Exhibit 99.8
THIS WARRANT AND THE SECURITIES PURCHASED ON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNTIL EITHER (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE
WITH REGARD THERETO, OR (ii) THE CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL
THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION
THEREWITH.
Warrant to Purchase Warrant No. 2000-3
470,035 Shares
Warrant to Purchase Common Stock
of
AER ENERGY RESOURCES, INC.
THIS CERTIFIES that FW AER II, L.P., a Delaware limited
partnership ("Holder") or any subsequent holder hereof, has the
right to purchase from AER Energy Resources, Inc., a Georgia
corporation (the "Company"), up to 470,035 fully paid and
nonassessable shares of the Company's Common Stock, no par value
("Common Stock"), at the Exercise Price (as defined herein),
subject to adjustment as provided below, at any time on or before
5:00 p.m., Atlanta, Georgia time, on September 30, 2005.
This Warrant is issued and all rights hereunder shall be held
subject to all of the conditions, limitations and provisions set
forth herein.
1. Exercise.
This Warrant may be exercised as to all or any lesser
number of full shares of Common Stock covered hereby upon surrender
of this Warrant, with the Subscription Form attached hereto duly
executed, together with the full Exercise Price in cash, or by
certified or official bank check payable in New York Clearing House
Funds or wire transfer payable in immediately available federal
funds for each share of Common Stock as to which this Warrant is
exercised, at the office of the Company, AER Energy Resources,
Inc., 4600 Highlands Parkway, Suite G, Smyrna, GA 30082, or at such
other office or agency as the Company may designate in writing
(such surrender and payment hereinafter called the "Exercise of
this Warrant"). The "Date of Exercise" of the Warrant shall be
defined as the date that the original Warrant and Subscription Form
are received by the Company. This Warrant shall be canceled upon
its Exercise, and, as soon as practicable thereafter, the Holder
hereof shall be entitled to receive a certificate or certificates
for the number of shares of Common Stock purchased upon such
Exercise and a new Warrant or Warrants (containing terms identical
to this Warrant) representing any unexercised portion of this
Warrant. Each person in whose name any certificate for shares of
Common Stock is issued shall, for all purposes, be deemed to have
become the Holder of record of such shares on the Date of Exercise
of this Warrant, irrespective of the date of delivery of such
certificate. Nothing in this Warrant shall be construed as
conferring upon the Holder hereof any rights as a shareholder of
the Company.
2. Payment of Warrant Exercise Price.
Payment of the Exercise Price may be made by any of the
following, or a combination thereof, at the election of Holder:
(i) cash, certified check or cashier's check or wire transfer
payable in immediately available federal funds; or
(ii) surrender of this Warrant at the principal office of the
Company together with notice of election, in which event the
Company shall issue Holder a number of shares of Common Stock
computed using the following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to
Holder (not to exceed the number of shares set forth on the cover
page of this Warrant, as adjusted pursuant to the provisions of
Section 5 of this Warrant).
Y = the number of shares of Common Stock for which this
Warrant is being exercised.
A = the Market Price of one share of Common Stock (for
purposes of this Section 2(ii), the "Market Price" shall
be defined as the average closing bid price of the Common
Stock for the five trading days prior to the Date of
Exercise of this Warrant (the "Five-Day Average Closing
Bid Price"), as reported on the Nasdaq National Market,
or if the Common Stock is not traded on the Nasdaq
National Market, the Five-Day Average Closing Bid Price
in the over-the-counter market; provided, however, that
if the Common Stock is listed on a stock exchange, the
Market Price shall be the Five-Day Average Closing Bid
Price on such exchange).
B = the Exercise Price.
It is intended that the Common stock issuable upon exercise of this
Warrant in a cashless exercise transaction shall be deemed to have
been acquired at the time this Warrant was issued, for purposes of
Rule 144(d)(3)(ii).
3. Exercise Price.
The Exercise Price shall initially be $0.886 per share.
