AER ENERGY RESOURCES, INC.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx X
Xxxxxx, Xxxxxxx 00000
November 6, 1997
FW AER Partners, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Dear Sirs:
This letter amends that certain AER Energy Resources, Inc. Securities
Purchase Agreement by and between FW AER Partners, L.P., a Texas limited
partnership ("Purchaser"), and AER Energy Resources, Inc., a Georgia corporation
("AER"), dated as of May 13, 1996 (the "Agreement"), pursuant to which the
Purchaser purchased from AER 1,584,158 shares of AER's common stock, no par
value (the "Common Stock"), and a warrant to purchase 835,000 shares of Common
Stock. All defined terms used but not otherwise defined herein shall have the
respective meanings given them in the Agreement.
1. Section 4(a) of the Agreement is hereby amended to read in its entirety
as follows:
(a) Demand Registration. If at any time after two (2) years and prior to
five (5) years from the date of the Closing, AER shall receive a written request
from Purchaser that AER file a registration statement under the Securities Act,
covering all or any portion of the Shares or all or any portion of the Warrant
Shares, AER shall, not later than ninety (90) days after receipt of such written
request, file a registration statement with the Commission relating to the
Shares or Warrant Shares as to which such request for a demand registration
relates together with all other shares of Common Stock owned by Purchaser and
shares of Common Stock owned by Keystone, Inc., Xxxxx X. Xxxxx, Xxxx X. Xxxxxxx
or "affiliates" or "associates" thereof, as such terms are defined in the
Securities Act (collectively, the "Third Party Shareholders"), to the extent
such shares of Common Stock are not then freely tradeable under the Securities
Act, as the notice requests be included in such registration (all of the
foregoing hereinafter collectively referred to as, the "Requested Shares"), and
AER shall use its best efforts to cause the registration statement (which may
cover, without limitation, an offering on a delayed or continuous basis open for
up to one hundred eighty (180) days pursuant to Commission Rule 415) for the
Requested Shares to become effective under the Securities Act. AER shall be
obligated to effect only two (2) registrations pursuant to this Section 4(a).
Any such request shall be subject to the rights of the Debenture Subscribers
(defined below) pursuant to the Registration Rights Agreement dated as of
November 22, 1995 among AER, the Debenture Subscribers and Xxxxxx Investments,
Inc. (the "Registration Rights Agreement").
2. Section 4(c) of the Agreement is hereby amended to read in its entirety
as follows:
(c) "Piggyback" Registration. If at any time after two (2) years and
prior to five (5) years from the date of the Closing, AER shall determine to
proceed with the preparation and filing of a registration statement under the
Securities Act in connection with the proposed offer and sale for money of any
of its equity securities by it or any of its security holders (other than on
Form S-4 or Form S-8 promulgated under the Securities Act or any successor or
similar form), AER will give written notice of its determination to Purchaser.
Upon the written request of Purchaser or any Third Party Shareholder given to
AER within ten (10) days after Purchaser's receipt of any such notice by AER,
AER will cause all of the shares of Common Stock that Purchaser and/or any of
the Third Party Shareholders have requested be registered (the "Piggyback
Shares") to be included in such registration statement, but only to the extent
the shares of Common Stock are not then freely tradeable under the Securities
Act; provided, however, that such request shall be subject to the rights of the
Debenture Subscribers pursuant to the Registration Rights Agreement, and
provided, further, that, if the managing underwriter, in the case of an
underwritten public offering, determines and advises in writing that the
inclusion of all the Piggyback Shares proposed to be included by Purchaser or
the Third Party Shareholders, as applicable, would interfere with the successful
marketing of the securities proposed to be registered by AER, then the number of
such Piggyback Shares to be included in the registration statement shall be
reduced in accordance with the recommendations of the managing underwriter,
except that if the managing underwriter determines and advises that the
inclusion in such registration statement of any Piggyback Shares would so
interfere, then no Piggyback Shares shall be included in such registration
statement but provided that any such reduction shall be made pro rata with
respect to Purchaser and any Third Party Shareholder requesting such
registration.
3. Section 4(d) of the Agreement is hereby amended to read in its entirety
as follows:
(d) Expenses. With respect to each inclusion of shares in a registration
statement pursuant to Section 4(a) or 4(b), AER shall bear the following fees,
costs and expenses: all registration, filing and NASD fees, printing expenses,
fees and disbursements of counsel and accountants for AER and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements not expressly included above
shall be borne pro rata by the Purchaser and the Third Party Shareholders whose
shares are included in such registration statement.
4. Section 4(e) of the Agreement is hereby amended to read in its entirety
as follows:
(e) Indemnification, Etc. In the event that shares are registered
pursuant to Section 4(a) or 4(c), Purchaser and any Third Party Shareholder
registering shares of Common Stock, as applicable, and AER shall execute
reasonable and customary underwriting, indemnification and lock-up agreements
relating to such registration and shall undertake reasonable and customary
registration procedures.
5. Section 8(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) Assignment. Except in the case of a transfer permitted under Section
5(a), no assignment or transfer by Purchaser or any Third Party Shareholder of
their respective rights and obligations under this Agreement shall be made by
merger or other operation of law or otherwise except with the prior written
consent of AER. This Agreement is binding upon the parties and their successors
and assigns and inures to the benefit of the parties and their permitted
successors and assigns and, when appropriate to effect the binding nature of
this Agreement for the benefit of the other parties, of any other successor or
assign.
6. Except as amended hereby, the Agreement remains in full force and
effect.
If you are in agreement with the foregoing, please so indicate by signing
this letter in the space provided below.
Sincerely,
AER ENERGY RESOURCES, INC.
By:
Name:
Title:
AGREED TO AND ACCEPTED:
FW AER PARTNERS, L.P.
By: Group 31, Inc.,
General Partner
By:
Name:
Title:
