Exhibit 10.4
INCENTIVE WARRANT
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE
UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A
TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE
HOLDER OF THIS CERTIFICATE IS THE BENEFICIARY OF CERTAIN OBLIGATIONS OF DAUPHIN
TECHNOLOGY, INC. SET FORTH IN A SECURITIES PURCHASE AGREEMENT, DATED AS OF
SEPTEMBER 28, 2001, AS AMENDED BY AMENDMENT TO SECURITIES PURCHASE AGREEMENT,
DATED AS OF SEPTEMBER 28, 2001, BETWEEN DAUPHIN TECHNOLOGY, INC. AND CRESCENT
INTERNATIONAL LTD. A COPY OF THE PORTION OF THE AFORESAID AGREEMENT EVIDENCING
SUCH OBLIGATIONS MAY BE OBTAINED FROM DAUPHIN TECHNOLOGY, INC.'S EXECUTIVE
OFFICES.
September 28, 2001
Warrant to Purchase 700,000 shares of Common Stock of Dauphin Technology, Inc.
(hereinafter, the "Incentive Warrant").
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Dauphin Technology, Inc., an entity organized and existing under the laws of the
State of Illinois (the "Company"), hereby agrees that Crescent International
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Ltd. (the "Investor") or any other Warrant Holder is entitled, on the terms and
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conditions set forth below, to purchase from the Company at any time during the
Exercise Period (as defined below) 700,000 fully paid and nonassessable shares
of Common Stock, par value $0.001 per share, of the Company (the "Common
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Stock"), as the same may be adjusted from time to time pursuant to Section 6
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hereof, at the Exercise Price (as defined below), as the same may be adjusted
pursuant to Section 6 hereof. The resale of the shares of Common Stock or other
securities issuable upon exercise or exchange of this Incentive Warrant is
subject to the provisions of the Registration Rights Agreement (as defined
below).
Section 1. Definitions.
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"Aggregate Exercise Price" shall mean, with respect to any
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exercise (in whole or in part) of this Incentive Warrant the Exercise Price
multiplied by the total number of shares of Common Stock for which this
Incentive Warrant is being exercised.
"Agreement" shall mean the Securities Purchase Agreement, dated as
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of September 28, 2001, between the Company and the Investor, as amended by
Amendment to Securities Purchase Agreement, dated as of September 28, 2001.
"Exercise Date" shall mean, with respect to any exercise (in whole
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or in part) of this Incentive Warrant the date the Exercise Notice is sent by
facsimile to the Company.
"Exercise Notice" shall mean, with respect to any exercise (in
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whole or in part) of this Incentive Warrant the exercise form attached hereto as
Exhibit A, duly executed by the Warrant Holder.
"Exercise Period" shall mean the period beginning on the date
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hereof and continuing until the expiration of the five-year period thereafter;
provided that such period shall be extended one day for each day after the date
hereof, that the Registration Statement covering (i) Commitment Shares purchased
by the Investor, (ii) the Protective Warrant Shares, if any, related to any
Subsequent Sales and (iii) the Incentive Warrant Shares purchasable through
exercise of this Incentive Warrant, is not effective during the period such
Registration Statement is required to be effective pursuant to the Registration
Rights Agreement.
"Exercise Price" as of the date hereof shall mean $1.3064 per
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share of Common Stock, subject to the adjustments provided for in Section 6 of
this Incentive Warrant.
"Per Share Warrant Value" shall mean, with respect to any exercise
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(in whole or in part) of this Incentive Warrant the difference resulting from
subtracting the Exercise Price from the Bid Price of one share of Common Stock
on the Trading Day immediately preceding the Exercise Date.
"Registration Rights Agreement" shall mean the registration rights
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agreement, dated as of September 28, 2001, between the Company and the Investor.
"Warrant Holder" shall mean the Investor or any assignee or
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transferee of all or any portion of this Incentive Warrant.
Other capitalized terms used but not defined herein shall have
their respective meanings set forth in the Agreement.
Section 2. Exercise; Cashless Exercise.
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(a) Method of Exercise. This Incentive Warrant may be exercised in whole or in
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part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period, by the Warrant Holder by the
delivery by facsimile of an executed and completed Exercise Notice to the
Company and delivery to the Company within five Trading Days thereafter of
this Incentive Warrant, the original Exercise Notice and the Aggregate
Exercise Price.
(b) Payment of Aggregate Exercise Price. Subject to paragraph (c) below,
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payment of the Aggregate Exercise Price shall be made by wire transfer of
immediately available funds to an account designated by the Company. If the
amount of the payment received by the Company is less than the Aggregate
Exercise Price, the Warrant Holder will be notified of the deficiency and
shall make payment in that amount within 5 Trading Days of such notice. In
the event the payment exceeds the Aggregate Exercise Price, the Company
will refund the excess to the Warrant Holder within 3 Trading Days of both
the receipt of such payment and the knowledge of such excess.
Cashless Exercise. As an alternative to payment of the Aggregate
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Exercise Price in accordance with Section 2(b) above, the arrant
Holder may elect to effect a cashless exercise, if permissible
under this Section 2(c), by so indicating on the Exercise Notice
and including a calculation of the number of shares of Common
Stock to be issued upon such exercise in accordance with the terms
hereof (a "Cashless Exercise"). The Warrant Holder may elect to
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effect a Cashless Exercise upon the occurrence or continuation of
any of the events described in Section 2.1(g) (ii), (iii), and
(iv) of the Registration Rights Agreement (whether the Company has
or has not notified the Warrant Holder of any such event) in
respect of one or more Registration Statements (as defined in the
Registration Rights Agreement) covering the shares of Common Stock
issuable upon exercise of this Incentive Warrant, or upon the
delisting of the Common Stock from the Principal Market.
Additionally, the Warrant Holder may elect to effect a Cashless
Exercise upon the occurrence, and continuation for a period
exceeding 22 Trading Days from such occurrence, of any event
described in Section 2.1(g)(vi) of the Registration Rights
Agreement (whether the Company has or has not notified the Warrant
Holder of any such event) in respect of one or more Registration
Statements (as defined in the Registration Rights Agreement)
covering the shares of Common Stock issuable upon exercise of this
Incentive Warrant. In the event of a Cashless Exercise, the
Warrant Holder shall surrender this Incentive Warrant for that
number of shares of Common Stock determined by (i) multiplying the
number of Incentive Warrant Shares for which this Incentive
Warrant is being exercised by the Per Share Warrant Value and (ii)
dividing the product by the Bid Price of one share of the Common
Stock on the Trading Day immediately preceding the Exercise Date.
Replacement Warrant. In the event that the Incentive Warrant is not
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exercised in full, the number of Incentive Warrant Shares shall be
reduced by the number of such Incentive Warrant Shares for which
this Incentive Warrant is exercised, and the Company, at its
expense, shall forthwith issue and deliver to the Warrant Holder a
new Incentive Warrant of like tenor in the name of the Warrant
Holder or as the Warrant Holder may request, reflecting such
adjusted number of Incentive Warrant Shares.
Section 3. Ten Percent Limitation. At no time may the Warrant Holder exercise
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this Incentive Warrant such that the number of Incentive Warrant Shares to
be received pursuant to such exercise aggregated with all other shares of
Common Stock then owned by the Warrant Holder beneficially or deemed
beneficially owned (as such term is defined in Rule 13(d) under the
Exchange Act) by the Warrant Holder and its affiliates would result in the
Warrant Holder and its affiliates owning more than 9.9% of all of such
Common Stock as would be outstanding on such Exercise Date, as determined
in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder.
Section 4. Delivery of Stock Certificates.
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(a) Subject to the terms and conditions of this Incentive Warrant, as soon as
practicable after the exercise of this Incentive Warrant in full or in part,
and in any event within five (5) Trading
Days thereafter, the Company at its expense (including, without limitation,
the payment by it of any applicable issue taxes) will cause to be issued in
the name of and delivered to the Warrant Holder, or as the Warrant Holder
lawfully may direct, a certificate or certificates for the number of
validly issued, fully paid and non-assessable Incentive Warrant Shares to
which the Warrant Holder shall be entitled on such exercise, together with
any other stock or other securities or property (including cash, where
applicable) to which the Warrant Holder is entitled upon such exercise in
accordance with the provisions hereof; provided, however, that any such
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delivery to a location outside of the United States also shall be made
within five Trading Days after the exercise of this Incentive Warrant in
full or in part.
(b) This Incentive Warrant may not be exercised as to fractional shares of
Common Stock. In the event that the exercise of this Incentive Warrant, in
full or in part, would result in the right to acquire any fractional share
of Common Stock, then in such event such fractional share shall be
considered a whole share of Common Stock and shall be added to the number
of Incentive Warrant Shares issuable to the Investor upon exercise of this
Incentive Warrant.
Section 5. Representations, Warranties and Covenants of the Company.
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(a) The Company shall take all necessary action and proceedings as may be
required and permitted by applicable law, rule and regulation for the legal
and valid issuance of this Incentive Warrant and the Incentive Warrant
Shares to the Warrant Holder.
(b) At all times during the Exercise Period, the Company shall take all steps
reasonably necessary and within its control to insure that the Common Stock
remains listed or quoted on the Principal Market.
(c) The Incentive Warrant Shares, when issued in accordance with the terms
hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and
non-assessable.
(d) The Company has authorized and reserved for issuance to the Warrant Holder
the requisite number of shares of Common Stock to be issued pursuant to
this Incentive Warrant. The Company at all times shall reserve and keep
available, solely for issuance and delivery as Incentive Warrant Shares
hereunder, such shares of Common Stock as from time to time shall be
issuable as Incentive Warrant Shares, and accordingly shall adjust the
number of such shares of Common Stock promptly upon the occurrence of any
of the events specified in Section 6 hereof.
Section 6. Adjustment of the Exercise Price. The Exercise Price and,
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accordingly, the number of Incentive Warrant Shares issuable upon exercise
of the Incentive Warrant, shall be subject to adjustment from time to time
upon the happening of certain events as follows:
(a) Reclassification, Consolidation, Merger; Mandatory Share Exchange; Sale
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Transfer or Lease of Assets. If the Company, at any time while this
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Incentive Warrant is unexpired and not exercised in full, (i) reclassifies
or changes its Outstanding Capital Shares (other than a change in par
value, or from par value to no par value per share, or from no par value
per share to par value or as a result of a subdivision or combination of
outstanding securities issuable upon exercise of this Incentive Warrant)
or (ii) consolidates, merges or effects a
mandatory share exchange (x) with or into another corporation (other than a
merger or mandatory share exchange with another corporation in which the
Company is a continuing corporation and that does not result in any
reclassification or change, other than a change in par value, or from par
value to no par value per share, or from no par value per share to par
value, or (y) as a result of a subdivision or combination of Outstanding
Capital Shares issuable upon exercise of the Incentive Warrant) or (iii)
sells, transfers or leases all or substantially all of its assets, then in
any such event the Company, or such successor or purchasing corporation, as
the case may be, shall, without payment by the Warrant Holder of any
additional consideration therefor, amend this Incentive Warrant or issue a
new warrant providing that the Warrant Holder shall have rights not less
favorable to the Warrant Holder than those then applicable to this
Incentive Warrant and to receive upon exercise under such amendment of this
Incentive Warrant or new warrant, in lieu of each share of Common Stock
theretofore issuable upon exercise of this Incentive Warrant hereunder, the
kind and amount of shares of stock, other securities, money or property
receivable upon such reclassification, change, consolidation, merger,
mandatory share exchange, lease, sale or transfer by the holder of one
share of Common Stock issuable upon exercise of the Incentive Warrant had
this Incentive Warrant been exercised immediately prior to such
reclassification, change, consolidation, merger, mandatory share exchange
or sale or transfer (without giving effect to the limitation on ownership
set forth in Section 3 hereof), and an appropriate provision for the
foregoing shall be made by the Company as part of any such event. Such
amended Incentive Warrant or new warrant shall provide for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 6. The provisions of this Section 6(a) shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, mandatory share exchanges, sales, transfers and leases.
(b) Subdivision or Combination of Shares; Stock Dividends. If the Company, at
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any time while this Incentive Warrant is unexpired and not exercised in
full, shall subdivide its Common Stock, combine its Common Stock, pay a
dividend in its Capital Shares, or make any other distribution of its
Capital Shares, then the Exercise Price shall be adjusted, as of the date
the Company shall take a record of the holders of its Capital Shares for
the purpose of effecting such subdivision, combination or dividend or other
distribution (or if no such record is taken, as of the effective date of
such subdivision, combination, dividend or other distribution), to that
price determined by multiplying the Exercise Price in effect immediately
prior to such subdivision, combination, dividend or other distribution by a
fraction:
(i) the numerator of which shall be the total number of Outstanding Capital
Shares immediately prior to such subdivision, combination, dividend or
other distribution, and
(ii) the denominator of which shall be the total number of Outstanding Capital
Shares immediately after such subdivision, combination, dividend or other
distribution. The provisions of this Section 6(b) shall not apply under any
of the circumstances for which an adjustment is made pursuant to Section
6(a).
(c) Liquidating Dividends, Etc. If the Company, at any time while this
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Incentive Warrant is unexpired and not exercised in full, makes a
distribution of its assets or evidences of indebtedness to the holders of
its Capital Shares as a dividend in liquidation or by way of return of
capital or other than as a dividend payable out of earnings or surplus
legally
available for dividends under applicable law or any distribution to such
holders made in respect of the sale of all or substantially all of the
Company's assets, or any spin-off of any of the Company's lines of
business, divisions or subsidiaries (other than under the circumstances
provided for in the foregoing subsections (a) and (b)), then the Warrant
Holder shall be entitled to receive upon such exercise of the Incentive
Warrant in addition to the Incentive Warrant Shares receivable in
connection therewith, and without payment of any consideration other than
the Exercise Price, an amount in cash equal to the value of such
distribution per Capital Share multiplied by the number of Incentive
Warrant Shares that, on the record date for such distribution, are issuable
upon such exercise of the Incentive Warrant (without giving effect to the
limitation on ownership set forth in Section 3 hereof), and an appropriate
provision therefor shall be made by the Company as part of any such
distribution. The value of a distribution that is paid in other than cash
shall be determined in good faith by the Board of Directors of the Company.
(d) Adjustment of Number of Shares. Upon each adjustment of the Exercise Price
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pursuant to any provisions of this Section 6, the number of Incentive
Warrant Shares issuable hereunder at the option of the Warrant Holder shall
be calculated, to the nearest one hundredth of a whole share, multiplying
the number of Incentive Warrant Shares issuable prior to an adjustment by a
fraction:
(i) the numerator of which shall be the Exercise Price before any adjustment
pursuant to this Section 6; and
(ii) the denominator of which shall be the Exercise Price after such adjustment.
(e) Other Action Affecting Capital Shares. In the event after the date hereof
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the Company shall take any action affecting the number of Outstanding
Capital Shares, other than an action specifically described in any of the
foregoing subsections (a) through (c) hereof, inclusive (including, without
limitation, a subdivision or combination of Common Stock, or the payment of
a dividend in its Capital Shares or any other distribution), that in the
reasonable opinion of the Warrant Holder would have a materially adverse
effect upon the rights of the Warrant Holder at the time of exercise of the
Incentive Warrant, the Exercise Price shall be adjusted in such manner and
at such time as the Board of Directors on the advice of the Company's
independent public accountants shall in good faith determine to be
equitable in the circumstances.
(f) Notice of Certain Actions. In the event the Company shall, at a time while
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the Incentive Warrant is unexpired and outstanding, take any action
pursuant to subsections (a) through (e) of this Section 6 that may result
in an adjustment of the Exercise Price, the Company shall notify the
Warrant Holder of such action 10 days in advance of its effective date in
order to afford to the Warrant Holder an opportunity to exercise the
Incentive Warrant prior to such action becoming effective.
(g) Notice of Adjustments. Whenever the Exercise Price or number of Incentive
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Warrant Shares shall be adjusted pursuant to Section 6 hereof, the Company
shall promptly deliver by facsimile, with the original delivered by express
courier service in accordance with Section 11 hereof, a certificate, which
shall be signed by the Company's President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, setting forth in reasonable detail the event requiring
the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on which
the Company's Board of Directors made any determination hereunder), and the
Exercise Price and number of Incentive Warrant Shares purchasable at that
Exercise Price after giving effect to such adjustment.
Section 7. No Impairment. The Company will not, by amendment of its Certificate
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or By-Laws or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Incentive Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to
protect the rights of the Warrant Holder against impairment. Without
limiting the generality of the foregoing, the Company (a) will not increase
the par value of any Incentive Warrant Shares above the amount payable
therefor on such exercise, and (b) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Incentive Warrant Shares on
the exercise of this Incentive Warrant.
Section 8. Rights As Stockholder. Prior to exercise of this Incentive Warrant
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and except as provided in Section 6 hereof, the Warrant Holder shall not be
entitled to any rights as a stockholder of the Company with respect to the
Incentive Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be
notified of stockholder meetings. However, in the event of any taking by
the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
the Company shall mail to each Warrant Holder, at least 10 days prior to
the date specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or
right.
Section 9. Replacement of Incentive Warrant. Upon receipt of evidence
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reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Incentive Warrant and, in the case of any such loss,
theft or destruction of the Incentive Warrant, upon delivery of an
indemnity agreement or security reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of such Incentive Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Incentive Warrant of like
tenor.
Section 10. Restricted Securities.
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(a) Registration or Exemption Required. This Incentive Warrant has been issued
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in a transaction exempt from the registration requirements of the
Securities Act in reliance upon Section 4(2) of the Securities Act. This
Incentive Warrant and the Incentive Warrant Shares issuable upon exercise
of this Incentive Warrant may not be resold except pursuant to an effective
registration statement or an exemption to the registration requirements of
the Securities Act and applicable state laws.
(b) Legend. Any replacement Incentive Warrants issued pursuant to Section 2
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hereof and any Incentive Warrant Shares issued upon exercise hereof, shall
bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES
LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A
TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS CERTIFICATE IS THE
BENEFICIARY OF CERTAIN OBLIGATIONS OF DAUPHIN TECHNOLOGY, INC.