However, if 120% of the average closing bid price of a share of
Common Stock (as reported on any tier of The Nasdaq Stock Market,
Inc., including the Over-the-Counter Bulletin Board automated
quotation system or on a national securities exchange) for 20
consecutive trading days ending on September 26, 2001 (the "20-Day
Average Closing Bid Price"), is less than the Exercise Price, then
the Exercise Price shall be adjusted to equal the greater of (i)
120% of the 20-Day Average Closing Bid Price or (ii) $0.554.
Notwithstanding the foregoing, in the event that the Exercise Price
is adjusted pursuant to this Section 3, no such adjustment shall be
made to the number of Shares of Common Stock that may be received
upon the Exercise of this Warrant.
4. Transfer and Registration.
Subject to the provisions of Section 8 of this Warrant,
this Warrant may be transferred on the books of the Company, wholly
or in part, in person or by attorney, upon surrender of this
Warrant properly endorsed, with signature guaranteed. This Warrant
shall be canceled upon such surrender and, as soon as practicable
thereafter, the person to whom such transfer is made shall be
entitled to receive a new Warrant or Warrants as to the portion of
this Warrant transferred, and the Holder of this Warrant shall be
entitled to receive a new Warrant or Warrants as to the portion
hereof retained.
5. Anti-Dilution Adjustments.
(a) If the Company shall at any time declare a dividend
payable in shares of Common Stock, then the Holder hereof, upon
Exercise of this Warrant after the record date for the
determination of Holders of Common Stock entitled to receive such
dividend, shall be entitled to receive upon Exercise of this
Warrant, in addition to the number of shares of Common Stock as to
which this Warrant is Exercised, such additional shares of Common
stock as such Holder would have received had this Warrant been
Exercised immediately prior to such record date.
(b) If the Company shall at any time effect a
recapitalization or reclassification of such character that the
shares of Common stock shall be changed into or become exchangeable
for a larger or smaller number of shares, then upon the effective
date thereof, the number of shares of Common Stock which the Holder
hereof shall be entitled to purchase upon Exercise of this Warrant
shall be increased or decreased, as the case may be, in direct
proportion to the increase or decrease in the number of shares of
Common Stock by reason of such recapitalization or
reclassification, and the Exercise Price shall be, in the case of
an increase in the number of shares, proportionately decreased and,
in the case of a decrease in the number of shares, proportionally
increased.
(c) If the Company shall at any time distribute to Holders of
Common Stock cash, evidences of indebtedness or other securities or
assets (other than cash dividends or distributions payable out of
earned surplus or net profits for the current or preceding year)
then, in any such case, the Holder of this Warrant shall be
entitled to receive, upon Exercise of this Warrant, with respect to
each share of Common Stock issuable upon such Exercise, the amount
of cash or evidences of indebtedness or other securities or assets
which such Holder would have been entitled to receive with respect
to each such share of Common stock as a result of the happening of
such event had this Warrant been Exercised immediately prior to the
record date or other date fixing shareholders to be affected by
such event (the "Determination Date") or, in lieu thereof, if the
Board of Directors of the Company should so determine at the time
of such distribution, a reduced Exercise Price determined by
multiplying the Exercise Price on the Determination Date by a
fraction, the numerator of which is the result of such Exercise
Price reduced by the value of such distribution applicable to one
share of Common stock (such value to be determined by the Board in
its discretion) and the denominator of which is such Exercise
Price.
(d) If the Company shall at any time consolidate or merge
with any other corporation or transfer all or substantially all of
its assets or dissolve, then the Company shall deliver written
notice to the Holder of such merger, consolidation or sale of
assets or dissolution at least thirty (30) days prior to the
closing of such merger, consolidation or sale of assets or
dissolution, and this Warrant shall terminate and expire
immediately prior to the closing of such merger, consolidation or
sale of assets or dissolution.
