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EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
October 13, 2000
To each of the several Holders
named on Schedule A attached hereto:
Pursuant to the Agreement and Plan of Merger dated as of October 13, 2000
(the "MERGER AGREEMENT"), between Delano Technology Corporation ("DELANO");
Delano/DA Acquisition Corp., a wholly owned subsidiary of Delano ("MERGER SUB");
Digital Archaeology Corporation ("DA"); and the other parties named therein,
Merger Sub is being merged with and into DA (the "MERGER"). In connection
therewith you, as the holder (the "HOLDERS") of common Stock of DA, are
acquiring shares of Common Stock of Delano. As the context requires, a Holder
may be referred to as a "SELLER." In connection with the Merger, Delano and you
covenant and agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"AGREEMENT" shall mean this Registration Rights Agreement as amended
from time to time and in effect between the parties hereto.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock, no par value, of Delano,
as constituted as of the date of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"MERGER SHARES" shall mean the shares of Common Stock of Delano issued
to the Holders pursuant to the Merger Agreement, excluding the Escrow
Shares, as defined therein.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 4.
"REGISTRATION STATEMENT" shall mean the registration statement
referred to in Section 2.
"RESTRICTED STOCK" shall mean the Merger Shares, excluding Merger
Shares which (a) have been registered under the Securities Act pursuant to
an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them; or (b) have been
sold pursuant to Rule 144 under the Securities Act.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in Section 4.
2. REGISTRATION. Delano agrees to use its reasonable best efforts to file
a registration statement (the "REGISTRATION STATEMENT") under the Securities Act
on Form S-3 or F-3, as applicable, within 30 days after the use of either such
form is available to Delano covering the resale of all of the shares of
Restricted Stock; provided, however, that Delano shall not be required to
register shares of Restricted Stock if the Holder does not comply with the
Holder's obligations in the last paragraph of Section 3 below. Delano shall file
the Registration Statement within such time frame unless it is unable to do so
because of the unavailability of financial or other information relating to DA
prior to the date hereof that is required to be included therein. The plan of
distribution described in the Registration Statement shall include only the
resale of the Restricted Stock on the Nasdaq National Market in a
non-underwritten offering, and the Holder may not use the Registration Statement
for any other form of distribution or transfer of the Restricted Stock. Delano
agrees to use its reasonable best efforts to do all things to qualify to use
Form S-3 or Form F-3, as applicable, as soon as practicable.
3. REGISTRATION PROCEDURES. In using its efforts to effect the
registration of any shares of Restricted Stock under the Securities Act as
described in Section 2, Delano will, as expeditiously as possible:
(a) prepare and file, as required by Section 2 above, with the
Commission a registration statement with respect to such securities and use its
reasonable best efforts to cause the Registration Statement (i) to become
effective as soon as practicable after the date of its filing with the
Commission and (ii) to remain effective until the earlier of the sale of all
Restricted Stock covered thereby or one year after the Effective Time (as
defined in the Merger Agreement); provided, however, that if, on the date that
is one year following the date hereof, any Holder owns Merger Shares comprising
more than 1% of Delano's outstanding Common Stock (calculated in accordance with
the applicable provision of Rule 144 under the Securities Act), then, as to such
Holders only, the Registration Statement shall remain effective until the first
anniversary of the effective date of the Registration Statement, and the
prospectus included therein may be used after the first anniversary of the date
hereof only by such Holders and only with respect to Merger Share that cannot be
sold by such Holders within the volume limitations of Rule 144; and provided,
further, that Delano may suspend sales at any time under the Registration
Statement immediately upon notice to the Holders at the last known address of
the Holders, for a period or periods of time not to exceed in the aggregate 90
days during any 12-month period, if there then exists material, non-public
information relating to Delano which, in the reasonable opinion of Delano, would
not be appropriate for disclosure during that time;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective for
the period specified in paragraph (a) above;
(c) furnish to each seller of Restricted Stock such number of copies
of the registration statement and each such amendment and supplement thereto (in
each case including exhibits) and the prospectus included therein (including
each preliminary prospectus) as such persons
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reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by the Registration Statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by the Registration Statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock
reasonably shall request, provided, however, that Delano shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) prepare and file with Nasdaq an additional listing application
and use its reasonable best efforts to have the Restricted Stock covered by the
Registration Statement be accepted by Nasdaq for listing on the Nasdaq National
Market; and
(f) notify each seller of Restricted Stock (at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act), of the happening of any event of which Delano has knowledge as a result of
which the prospectus contained in the Registration Statement, as then in effect,
includes an 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
not misleading in light of the circumstances then existing, and promptly prepare
and furnish to the Holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
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, provided that in no event shall Delano be obligated
to file a supplement or amendment to reflect a non-public transfer of Restricted
Stock by the Holders.
