<PAGE>
EXHIBIT 4.3
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
RETAIL VENTURES, INC. (successor by merger to
Value City Department Stores, Inc.)
and
THE HOLDERS SPECIFIED ON
THE SIGNATURE PAGES HEREOF
Dated as of July 5, 2005
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TABLE OF CONTENTS
<TABLE>
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Page
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<C>
1.
DEFINITIONS.....................................................................
1
2. REGISTRATION UNDER THE SECURITIES
ACT........................................... 6
2.1 Demand
Registration......................................................
6
2.2 Incidental
Registration..................................................
9
2.3 Shelf
Registration.......................................................
11
2.4 Underwritten
Offerings...................................................
11
2.5
Expenses.................................................................
12
3. HOLDBACK
ARRANGEMENTS...........................................................
12
3.1 Restrictions on Sale by
Holders of Registrable Securities................ 12
3.2 Restrictions on Sale by the
Company and Others........................... 13
4. REGISTRATION
PROCEDURES.........................................................
13
4.1 Obligations of the
Company............................................... 13
4.2 Seller
Information.......................................................
17
4.3 Notice to
Discontinue....................................................
17
5. INDEMNIFICATION;
CONTRIBUTION...................................................
18
5.1 Indemnification by the
Company........................................... 18
5.2 Indemnification by
Holders............................................... 19
5.3 Conduct of Indemnification
Proceedings................................... 19
5.4
Contribution.............................................................
20
5.5 Other
Indemnification....................................................
20
5.6 Indemnification
Payments.................................................
21
6.
GENERAL.........................................................................
21
6.1 Adjustments Affecting
Registrable Securities............................. 21
6.2 Registration Rights to
Others............................................ 21
6.3 Availability of Information;
Rule 144; Other Exemptions.................. 21
6.4 Amendments and
Waivers...................................................
22
6.5
Notices..................................................................
22
6.6 Successors and
Assigns...................................................
24
6.7
Counterparts.............................................................
24
6.8 Descriptive Headings, Etc.
.............................................. 24
6.9
Severability.............................................................
25
6.10 Choice of Law and Venue; Jury
Trial Waiver............................... 25
6.11 Remedies; Specific
Performance........................................... 26
6.12 Entire
Agreement.........................................................
26
6.13 Further
Assurances.......................................................
26
6.14
Construction.............................................................
26
6.15 No Inconsistent
Agreement................................................
26
6.16 Costs and Attorneys'
Fees................................................ 26
6.17 Nominees for Beneficial
Owners........................................... 27
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This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(the
"Agreement") dated as of July 5, 2005, by
and among Retail Ventures, Inc.
(successor by merger to Value City
Department Stores, Inc.), an Ohio corporation
(the "Company"), Cerberus Partners, L.P.,
("CPLP"), Schottenstein Stores
Corporation ("SSC") and Back Bay Capital
Funding LLC, and amends and restates in
its entirety that certain Amended and
Restated Registration Rights Agreement
(the "Registration Rights Agreement") dated
as of June 11, 2002 by and among the
Company, CPLP and SSC.
