REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of this 12th day of December, 2005, by and between ARADYME
CORPORATION, a Delaware corporation (the "Company"), and EAGLE ROCK CAPITAL,
LLC, a Utah limited liability company (the "Investor"), who are the parties to
the Stock Purchase Agreement by and between the Company and the Investor (the
"Purchase Agreement").
The parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such Person.
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.
"Closing Date" as defined in the Purchase Agreement.
"Common Stock" shall mean the Company's common stock, par value $0.001
per share, and any securities into which such shares may hereinafter be
reclassified.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Investor" shall mean the Investor identified in the Purchase Agreement
and any Affiliate or permitted transferee of the Investor that is a subsequent
holder of any Warrants or Registrable Securities acquired pursuant to the
Purchase Agreement.
"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.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the Prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
"Register," "registered," and "registration" refer to a registration
made by preparing and filing a Registration Statement or similar document in
compliance with the Securities Act (as defined below), and the declaration or
ordering of effectiveness of such Registration Statement or document.
"Registrable Securities" shall mean the shares of Common Stock issued
pursuant to the Purchase Agreement, and the shares of Common Stock issuable upon
the exercise of the Warrants, if any, and any other securities issued or
issuable with respect to or in exchange for Registrable Securities, and any
other shares of the Company's Common Stock held by the Investor, its Affiliates,
or other Persons identified by Investor within 10 days of the Closing Date, or
issuable upon the exercise of options or warrants held by the Investor or its
Affiliates, all as of the Closing Date; provided, that a security shall cease to
be a Registrable Security upon (a) sale pursuant to a Registration Statement or
Rule 144 under the Securities Act, or (b) such security becoming eligible for
sale by the Investor pursuant to Rule 144(k).
"Registration Statement" shall mean any registration statement of the
Company filed under the Securities Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Warrants" means the warrants to purchase shares of Common Stock issued
to the Investor pursuant to the Purchase Agreement, the form of which is
attached to the Purchase Agreement as Exhibit A.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
2. Registration.
(a) Registration Statements. On or before February 10, 2006,
the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the
Company, on such form of registration statement as is then available to
effect a registration for resale of the Registrable Securities, subject
to the Investor's consent), covering the resale of the Registrable
Securities in an amount at least equal to the number of shares of
Common Stock necessary to permit the exercise in full of the Warrants.
Such Registration Statement also shall cover, to the extent allowable
under the Securities Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of
Common Stock resulting from stock splits, stock dividends, or similar
transactions with respect to the Registrable Securities. The
Registration Statement (and each amendment or supplement thereto, and
each request for acceleration of effectiveness thereof) shall be
provided in accordance with Section 3(c) to the Investor and its
counsel prior to its filing or other submission. If a Registration
Statement covering the Registrable Securities is not filed with the SEC
on or prior to February 10, 2006, the Company will make pro rata
payments to the Investor, as liquidated damages and not as a penalty,
in an amount equal to 1.0% of the aggregate amount invested by the
Investor under the Purchase Agreement prior to that date for each
30-day period or pro rata for any portion thereof following the date by
which such Registration Statement should have been filed for which no
Registration Statement is filed with respect to the Registrable
Securities. Such payments shall be in partial compensation to the
Investor and shall not constitute the Investor's exclusive remedy for
such events. Such payments shall be made to the Investor in cash.
(b) Expenses. The Company will pay all expenses associated
with each registration, including filing and printing fees, counsel and
accounting fees and expenses, costs associated with clearing the
Registrable Securities for sale under applicable state securities laws,
listing fees, fees and expenses of one counsel to the Investor and the
Investor's reasonable expenses in connection with the registration, but
excluding discounts, commissions, fees of underwriters, selling
brokers, dealer managers, or similar securities industry professionals
with respect to the Registrable Securities being sold.
2
(c) Effectiveness.