In connection with the registration of Restricted Stock hereunder, the
sellers of Restricted Stock will furnish to Delano in writing such information
requested by Delano with respect to themselves and the proposed resale of the
Restricted Stock as shall be reasonably necessary in order to assure compliance
with applicable federal and state securities laws.
4. EXPENSES. All expenses incurred by Delano in complying with
Sections 2 and 3, including, without limitation, all registration and filing
fees, fees and disbursements of counsel and independent public accountants for
Delano, fees and expenses incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, but
excluding any Selling Expenses, are called "REGISTRATION EXPENSES." All
underwriting discounts (if any) and selling commissions applicable to the sale
of Restricted Stock are called "SELLING EXPENSES."
Except as set forth in this paragraph, Delano will pay all Registration
Expenses in connection with the registration statement under Section 2. All
Selling Expenses in connection with the registration statement under Section 2
and the sale of Restricted Stock thereunder shall be borne by the Holders.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with the registration of the Restricted Stock under
the Securities Act pursuant to Section 2 hereof, Delano will indemnify and hold
harmless each seller of Restricted
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Stock thereunder and each person, if any, who controls the Holder within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the seller or such controlling person
may become subject under the Securities Act, Exchange Act, state securities laws
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of material fact contained in the registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Section 2 hereof at the time it became effective under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, (b) the omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances under which
they were made or (c) any violation by Delano or its agents of any rule or
regulation promulgated under the Securities Act, Exchange Act or state
securities laws applicable to Delano or its agents and relating to action or
inaction required of Delano in connection with such registration, and Delano
will reimburse each such seller and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
however, that Delano will not be liable in any such case if any to the extent
that (A) any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, an omission or alleged
omission or a violation or alleged violation so made in conformity with
information furnished in writing by any such seller or any such controlling
person for inclusion in the registration statement under which such Restricted
Stock was registered under the Securities Act pursuant to Section 2 hereof or
any prospectus contained therein, or any amendment or supplement to the
Registration Statement or prospectus, or (B) if such untrue statement or alleged
untrue statement, omission or alleged omission or violation or alleged violation
was corrected in an amended or supplemented prospectus, and such seller failed
to deliver a copy of the amended or supplemented prospectus at or prior to the
confirmation of the sale of the Restricted Stock to the person or entity
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the Securities Act or any state securities laws.
(b) In connection with the registration of the Restricted Stock under
the Securities Act pursuant to Section 2 hereof, each seller of such Restricted
Stock will indemnify and hold harmless Delano, each person, if any, who controls
Delano within the meaning of the Securities Act, each officer of Delano who
signs the registration statement, and each director of Delano, against all
losses, claims, damages or liabilities, joint or several, to which Delano or
such officer, director, underwriter or controlling person 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) the failure of such seller to comply with the provisions of Section 8
herein, or (ii) any untrue statement or alleged untrue statement of any material
fact contained in the registration statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto, or
arise out of or are based upon 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, and will reimburse Delano and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that such seller will be liable hereunder in any such case if and only 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 made in reliance upon and in conformity with information pertaining to
such seller furnished by such seller in writing for inclusion in the
registration statement under which such Restricted Stock was registered
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under the Securities Act pursuant to Section 2 hereof or any prospectus
contained therein, or any amendment or supplement to the Registration Statement
or prospectus.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 5 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 5 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense, the indemnifying party shall not be liable to such indemnified party
under this Section 5 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability in any case in which a claim for indemnification is made pursuant to
this Section 5 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 5
provides for indemnification in such case, Delano and each seller of Restricted
Stock will contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in proportion to the
relative fault of Delano, on the one hand, and each holder, severally, on the
other hand; provided, however, that, in any such case, no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
6. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holder the benefits of Rule 144 promulgated under the
Securities Act, Delano agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) maintain registration of its Common Stock under Section 12 of the
Exchange Act;
(c) use its reasonable best efforts to file in a timely manner all
reports and other documents required of Delano under the Securities Act and the
Exchange Act; and
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(d) furnish to any Holder, so long as the Holder owns any Restricted
Stock, forthwith upon request: (i) a written statement by Delano regarding its
compliance with the reporting requirements of Rule 144 and (ii) a copy of the
most recent annual or quarterly report of Delano and such other reports and
documents so filed by Delano under the Exchange Act.
