EXHIBIT 4.1
FORM OF UNDERWRITER'S WARRANT
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No sale, offer to sell or transfer of the securities represented by this
certificate or any interest therein shall be made unless a registration
statement under the Securities Act of 1933, as amended, with respect to such
transaction is then in effect, or the issuer has received an opinion of counsel
satisfactory to it that such transfer does not require registration under that
Act.
This Warrant will be void after 5:00 p.m. New York time on _____________, 2005
(i.e. five years from the effective date of the Registration Statement).
UNDERWRITER'S WARRANT
WARRANT NO. 1
To Subscribe for and Purchase Shares of
PATHFINDER BUSINESS RESOURCES, INC.
(Transferability Restricted as Provided in Paragraph 8 Below)
THIS CERTIFIES THAT, for value received, or registered assigns, is
entitled to subscribe for and purchase from PATHFINDER BUSINESS RESOURCES, INC.,
incorporated under the laws of the State of New York (the "Company") up to fully
paid and non-assessable shares of Common Stock (the "Shares") of the Company, as
hereinafter defined, at the "Purchase Price" and during the period hereinafter
set forth, subject, however, to the provisions and upon the terms and conditions
hereinafter set forth. This Warrant is one of an issue of the Company's Common
Stock Purchase Warrants (herein called the "Warrants"), identical in all
respects except as to the names of the holders thereof and the number of Shares
purchasable thereunder, representing on the original issue thereof rights to
purchase up to _______ Shares.
1. As used herein:
(a) "Common Stock" or "Common Shares" shall initially refer to the
Company's Common Stock, $.001 par value, per share as more fully set forth in
Section 5 hereof.
(b) "Purchase Price" shall be $3.00 per share (120% of the public
offering price per share) which is subject to adjustment pursuant to Section 4
hereof.
(c) "Underwriter" or "Underwriter" shall refer to Creative Capital
Management Corp.
(d) "Underwriting Agreement" shall refer to the Underwriting
Agreement dated as of , 2000 between the Company and the Underwriter.
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(e) "Warrants" or "Underwriter's Warrants"shall refer to Warrants
to purchase an aggregate of up to _____ Shares issued to the Underwriter or its
designees by the Company pursuant to the Underwriting Agreement, as such may be
adjusted from time to time pursuant to the terms of Section 4 and including any
Warrants represented by any certificate issued from time to time in connection
with the transfer, partial exercise, exchange of any Warrants or in connection
with a lost, stolen, mutilated or destroyed Warrant certificate, if any, or to
reflect an adjusted number of Shares.
(f) "Underlying Securities" shall refer to and include the Common
Shares issuable or issued upon exercise of the Underwriter's Warrants.
(g) "Holders" shall mean the registered holder of such
Underwriter's Warrants or any issued Underlying Securities.
(h) "Effective Date" shall refer to the effective date of the Form
SB-2 Registration Statement File No. 333-_____ with the Securities and Exchange
Commission.
(i) "Transfer Agent shall mean Continental Stock Transfer &
Trust Co.
2. The purchase rights represented by this Warrant may be exercised by
the holder hereof, in whole or in part at any time, and from time to time,
during the period commencing on the Effective Date until , 2005 (the "Expiration
Date"), by the presentation of this Warrant, with the purchase form attached
duly executed, at the Company's office (or such office or agency of the Company
as it may designate in writing to the Holder hereof by notice pursuant to
Section 14 hereof), and upon payment by the Holder to the Company in cash, or by
certified check or bank draft of the Purchase Price for such Shares of Common
Stock. The Company agreesthat the Holder hereof shall be deemed the record owner
of such Underlying Securities as of the close of business on the date on which
this Warrant together with payment of the exercise price shall have been
presented to the Company. Certificates for the Underlying Securities so
purchased shall be delivered to the Holder hereof by the Transfer Agent within a
reasonable time, not exceeding five (5) days, after the rights represented by
this Warrant shall have been so exercised. If this Warrant shall be exercised in
part only, the Company shall, upon surrender of this Warrant for cancellation,
deliver a new Underwriter's Warrant evidencing the rights of the Holder hereof
to purchase the balance of the Shares which such Holder is entitled to purchase
hereunder. Exercise in full of the rights represented by this Warrant shall not
extinguish the rights granted under Section 9 hereof.