(i) The Company shall use commercially reasonable
efforts to have the Registration Statement declared effective
as soon as practicable. The Company shall notify the Investor
by facsimile or e-mail as promptly as practicable, and in any
event, within 24 hours, after any Registration Statement is
declared effective and shall simultaneously provide the
Investor with copies of any related Prospectus to be used in
connection with the sale or other disposition of the
securities covered thereby. If (1) a Registration Statement
covering the Registrable Securities is not declared effective
by the SEC within 90 days after the Registration Statement is
filed with SEC, or (2) after a Registration Statement has been
declared effective by the SEC, sales cannot be made pursuant
to such Registration Statement for any reason (including by
reason of a stop order or the Company's failure to update the
Registration Statement), but excluding the inability of the
Investor to sell the Registrable Securities covered thereby
due to market conditions and except as excused pursuant to
subsection (ii) below, then the Company will make pro rata
payments to the Investor, as liquidated damages and not as a
penalty, in an amount equal to 1.0% of the aggregate amount
invested by the Investor under the Purchase Agreement prior to
that date for each 30-day period or pro rata for any portion
thereof following the date by which such Registration
Statement should have been effective (the "Blackout Period").
Such payments shall be in partial compensation to the
Investor, and shall not constitute the Investor's exclusive
remedy for such events. The amounts payable as liquidated
damages pursuant to this subsection shall be paid monthly
within three Business Days of the last day of each month
following the commencement of the Blackout Period until the
termination of the Blackout Period. Such payments shall be
made to the Investor in cash.
(ii) For not more than 20 consecutive days or for a
total of not more than 45 days in any 12-month period, the
Company may delay the disclosure of material, nonpublic
information concerning the Company by suspending the use of
any Prospectus included in any registration contemplated by
this section containing such information, the disclosure of
which at the time is not, in the good faith opinion of the
Company, in the best interests of the Company (an "Allowed
Delay"); provided, that the Company shall promptly (1) notify
the Investor in writing of the existence of (but in no event,
without the prior written consent of the Investor, shall the
Company disclose to the Investor any of the facts or
circumstances regarding) material, nonpublic information
giving rise to an Allowed Delay, and (2) advise the Investor
in writing to cease all sales under the Registration Statement
until the end of the Allowed Delay.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an
underwritten offering, the Company shall have the right to select an
investment banker and manager to administer the offering, which
investment banker or manager shall be reasonably satisfactory to the
Investor.
3. Company Obligations. The Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
(a) use commercially reasonable efforts to cause such
Registration Statement to become effective and to remain continuously
effective for a period that will terminate upon the earlier of (i) the
date on which all Registrable Securities covered by such Registration
Statement, as amended from time to time, have been sold, and (ii) the
date on which all Registrable Securities covered by such Registration
Statement may be sold pursuant to Rule 144(k);
3
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the
Prospectus as may be necessary to keep the Registration Statement
effective for the period specified in Section 3(a) and to comply with
the provisions of the Securities Act and the Exchange Act with respect
to the distribution of all of the Registrable Securities covered
thereby;
(c) provide copies to and permit counsel designated by the
Investor to review each Registration Statement and all amendments and
supplements thereto no fewer than seven days prior to their filing with
the SEC and not file any document to which such counsel reasonably
objects;
(d) furnish to the Investor and its legal counsel (i) promptly
after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two Business Days
after the filing date, receipt date, or sending date, as the case may
be) one copy of any Registration Statement and any amendment thereto;
each preliminary prospectus and Prospectus and each amendment or
supplement thereto; each letter written by or on behalf of the Company
to the SEC or the staff of the SEC; and each item of correspondence
from the SEC or the staff of the SEC, in each case relating to such
Registration Statement (other than any portion of the above that
contain information for which the Company has sought confidential
treatment); and (ii) such number of copies of a Prospectus, including a
preliminary prospectus and all amendments and supplements thereto, and
such other documents as the Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by the
Investor that are covered by the related Registration Statement;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable
obligations under an underwriting agreement in usual and customary
form, including customary indemnification and contribution obligations,
with the underwriter of such offering;
(f) if required by the underwriter, or if the Investor is
described in the Registration Statement as an underwriter, the Company
shall furnish, on the effective date of the Registration Statement
(except with respect to clause (i) below) and on the date that
Registrable Securities are delivered to an underwriter, if any, for
sale in connection with the Registration Statement (including the
Investor if deemed to be an underwriter), (i) (1) in the case of an
underwritten offering, an opinion, dated as of the Closing Date of the
sale of Registrable Securities to the underwriters, from independent
legal counsel representing the Company for purposes of such
Registration Statement, in form, scope, and substance as is customarily
given in an underwritten public offering, addressed to the Investor and
the underwriters participating in such underwritten offering, or (2) in
the case of an "at-the-market" offering, an opinion, dated as of or