WITNESSETH:
WHEREAS, in connection with a Financing Agreement dated July
11,
2002, as amended or otherwise modified from
time to time, by and among the
Company, certain subsidiaries of the
Company, CPLP and the lenders set forth
therein (the "Financing Agreement"), the
Company issued, upon the terms and
subject to the conditions of the Financing
Agreement, certain warrants, dated
September 26, 2002 (the "Warrants") to each
Holder exercisable for up to
19,621,459 shares (subject to adjustment
pursuant to the terms of the Warrants),
of the Company's Common Shares without par
value (the "Common Shares") (the
Common Shares issued or issuable upon
exercise of the Warrants are hereinafter
referred to as the "Warrant Shares");
and
WHEREAS, the parties have entered into that certain Second
Amended
and Restated Senior Loan Agreement, dated
as of the date hereof, which agreement
amends and restates that certain Amended
and Restated Convertible Loan
Agreement, dated as of June 11, 2002, by
and among the Company, the guarantors
named therein, CPLP and the Lenders named
therein, as amended by Amendment No. 1
to Amended and Restated Senior Convertible
Loan Agreement, dated as of June 11,
2002, and by Amendment No. 2 to Amended and
Restated Senior Convertible Loan
Agreement, dated as of October 7, 2003 and
Amendment No. 3 to Amended and
Restated Senior Convertible Loan Agreement,
dated as of December 29, 2004 (as
amended, supplemented, restated or
otherwise modified through the date hereof,
the "Loan Agreement"); and
WHEREAS, as a condition to the effectiveness of such amendment
and
restatement, the Company has, on the date
hereof, issued certain warrants (the
"Conversion Warrants") exercisable for
Common Shares by each of the Holders at
any time in their sole discretion (the
Common Shares issued or issuable upon
exercise of the Conversion Warrants are
hereinafter referred to as the
"Conversion Warrant Shares"); and
WHEREAS, in order to induce the Initial Holders to enter into
and
consummate the transactions contemplated by
the Loan Agreement, the Company has
agreed to amend and restate the
Registration Rights Agreement in its entirety as
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in order to
induce the Initial Holders to amend
and restate the Loan Agreement, the Company
and the Initial Holders hereby agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall
have the following meanings:
<PAGE>
"Affiliate" shall mean, with respect to any Person, any other
Person
that directly or indirectly through one or
more intermediaries, controls, is
controlled by, or is under common control
with, such Person. For purposes of
this definition, "control," "controls,"
"controlled by," or "under common
control with" shall mean the possession,
direct or indirect of the power to
cause the direction of the management and
policies of a Person whether through
the ownership of voting securities, by
contract or otherwise. A Person shall be
deemed to have control of another Person if
it is a "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule
13-d-5 under the Securities Exchange Act)
or a member of a "group" that is the
beneficial owner, directly or indirectly,
of 20% or more of the voting stock of or
equity interest in such Person. A
Person shall be deemed to direct the
management and policies of a Person if it,
without limitation, obtains the power
(whether or not exercised) to elect a
majority of the Board of Directors of such
Person.
"Common Shares" shall have the meaning set forth in the
recitals.
"Company" shall have the meaning set forth in the preamble.
"Conversion Warrant Shares" shall have the meaning set forth in
the
recitals.
"Conversion Warrants" shall have the meaning set forth in the
recitals.
"CPLP" shall have the meaning set forth in the preamble.
"CPLP Initial Holders" shall mean CPLP and its transferees who
are
Initial Holders.
"Current Market Price" shall mean, with respect to a security,
on
any date specified herein, the average of
the daily Market Price of such
security during the 10 consecutive trading
days before such date, except that,
if on any such date the shares of such
security are not listed or admitted for
trading on any national securities exchange
or quoted in the over-the-counter
market, the Current Market Price shall be
the Market Price on such date.
"Demand Registration" shall mean a registration required to be
effected by the Company pursuant to Section
2.1.
"Demand Registration Statement" shall mean a registration
statement
of the Company which covers the Registrable
Securities requested to be included
therein pursuant to the provisions of
Section 2.1 and all amendments and
supplements to such registration statement,
including post-effective amendments,
in each case including the Prospectus
contained therein, all exhibits thereto
and all material incorporated by reference
(or deemed to be incorporated by
reference) therein.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended from time to time, and the rules
and regulations thereunder, or any
successor statute.
"Financing Agreement" shall have the meaning set forth in the
recitals.
