EXHIBIT 10.3
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
SUNCREST GLOBAL ENERGY CORP.
WARRANT TO PURCHASE
_______ SHARES
OF COMMON STOCK
(SUBJECT TO ADJUSTMENT)
(Void after December 20, 2012)
Warrant No: 1 December 20, 2007
This certifies that for value, ▇▇▇▇▇▇▇ & COMPANY (UK), LTD., or registered
assigns (the "Holder"), is entitled, subject to the terms set forth below, at
any time from and after December 20, 2007 (the "Original Issuance Date") and
before 5:00 p.m., Eastern Time, on December 20, 2012 (the "Expiration Date"), to
purchase from Suncrest Global Energy Corp., a Nevada corporation (the
"Company"), ____________________ (_______) shares (subject to adjustment as
described herein), of common stock, par value $0.001 per share, of the Company
(the "Common Stock"), upon surrender hereof, at the principal office of the
Company referred to below, with a duly executed subscription form in the form
attached hereto as Exhibit A and simultaneous payment therefor in lawful,
immediately available money of the United States or otherwise as hereinafter
provided, at an initial exercise price per share of $1.00 (the "Purchase
Price"). The Purchase Price is subject to further adjustment as provided in
Section 4 below. The term "Common Stock" shall include, unless the context
otherwise requires, the stock and other securities and property at the time
receivable upon the exercise of this Warrant. The term "Warrant," as used
herein, shall mean this Warrant and any other Warrants delivered in substitution
or exchange therefor as provided herein.
This Warrant was issued in connection with a Securities Exchange Agreement
("Exchange Agreement") by and among the Company, Beacon Enterprise Solutions
Group,
Inc., an Indiana corporation ("Beacon") and all holders of securities of Beacon,
pursuant to which the Company acquired all of the outstanding securities of
Beacon for securities of the Company (the "Acquisition"), including, but not
limited, to this Warrant. In the Acquisition the Company also issued to holders
of Beacon preferred stock, shares of the Company's Series A Convertible
Preferred Stock (the "Company Preferred Stock").
1. Exercise. This Warrant may be exercised at any time or from time to
time from and after the Original Issuance Date and before 5:00 p.m., Eastern
Time, on December 20, 2012, on any business day, for the full number of shares
of Common Stock called for hereby, by surrendering it at the principal office of
the Company, at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Principal
Office"), with the subscription form duly executed, together with payment in an
amount equal to (a) the number of shares of Common Stock called for on the face
of this Warrant, multiplied (b) by the Purchase Price. Payment of the Purchase
Price may be made at Holder's choosing either: (1) by payment in immediately
available funds; or (2) in lieu of any cash payment, if this Warrant is
exercised on a date when a Registration Statement (as defined in the
Registration Rights Agreement), covering the resale of the shares of Common
Stock issuable upon exercise of this Warrant has not been declared effective by
the Securities and Exchange Commission (the "Commission"), or is no longer in
effect, in exchange for the number of shares of Common Stock equal to the
product of (x) the number of shares to which the Warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Purchase Price and
the denominator of which is the Fair Market Value (as defined below). This
Warrant may be exercised for less than the full number of shares of Common Stock
at the time called for hereby, except that the number of shares receivable upon
the exercise of this Warrant as a whole, and the sum payable upon the exercise
of this Warrant as a whole, shall be proportionately reduced. Upon a partial
exercise of this Warrant in accordance with the terms hereof, this Warrant shall
be surrendered, and a new Warrant of the same tenor and for the purchase of the
number of such shares not purchased upon such exercise shall be issued by the
Company to Holder without any charge therefor. A Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business on
such date. Within two (2) business days after such date, the Company shall issue
and deliver to the person or persons entitled to receive the same a certificate
or certificates for the number of full shares of Common Stock issuable upon such
exercise, together with cash, in lieu of any fraction of a share, equal to such
fraction of the then Fair Market Value on the date of exercise of one full share
of Common Stock.
