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These excerpts taken from the AAI 10-K filed Feb 13, 2009. Piggy-Back
Registration”). The Issuer shall use its reasonable best
efforts to keep such Piggy-Back Registration continuously effective under the
Securities Act until at least the earlier of (x) the end of the Effectiveness
Period or (y) the consummation of the distribution by the Selling Holders of all
of the Registrable Shares covered thereby. The Issuer shall use its
reasonable efforts to cause the managing underwriter or underwriters, if any, of
such proposed offering to permit the Registrable Shares requested to be included
in a Piggy-Back Registration to be included on the same terms and conditions as
any similar securities of the Issuer or any other security holder included
therein and to permit the sale or other disposition of such Registrable Shares
in accordance with the intended method of distribution thereof.
5
(ii) Priority in Piggy-Back
Registration. In a registration pursuant to this Section 2(b)
involving an underwritten offering, if the managing underwriter or underwriters
of such underwritten offering have informed, in writing, the Issuer and the
Selling Holders requesting inclusion in such offering that in such
underwriter's or underwriters’ opinion the total number of securities which the
Issuer, the Selling Holders and any other Persons desiring to participate in
such registration intend to include in such offering is such as to adversely
affect the success of such offering, including the price at which such
securities can be sold, then the Issuer will be required to include in such
registration only the amount of securities which it is so advised should be
included in such registration. In such event: (x) in cases initially
involving the registration for sale of securities for the Issuer’s own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities which the Issuer proposes to register, (ii)
second, provided that no securities proposed to be registered by the Issuer have
been excluded from such registration, the securities that have been requested to
be included in such registration by the Selling Holders, and (iii) third,
provided that no securities sought to be included by the Selling Holders have
been excluded from such registration, the securities of other Persons entitled
to exercise “piggy-back” registration rights pursuant to contractual commitments
of the Issuer (pro rata based on the amount of securities sought to be
registered by such Persons); and (y) in cases not initially involving the
registration for sale of securities for the Issuer’s own account, securities
shall be registered in such offering in the following order of priority: (i)
first, the securities of any Person whose exercise of a “demand” registration
right pursuant to a contractual commitment of the Issuer is the basis for the
registration, (ii) second, provided that no securities of any Person whose
exercise of a “demand” registration right pursuant to a contractual commitment
of the Issuer is the basis for such registration have been excluded from such
registration, the securities requested to be included in such registration by
the Selling Holders pursuant to this Agreement, (iii) third, provided that no
securities sought to be included by the Selling Holders or such Persons have
been excluded from such registration, securities of other Persons entitled to
exercise “piggy-back” registration rights pursuant to contractual commitments of
the Issuer (pro rata based on the amount of securities sought be registered by
such Persons) and (iv) fourth, provided that no securities sought to be included
by other Persons entitled to exercise “piggy-back” registration rights pursuant
to such contractual commitments have been excluded from such registration, any
securities which the Issuer proposes to register.
(iii) Suspension of Sales,
etc. During any consecutive 365-day period, the Issuer shall
be entitled to suspend the availability of the Piggy-Back Registration for up to
two 45 consecutive-day periods (except during the 45 consecutive-day period
immediately prior to the Filing Date) if the Board of Directors of the Issuer
determines in good faith that the effectiveness of, or sales pursuant to, such
Piggy-Back Registration would materially impede, delay or interfere with any
significant financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction involving the Issuer or any of
its affiliates. If the Issuer shall so postpone the effectiveness of,
or suspend the rights of any Selling Holders to make sales pursuant to, a
Piggy-Back Registration, it shall, as promptly as possible, notify any Selling
Holders of such determination, and the Selling Holders shall (y) have the right,
in the case of a postponement of the effectiveness of a Piggy-Back Registration,
upon the affirmative vote of Selling Holders of not less than a majority of the
Registrable Warrant Shares to be included in such Piggy-Back Registration, to
withdraw the request for registration by giving written notice to the Issuer
within 20 days after receipt of such notice or (z) in the case of a suspension
of the right to make sales, receive an extension of the registration period
referred to in Section
2(a) hereof equal to the number of days of the suspension.