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<PAGE>
"Holders" shall mean initially the Holders signatory hereto for
so
long as they are the registered owners of
any Registrable Securities and such of
their respective heirs, successors and
permitted assigns (including any
permitted transferees of Registrable
Securities) who acquire or are otherwise
the transferee of Registrable Securities,
directly or indirectly, from such
Holders (or any subsequent Holder), for so
long as such heirs, successors and
permitted assigns are the registered owners
of any Registrable Securities. For
purposes of this Agreement, a Person will
be deemed to be a Holder whenever such
Person holds an option to purchase, or a
security convertible into or
exercisable or exchangeable for,
Registrable Securities, whether or not such
purchase, conversion, exercise or exchange
has actually been effected and
disregarding any legal restrictions upon
the exercise of such rights.
Registrable Securities issuable upon
exercise of an option or upon conversion,
exchange or exercise of another security
shall be deemed outstanding for the
purposes of this Agreement.
"Holders' Counsel" shall mean one firm of counsel (per
registration)
to the Holders of Registrable Securities
participating in such registration,
which counsel shall be selected (i) in the
case of a Demand Registration, by the
Initiating Holder who requested
registration in the Request or, if another
Holder is registering a greater number of
Registrable Securities in such Demand
Registration, then the Holder registering
the greatest number of Registrable
Securities in such Demand Registration, and
(ii) in all other cases, by the
Initial Holders of the Registration.
"Incidental Registration" shall mean a registration required to
be
effected by the Company pursuant to Section
2.2.
"Incidental Registration Statement" shall mean a registration
statement of the Company, which covers the
Registrable Securities requested to
be included therein pursuant to the
provisions of Section 2.2 and all amendments
and supplements to such registration
statement, including post-effective
amendments, in each case including the
Prospectus contained therein, all
exhibits thereto and all material
incorporated by reference (or deemed to be
incorporated by reference) therein.
"Initial Holders" shall mean CPLP, SSC, SSC's beneficial owners
and
any party to whom any of SSC, SSC's
beneficial owners or CPLP transfers at least
15% of its Registrable Securities.
"Initial Holders of the Registration" shall mean, with respect to
a
particular registration, the Initial
Holders who hold Registrable Securities to
be included in such registration.
"Initiating Holder" shall mean, with respect to a particular
registration, the Holder who initiated the
Request for such registration.
"Loan Agreement" shall have the meaning set forth in the
preamble.
"Market Price" shall mean, on any date specified herein, with
respect to any security, the amount per
share of such security equal to (i) the
last reported sale price of such security,
regular way, on such date or, in case
no such sale takes place on such date, the
average
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<PAGE>
of the closing bid and asked prices thereof
regular way on such date, in either
case as officially reported on the
principal national securities exchange on
which such security is then listed or
admitted for trading, (ii) if such
security is not then listed or admitted for
trading on any national securities
exchange but is designated as a national
market system security by the NASD, the
last reported trading price of such
security on such date, (iii) if there shall
have been no trading on such date or if
such security is not so designated, the
average of the closing bid and asked prices
of such security on such date as
shown by the NASD automated quotation
system, (iv) if trading in such security
is quoted in the over-the-counter market,
the average of the closing bid and
asked prices of the security on such date
as shown on the OTC Bulletin Board, or
(v) if such security is not then listed or
admitted for trading on any national
exchange or quoted in the over-the-counter
market, the fair value thereof (as of
a date which is within 20 days of the date
as of which the determination is to
be made) determined in good faith by a
committee of the Company's Board of
Directors consisting of directors who are
not Affiliates of the Company, or the
Initial Holders; provided, however, that at
the request of a Holder, the Market
Price shall be determined in good faith by
an independent investment banking
firm selected jointly by the Company and
the Initial Holders or, if that
selection cannot be made within 10 days, by
an independent investment banking
firm selected by the American Arbitration
Association in accordance with its
rules, and provided, further, that the
Company shall pay all of the fees and
expenses of any third parties incurred in
connection with determining the Market
Price.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Person" shall mean any individual, firm, partnership,
corporation,
trust, joint venture, association, joint
stock company, limited liability
company, unincorporated organization or any
other entity or organization,
including a government or agency or
political subdivision thereof, and shall
include any successor (by merger or
otherwise) of such entity.