"Fair Market Value" shall mean, as of any date: (i) if shares of the
Common Stock are listed on a national securities exchange, the average of the
closing prices as reported for composite transactions during the ten (10)
consecutive trading days preceding the trading day immediately prior to such
date or, if no sale occurred on a trading day, then the mean between the closing
bid and asked prices on such exchange on such trading day; (ii) if shares of the
Common Stock are not so listed but are traded on the NASDAQ Global Market
("NGM"), the average of the closing prices as reported on the NGM during the ten
(10) consecutive trading days preceding the trading day immediately prior to
such date or, if no sale occurred on a trading day, then the mean between the
highest bid and lowest asked prices as of the close of business on such trading
day, as reported on the NGM; or if applicable, the Nasdaq Capital Market
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("NCM"), (iii) if not then included for quotation on the NGM or the NCM, the
average of the highest reported bid and lowest reported asked prices as reported
by the OTC Bulletin Board of the National Quotation Bureau, as the case may be;
or (iv) if the shares of the Common Stock are not then publicly traded, the fair
market price of the Common Stock as determined in good faith by the independent
members of the Board of Directors of the Company and the Holders of a majority
of the then outstanding Warrants.
2. Shares Fully Paid; Payment of Taxes. All shares of Common Stock issued
upon the exercise of this Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other governmental
charges (other than income taxes to the holder) that may be imposed in respect
of the issue or delivery thereof.
3. Transfer and Exchange. (a) Neither this Warrant nor the Common Stock to
be issued upon exercise hereof (the "Warrant Shares") have been registered under
the Act or any state securities laws ("Blue Sky Laws"). This Warrant has been
acquired for investment purposes and not with a view to distribution or resale
and may not be pledged, hypothecated, sold, made subject to a security interest,
or otherwise transferred without: (i) an effective registration statement for
such Warrant under the Act and such applicable Blue Sky Laws; or (ii) an opinion
of counsel reasonably satisfactory to the Company that registration is not
required under the Act or under any applicable Blue Sky Laws.
(b) Upon compliance with applicable federal and state securities
laws as set forth in Section 3(a), above, this Warrant and all rights hereunder
are transferable, in whole or in part, on the books of the Company maintained
for such purpose at its Principal Office by the Holder in person or by duly
authorized attorney, upon surrender of this Warrant together with a completed
and executed assignment form in the form attached hereto as Exhibit B, and
payment of any necessary transfer tax or other governmental charge imposed upon
such transfer. Upon any partial transfer, the Company will issue and deliver to
the assignee a new Warrant with respect to the shares of Common Stock for which
it is exercisable that have been transferred, and will deliver to the Holder a
new Warrant or Warrants with respect to the shares of Common Stock not so
transferred. A Warrant may be transferred only by the procedure set forth
herein. No transfer shall be effective until such transfer is recorded on the
books of the Company, provided that such transfer is recorded promptly by the
Company, and until such transfer on such books, the Company shall treat the
registered Holder hereof as the owner of the Warrant for all purposes.
(c) This Warrant is exchangeable at the Principal Office for two or
more new Warrants, each in the form of this Warrant, to purchase the same
aggregate number of shares of Common Stock, each new Warrant to represent the
right to purchase such number of shares as the Holder shall designate at the
time of such exchange, but which shall not exceed the total number of shares for
which this Warrant may be from time to time exercisable.
(d) Transfer of the Warrant Shares issued upon the exercise of this
Warrant shall be restricted in the same manner and to the same extent as the
Warrant, and the certificates representing such Warrant Shares shall bear
substantially the following legend, until such Warrant Shares have been
registered under the Act or may be removed as otherwise permitted under the Act:
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"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (ii) IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED
TRANSFER."
(e) The Holder and the Company agree to execute such other documents
and instruments as counsel to the Company deems necessary to effect the
compliance of the issuance of this Warrant and any Warrant Shares issued upon
exercise hereof with applicable federal and state securities laws, including
compliance with applicable exemptions from the registration requirements of such
laws.
4. Anti-Dilution Provisions. The Purchase Price in effect at any time and
the number and kind of securities issuable upon conversion of this Warrant shall
be subject to adjustment from time to time upon the happening of certain events
as follows:
A. Adjustment for Stock Splits and Combinations. If the Company at
any time or from time to time on or after the date of Warrant issuance (the
"Original Issuance Date") effects a subdivision of the outstanding Common Stock,
the Purchase Price then in effect immediately before that subdivision shall be
proportionately decreased, and conversely, if the Company at any time or from
time to time on or after the Original Issuance Date combines the outstanding
shares of Common Stock into a smaller number of shares, the Purchase Price then
in effect immediately before the combination shall be proportionately increased.
