EXHIBIT 10.56
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the "Agreement") is entered
into as of December 8, 2000, between Network Computing Devices, Inc., a Delaware
corporation ("NCD"), and Tektronix, Inc., an Oregon corporation ("Tek").
RECITALS
A. NCD and Tek are parties to that certain Asset Purchase Agreement,
dated as of December 31, 1998 (the "Purchase Agreement").
B. In connection with the Purchase Agreement and the transactions and
agreements contemplated thereby or entered in connection therewith, each of NCD
and Tek have asserted certain claims against the other.
C. Each of NCD and Tek desires to settle and release all claims each
party may have against the other party.
THEREFORE, the parties agree as follows:
AGREEMENT
1. SETTLEMENT PAYMENT. In settlement of the Claims (as defined in Section
2), NCD agrees to issue to Tek 750,000 shares of NCD common stock within five
business days of the date hereof.
2. RELEASE AND COVENANT NOT TO SUE. This Agreement is a settlement
between Tek and NCD and is in full accord and satisfaction of any and all claims
related to the Purchase Agreement and all agreements contemplated thereby or
entered in connection therewith, and any demands, damages, losses, liabilities,
actions, costs or expenses, known or unknown, existing now or arising in the
future, between Tek and NCD related to such claims (collectively, the "Claims").
NCD releases and covenants not to sue Tek, its directors, officers, employees
and agents with respect to the Claims. Tek releases and covenants not to sue
NCD, its directors, officers, employees and agents with respect to the Claims.
Notwithstanding the above, this release shall not release any claims that any
party may have arising from this Agreement, under the Warrant to Purchase Common
Stock, dated December 31, 1998, issued by NCD to Tek, or under that certain
Registration Rights Agreement, dated as of December 31, 1998, between NCD and
Tek, as amended the date hereof.
3. CONFIDENTIALITY. Each of the parties hereto shall keep this Agreement
and the terms hereof confidential, and will not disclose this Agreement or the
terms hereof to any person except to the extent required by disclosure laws
related to publicly traded securities. Neither NCD nor Tek shall make a public
announcement of any nature relating to this
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Agreement, its terms or the transactions contemplated herein or related thereto,
except as may be required by law, or as mutually agreed among the parties.
4. REPRESENTATIONS AND WARRANTIES OF NCD. NCD represents and warrants to
Tek as follows:
4.1 AUTHORIZATION. The execution, delivery and performance of this
Agreement by NCD are within the corporate power NCD and have been duly
authorized by all necessary corporate action by NCD. This Agreement is the valid
and binding obligation of NCD, enforceable against NCD in accordance with its
terms, except as the enforcement of this Agreement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting the rights of creditors and subject to general equity principles. The
Settlement Shares to be issued pursuant to this Agreement will be when issued
duly authorized, validly issued, fully paid and nonassessable.
4.2 NCD SEC REPORTS.
(a) DEFINITION. As used in this Agreement, "NCD SEC Reports"
shall mean all reports, registration statements, definitive proxy statements,
prospectuses and amendments thereto filed by NCD with the Securities and
Exchange Commission (the "SEC") since September 30, 1999.
(b) NCD SEC REPORTS. The NCD SEC Reports: (i) complied or will
comply, as the case may be, in all material respects with the then applicable
requirements of the Exchange Act of 1934, as amended, and the Securities Act, as
amended (the "Act"), as the case may be, and the rules and regulations of the
SEC issued thereunder; and (ii) did not or will not, as the case may be, contain
as of their respective filing dates any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
5. REPRESENTATIONS AND WARRANTIES OF TEK. Tek represents and warrants to
NCD as follows:
5.1 AUTHORIZATION. The execution, delivery and performance of this
Agreement by Tek are within the corporate power Tek and have been duly
authorized by all necessary corporate action by Tek. This Agreement is the valid
and binding obligation of Tek, enforceable against Tek in accordance with its
terms, except as the enforcement of this Agreement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting the rights of creditors and subject to general equity principles.
5.2 ACCREDITED INVESTOR. Tek is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D promulgated under the Act.
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6. GENERAL.
6.1 ATTORNEYS' FEES. In the event suit or action is instituted to
enforce any of the terms of this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees at trial and on any appeal,
in addition to all other sums provided by law.
6.2 BINDING AGREEMENT; SUCCESSION. This Agreement and its terms and
provisions shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the parties to this Agreement.
6.3 GOVERNING LAW. This Agreement shall be interpreted under and
enforced in accordance with the laws of the state of Oregon, exclusive of choice
of law rules.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, which together shall constitute a single instrument. Facsimile
signatures shall be incorporated as original signatures.
6.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with respect to the matters set forth herein, and supersedes all
prior discussions or agreements of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above, effective as of the date first written above.
NETWORK COMPUTING DEVICES, INC.
By__________________________________
Title_______________________________
TEKTRONIX, INC.
By__________________________________
Title_______________________________
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