"Prospectus" shall mean the prospectus included in a
Registration
Statement (including, without limitation,
any preliminary prospectus and any
prospectus that includes any information
previously omitted from a prospectus
filed as part of an effective registration
statement in reliance upon Rule 430A
promulgated under the Securities Act) and
any such Prospectus as amended or
supplemented by any prospectus supplement,
and all other amendments and
supplements to such Prospectus, including
post-effective amendments, and in each
case including all material incorporated by
reference (or deemed to be
incorporated by reference) therein.
"Registrable Securities" shall mean (i) any Warrant Shares
issued
upon exercise of the Warrants, (ii) any
Conversion Warrant Shares issued upon
exercise of the Conversion Warrants, and
(iii) any other securities of the
Company (or any successor or assign of the
Company, whether by merger,
consolidation, sale of assets or otherwise)
which may be issued with respect to,
in exchange for, or in substitution of,
Registrable Securities referenced in
clauses (i) and (ii) above by reason of any
dividend or stock split, combination
of shares, merger, consolidation,
recapitalization, reclassification,
reorganization, sale of assets or similar
transaction. As to any particular
Registrable Securities, such securities
shall cease to be Registrable Securities
when (A) a registration statement with
respect to the sale of such securities
shall have been declared effective under
the Securities Act and either (i) the
registration statement with respect thereto
has remained effective for 150 days
from the time the Warrant
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<PAGE>
Shares are issued upon exercise of the
Warrants or from the time the Conversion
Warrant Shares are issued upon exercise of
the Conversion Warrants (provided,
that this clause (A)(i) shall not apply to
a registration statement that is a
shelf registration) or (ii) such securities
shall have been disposed of in
accordance with such registration
statement, (B) such securities are eligible
for sale pursuant to Rule 144(k) (or any
similar provisions then in force) under
the Securities Act, (C) such securities
have been otherwise transferred, a new
certificate or other evidence of ownership
for them not bearing the legend
restricting further transfer shall have
been delivered by the Company and
subsequent public distribution of them
shall not require registration under the
Securities Act, or (D) such securities
shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident
to
performance of or compliance with this
Agreement by the Company and its
subsidiaries, including, without limitation
(i) all SEC, stock exchange, NYSE
and other registration, listing and filing
fees, (ii) all fees and expenses of
the Company incurred in connection with
compliance with state securities or blue
sky laws and compliance with the rules of
any stock exchange (including fees and
disbursements of counsel in connection with
such compliance and the preparation
of a blue sky memorandum and legal
investment survey), (iii) all expenses of any
Persons in preparing or assisting in
preparing, word processing, printing,
distributing, mailing and delivering any
Registration Statement, any Prospectus,
any underwriting agreements, transmittal
letters, securities sales agreements,
securities certificates and other documents
relating to the performance of or
compliance with this Agreement, (iv) the
fees and disbursements of counsel for
the Company, (v) the fees and disbursements
of Holders' Counsel up to $15,000
per Registration Statement, (vi) the fees
and disbursements of all independent
public accountants (including the expenses
of any audit and/or "cold comfort"
letters) and the fees and expenses of other
Persons, including experts, retained
by the Company, (vii) the expenses incurred
in connection with making road show
presentations and holding meetings with
potential investors to facilitate the
distribution and sale of Registrable
Securities, and (viii) except as set forth
below, any fees and disbursements of
underwriters customarily paid by issuers or
sellers of securities; provided, however,
that Registration Expenses shall not
include discounts and commissions payable
to underwriters, selling brokers,
dealer managers or other similar Persons
engaged in the distribution of any of
the Registrable Securities; and provided
further, that in any case where
Registration Expenses are not to be borne
by the Company, such expenses shall
not include salaries of Company personnel
or general overhead expenses of the
Company, auditing fees, premiums or other
expenses relating to liability
insurance required by underwriters of the
Company or other expenses for the
preparation of financial statements or
other data normally prepared by the
Company in the ordinary course of its
business or which the Company would have
incurred in any event; and provided
further, that in the event the Company shall
not register any securities with respect to
which it had given written notice of
its intention to register to Holders,
notwithstanding anything to the contrary
in the foregoing, all of the costs incurred
by the Holders in connection with
such registration shall be deemed to be
Registration Expenses.