Any adjustment under this Section 4(A) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
B. Adjustment for Certain Dividends and Distributions. If the
Company at any time or from time to time on or after the Original Issuance Date
makes or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, then and in each such event the Purchase Price then in
effect shall be decreased as of the time of such issuance or, in the event such
record date is fixed, as of the close of business on such record date, by
multiplying the Purchase Price then in effect by a fraction (1) the numerator of
which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date and (2) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution; provided,
however, that if such record date is fixed and such dividend is not fully paid
or if such distribution is not fully made on
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the date fixed therefor, the Purchase Price shall be recomputed accordingly as
of the close of business on such record date and thereafter the Purchase Price
shall be adjusted pursuant to this Section 4(B) as of the time of actual payment
of such dividends or distributions.
C. Adjustments for Other Dividends and Distributions. In the event
the Company at any time or from time to time on or after the Original Issuance
Date makes, or fixes a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company other than shares of Common Stock, then and in each
such event provision shall be made so that the Holders of Warrants shall receive
upon exercise thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Company which they would
have received had their Warrants been exercised into Common Stock on the date of
such event and had they thereafter, during the period from the date of such
event to and including the conversion date, retained such securities receivable
by them as aforesaid during such period, subject to all other adjustments called
for during such period under this Section 4 with respect to the rights of the
Holders of the Warrants.
D. Adjustment for Reclassification, Exchange and Substitution. In
the event that at any time or from time to time on or after the Original
Issuance Date, the Common Stock issuable upon the exercise of the Warrants is
changed into the same or a different number of shares of any class or classes of
stock, whether by recapitalization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets, provided for elsewhere in this Section
4), then and in any such event each Holder of Warrants shall have the right
thereafter to exercise such Warrant to receive the kind and amount of stock and
other securities and property receivable upon such recapitalization,
reclassification or other change, by holders of the maximum number of shares of
Common Stock for which such Warrants could have been exercised immediately prior
to such recapitalization, reclassification or change, all subject to further
adjustment as provided herein.
E. Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time on or after the Original Issuance Date there is
a capital reorganization of the Common Stock (other than a recapitalization,
subdivision, combination, reclassification or exchange of shares provided for
elsewhere in this Section 4) or a merger or consolidation of the Company with or
into another corporation, or the sale of all or substantially all of the
Company's properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation or sale, provision shall be made so that
the Holders of the Warrants shall thereafter be entitled to receive upon
exercise of the Warrants the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock deliverable
upon conversion would have been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate adjustment shall be made
in the application of the provisions of this Section 4 with respect to the
rights of the Holders of the Warrants after the reorganization, merger,
consolidation or sale to the end that the provisions of this Section 4
(including adjustment of the Purchase Price then in effect and the number of
shares to be received upon exercise of the Warrants) shall be applicable after
that event and be as nearly equivalent as may be practicable.
F. Sale of Shares Below Purchase Price:
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(1) If at any time or from time to time following the Original Issuance
Date, the Company issues or sells, or is deemed by the express provisions of
this Section 4(F) to have issued or sold, Additional Shares of Common Stock (as
hereinafter defined), other than as a dividend or other distribution on any
class of stock and other than upon a subdivision or combination of shares of
Common Stock, in either case as provided in Section 4(A) above, for an Effective
Price (as hereinafter defined) less than the then existing Purchase Price, then
and in each such case the then existing Purchase Price shall be reduced, as of
the opening of business on the date of such issue or sale, to a price equal to
the Effective Price for such Additional Shares of Common Stock.
(2) For the purpose of making any adjustment required under Section 4(F),
the consideration received by the Company for any issue or sale of securities
shall (I) to the extent it consists of cash be computed at the amount of cash
received by the Company, (II) to the extent it consists of property other than
cash, be computed at the fair value of that property as determined in good faith
by the board of directors of the Company (the "Board"), (III) if Additional
Shares of Common Stock, Convertible Securities (as hereinafter defined) or
rights or options to purchase either Additional Shares of Common Stock or
Convertible Securities are issued or sold together with other stock or
securities or other assets of the Company for a consideration which covers both,
be computed as the portion of the consideration so received that may be
reasonably determined in good faith by the Board to be allocable to such
Additional Shares of Common Stock, Convertible Securities or rights or options,
and (IV) be computed after reduction for all expenses payable by the Company in
connection with such issue or sale.
