Exhibit 4.3
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.
BEACON ENTERPRISE SOLUTIONS GROUP,
INC.
WARRANT TO PURCHASE
25,000 SHARES
OF COMMON STOCK
(SUBJECT TO ADJUSTMENT)
(Void after July __, 2013)
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Warrant
No : __
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July __, 2008
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This certifies
that for value, ________________, or his registered assigns (the
“ Holder ”), is entitled, subject to the
terms set forth below, at any time from and after July __, 2008
(the “ Original Issuance Date ”) and
before 5:00 p.m., Eastern Time, on July __, 2013 (the “
Expiration Date ”), to purchase from Beacon
Enterprise Solutions Group, Inc., f/k/a Suncrest Global Energy
Corp., a Nevada corporation (the “ Company
”), Twenty-Five Thousand (25,000) 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 the termination of the equity rights
financing facility of December 28, 2007 between the Company and the
Holder, which was terminated upon the closing of the
Company’s Series A-1 Preferred Stock offering. The Holder
acknowledges that this Warrant is issued in full satisfaction of
the Company’s obligations thereunder.
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 July __, 2013, 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 124 N.
First Street, Louisville, Kentucky 40202 (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 by payment in immediately available
funds. 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 (“ 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
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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.”
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(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 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
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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