"Registration Statement" shall mean any registration statement
of
the Company which covers any Registrable
Securities and all amendments and
supplements to any such Registration
Statement, including post-effective
amendments, in each case including the
Prospectus contained therein, all
exhibits thereto and all material
incorporated by reference (or deemed to be
incorporated by reference) therein.
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<PAGE>
"Request" shall have the meaning set forth in Section 2.1(a).
"Rule 144" means Rule 144 issued by the SEC under the
Securities
Act, or any subsequent rule pertaining to
the disposition of securities without
registration.
"Rule 144A" means Rule 144A issued by the SEC under the
Securities
Act, or any subsequent rule pertaining to
private resales of securities to
institutions.
"SEC" shall mean the Securities and Exchange Commission, or any
successor agency having jurisdiction to
enforce the Securities Act.
"Securities Act" shall have the meaning set forth in the
preamble.
"Shelf Registration" shall have the meaning set forth in
Section
2.1(a).
"SSC Initial Holders" shall mean SSC, its beneficial owners and
its
transferees who are Initial Holders.
"Underwriters" shall mean the underwriters, if any, of the
offering
being registered under the Securities
Act.
"Underwritten Offering" shall mean a sale of securities of the
Company to an Underwriter or Underwriters
for reoffering to the public.
"Warrants" shall have the meaning set forth in the recitals.
"Warrant Shares" shall have the meaning set forth in the
recitals.
"Withdrawn Demand Registration" shall have the meaning set forth
in
Section 2.1(a).
"Withdrawn Request" shall have the meaning set forth in Section
2.1(a).
2. REGISTRATION UNDER THE SECURITIES ACT.
2.1 Demand Registration.
(a) Right to Demand Registration. Subject to Section 2.1(c), at
any
time or from time to time each Initial
Holder shall have the right to request in
writing that the Company register all or
part of such Holder's Registrable
Securities (a "Request") (which Request
shall specify the amount of Registrable
Securities intended to be disposed of by
such Holder and the intended method of
disposition thereof) by filing with the SEC
a Demand Registration Statement. As
promptly as practicable, but no later than
10 days after receipt of a Request,
the Company shall give written notice of
such requested registration to all
other Holders of Registrable Securities.
Subject to Section 2.1(b), the Company
shall include in a Demand Registration (i)
the Registrable Securities intended
to be disposed of by the Initiating Holder
and (ii) the Registrable Securities
intended to be disposed of by any other
Holder which shall have made a written
request (which request shall specify the
amount of Registrable Securities to be
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<PAGE>
registered and the intended method of
disposition thereof) to the Company for
inclusion thereof in such registration
within 30 days after the receipt of such
written notice from the Company. The
Company shall, promptly, following a
Request, use its reasonable best efforts to
cause to be filed with the SEC a
Demand Registration Statement providing for
the registration under the
Securities Act of the Registrable
Securities which the Company has been so
requested to register by all such Holders,
to the extent necessary to permit the
disposition of such Registrable Securities
to be registered in accordance with
the intended methods of disposition thereof
specified in such Request or further
requests (including, without limitation, by
means of a shelf registration
pursuant to Rule 415 under the Securities
Act (a "Shelf Registration") if so
requested and if the Company is then
eligible to use such a registration. The
Company shall use its reasonable best
efforts to have such Demand Registration
Statement declared effective by the SEC as
soon as practicable thereafter and to
keep such Demand Registration Statement
continuously effective for the period
specified in Section 4.1(b).