7. CHANGES IN COMMON STOCK. If, and as often as, there is any change in
the Common Stock by way of a stock split, stock dividend, combination or
reclassification or similar event, or through a reorganization or
recapitalization or similar event, appropriate adjustment shall be made in the
provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
8. HOLDER'S CONDUCT. With respect to any sale of Restricted Stock
pursuant to Section 2, you understand and agree as follows:
(a) You will carefully review the information concerning you
contained in the registration statement (if any) and will promptly notify Delano
if such information is not complete and accurate in all respects, including
having properly disclosed any position, office or other material relationship
within the past three years with Delano or its affiliates;
(b) You agree to sell your Restricted Stock only in the manner set
forth in the registration statement while the Registration Statement is
effective;
(c) You agree to comply with the anti-manipulation rules under the
Exchange Act in connection with purchases and sales of securities of Delano
during the time the registration statement remains effective;
(d) You agree to only sell shares in a jurisdiction after counsel for
Delano has advised that such sale is permissible under the applicable state
securities or "Blue Sky" laws;
(e) You agree to comply with the prospectus delivery requirements of
the Securities Act;
(f) You agree to promptly notify Delano of any and all planned sales
and immediately notify Delano of any completed sales of shares; and
(g) You agree to suspend sales during the periods when sales are to
be suspended pursuant to Section 3(a) herein.
9. SUSPENSION OF USE OF REGISTRATION STATEMENT. Anything herein to the
contrary notwithstanding, in the event that, in the judgment of Delano, it is
advisable to suspend use of a prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which Delano reasonably believes public disclosure
would be detrimental to Delano, Delano shall notify the Holders to such effect,
and, upon receipt of such notice, the Holders shall immediately discontinue any
sales of Restricted Stock pursuant to the Registration Statement until the
Holders have received copies of a supplemented or amended prospectus or until
the Holders are advised in writing by Delano that the then current prospectus
may be used and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such prospectus. In
addition to the foregoing, in the event that
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Delano shall file a registration statement under the Securities Act with respect
to an underwritten public offering, Delano shall have the right to require the
Holder to discontinue any sales of Restricted Stock pursuant to the Registration
Statement for a period not to exceed 15 days, such period to be determined by
Delano by written notice to the Holder. Notwithstanding anything to the contrary
herein, Delano shall not exercise its rights under this Section 9 to suspend
sales of Restricted Stock for a cumulative period in excess of 60 days.
10. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so expressed or
not, and provided, further, that no transferee of Merger Shares shall have the
benefit of the covenants and agreements in this Agreement with respect to such
Merger Shares.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, sent by nationally recognized
delivery service guaranteeing delivery in two business days or less, with the
price of delivery paid by the sender, or telecopied, addressed as follows:
if to Delano, to: Delano Technology Corporation
302 TownCentre Blvd.
Markham, Ontario
L3R 0E8
Attention: David L. Lewis
Telephone No.: (905) 947-2137
Fax No.: (905) 947-2150
WITH COPIES TO:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Attention: F. George Davitt
Telephone No.: (617) 248-7000
Fax No.: (617) 248-7100
if to any other party hereto, at the address of
such party set forth on the signature page hereto:
or, in any case, at such other address or addresses as shall have been
furnished in writing to Delano (in the case of holder of Restricted Stock) or to
the Holder (in the case of Delano) in accordance with the provisions of this
paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
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(d) This Agreement may be amended or modified, and provisions hereof
may be waived, with the written consent of Delano and the holders of at least a
majority of the outstanding shares of Restricted Stock.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(The remainder of this page has been left blank intentionally.)
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Signature Page to Registration Rights Agreement
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between Delano and you. You understand that Delano is
expressly relying on the accuracy of the information contained herein. The
foregoing information is complete and correct as of the date hereof. You hereby
undertake to promptly notify Delano of any change in the above information prior
to investment in Delano.
Very truly yours,
DELANO TECHNOLOGY CORPORATION
By:
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Title:
AGREED TO AND ACCEPTED as of
the date first above written.
HOLDERS:
Name of Holder:
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