EXHIBIT 10.58
SECURITIES PURCHASE AGREEMENT
by and between
DR. GUENTHER E. PFAFF
Buyer,
and
NETWORK COMPUTING DEVICES, INC.
As Issuer and Seller
Dated December 28, 2000
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into as of
December 28, 2000, by and between Network Computing Devices, Inc., a Delaware
corporation ("Seller"), and Dr. Guenther E. Pfaff, a citizen, resident and
domicile of Zug Canton, Switzerland ("Buyer"). (Buyer and Seller each a "Party"
and together "Parties").
RECITALS
Buyer desires to purchase from Seller, on the following terms and
conditions, certain newly issued Shares (as defined below) and Warrants (as
defined below) of the Seller, from the Seller; a publicly-traded corporation;
and
Seller desires to issue and deliver the Shares and Warrants to Buyer, each
on the following terms and conditions, set forth herein.
NOW, THEREFORE, in consideration of the recitals and the mutual covenants,
representations, warranties, conditions, and agreement hereinafter expressed,
the Parties agree as follows:
ARTICLE I - PURCHASE AND SALE
1.1. THE SHARES. Upon the terms and subject to the conditions set forth
in this Agreement, at the Closing (as defined below), the Seller shall issue and
deliver to Buyer free and clear of all security interests, claims, and
restrictions, and Buyer shall purchase and accept from Seller, an aggregate of
Two Hundred Twenty Thousand (220,000) shares of Convertible Preferred Stock of
the Seller having the rights, privileges, and designations set forth on Exhibit
A hereto (the "Preferred Shares"). The Preferred Shares shall be convertible
into Common Stock (the "Conversion Shares") on the terms and conditions set
forth in Exhibit A. The Buyer understands that the Shares and the Conversion
Shares, when issued, have not been registered under the Securities Act of 1933,
as amended (the "Act") and will bear a legend restricting retransfer in
accordance with the Act.
1.2 WARRANTS. Upon the terms and subject to the conditions set forth in
this Agreement, at the Closing (as defined below), the Seller shall issue and
deliver to Buyer free and clear of all security interests, claims, and
restrictions, and Buyer shall purchase and accept from Seller, an aggregate of
Six Hundred Thousand (600,000) Warrants to purchase additional Shares of Common
Stock (the "Warrant Shares") of the Seller on the terms, and subject to the
conditions, of the form of Warrants (the "Warrants") annexed hereto as Exhibit B
hereof. The Buyer understands that neither the Warrants nor the Warrant Shares
have been registered under the Act, and that the Warrants, and Warrant Shares
when issued, will bear a legend restricting retransfer in accordance with the
Act.
1.3 CONSIDERATION. The consideration that Buyer shall pay, and the
Seller shall accept, for the Preferred Shares and Warrants is One Million Five
Hundred Thousand (U.S. $1,500,000).
1.4 CLOSING; COOPERATION. The Closing shall take place at the office of
the Seller at 10:00 A.M. local time on December 28, 2000, or, if the conditions
to the Closing are not by then satisfied, upon satisfaction of such conditions,
the date on which the Closing actually occurs being referred to herein as the
"Closing Date." Each Party shall reasonably cooperate, as to matters under such
Party's control, in the satisfaction of conditions to the obligations of the
Parties at the Closing; provided, that the foregoing shall not require either
Party to waive any condition herein to its obligations at the Closing or to
incur any substantial cost not otherwise required hereunder.
1.5 OPTION TO INCREASE SHARES AND WARRANTS. The Buyer shall have the
option by written election prior to February 15, 2001 to increase the number of
Preferred Shares, and the number of Warrants to be purchased, by it hereunder.
The Buyer may purchase an additional 70,000 Preferred Shares and 200,000
Warrants ("Additional Shares and Additional Warrants") for an aggregate Purchase
Price of Five Hundred Thousand ($500,000) Dollars. This option may be exercised
by the Buyer by delivering its notice of election to exercise such option to the
Seller. If the option is exercised at least Twenty-Four (24) hours prior to the
Closing Date, the Closing of Additional Shares and Additional Warrants shall
take place contemporaneous with the initial Closing. Upon any later election of
such Option, the Closing as to the Additional Shares and Additional Warrants
shall be scheduled by Seller as soon as reasonably practicable, but not earlier
than Seventy-Two (72) hours after notice of election is received, and not later
than the fifth (5th) business day following such receipt.
1.6 DELIVERIES OF SELLER AT CLOSING. Subject to the conditions to
Seller's obligations in Article V, at each Closing, Seller shall deliver to
Buyer a certificate or certificates evidencing the Preferred Shares and the
Warrants duly endorsed or accompanied by a duly executed stock power, together
with such other documents identified in Article IV, duly executed by Seller.