3. Subject to the provisions of Section 8 hereof, (i) this Warrant is
exchangeable at the option of the Holder at the aforesaid office of the Company
for other Underwriter's Warrants of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of Shares of Common Stock
as are purchasable hereunder; and (ii) this Warrant may be divided or combined
with other Underwriter's Warrants which carry the same rights, in either case,
upon presentation hereof at the aforesaid office of the Company together with a
written notice, signed by the Holder hereof, specifying the names and
denominations in which new Underwriter's Warrants are to be issued, and the
payment of any transfer tax due in connection therewith.
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4. Subject and pursuant to the provisions of this Section 4, the
Purchase Price and number of Common Shares subject to this Warrant shall be
subject to adjustment from time to time as set forth hereinafter.
(A) If the Company shall, at any time, subdivide its outstanding
Common Shares by recapitalization, reclassification, split up thereof, or other
such issuance without additional consideration, the appropriate Purchase Price
immediately prior to such subdivision shall be proportionately decreased, and if
the Company shall at any time combine the outstanding Common Shares by
recapitalization, reclassification or combination thereof, the Purchase Price
immediately prior to such combination shall be proportionately increased. Any
such adjustment to the Purchase Price or the corresponding adjustment to the
Purchase Price shall become effective at the close of business on the record
date for such subdivision or combination. No adjustment to the Purchase Price
and the number of shares issuable upon exercise of this Warrant shall be
required if such adjustment provides the holders of this Warrant with
disproportionate rights, privileges and economic benefits which are not provided
to the public shareholders.
(B) In the event that prior to the Underwriter's Warrant's
expiration date the Company adopts a resolution to merge, consolidate, or sell
percentages in all of its assets, each Warrant holder upon the exercise of his
Underwriter's Warrant will be entitled to receive the same treatment as a holder
of any other share of Common Stock. In the event the Company adopts a
resolution for the liquidation, dissolution, or winding up of the Company's
business, the Company will give written notice of such adoption of a resolution
to the registered holders of the Underwriter's Warrants. Thereupon all
liquidation and dissolution rights under this Warrant will terminate at the end
of thirty (30) days from the date of the notice to the extent not exercised
within those thirty (30) days.
(C) If any capital reorganization or reclassification of the
capital stock of the Company or consolidation or merger of the Company with
another corporation, shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, cash or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the Company or
such successor or purchasing corporation, as the case may be, shall be obligated
to provide for and notify each registered holder of the Underwriter's Warrant
that such holder shall have the right thereafter and until the expiration date
to exercise such Warrant for the kind and amount of stock, securities, cash or
assets receivable upon such reorganization, reclassification, consolidation,
merger or sale by a holder of the number of shares of Common Stock for the
purchase of which such Warrant might have been exercised immediately prior to
such reorganization, reclassification, consolidation, merger or sale, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4.
(D) In case at any time the Company shall declare a dividend or
make any other distribution upon any stock of the Company payable in Common
Stock, then such Common Stock issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without consideration.
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(E) Upon any adjustment of the appropriate respective Purchase
Price as hereinabove provided, the number of Common Shares issuable upon
exercise of each class of Warrant shall be changed to the number of shares
determined by dividing (i) the aggregate Purchase Price payable for the purchase
of all shares issuable upon exercise of that class of Warrant immediately prior
to such adjustment by (ii) the appropriate Purchase Price per share in effect
immediately after such adjustment.
(F) No adjustment in the Purchase Price shall be required under
Section 4 hereof unless such adjustment would require an increase or decrease in
such price of at least 1% provided, however, that any adjustments which by
reason of the foregoing are not required at the time to be made shall be carried
forward and taken into account and included in determining the amount of any
subsequent adjustment, and provided further, however, that in case the Company
shall at any time subdivide or combine the outstanding Common Shares as a
dividend, said amount of 1% per share shall forthwith be proportionately
increased in the case of a combination or decreased in the case of a subdivision
or stock dividend so as to appropriately reflect the same.
(G) On the effective date of any new Purchase Price the number of
shares as to which this Warrant may be exercised shall be increased or decreased
so that the total sum payable to the Company on the exercise of this Warrant
shall remain constant.
(H) The form of Underwriter's Warrant need not be changed because
of any change pursuant to this Article, and Underwriter's Warrants issued after
such change may state the Purchase Price and the same number of shares as is
stated in the Underwriter's Warrants initially issued pursuant to this Warrant.
However, the Company may at any time in its sole discretion (which shall be
conclusive) make any change in the form of Underwriter's Warrant that the
Company may deem appropriate and that does not affect the substance thereof, and
any Underwriter's Warrant thereafter issued or countersigned, whether in
exchange or substitution for an outstanding Warrant or otherwise, may be in the
form as so changed.