A Request may be withdrawn prior to the filing of the Demand
Registration Statement by the Initiating
Holder (a "Withdrawn Request") and a
Demand Registration Statement may be
withdrawn prior to the effectiveness
thereof by the Initiating Holder (a
"Withdrawn Demand Registration"), and such
withdrawals shall be treated as a Demand
Registration which shall have been
effected pursuant to this Section 2.1,
unless the Holders of Registrable
Securities to be included in such
Registration Statement reimburse the Company
for its reasonable out-of-pocket
Registration Expenses relating to the
preparation and filing of such Demand
Registration Statement (to the extent
actually incurred), in which case such
withdrawal shall not be treated as a
Demand Registration effected pursuant to
this Section 2.1 (and shall not be
counted toward the number of Demand
Registrations); provided, however, that if a
Withdrawn Request or Withdrawn Registration
Statement is made (A) because of a
material adverse change in the business,
financial condition or prospects of the
Company, or (B) because the sole or lead
managing Underwriter advises that the
amount of Registrable Securities to be sold
in such offering be reduced pursuant
to Section 2.1(b) by more than 25% of the
Registrable Securities to be included
in such Registration Statement, then such
withdrawal shall not be treated as a
Demand Registration effected pursuant to
this Section 2.1 (and shall not be
counted toward the number of Demand
Registrations), and the Company shall pay
all Registration Expenses in connection
therewith. Any Holder requesting
inclusion in a Demand Registration may, at
any time prior to the effective date
of the Demand Registration Statement (and
for any reason) revoke such request by
delivering written notice to the Company
revoking such requested inclusion.
The registration rights granted pursuant to the provisions of
this
Section 2.1 shall be in addition to the
registration rights granted pursuant to
the other provisions of Section 2
hereof.
(b) Priority in Demand Registrations. If a Demand Registration
involves an Underwritten Offering, and the
sole or lead managing Underwriter, as
the case may be, of such Underwritten
Offering shall advise the Company in
writing (with a copy to each Holder
requesting registration) on or before the
date five days prior to the date then
scheduled for such offering that, in its
opinion, the amount of Registrable
Securities requested to be included in such
Demand Registration exceeds the number
which can be sold in such offering within
a price range acceptable to the Initiating
Holder (such writing to state the
approximate number of Registrable
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<PAGE>
Securities which may be included in such
offering), and the Request is not
thereafter withdrawn, the Company shall
include in such Demand Registration, to
the extent of the number which the Company
is so advised may be included in such
offering, the Registrable Securities
requested to be included in the Demand
Registration by the Holders allocated pro
rata in proportion to the number of
Registrable Securities requested to be
included in such Demand Registration by
each of them. In the event the Company
shall not, by virtue of this Section
2.1(b), include in any Demand Registration
all of the Registrable Securities of
any Holder requested to be included in such
Demand Registration, such Holder
may, upon written notice to the Company
given within five days of the time such
Holder first is notified of such matter,
further reduce the amount of
Registrable Securities it desires to have
included in such Demand Registration,
whereupon only the Registrable Securities,
if any, that it desires to have
included will be so included and the
Holders not so reducing shall be entitled
to a corresponding pro rata increase in the
amount of Registrable Securities to
be included in such Demand
Registration.
(c) Limitations on Registrations. The rights of Holders of
Registrable Securities to request Demand
Registrations pursuant to Section
2.1(a) are subject to the limitation that
in no event shall the Company be
required to effect more than (i) three
Demand Registrations requested by each of
CPLP and SSC (or its beneficial owners),
(ii) five Demand Registrations
requested by all CPLP Initial Holders in
the aggregate (with no CPLP Initial
Holder other than CPLP having the right to
request more than two Demand
Registrations), or (iii) five Demand
Registrations requested by all SSC Initial
Holders in the aggregate (with no SSC
Initial Holder other than SSC (or its
beneficial owners) having the right to
request more than two Demand
Registrations), as the Initiating Holder;
provided, however, that such number
shall be increased to the extent the
Company (x) does not include in what would
otherwise be such registration, for which
the Company is required to pay
Registration Expenses, the number of
Registrable Securities requested to be
registered by the Holders by reason of
Section 2.1(b) or (y) terminates a Shelf
Registration pursuant to Section 2.3 prior
to the earlier of the time that all
Registrable Securities covered by such
Shelf Registration have been sold or one
year following the effectiveness of such
Shelf Registration. The Holders of the
Registrable Securities may only make one
Demand Registration per 180 days. In
order to effect a Demand Registration, the
Holder seeking such Demand
Registration must seek to register at least
a number of Common Shares with a
Current Market Price of $5,000,000, or such
lesser number which is all of the
Registrable Securities held by such
Holder.
(d) Underwriting; Selection of Underwriters. Notwithstanding
anything to the contrary contained in
Section 2.1(a), if the Initiating Holder
who requested registration in the Request
so elects, the offering of such
Registrable Securities pursuant to such
Demand Registration shall be in the form
of a firm commitment Underwritten Offering
and such Initiating Holder may
require that all Persons (including other
Holders) participating in such
registration sell their Registrable
Securities to the Underwriters at the same
price and on the same terms of underwriting
applicable to the Initiating Holder.
If any Demand Registration involves an
Underwritten Offering, the sole or
managing Underwriters and any additional
investment bankers and managers to be
used in connection with such registration
shall be selected by the Company,
subject to the approval of the Initiating
Holder who requested such registration
in the Request (such approval not to be
unreasonably withheld).
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<PAGE>
(e) Effective Registration Statement; Suspension. A Demand
Registration Statement shall not be deemed
to have become effective (and the
related registration will not be deemed to
have been effected) (i) unless it has
been declared effective by the SEC and
remains effective in compliance with the
provisions of the Securities Act with
respect to the disposition of all
Registrable Securities covered by such
Demand Registration Statement for the
shorter of (i) one year for a Shelf
Registration or 90 days for any other
Registration Statement or (ii) the time
period specified in Section 4.1(b), (ii)
if the offering of any Registrable
Securities pursuant to such Demand
Registration Statement is interfered with
by any stop order, injunction or other
order or requirement of the SEC or any
other governmental agency or court, or
(iii) if, in the case of an Underwritten
Offering, the conditions to closing
specified in an underwriting agreement to
which the Company is a party are not
satisfied (other than by the sole reason of
any breach or failure by the Holders
of Registrable Securities) and are not
otherwise waived.
(f) Registration of Other Securities. Whenever the Company
shall
effect a Demand Registration, no securities
other than the Registrable
Securities shall be covered by such
registration unless each Initial Holder of
the Registration shall have consented in
writing to the inclusion of such other
securities; provided, however, that the
number of shares of Registrable
Securities to be registered by the Holders
shall not be reduced pursuant to
Section 2.1(b) unless all other securities
are first entirely excluded from the
underwriting.