(3) For the purpose of the adjustment required under Section 4(F), if the
Company issues or sells any rights, warrants or options for the purchase of, or
stock or other securities convertible into or exchangeable for, Additional
Shares of Common Stock (such convertible or exchangeable stock or securities
being hereinafter referred to as "Convertible Securities") and if the Effective
Price of such Additional Shares of Common Stock is less than the Purchase Price
then in effect, then in each case the Company shall be deemed to have issued at
the time of the issuance of such rights, warrants, options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise, conversion or exchange thereof and to have received as consideration
for the issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights,
warrants, options or Convertible Securities, plus, in the case of such rights,
warrants or options, the minimum amounts of consideration, if any, payable to
the Company upon the exercise of such rights, warrants or options, plus, in the
case of Convertible Securities, the minimum amounts of consideration, if any,
payable to the Company (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or exchange
thereof. No further adjustment of the Purchase Price, adjusted upon the issuance
of such rights, warrants, options or Convertible Securities, shall be made as a
result of the actual issuance of Additional Shares of Common Stock on the
exercise of any such rights, warrants or options or the conversion or exchange
of any such Convertible Securities. If any such rights or options or the
conversion or exchange privilege represented by any such Convertible Securities
shall expire without having been exercised, the Purchase Price adjusted upon the
issuance of such rights, warrants, options or Convertible Securities shall be
readjusted to the Purchase Price which would have been in effect had an
adjustment been made on the basis that the only Additional Shares of Common
Stock so issued were the Additional Shares of Common Stock, if any, actually
issued or sold on the exercise of such rights, warrants, or options or rights of
conversion or exchange of such Convertible Securities, and such Additional
Shares of Common
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Stock, if any, were issued or sold for the consideration actually received by
the Company upon such exercise, plus the consideration, if any, actually
received by the Company for the granting of all such rights, warrants, or
options, whether or not exercised, plus the consideration received for issuing
or selling the Convertible Securities actually converted or exchanged, plus the
consideration, if any, actually received by the Company (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion or exchange of such Convertible Securities.
(4) For the purpose of the adjustment required under Section 4(F), if the
Company issues or sells, or is deemed by the express provisions of this Section
4 to have issued or sold, any rights or options for the purchase of Convertible
Securities and if the Effective Price of the Additional Shares of Common Stock
underlying such Convertible Securities is less than the Purchase Price then in
effect, then in each such case the Company shall be deemed to have issued at the
time of the issuance of such rights or options the maximum number of Additional
Shares of Common Stock issuable upon conversion or exchange of the total amount
of Convertible Securities covered by such rights or options and to have received
as consideration for the issuance of such Additional Shares of Common Stock an
amount equal to the amount of consideration, if any, received by the Company for
the issuance of such rights, warrants or options, plus the minimum amounts of
consideration, if any, payable to the Company upon the exercise of such rights,
warrants or options, plus the minimum amount of consideration, if any, payable
to the Company (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or exchange of
such Convertible Securities. No further adjustment of the Purchase Price,
adjusted upon the issuance of such rights, warrants or options, shall be made as
a result of the actual issuance of the Convertible Securities upon the exercise
of such rights, warrants or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion or exchange of such Convertible
Securities. The provisions of paragraph (3) above for the readjustment of the
Purchase Price upon the expiration of rights, warrants or options or the rights
of conversion or exchange of Convertible Securities shall apply mutatis mutandis
to the rights, warrants options and Convertible Securities referred to in this
paragraph (4).
(5) "Additional Shares of Common Stock" shall mean all shares of Common
Stock issued by the Company on or after the Original Issuance Date, whether or
not subsequently reacquired or retired by the Company, other than (I) the
Warrant Shares, (II) the shares of Common Stock issuable upon conversion of the
Company Preferred Stock, (III) shares of Common Stock issuable upon exercise of
warrants, options and Convertible Securities outstanding as of the Original
Issuance Date (provided that the terms of such warrants, options and Convertible
Securities are not modified after the Original Issuance Date to adjust the
exercise price), (IV) shares of Common Stock issued pursuant to any event for
which adjustment is made to the Purchase Price under Section 4 hereof or to the
exercise price under the anti-dilution provisions of any securities outstanding
as of the Original Issuance Date (including the Company Preferred Stock), (V)
Common Stock issuable upon the conversion of warrants issued to ▇▇▇▇▇▇▇ &
Company (UK) Ltd. ("▇▇▇▇▇▇▇" or the "Placement Agent") in connection with the
Offering, and (VI) up to 600,000 shares of Common Stock issuable to the
Placement Agent and its designees pursuant to a warrant issued prior to the
Offering (the "Affiliate Warrants").
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The "Effective Price" of Additional Shares of Common Stock shall mean the
quotient determined by dividing the total number of Additional Shares of Common
Stock issued or sold, or deemed to have been issued or sold by the Company under
this Section 4F, into the aggregate consideration received, or deemed to have
been received, by the Company for such issue under this Section 4F, for such
Additional Shares of Common Stock.
(6) Other than a reduction pursuant to its applicable anti-dilution
provisions, any reduction in the conversion price of any Convertible Security,
whether outstanding on the Original Issuance Date or thereafter, or the price of
any option, warrant or right to purchase Common Stock or any Convertible
Security (whether such option, warrant or right is outstanding on the Original
Issuance Date or thereafter), to an Effective Price less than the current
Purchase Price, shall be deemed to be an issuance of such Convertible Security
and all such options, warrants or rights at such Effective Price, and the
provisions of Sections 4(F)(3), (4) and (5) shall apply thereto mutatis
mutandis.
(7) Any time an adjustment is made to the Purchase Price pursuant to
Section 4(F), a corresponding proportionate change shall be made to the number
of shares of Common Stock issuable upon conversion of this Warrant.
G. No Adjustments in Certain Circumstances. No adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one ($0.01) cent in such price; provided,
however, that any adjustments which by reason of this Section 4(G) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All calculations under this
Section 4(G) shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
5. Notices of Record Date. In case:
A. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
B. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
C. of any voluntary dissolution, liquidation or winding-up of the
Company; then, and in each such case, the Company will mail or cause to be
mailed to each holder of a Warrant at the time outstanding a notice specifying,
as the case may be, (a) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, or (b) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is expected to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such stock
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or securities at the time receivable upon the exercise of the Warrants) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up, such notice shall be mailed at least ten
(10) days prior to the date therein specified.
6. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
7. Reservation of Common Stock. The Company shall at all times reserve and
keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All of the shares of Commons
Stock issuable upon the exercise of the rights represented by this Warrant will,
upon issuance and receipt of the Purchase Price therefor, be fully paid and
nonassessable, and free from all preemptive rights, rights of first refusal or
first offer, taxes, liens and charges of whatever nature, with respect to the
issuance thereof.
8. Registration Rights Agreement. The Holder of this Warrant is entitled
to have the Warrant Shares registered for resale under the Act, pursuant to and
in accordance with the Registration Rights Agreement dated as of the date hereof
by and between the Company and ▇▇▇▇▇▇▇ & Company (UK) Ltd. (the "Placement
Agent"), all other holders of Warrants and the Company.
9. No Rights as Stockholder Conferred by Warrants. The Warrant shall not
entitle the Holder hereof to any of the rights, either at law or in equity, of a
stockholder of the Company. The Holder shall, upon the exercise thereof, not be
entitled to any dividend that may have accrued or which may previously have been
paid with respect to shares of stock issuable upon the exercise of the Warrant,
except as may otherwise be provided in Section 4 hereof.
10. Notices. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first class, registered or certified
mail, postage prepaid, and/or a nationally recognized overnight courier service
to the address furnished to the Company in writing by the Holder.
11. Change; Modifications; Waiver. No terms of this Warrant may be
amended, waived or modified except by the express written consent of the Company
and the holders of not less than 50.1% of the shares of Common Stock then
issuable under outstanding Warrants issued in connection with the Financing.
12. Endorsement of Warrants. The Warrant when presented or surrendered for
exchange, transfer or registration shall be accompanied (if so required by the
Company) by an assignment in the form attached hereto as Exhibit B or such other
written instrument of transfer, in form satisfactory to the Company, duly
executed by the registered Holder or by his duly authorized attorney.