5. For the purposes of this Warrant, the terms "Common Shares" or
"Common Stock" shall mean (i) the class of stock designated as the Common Stock,
$.001 par value, of the Company on the date set forth on the first page hereof
or (ii) any other class of stock resulting from successive changes or
re-classifications of such Common Stock consisting solely of changes in par
value, or from no par value to par value, or from par value to no par value. If
at any time, as a result of an adjustment made pursuant to Section 4, the
securities or other property obtainable upon exercise of this Warrant shall
include shares or other securities of the Company other than Common Shares or
securities of another corporation or other property, thereafter, the number of
such other shares or other securities or property so obtainable shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Shares contained in
Section 4 and all other provisions of this Warrant with respect to Common Shares
shall apply on like terms to any such other shares or other securities or
property. Subject to the foregoing, and unless the context requires otherwise,
all references herein to Common Shares shall, in the event of an adjustment
pursuant to Section 4, be deemed to refer also to any other securities or
property then obtainable as a result of such adjustments.
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6. The Company covenants and agrees that:
(a) During the period within which the rights represented by the
Underwriter's Warrant may be exercised, the Company shall, at all times, reserve
and keep available out of its authorized capital stock, solely for the purposes
of issuance upon exercise of this Warrant, such number of its Common Shares as
shall be issuable upon the exercise of this Warrant and at its expense will
obtain the listing thereof on all national securities exchanges on which the
Common Shares are then listed; and if at any time the number of authorized
Common Shares shall not be sufficient to effect the exercise of this Warrant,
the Company will take such corporate action as may be necessary to increase its
authorized but unissued Common Shares to such number of shares as shall be
sufficient for such purpose; the Company shall have analogous obligations with
respect to any other securities or property issuable upon exercise of this
Warrant.
(b) All Common Shares which may be issued upon exercise of the
rights represented by this Warrant will, upon issuance be validly issued, fully
paid, nonassessable and free from all taxes, liens and charges with respect to
the issuance thereof.
(c) All original issue taxes payable in respect of the issuance of
Common Shares upon the exercise of the rights represented by this Warrant shall
be borne by the Company but in no event shall the Company be responsible or
liable for income taxes or transfer taxes upon the transfer of any Underwriter's
Warrants.
7. Until exercised, this Warrant shall not entitle the Holder hereof to
any voting rights or other rights as a shareholder of the Company, except that
the Holder of this Warrant shall be deemed to be a shareholder of this Company
for the purpose of bringing suit on the ground that the issuance of shares of
stock of the Company is improper under the New York Corporation Law.
8. This Warrant and the Underlying Securities shall not be sold,
transferred, assigned or hypothecated for a period of twelve (12) months from
the Effective Date, except to officers or partners of the Underwriter, and/or
selected dealers who participated in such offering, or the officers or partners
of the underwriter and/or selected dealers. In no event shall this Warrant and
the Underlying Securities be sold, transferred, assigned or hypothecated except
in conformity with the applicable provisions of the Securities Act of 1933, as
then in force (the "Act"), or any similar Federal statute then in force, and all
applicable "Blue Sky" laws.
9. The Holder of this Warrant, by acceptance hereof, agrees that, prior
to the disposition of this Warrant or of any Underlying Securities theretofore
purchased upon the exercise hereof, under circumstances that might require
registration of such securities under the Act, or any similar federal statute
then in force, such Holder will give written notice to the Company expressing
such Holder's intention of effecting such disposition, and describing briefly
such Holder's intention as to the disposition to be made of this Warrant and/or
the Underlying Securities theretofore issued upon exercise hereof. Promptly upon
receiving such notice, the Company shall present copies thereof to its counsel
and the provisions of the following subdivisions shall apply:
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(a) If, in the opinion of such counsel, the proposed disposition
does not require registration under the Act, or any similar federal statute then
in force, of this Warrant and/or the securities issuable or issued upon the
exercise of this Warrant, the Company shall, as promptly as practicable, notify
the Holder hereof of such opinion, whereupon such holder shall be entitled to
dispose of this Warrant and/or such Underlying Securities theretofore issued
upon the exercise hereof, all in accordance with the terms of the notice
delivered by such Holder to the Company.