1.7 DELIVERIES OF BUYER AT CLOSING. Subject to the conditions to Buyer's
obligations in Article IV, at each Closing, Buyer shall deliver to Seller the
Purchase Price by wire transfer of immediately available funds, and the
documents identified in Article V, duly executed by Buyer.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof and each of which shall
survive the Closing:
2.1 POWER AND AUTHORITY. The Seller has the power and capacity to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby.
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2.2 SHARES AND WARRANTS. The Preferred Shares, Conversion Shares,
Warrants, and Warrant Shares (collectively the "Securities") will be, when
issued, fully paid, non-assessable securities of the Seller, free and clear of
all security interests, claims, restrictions and voting agreements of any kind.
The Seller will transfer good and marketable title to the Shares and Warrants at
the Closing, free and clear of all liens, security interests, claims, liens and
voting agreements subject to (i) laws of general application relating to
specific performance, injunctive relief and other equitable remedies; (ii)
applicable laws of general application relating to or affecting creditor rights
generally; and (iii) to the extent that the indemnification provisions in
Section 7.2 hereof may be limited by State or Federal Law.
2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by the Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, subject to
(i) laws of general application relating to specific performance, injunctive
relief and other equitable remedies; (ii) applicable laws of general application
relating to or effecting creditor rights generally; and (iii) to the extent that
the indemnification provisions in Section 7.2 hereof may be limited by State or
Federal Law.
2.4 NO VIOLATION; CONSENTS. The execution and delivery of this Agreement
by Seller, the performance by Seller of its obligations hereunder and the
consummation by Seller of the transactions contemplated by this Agreement will
not (i) contravene any provision of the certificate of incorporation or bylaws
of the Seller, (ii) violate or conflict with any law, statute, ordinance, rule,
regulation, decree, writ, injunction, judgment or order of any governmental
authority or of any arbitration award which is either applicable to, binding
upon or enforceable against the Seller, (iii) conflict with, result in any
breach of, or constitute a default (or an event which would, with the passage of
time or the giving of notice or both, constitute a default) under, or give rise
to a right to terminate, amend, modify, abandon or accelerate, any contract
which is applicable to, binding upon or enforceable against the Seller, or (v)
require the consent, approval, authorization or permit of, or filing with or
notification to, any filings with the Securities and Exchange Commission (the
"SEC")required to be made subsequent to the consummation of the transactions
contemplated hereunder.
2.5 CORPORATE EXISTENCE AND QUALIFICATION. The Seller is a corporation
duly incorporated, validly existing, and in good standing under the laws of the
State of Delaware; it is duly qualified and in good standing in each foreign
jurisdiction where its failure to so qualify would materially adversely effect
such entity. The Seller has the corporate power and authority to own and use its
properties and to transact the business in which it is engaged.
2.6 CAPITALIZATION. The authorized capital stock of the Seller consists
of 30,000,000 shares of common stock, par value $ 0.001 per share, and 3,000,000
shares of preferred stock. As of the date hereof, there are 16,710,509 Common
Shares issued and outstanding, all of which have been duly authorized and
validly issued and are fully paid and non-assessable, and no Shares of preferred
stock outstanding prior to the transactions contemplated hereunder.
2.7 PROPERTY AND PERMITS. Except as set forth in the Seller's filings in
accordance with the Securities Exchange Act of 1934 (the "Exchange Act")
including the Seller's 10-K for the
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fiscal year ended December 31, 1999 and 10-Q for the fiscal quarter ending
September 30, 2000, (collectively the "Filings") the Seller is the sole owner of
all right, title, and interest in and to all assets reflected on its most recent
balance sheet, free and clear of all mortgages, security interests, claims,
restrictions and other encumbrances, except as set forth in the Filings, and
there exists no restriction on the use or transfer of such assets or property.
No such assets or property are in the possession of others and the Seller holds
no property on consignment. The Seller holds all permits, licenses and other
approvals necessary to conduct the business in which it is engaged.
2.8 FINANCIAL INFORMATION. The audited and unaudited financial
information set forth in the Filings (the "Financial Information"), and has been
prepared in accordance with generally accepted accounting principles
consistently applied during the periods involved ("GAAP"), and fairly presents
the financial condition and results of operations of the Seller as of the dates
and for the periods presented therein. The books and records of the Seller have
been, and are being, maintained in all material respects in accordance with the
GAAP.