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13. Agreement of Warrant Holders. The Holder, and to the extent that
portions of this Warrant are assigned and there is more than one Holder of
warrants exercisable for the Warrant Shares, every holder of a Warrant, by
accepting the same, consents and agrees with the Company and with all other
Warrant holders that: (a) the Warrants are transferable only as permitted by
Section 3 above; (b) the Warrants are transferable only on the registry books of
the Company as herein provided; and (c) the Company may deem and treat the
person in whose name the Warrant certificate is registered as the absolute owner
thereof and of the Warrants evidenced thereby for all purposes whatsoever, and
the Company shall not be affected by any notice to the contrary,
14. Payment of Taxes. The Company will pay all stamp, transfer and other
similar taxes payable in connection with the original issuance of this Warrant
and the shares of Common Stock issuable upon exercise thereof, provided,
however, that the Company shall not be required to (i) pay any such tax which
may be payable in respect of any transfer involving the transfer and delivery of
this Warrant or the issuance or delivery of certificates for shares of Common
Stock issuable upon exercise thereof in a name other than that of the registered
Holder of this Warrant or (ii) issue or deliver any certificate for shares of
Common Stock upon the exercise of this Warrant until any such tax required to be
paid under clause (i) shall have been paid, all such tax being payable by the
holder of this Warrant at the time of surrender.
15. Fractional Interest. The Company shall not be required to issue
fractional shares of Common Stock on the exercise of this Warrant. If more than
one Warrant shall be presented for exercise at the same time by the Holder, the
number of full shares of Common Stock which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of shares of Common Stock
acquirable on exercise of the Warrants so presented. If any fraction of a share
of Common Stock would, except for the provisions of this Section 15, be issuable
on the exercise of any Warrant (or specified portion thereof), the Company shall
pay an amount in cash calculated by it to be equal to the Purchase Price per
share multiplied by such fraction computed to the nearest whole cent. The Holder
by his acceptance of this Warrant expressly waives any and all rights to receive
any fraction of a share of Common Stock or a stock certificate representing a
fraction of a share of Common Stock.
16. Entire Agreement. This Warrant constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof and no party shall be liable or bound to any other party in any manner by
any representations, warranties, covenants or agreements except as specifically
set forth herein.
17. Successors and Assigns. All covenants and provisions of this Warrant
by or for the benefit of the Company or the Holder of this Warrant shall bind
and inure to the benefit of their respective successors, permitted assigns,
heirs and personal representatives.
18. Termination. This Warrant shall terminate at 5:00 p.m., Eastern Time,
on the Expiration Date or upon such earlier date on which all of this Warrant
has been exercised (the "Termination Date").
19. Headings. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
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20. Governing Law, Etc. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of New York
without regard to the conflicts of laws principles thereof. The parties hereto
hereby irrevocably agree that any suit or proceeding arising directly and/or
indirectly pursuant to or under this Agreement, shall be brought solely in a
federal or state court located in the City, County and State of New York. By its
execution hereof, the parties hereby covenant and irrevocably submit to the in
personam jurisdiction of the federal and state courts located in the City,
County and State of New York and agree that any process in any such action may
be served upon any of them personally, or by certified mail or registered mail
upon them or their agent, return receipt requested, with the same full force and
effect as if personally served upon them in New York City. The parties hereto
waive any claim that any such jurisdiction is not a convenient forum for any
such suit or proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
all of its reasonable legal fees and expenses.
Remainder of Page Intentionally Left Blank
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WARRANT SIGNATURE PAGE
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Dated: December 20, 2007
SUNCREST GLOBAL ENERGY CORP.
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
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EXHIBIT A
SUBSCRIPTION FORM
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(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant and purchases _______ shares of the Common Stock of Suncrest Global
Energy Corp. purchasable with this Warrant, and herewith makes payment therefor
(either in cash or pursuant to the cashless exercise provisions set forth in
Section 1 of the Warrant), all at the price and on the terms and conditions
specified in this Warrant.
Dated:
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(Signature of Registered Owner)
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(Street Address)
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(City / State / Zip Code)
EXHIBIT B
FORM OF ASSIGNMENT
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FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address Number of Shares
---------------- ------- ----------------
and does hereby irrevocably constitute and appoint __________________________
Attorney to make such transfer on the books of Suncrest Global Energy Corp.,
maintained for the purpose, with full power of substitution in the premises.
Dated:
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(Signature)
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(Witness)
The undersigned Assignee of the Warrant hereby makes to Suncrest Global
Energy Corp., as of the date hereof, with respect to the Assignee, all of the
representations and warranties made by the Holder, and the undersigned Assignee
agrees to be bound by all the terms and conditions of the Warrant and the
Registration Rights Agreement, dated as of _________, 2007, by and between
Suncrest Global Energy Corp. and ▇▇▇▇▇▇▇ & Co. (UK) Ltd.
Dated:
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(Signature)