(g) Registration Statement Form. Registrations under this
Section
2.1 shall be on such appropriate
registration form of the SEC (i) as shall be
reasonably selected by the Company, and
(ii) which shall be available for the
sale of Registrable Securities in
accordance with the intended method or methods
of disposition specified in the requests
for registration.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any
time or from time to time proposes to
register any of its securities under the
Securities Act (other than in a
registration on Form S-4 or S-8 or any successor
form to such forms and other than pursuant
to Section 2.1 or 2.3) whether or not
pursuant to registration rights granted to
other holders of its securities and
whether or not for sale for its own
account, the Company shall deliver prompt
written notice (which notice shall be given
at least five Business Days prior to
filing with the SEC such proposed
registration) to all Holders of Registrable
Securities of its intention to undertake
such registration, describing in
reasonable detail the proposed registration
and distribution (including the
anticipated range of the proposed offering
price, the class and number of
securities proposed to be registered and
the distribution arrangements) and of
such Holders' right to participate in such
registration under this Section 2.2
as hereinafter provided. Subject to the
other provisions of this paragraph (a)
and Section 2.2(b), upon the written
request of any Holder made within five
Business Days after the receipt of such
written notice (which request shall
specify the amount of Registrable
Securities to be registered and the intended
method of disposition thereof), the Company
shall effect the registration under
the Securities Act of all Registrable
Securities requested by Holders to be so
registered (an "Incidental Registration"),
to the extent requisite to permit the
disposition (in accordance with the
intended methods thereof as aforesaid) of
the Registrable Securities so to be
registered, by inclusion of such Registrable
Securities in the Registration Statement
which covers the securities which the
Company proposes to register and shall
cause such Registration Statement to
become and remain effective with
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<PAGE>
respect to such Registrable Securities in
accordance with the registration
procedures set forth in Section 4. If an
Incidental Registration involves an
Underwritten Offering, immediately upon
notification to the Company from the
Underwriter of the price at which such
securities are to be sold, the Company
shall so advise each participating Holder.
If such price is 15% (or $1.50 per
share, whichever is less) less than the
Current Market Price of the Registrable
Securities on the date that a Holder
delivered its notice requesting inclusion
in an Incidental Registration, such Holder
may, at any time prior to the
effective date of the Incidental
Registration Statement (and for any reason),
revoke such request by delivering written
notice to the Company revoking such
requested inclusion.
If at any time after giving written notice of its intention to
register any securities and prior to the
effective date of the Incidental
Registration Statement filed in connection
with such registration, the Company
shall determine for any reason not to
register or to delay registration of such
securities, the Company may, at its
election, give written notice of such
determination to each Holder of Registrable
Securities and, thereupon, (A) in
the case of a determination not to
register, the Company shall be relieved of
its obligation to register any Registrable
Securities in connection with such
registration (but not from its obligation
to pay the Registration Expenses
incurred in connection therewith), without
prejudice, however, to the rights of
Holders to cause such registration to be
effected as a registration under
Section 2.1 and (B) in the case of a
determination to delay such registration,
the Company shall be permitted to delay the
registration of such Registrable
Securities for the same period as the delay
in registering such other
securities; provided, however, that if such
delay shall extend beyond 120 days
from the date the Company received a
request to include Registrable Securities
in such Incidental Registration, then the
Company shall again give all Holders
the opportunity to participate therein and
shall follow the notification
procedures set forth in the preceding
paragraph. There is no limitation on the
number of such Incidental Registrations
pursuant to this Section 2.2 which the
Company is obligated to effect; provided,
however, that the Company shall not be
obligated to include any shares requested
by a Holder unless the number of
shares requested by such Holder has a
Current Market Price of at least
$5,000,000, or is all of the Registrable
Securities held by a Holder.
The registration rights granted pursuant to the provisions of
this
Section 2.2 shall be in addition to the
registration rights granted pursuant to
the other provisions of Section 2
hereof.
(b) Priority in Incidental Registration. If an Incidental
Registration involves an Underwritten
Offering (on a firm commitment basis), and
the sole or the lead managing Underwriter,
as the case may be, of such
Underwritten Offering shall advise the
Company in writing (with a copy to each
Holder requesting registration) on or
before the date five days prior to the
date then scheduled for such offering that,
in its opinion, the amount of
securities (including Registrable
Securities) requested to be included in such
registration exceeds the amount which can
be sold in such offering without
materially interfering with the successful
marketing of the securities being
offered (such writing to state the
approximate number of such securities which
may be included in such offering without
such effect), the Company shall include
in such registration, to the extent of the
number which the Company is so
advised may be included in such offering
without such effect, (i) in the case of
a registration initiated by the Company,
(A) first, the securities that the
Company proposes to register for its own
account, and
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<PAGE>
(B) second, on a pro rata basis, in
proportion to the number of securities
request