2.9 CHANGES SINCE SEPTEMBER, 2000. Except as set forth in the Filings,
since September 30, 2000, the Seller has not (i) issued any capital stock or
other securities; (ii) made any distribution of or with respect to its capital
stock or other securities or purchased or redeemed any of its securities; (iii)
sold, leased or transferred any of its properties or assets other than in the
ordinary course of business consistent with past practice; (iv) made or
obligated itself to make capital expenditures out of ordinary course of business
consistent with past practice; (v) made any payment in respect of its
liabilities other than in the ordinary course of business consistent with past
practice; or (vi) agreed to do or authorized any of the foregoing.
2.10 NO BREACH OF LAW OR GOVERNING DOCUMENT. The Seller is not and has
not been in default under or in breach or violation of any applicable statute,
law, treaty, convention, ordinance, decree, order, injunction, rule, directive,
or regulation of any Government ("Law") or the provisions of any Government
permit, franchise, or license, or any provision of its certificate of
incorporation or its bylaws. The Seller has not received any notice alleging
such default, breach or violation. Neither the execution of this Agreement nor
the Closing thereof constitute or will constitute or result in any such default,
breach or violation.
2.11 LITIGATION. Except as reflected in the Filings, there is no action,
suit, or other legal or administrative proceeding or governmental investigation
pending, or threatened against or by Seller, or any of its properties or assets
which alone or in the aggregate would have a material adverse effect upon the
Seller, or which questions the validity or enforceability of this Agreement or
the transactions contemplated hereby. There are no outstanding orders,
injunctions, decrees or stipulations issued by any governmental authority in any
proceeding to which the Seller is a party which have not been complied with in
full or which continue to impose any material obligations on the Seller.
2.12 INTELLECTUAL PROPERTY.
(a) Except as disclosed in the Filings, to its knowledge, the Seller is
the sole and exclusive owner of each patent, trademark, trade name, service
mark, and copyrighted work, and
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registrations thereof and applications therefor, trade secret, software program,
invention, proprietary process, and item of proprietary know-how and other
intellectual property necessary for the conduct of its business as currently
conducted;
(b) To its knowledge, the Seller is the exclusive owner of all
internally developed prospect lists, customer lists, projections, analyses, and
market studies, free and clear of all restrictions whatsoever, and has the
unrestricted right to use any other such materials used by the Seller but not
internally developed;
(c) To its knowledge, the ownership, use, licensing, purchase, or sale
by or to the Seller of any of the Intellectual Property or of the other
technology used in the business of the Seller does not conflict with,
contravene, infringe upon, interfere with, or violate any patent, trademark,
copyright or other intellectual property right of any third person or require
the acquiescence, agreement or consent of any third person; and
(d) To its knowledge, the Intellectual Property and the other technology
used in the business of the Seller are not subject to a challenge or claim of
infringement, interference or unfair competition or other claim and, to the
knowledge of Seller or the Seller, the Intellectual Property is not being
infringed upon or violated by any third person.
2.15 DISCLOSURE. No representation or warranty by Seller in this
Agreement or in any other document or agreement to be delivered hereunder, and
no information furnished to Buyer by or on behalf of Seller pursuant to or in
connection with this Agreement, contains or will contain as of the Closing Date
any untrue statement of a material fact or any omission of a material fact
necessary to make the respective statements contained herein or therein, in
light of the circumstances under which the statements were made, not misleading.
2.16 BROKERS; FINDERS. Seller has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
2.17 RESTRICTIVE DOCUMENTS. Seller is not subject to any charter, by-law,
mortgage, lien, lease, agreement, instrument, order, law, rule, regulation,
judgment or decree or any other restriction which would prevent consummation of
the transactions contemplated by this Agreement.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to Seller,
each of which is true and correct on the date hereof and each of which shall
survive the Closing:
3.1 INDIVIDUAL STATUS. Buyer is an individual with the power and
authority to enter into this transaction, and execute and deliver this
Agreement, perform his obligations hereunder, and to consummate the transactions
contemplated hereby. Buyer has taken all action necessary to authorize his
execution and delivery of this Agreement, the performance of its respective
obligations hereunder and the consummation of the transactions contemplated
hereunder.
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3.2 ENFORCEABILITY. This Agreement has been duly executed and delivered
by Buyer and constitutes a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
3.3 NO VIOLATION. The execution and delivery of this Agreement by Buyer,
the performance by Buyer of the obligations hereunder and the consummation by
Buyer of the transactions contemplated by this Agreement will not (i) violate or
conflict with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any governmental authority or of any
arbitration award which is either applicable to, binding upon or enforceable
against Buyer, (ii) conflict with, result in any breach of, or constitute a
default (or an event which would, with the passage of time or the giving of
notice or both, constitute a default) under, or give rise to a right to
terminate, amend, modify, abandon or accelerate, any contract which is
applicable to, binding upon or enforceable against Buyer, (iii) result in or
require the creation or imposition of any lien upon or with respect to the
Securities being acquired by Buyer, or (iv) require the consent, approval,
authorization or permit of, or filing with or notification to, any governmental
authority, except any filings with the SEC and other filings required to be made
by Buyer subsequent to the consummation of the transaction.