(e) As used in this Warrant, the term "Exercise Price" shall
mean the purchase price per share specified in Section 3 of this
Warrant until the occurrence of an event stated in Section 5(b) or
5(c) and thereafter shall mean said price as adjusted from time to
time in accordance with the provisions of said sections. No such
adjustment pursuant to Section 5(b) or 5(c) shall be made unless
such adjustment would change the Exercise Price at the time by $.01
or more; provided, however, that all adjustments not so made shall
be deferred and made when the aggregate thereof would change the
Exercise Price at the time by $.01 or more. No adjustment made
pursuant to any provision of this Section 5 shall have the effect
of increasing the total consideration payable upon Exercise of this
Warrant in respect of all the Common Stock as to which this Warrant
may be exercised.
(f) In the event that at any time, as a result of an
adjustment made pursuant to this Section 5, the Holder of this
Warrant shall, upon Exercise of this Warrant, become entitled to
receive shares and/or other securities or assets (other than Common
Stock) then, wherever appropriate, all references herein to shares
of Common Stock shall be deemed to refer to and include such shares
and/or other securities or assets; and thereafter the number of
such shares and/or other securities or assets shall be subject to
adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 5.
6. Fractional Interests.
No fractional shares or scrip representing fractional
shares shall be issuable upon the Exercise of this Warrant, but on
Exercise of this Warrant, the Holder hereof may purchase only a
whole number of shares of Common Stock. The Company shall make a
payment in cash in respect of any fractional shares which might
otherwise be issuable upon Exercise of this Warrant, calculated by
multiplying the fractional share amount by the market price of the
Company's Common Stock on the Date of Exercise as reported on the
Nasdaq National Market or such other exchange or system on which
the Company's Common Stock is traded.
7. Reservation of Shares.
The Company shall at all times reserve for issuance such
number of authorized and unissued shares of Common Stock (or other
securities substituted therefor as herein above provided) as shall
be sufficient for Exercise of this Warrant. The Company covenants
and agrees that upon Exercise of this Warrant, all shares of Common
Stock issuable upon such Exercise shall be duly and validly issued,
fully paid, nonassessable and not subject to preemptive rights of
any shareholders.
8. Restrictions on Transfer.
This Warrant and the Common Stock issuable on Exercise
hereof have been or will be acquired by the Holder hereof for
investment for its own account and not with a view to the
distribution thereof, have not been registered under the Securities
Act of 1933, as amended (the "Act"), or under any state securities
laws (the "State Acts") and may not be sold, transferred, pledged,
hypothecated or otherwise disposed of in the absence of
registration or the availability of an exemption from registration
under the Act and any applicable State Acts and, in the event a
Holder believes an exemption from the registration requirements of
the Act and any applicable State Acts is available, the Holder must
deliver a legal opinion satisfactory in form and substance to the
Company and its counsel, stating that such exemption is available.
All shares of Common Stock issued upon Exercise of this Warrant
shall bear an appropriate legend to such effect. Holder has
represented to the Company that it and any transferee of all or any
portion of this Warrant is and will remain at all times while this
Warrant is outstanding an "accredited investor" as defined in
Regulation D promulgated under the Act.
9. Benefits of this Warrant.
Nothing in this Warrant shall be construed to confer upon
any person other than the Company and the Holder of this Warrant
any legal or equitable right, remedy or claim under this Warrant
and this Warrant shall be for the sole and exclusive benefit of the
Company and the Holder of this Warrant.
10. Applicable Law.
This Warrant is issued under and shall for all purposes
be governed by and construed in accordance with the laws of the
State of Georgia. Jurisdiction for any dispute regarding this
Warrant lies in Georgia.
11. Loss of Warrant.
Upon receipt by the Company of evidence of the loss,
theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of indemnity or security reasonably
satisfactory to the Company, and upon surrender and cancellation of
this Warrant, if mutilated, the Company shall execute and deliver
a new Warrant of like tenor and date.