promptly after the effective date of the Registration Statement to the
Investor, from independent legal counsel representing the Company for
purposes of such Registration Statement, in form, scope, and substance
as is customarily given in a public offering, addressed to the
Investor; and (ii) a letter, dated as of the effective date of such
Registration Statement and confirmed as of the applicable dates
described above, from the Company's independent certified public
accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters (including
the Investor if deemed to be an underwriter);
4
(g) use commercially reasonable efforts to prevent the
issuance of any stop order or other suspension of effectiveness, and if
such order is issued, obtain the withdrawal of any such order at the
earliest possible moment;
(h) prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify or cooperate
with the Investor and its counsel in connection with the registration
or qualification of such Registrable Securities for offer and sale
under the state securities laws of such jurisdictions requested by the
Investor and do any and all other commercially reasonable acts or
things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (i) qualify to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(h); (ii) subject itself to general
taxation in any jurisdiction where it would not otherwise be so subject
but for this Section 3(h); or (iii) file a general consent to service
of process in any such jurisdiction;
(i) use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be listed
or quoted on each securities exchange, interdealer quotation system, or
other market on which similar securities issued by the Company are then
listed;
(j) immediately notify the Investor, at any time when a
Prospectus relating to Registrable Securities is required to be
delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the Prospectus included in
a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and
at the request of any such holder, promptly prepare and furnish to such
holder a reasonable number of copies of a supplement to or an amendment
of such Prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such Registrable Securities, such Prospectus shall
not include an 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 not misleading in light of the circumstances then
existing;
(k) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC under the
Securities Act and the Exchange Act and take such other actions as may
be reasonably necessary to facilitate the registration of the
Registrable Securities hereunder; and make available to its security
holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a
period of at least 12 months, beginning after the effective date of
each Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act, including Rule 158
promulgated thereunder (for the purpose of this subsection 3(k)
("Availability Date" means the 45th day following the end of the fourth
fiscal quarter that includes the effective date of such Registration
Statement, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, Availability Date means the 90th
day after the end of such fourth fiscal quarter); and
(l) with a view to making available to the Investor the
benefits of Rule 144 (or its successor rule) and any other rule or
regulation of the SEC that may at any time permit the Investor to sell
shares of Common Stock to the public without registration, the Company
covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, until
5
the earlier of six months after such date as all of the Registrable
Securities may be resold pursuant to Rule 144(k) or any other rule of
similar effect or such date as all of the Registrable Securities shall
have been resold; (ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Exchange Act; and
(iii) furnish to the Investor upon request, as long as the Investor
owns any Registrable Securities, (1) a written statement by the Company
that it has complied with the reporting requirements of the Exchange
Act, (2) a copy of the Company's most recent annual report on Form
10-KSB or quarterly report on Form 10-QSB, and (3) such other
information as may be reasonably requested in order to avail the
Investor of any rule or regulation of the SEC that permits the selling
of any such Registrable Securities without registration.
4. Due Diligence Review; Information. The Company shall make available,
during normal business hours, for inspection and review by the Investor,
advisors to and representatives of the Investor (that may or may not be
affiliated with the Investor and that are reasonably acceptable to the Company),
any underwriter participating in any disposition of shares of Common Stock on
behalf of the Investor pursuant to a Registration Statement or amendments or
supplements thereto or any state securities, National Association of Securities
Dealers, Inc., or other filing, all financial and other records, all SEC Filings
(as defined in the Purchase Agreement) and other filings with the SEC, and all
other corporate documents and properties of the Company as may be reasonably
necessary for the purpose of such review, and cause the Company's officers,
directors, and employees, within a reasonable time period, to supply all such
information reasonably requested by the Investor or any such representative,
advisor, or underwriter in connection with such Registration Statement
(including in response to all questions and other inquiries reasonably made or
submitted by any of them), prior to and from time to time after the filing and
effectiveness of the Registration Statement for the sole purpose of enabling the
Investor and such representatives, advisors, and underwriters and their
respective accountants and attorneys to conduct initial and ongoing due
diligence with respect to the Company and the accuracy of such Registration
Statement. The Company shall not disclose material, nonpublic information to the
Investor, or to advisors to or representatives of the Investor, unless prior to
disclosure of such information the Company identifies such information as being
material, nonpublic information and provides the Investor and such advisors and
representatives with the opportunity to accept or refuse to accept such
material, nonpublic information for review and the Investor enters into an
appropriate confidentiality agreement with the Company with respect thereto.