SET FORTH IN A SECURITIES PURCHASE AGREEMENT, DATED AS OF
SEPTEMBER 28, 2001, AS AMENDED BY AMENDMENT TO SECURITIES
PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 28, 2001, BETWEEN
DAUPHIN TECHNOLOGY, INC. AND CRESCENT INTERNATIONAL LTD. A
COPY OF THE PORTION OF THE AFORESAID AGREEMENT EVIDENCING SUCH
OBLIGATIONS MAY BE OBTAINED FROM DAUPHIN TECHNOLOGY, INC.'S
EXECUTIVE OFFICES."
Removal of such legend shall be in accordance with the legend
removal provisions in the Agreement.
(c) No Other Legend or Stock Transfer Restrictions. No legend other than the
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one specified in paragraph (b) of this Section 10 has been or shall be
placed on the share certificates representing the Incentive Warrant Shares
and no instructions or "stop transfer orders," so called, "stock transfer
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restrictions" or other restrictions have been or shall be given to the
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Company's transfer agent with respect thereto other than as expressly set
forth in this Section 10.
(d) Assignment. Assuming the conditions of Section 10(a) above regarding
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registration or exemption have been satisfied, the Warrant Holder may sell,
transfer, assign, pledge or otherwise dispose of this Incentive Warrant, in
whole or in part. The Warrant Holder shall deliver a written notice to the
Company substantially in the form of the assignment form attached hereto as
Exhibit B (the "Assignment Notice") indicating the person or persons to
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whom this Incentive Warrant shall be assigned and the respective number of
warrants to be assigned to each assignee. The Company shall effect the
assignment within ten days of receipt of such Assignment Notice, and shall
deliver to the assignee(s) designated by the
Warrant Holder a Incentive Warrant or Incentive Warrants of like tenor and
terms for the specified number of shares.
(e) Investor's Compliance. Nothing in this Section 10 shall affect in any way
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the Investor's obligations under any agreement to comply with all
applicable securities laws upon resale of the Common Stock.
Section 11. Notices. All notices, demands, requests, consents, approvals, and
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other communications required or permitted hereunder shall be in writing
and shall be deemed duly given (i) upon delivery if hand delivered at the
address designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business
day following such delivery (if delivered other than on a business day
during normal business hours where such notice is to be received), (ii) on
the fifth business day after deposit into the mail, if deposited in the
mail, registered or certified, return receipt requested, postage prepaid,
addressed to the address designated below, (iii) upon delivery if delivered
by reputable express courier service to the address designated below, or
(iv) upon confirmation of transmission if transmitted by facsimile to the
facsimile number designated below (if delivered on a business day during
normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a business
day during normal business hours where such notice is to be received). The
addresses and facsimile numbers for such communications shall be:
if to the Company:
Dauphin Technology, Inc.
800 E. Northwest Highway
Suite 950
Palatine, IL 60067
Attention: Christopher L. Geier
Telephone: (847) 358-4406
Facsimile: (847) 358-4407
with a copy (which shall not constitute notice) to:
Rieck & Crotty, P.C.
55 West Monroe Street, Suite 3390
Chicago, IL 60603-5062
Attention: Ronald P. Duplack, Esq.
Telephone: (312) 726-4646
Facsimile: (312) 726-0647
if to the Investor:
Crescent International Ltd.
c/o GreenLight (Switzerland) SA
84, av Louis-Casai
P.O. Box 42
1216 Geneva, Cointrin
Switzerland
Attention: Mel Craw/Maxi Brezzi
Telephone: +41 22 791 71 69
Facsimile: +41 22 929 53 94
with a copy (which shall not constitute notice) to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Earl S. Zimmerman, Esq.
Telephone: (212) 878-8000
Facsimile: (212) 878-8375
Either party hereto may from time to time change its address or
facsimile number for notices under this Section 11 by giving at least ten (10)
days' prior written notice of such changed address or facsimile number to the
other party hereto.
Section 12. Miscellaneous. This Incentive Warrant and any term hereof may be
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changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. The headings in this Incentive Warrant
are for purposes of reference only, and shall not limit or otherwise affect
any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of
any other provision.
IN WITNESS WHEREOF, this Incentive Warrant was duly executed by the
undersigned, thereunto duly authorized, as of the date first set forth above.
DAUPHIN TECHNOLOGY, INC.
By: ______________________________________
Name: Christopher L. Geier
Title: Executive Vice President
Attested:
By: ______________________________________
Name:
Title: Secretary