6
(iv) Any
Selling Holder shall have the right to withdraw its request for inclusion of its
Registrable Shares in any Piggy-Back Registration pursuant to this Section 2(b) by
giving written notice to the Issuer of its request to withdraw at any time prior
to the filing of such Piggy-Back Registration with the SEC. The
Issuer will pay all Registration Expenses in connection with each registration
of Registrable Shares requested pursuant to this Section 2(b), and
each Holder of Registrable Shares shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
the Registrable Shares of such Holder of Registrable Shares pursuant to a
Piggy-Back Registration effected pursuant to this Section
2(b).
(v) Exclusion of Registrable
Shares. The Issuer shall not be required by this Section 2(b) to
include Registrable Shares in a Piggy-Back Registration if (i) in the written
opinion of outside counsel to the Issuer, addressed to the holders of
Registrable Shares and delivered to them, the Holders of such Registrable Shares
seeking registration would be free to sell all such Registrable Shares within
the current calendar quarter, without registration, under Rule 144, which
opinion may be based in part upon the representation by the Holders of such
Registrable Shares seeking registration, which representation shall not be
unreasonably withheld, conditioned or delayed that each such Holder is not an
affiliate of the Issuer within the meaning of the Securities Act, and (ii) all
requirements under the Securities Act for effecting such sales are satisfied at
such time.
(vi) No Special
Audit. The Issuer shall not be obligated to cause any special
audit to be undertaken in connection with any Piggy-Back Registration unless (x)
such special audit is requested by the underwriters with respect to such
Piggy-Back Registration or (y), if such Piggy-Back Registration does not involve
an underwritten offering, such special audit is requested by the Selling Holders
of not less than a majority of the Registrable Shares.
(c) Obligations
of Selling Holders. The Issuer’s
obligations under this Section
2 shall be
subject to the obligations of the Selling Holders, which the Selling Holders
hereby acknowledge, to furnish all information and materials and to take
any and all actions as may be required under applicable requirements of the SEC
and to obtain an acceleration of the effective date of a Registration
Statement.
3. Piggy-Back Registration”). The Issuer shall use its reasonable best efforts to keep such Piggy-Back Registration continuously effective under the Securities Act until at least the earlier of (x) the end of the Effectiveness Period or (y) the consummation of the distribution by the Selling Holders of all of the Registrable Shares covered thereby. The Issuer shall use its reasonable efforts to cause the managing underwriter or underwriters, if any, of such proposed offering to permit the Registrable Shares requested to be included in a Piggy-Back Registration to be included on the same terms and conditions as any similar securities of the Issuer or any other security holder included therein and to permit the sale or other disposition of such Registrable Shares in accordance with the intended method of distribution thereof. 5 (ii) Priority in Piggy-Back Registration. In a registration pursuant to this Section 2(b) involving an underwritten offering, if the managing underwriter or underwriters of such underwritten offering have informed, in writing, the Issuer and the Selling Holders requesting inclusion in such offering that in such underwriter's or underwriters’ opinion the total number of securities which the Issuer, the Selling Holders and any other Persons desiring to participate in such registration intend to include in such offering is such as to adversely affect the success of such offering, including the price at which such securities can be sold, then the Issuer will be required to include in such registration only the amount of securities which it is so advised should be included in such registration. In such event: (x) in cases initially involving the registration for sale of securities for the Issuer’s own account, securities shall be registered in such offering in the following order of priority: (i) first, the securities which the Issuer proposes to register, (ii) second, provided that no securities proposed to be registered by the Issuer have been excluded from such registration, the securities that have been requested to be included in such registration by the Selling Holders, and (iii) third, provided that no securities sought to be included by the Selling Holders have been excluded from such registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Issuer (pro rata based on the amount of securities sought to be registered by such Persons); and (y) in cases not initially involving the registration for sale of securities for the Issuer’s own account, securities shall be registered in such offering in the following order of priority: (i) first, the securities of any Person whose exercise of a “demand” registration right pursuant to a contractual commitment of the Issuer is the basis for the registration, (ii) second, provided that no securities of any Person whose exercise of a “demand” registration right pursuant to a contractual commitment of the Issuer is the basis for such registration have been excluded from such registration, the securities requested to be included in such registration by the Selling Holders pursuant to this Agreement, (iii) third, provided that no securities sought to be included by the Selling Holders or such Persons have been excluded from such registration, securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Issuer (pro rata based on the amount of securities sought be registered by such Persons) and (iv) fourth, provided that no securities sought to be included by other Persons entitled to exercise “piggy-back” registration rights pursuant to such contractual commitments have been excluded from such registration, any securities which the Issuer proposes to register. (iii) Suspension of Sales, etc. During any consecutive 365-day period, the Issuer shall be entitled to suspend the availability of the Piggy-Back Registration for up to two 45 consecutive-day periods (except during the 45 consecutive-day period immediately prior to the Filing Date) if the Board of Directors of the Issuer determines in good faith that the effectiveness of, or sales pursuant to, such Piggy-Back Registration would materially impede, delay or interfere with any significant financing, offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Issuer or any of its affiliates. If the Issuer shall so postpone the effectiveness of, or suspend the rights of any Selling Holders to make sales pursuant to, a Piggy-Back Registration, it shall, as promptly as possible, notify any Selling Holders of such determination, and the Selling Holders shall (y) have the right, in the case of a postponement of the effectiveness of a Piggy-Back Registration, upon the affirmative vote of Selling Holders of not less than a majority of the Registrable Warrant Shares to be included in such Piggy-Back Registration, to withdraw the request for registration by giving written notice to the Issuer within 20 days after receipt of such notice or (z) in the case of a suspension of the right to make sales, receive an extension of the registration period referred to in Section 2(a) hereof equal to the number of days of the suspension. 6 (iv) Any Selling Holder shall have the right to withdraw its request for inclusion of its Registrable Shares in any Piggy-Back Registration pursuant to this Section 2(b) by giving written notice to the Issuer of its request to withdraw at any time prior to the filing of such Piggy-Back Registration with the SEC. The Issuer will pay all Registration Expenses in connection with each registration of Registrable Shares requested pursuant to this Section 2(b), and each Holder of Registrable Shares shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of the Registrable Shares of such Holder of Registrable Shares pursuant to a Piggy-Back Registration effected pursuant to this Section 2(b). (v) Exclusion of Registrable Shares. The Issuer shall not be required by this Section 2(b) to include Registrable Shares in a Piggy-Back Registration if (i) in the written opinion of outside counsel to the Issuer, addressed to the holders of Registrable Shares and delivered to them, the Holders of such Registrable Shares seeking registration would be free to sell all such Registrable Shares within the current calendar quarter, without registration, under Rule 144, which opinion may be based in part upon the representation by the Holders of such Registrable Shares seeking registration, which representation shall not be unreasonably withheld, conditioned or delayed that each such Holder is not an affiliate of the Issuer within the meaning of the Securities Act, and (ii) all requirements under the Securities Act for effecting such sales are satisfied at such time. (vi) No Special Audit. The Issuer shall not be obligated to cause any special audit to be undertaken in connection with any Piggy-Back Registration unless (x) such special audit is requested by the underwriters with respect to such Piggy-Back Registration or (y), if such Piggy-Back Registration does not involve an underwritten offering, such special audit is requested by the Selling Holders of not less than a majority of the Registrable Shares. (c) Obligations of Selling Holders. The Issuer’s obligations under this Section 2 shall be subject to the obligations of the Selling Holders, which the Selling Holders hereby acknowledge, to furnish all information and materials and to take any and all actions as may be required under applicable requirements of the SEC and to obtain an acceleration of the effective date of a Registration Statement. 3. | EXCERPTS ON THIS PAGE:
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