5. Obligations of the Investor.
(a) The Investor shall furnish in writing to the Company such
information regarding itself, the Registrable Securities held by it,
and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably
request. At least five Business Days prior to the first anticipated
filing date of any Registration Statement, the Company shall notify the
Investor of the information the Company requires from the Investor if
the Investor elects to have any of the Registrable Securities included
in the Registration Statement. The Investor shall provide such
information to the Company at least two Business Days prior to the
first anticipated filing date of such Registration Statement if the
Investor elects to have any of the Registrable Securities included in
the Registration Statement.
(b) The Investor, by its acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing
of a Registration Statement hereunder, unless the Investor has notified
the Company in writing of its election to exclude all of its
Registrable Securities from such Registration Statement.
6
(c) In the event the Company, at the request of the Investor,
determines to engage the services of an underwriter, the Investor
agrees to enter into and perform its obligations under an underwriting
agreement in usual and customary form, including customary
indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions
of the Registrable Securities.
(d) The Investor agrees that, upon receipt of any notice from
the Company of either (i) the commencement of an Allowed Delay pursuant
to Subsection 2(c)(ii), or (ii) the happening of an event pursuant to
Subsection 3(j) hereof, the Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities, until the Investor's
receipt of the copies of the supplemented or amended Prospectus filed
with the SEC and declared effective 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 the Registrable Securities current at the time of receipt of
such notice.
(e) The Investor may not participate in any third-party
underwritten registration hereunder unless it (i) agrees to sell the
Registrable Securities on the basis provided in any underwriting
arrangements in usual and customary form entered into by the Company;
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents reasonably
required under the terms of such underwriting arrangements; and (iii)
agrees to pay its pro rata share of all underwriting discounts and
commissions. Notwithstanding the foregoing, Investor shall not be
required to make any representations to such underwriter, other than
those with respect to itself and the Registrable Securities owned by
it, including its right to sell the Registrable Securities, and any
indemnification in favor of the underwriter by the Investor shall be
limited to the proceeds received by the Investor from the sale of its
Registrable Securities. The scope of any such indemnification in favor
of an underwriter shall be limited to the same extent as the indemnity
provided in Subsection 6(b) hereof.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless the Investor and its officers, directors, members,
employees, agents, successors, assigns, and each other Person, if any,
that controls the Investor within the meaning of the Securities Act,
against any losses, claims, damages, or liabilities, joint or several,
to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement, any preliminary or final Prospectus
contained therein, or any amendment or supplement thereof; (ii) any
state securities application or other document executed by the Company
specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Registrable Securities under the
securities laws thereof; (iii) 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; (iv) any
violation by the Company or its agents of any rule or regulation
promulgated under the Securities Act applicable to the Company or its
agents and relating to action or inaction required of the Company in
connection with such registration; or (v) any failure to register or
qualify the Registrable Securities included in any such Registration in
any state where the Company or its agents has affirmatively undertaken
or agreed in writing that the Company will undertake such registration
or qualification on an Investor's behalf (the undertaking of any
underwriter chosen by the Company being attributed to the Company), and
will reimburse the Investor, and each such officer, director, or member
and controlling Person for any legal or other expenses reasonably
7
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the
Company will not be liable in any such case if and to the extent that
any such loss, claim, damage, or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by
the Investor or any such controlling Person in writing specifically for
use in such Registration Statement or Prospectus.