(b) If, in the opinion of such counsel, such proposed disposition
requires such registration under the Act, or similar federal statute then in
effect, of this Warrant and/or the Underlying Securities issuable or issued upon
the exercise of this Warrant, the Company shall promptly give written notice of
such opinion to the Holder hereof and to the then holders of the securities
theretofore issued upon the exercise of this Warrant at the respective addresses
thereof shown on the books of the Company. The registration rights, if any,
contained in the Underwriting Agreement are incorporated by reference as if set
forth in their entirety herein.
10. The Company agrees to indemnify and hold harmless the holder of
this Warrant, or of securities issuable or issued upon the exercise hereof, from
and against any claims and liabilities caused by any untrue statement of a
material fact, or omission to state a material fact required to be stated, in
any such registration statement or prospectus except insofar as such claims or
liabilities are caused by any such untrue statement or omission based on
information furnished in writing to the Company by such holder, or by any other
such holder affiliated with the holder who seeks indemnification, as to which
the holder hereof, by acceptance hereof, agrees to indemnify and hold harmless
the Company.
11. If this Warrant, or any of the securities issuable pursuant
hereto, require qualification or registration with, or approval of, any
governmental official or authority (other than registration under the Act, or
any similar federal statute at the time in force), before such securities may be
issued on the exercise hereof, the Company, at its expense, will take all
requisite action in connection with such qualification, and will use its best
efforts to cause such securities and/or this Warrant to be duly registered or
approved, as may be required.
12. This Warrant is exchangeable, upon its surrender by the
registered holder at such office or agency of the Company as may be designated
by the Company, for new Underwriter's Warrants of like tenor, representing, in
the aggregate, the right to subscribe for and purchase the number of Common
Shares that may be subscribed for and purchased hereunder, each of such new
Underwriter's Warrants to represent the right to subscribe for and purchase such
number of Common Shares as shall be designated by the registered holder at the
time of such surrender. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and, in the case of
any such loss, theft or destruction, upon delivery of a bond of indemnity
satisfactory to the Company, or in the case of such mutilation, upon surrender
or cancellation of this Warrant, the Company will issue to the registered holder
a new Underwriter's Warrant of like tenor, in lieu of this Warrant, representing
the right to subscribe for and purchase the number of Common Shares that may be
subscribed for and purchased hereunder. Nothing herein is intended to authorize
the transfer of this Warrant except as permitted under Paragraph 8.
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13. Every holder hereof, by accepting the same, agrees with any
subsequent holder hereof and with the Company that this Warrant and all rights
hereunder are issued and shall be held subject to all of the terms, conditions,
limitations and provisions set forth in this Warrant, and further agrees that
the Company and its transfer agent may deem and treat the registered holder of
this Warrant as the absolute owner hereof for all purposes and shall not be
affected by any notice to the contrary.
14. All notices required hereunder shall be given by first-class
mail, postage prepaid; if given by the holder hereof, addressed to the Company
at 33 Eleventh Avenue Huntington Station, New York 11746 or such other address
as the Company may designate in writing to the holder hereof; and if given by
the Company, addressed to the holder at the address of the holder shown on the
books of the Company. The validity, construction and enforcement of this Warrant
shall be governed by the laws of the State of New York and jurisdiction is
hereby vested in the Courts of said State in the event of the institution of any
legal action under this Warrant.
IN WITNESS WHEREOF, PATHFINDER BUSINESS RESOURCES, INC. has caused
this Warrant to be signed by its duly authorized officers under its corporate
seal, to be dated as of , ------------- 2000.
PATHFINDER BUSINESS
(Corporate Seal) RESOURCES, INC.
By:
Attest: -----------------------------
Nicholas J. Seccafico, Jr.
President
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PURCHASE FORM
To Be Executed
Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase ____ Common Shares
evidenced by the within Warrant, according to the terms and conditions thereof,
and herewith makes payment of the purchase price in full. The undersigned
requests that certificates for such shares shall be issued in the name set forth
below.
Dated: , 200__
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Signature
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Print Name of Signatory
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Name to whom certificates are to
be issued if different from above
Address:
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Social Security No. or other
identifying number
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If said number of shares shall not be all the shares purchasable under
the within Warrant, the undersigned requests that a new Warrant for the
unexercised portion shall be registered in the name of :
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(Please Print)
Address:
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Social Security No. or other
identifying number
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Signature
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED ____________________, hereby _______________________
sells assigns and transfers to _______________ , Soc. Sec. No._________________
[ ] the within Warrant, together with all rights, title and interest therein,
and does hereby irrevocably constitute and appoint ___________________attorney
to transfer such Warrant on the register of the within named Company, with full
power of substitution.
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Signature
Dated: , 200
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Signature Guaranteed:
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