12. Purchase Agreement.
This Warrant is issued and sold pursuant to that certain
Securities Purchase Agreement dated as of September 27, 2000 (the
"Purchase Agreement"). The Holder shall be entitled to all of the
rights and benefits and subject to all of the obligations of a
Purchaser under the Purchase Agreement, including without
limitation, rights with respect to registration under the Act. The
terms of the Purchase Agreement are hereby incorporated herein for
all purposes and shall be considered a part of this Warrant as if
they had been fully set forth herein.
13. Notice to Company and Holder.
Notices or demands pursuant to this Warrant to be given
or made by the Holder of this Warrant to or on the Company shall be
sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, until
another address is designated in writing by the Company, AER Energy
Resources, Inc., 4600 Highlands Parkway, Suite G, Smyrna, GA 30082,
Attention: Chief Executive Officer. Notices or demands pursuant to
this Warrant to be given or made by the Company to or on the Holder
of this Warrant shall be sufficiently given or made if sent by
certified or registered mail, return receipt requested, postage
prepaid, and addressed to the Holder as follows: FW AER II, L.P.,
201 Main Street, Suite 3100, Ft. Worth, Texas 76102, Attn:. Vice
President and Controller, with a copy to David G. Brown, c/o Arbor
Investors, 2775 Sand Hill Road, Suite 220, Menlo Park, California
94025 or another person or address designated in writing by Holder.
(signature follows on next page)
IN WITNESS WHEREOF, this Warrant is hereby executed effective
as of the date set forth below.
Dated as of September 27, 2000.
AER ENERGY RESOURCES, INC.
By:
J.T. Moore
Vice President and Chief Financial
Officer
<PAGE>
SUBSCRIPTION FORM
TO: AER ENERGY RESOURCES, INC.
The undersigned hereby irrevocably exercises the right to
purchase _______________ shares of Common Stock of AER Energy
Resources, Inc., a Georgia corporation, evidenced by the attached
Warrant, and herewith makes payment of the Exercise Price with
respect to such shares in full, all in accordance with the
conditions and provisions of said Warrant.
The undersigned represents that it is an "accredited investor"
as defined in Regulation D under the Securities Act of 1933, as
amended, agrees not to offer, sell, transfer or otherwise dispose
of any of such Common Stock, except in accordance with the
provisions of Section 8 of the Warrant, and consents that the
following legend may be affixed to the certificates for the Common
Stock hereby subscribed for, if such legend is applicable:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities law, and may not be
sold, transferred, pledged, hypothecated or otherwise disposed
of until either (i) a registration statement under the
Securities Act and applicable state securities laws shall have
become effective with regard thereto, or (ii) the corporation
shall have received an opinion of counsel acceptable to the
corporation and its counsel that an exemption from
registration under the Securities Act or applicable state
securities laws is available in connection therewith."
The undersigned requests that certificates for such shares be
issued, and a warrant representing any unexercised portion thereof
be issued, pursuant to the Warrant in the name of the Registered
Holder and delivered to the undersigned at the address set forth
below:
(Check
Box if
applicable)
The undersigned hereby elects to make payment of the
Exercise Price through a cashless exercise pursuant to
Section 2(ii) of the Warrant.
Dated:
Signature of Registered Holder
Name of Registered Holder (Print)
Address
The attached Warrant and the securities issuable on exercise
thereof have not been registered under the Securities Act of 1933,
as amended, or any state securities law and may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in the
absence of registration or the availability of an exemption from
registration under said Act or any state securities law.
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant
hereby sells, assigns and transfers unto the person or persons
below named the right to purchase ____________ shares of the Common
Stock of AER ENERGY RESOURCES, INC. evidenced by the attached
Warrant and does hereby irrevocably constitute and appoint
_____________________________ attorney to transfer the said Warrant
on the books of the Company, with full power of substitution in the
premises.
Dated: Signature
Fill in for new Registration of Warrant: Signature
Guarantee:
Name Name of Guarantor
By:
Name:
Address Title:
Please print name and address of assignee
(including zip code)
NOTICE
The signature to the foregoing Subscription Form or Assignment must
correspond to the name as written upon the face of the attached
Warrant in every particular, without alteration or enlargement or
any change whatsoever.