(b) Indemnification by the Investor. In connection with any
registration pursuant to the terms of this Agreement, the Investor will
furnish to the Company in writing such information as the Company
reasonably requests concerning the holders of Registrable Securities or
the proposed manner of distribution for use in connection with any
Registration Statement or Prospectus and agrees to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders, and each Person that
controls the Company (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities, and expense (including
reasonable attorney fees) resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated
in the Registration Statement or Prospectus, or preliminary prospectus
or amendment or supplement thereto, or necessary to make the statements
therein not misleading, to the extent, but only to the extent that such
untrue statement or omission is contained in any information furnished
in writing by the Investor to the Company specifically for inclusion in
such Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of the Investor be greater in
amount than the dollar amount of the proceeds (net of all expense paid
by the Investor in connection with any claim relating to this Section 6
and the amount of any damages such holder has otherwise been required
to pay by reason of such untrue statement or omission) received by the
Investor upon the sale of the Registrable Securities included in the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder shall give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of
such counsel shall be at the expense of such Person unless (i) the
indemnifying party has agreed to pay such fees or expenses, or (ii) the
indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person, or
(iii) in the reasonable judgment of any such Person, based upon written
advice of its counsel, a conflict of interest exists between such
Person and the indemnifying party with respect to such claims (in which
case, if the Person notifies the indemnifying party in writing that
such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such Person); and
provided, further, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying party in
the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the
same jurisdiction, be liable for fees or expenses of more than one
separate firm of attorneys at any time for all such indemnified
parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation.
8
(d) Contribution. If for any reason the indemnification
provided for in the preceding subsections (a) and (b) is unavailable to
an indemnified party or insufficient to hold it harmless, other than as
expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage, or liability in such proportion as
is appropriate to reflect the relative fault of the indemnified party
and the indemnifying party, as well as any other relevant equitable
considerations. No Person guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act shall be entitled to
contribution from any Person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a
holder of Registrable Securities be greater in amount than the dollar
amount of the proceeds (net of all expenses paid by such holder in
connection with any claim relating to this Section 6 and the amount of
any damages such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities
giving rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only
by a writing signed by the Company and the Investor. The Company may
take any action herein prohibited or omit to perform any act herein
required to be performed by it only if the Company shall have obtained
the written consent to such amendment, action, or omission to act of
the Investor.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made as set forth in Section 9.04 of
the Purchase Agreement.
(c) Assignments and Transfers by the Investor. The provisions
of this Agreement shall be binding upon and inure to the benefit of the
Investor and its respective successors and assigns. The Investor may
transfer or assign, in whole or from time to time in part, to one or
more Persons its rights hereunder in connection with the transfer of
the Common Stock issued pursuant to the Purchase Agreement or upon the
exercise of Warrants by the Investor to such Person, provided that the
Investor complies with all laws applicable thereto and provides written
notice of assignment to the Company promptly after such assignment is
effected.
(d) Assignments and Transfers by the Company. This Agreement
may not be assigned by the Company (whether by operation of law or
otherwise) without the prior written consent of the Investor, provided,
however, that the Company may assign its rights and delegate its duties
hereunder to any surviving or successor corporation in connection with
a merger or consolidation of the Company with another corporation or a
sale, transfer, or other disposition of all or substantially all of the
Company's assets to another corporation, without the prior written
consent of the Investor, after notice duly given by the Company to the
Investor.
(e) Benefits of the Agreement. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective permitted successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this
Agreement.
(f) Counterparts; Faxes. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but all of
9
which together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an
original.
(g) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
but shall be interpreted as if it were written so as to be enforceable
to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provision of law that renders any provisions hereof
prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver
all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions
contemplated hereby and to evidence the fulfillment of the agreements
herein contained.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(k) Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed under and in accordance with the
laws of the state of Utah without giving effect to any choice or
conflict of law provision or rule (whether the state of Utah or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the state of Utah. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such
suit, action, or proceeding and to the laying of venue in such court.
Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action, or proceeding brought in such courts
and irrevocably waives any claim that any such suit, action, or
proceeding brought in any such court has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
ARADYME CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, Chief Executive Officer
EAGLE ROCK CAPITAL, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
10
