement and in the other documentation relating to the
transactions contemplated by this Agreement.Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this Agreement.
(e) Amendment. Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investor. Any amendment or waiver affected in accordance with this Section 9
shall be binding upon the parties hereto.
(f) Severability. Each part of this Agreement is intended to be severable. In
the event that any provision of this Agreement is found by any court or other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue in full
force and effect.
(g) Notices. Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
(by hand, by courier, receipt confirmed, or electronic mail) or sent by
certified mail, return receipt requested, properly addressed and with proper
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postage pre-paid (i) if to the Company, at its executive office and (ii) if to
the Investor, at the address set forth under its name in the Purchase Agreement,
with a copy to its designated attorney, or at such other address as each such
party furnishes by notice given in accordance with this Section 9(g), and shall
be effective, when personally delivered, upon receipt and, when so sent by
certified mail, five (5) business days after deposit with the United States
Postal Service.
(h) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflicts of law. Each of the Company and Investor hereby submit
to the exclusive jurisdiction of the United States Federal and state courts
located in New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
(i) Consents. The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of that party.
(j) Further Assurances. In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered, to the
requesting party such other instruments and to take such other actions as the
requesting party may reasonably require to carry out the terms of this Agreement
and the transactions contemplated hereby.
(k) Section Headings. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(1) Construction. Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be deemed to
include each of the singular, and pronouns of one or no gender shall be deemed
to include the equivalent pronoun of the other or no gender.
(m) Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by electronic mail of a .pdf bearing
the signature of the party so delivering this Agreement. An electronic mail of a
..pdf of this signed Agreement shall be legal and binding on all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
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[SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
DOMINOVAS ENERGY CORPORATION
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KODIAK CAPITAL GROUP, LLC
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