3.4 FINANCIAL CONDITION. Buyer has sufficient assets to enter into this
Agreement and to consummate the transactions contemplated hereby.
3.5 INVESTMENT EXPERIENCE. The Buyer acknowledges that it can bear the
economic risk and complete loss of its investment in the Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment contemplated hereby.
3.6 INVESTMENT REPRESENTATION. Buyer is acquiring the Shares for his own
account, for investment and without any view to resale or distribution of the
Shares or any portion thereof. Buyer acknowledges that the sale of the
Securities hereunder has not been registered or qualified under the Act, or
under any state securities laws, and that any retransfer of the Shares by the
Buyer will accordingly be restricted. The certificates representing the Shares
will bear a legend to the effect that the Shares may not be transferred except
in a transaction registered or qualified under applicable securities laws or in
a transaction exempt from such registration or qualification, as evidenced by an
opinion of counsel or other evidence satisfactory to the Seller and its counsel.
3.6.1 RESTRICTIONS ON TRANSFER. Buyer acknowledges that the
Securities must be held indefinitely unless subsequently registered under the
Securities Act or the Company receives an opinion of counsel satisfactory to the
Company that such registration is not required. Buyer is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale of
stock purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the stock. In the absence of a prior registration of the Common Shares
underlying the securities being sold, the Buyer agrees to be bound by any
applicable restrictions, and acknowledges that the Buyer may be required to hold
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the Shares for an indefinite period of time, subject to prior registration of
the Common Stock into which the Shares are convertible.
3.6.2 EXEMPTION FROM REGISTRATION. Buyer further acknowledges that,
in the event all of the requirements of Rule 144 are not met, compliance with
another registration exemption will be required; and that, although Rule 144 is
not exclusive, the staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and other than pursuant to Rule 144, will have a substantial burden of
proof in establishing that an exemption from registration is available for such
offers or sales, that such persons and the brokers who participate in the
transactions do so at their own risk. There is no assurance that any exemption
from registration under the Securities Act will be available or, if available,
will allow such person to dispose of, or otherwise transfer, all or any portion
of the Securities.
3.7 DISCLOSURE OF INFORMATION. The Buyer has had access to such
financial and other information concerning the Seller and the Shares as the
Buyer deems necessary in order to make a decision to acquire the Shares,
including an opportunity to ask questions of and receive information from the
Seller. Neither such inquiries nor any other due diligence investigation
conducted by the Buyer shall modify, amend or affect the Buyer's right to rely
on the Seller's representations and warranties contained in this Agreement.
3.8 BROKERS, FINDERS. Buyer has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
3.9 RESTRICTIVE DOCUMENTS. Buyer is not subject to any agreement,
instrument, order, law, rule, regulation, judgment or decree or any other
restriction which would prevent consummation of the transactions contemplated by
this Agreement.
ARTICLE IV - CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer at the Closing shall be subject to the
satisfaction at or prior to the Closing of each of the following conditions
(unless waived in writing by Buyer):
4.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Seller's representations
and warranties set forth in Article II shall have been true and correct in all
material respects when made and shall be true and correct in all material
respects on the Closing Date as though such representations and warranties were
made at and as of such date and time.
4.2 PERFORMANCE OF AGREEMENT. Seller shall have fully performed and
complied with all covenants, conditions, and other obligations under this
Agreement to be performed or complied with by them at or prior to the Closing.
4.3 NO ADVERSE CHANGE. There shall have been no material adverse change
in the Seller's business, prospects or financial condition between the date
hereof and Closing.
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4.4 CERTIFICATE. Seller shall have delivered to Buyer at the Closing a
certificate of Seller, dated the Closing Date, to the effect that the conditions
set forth in Sections 4.1, 4.2 and 4.3 have been satisfied. Such certificate
shall be deemed an additional representation and warranty of Seller hereunder.
4.5 REGISTRATION RIGHTS AGREEMENT. Seller shall have entered into,
executed and delivered a Registration Rights Agreement, in form and substance
satisfactory to Buyer, providing for at least one demand registration of the
Conversion Shares and the Warrant Shares, and an unlimited number of piggyback
registrations of such Conversion Shares and Warrant Shares.
ARTICLE V - CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller at the Closing shall be subject to the
satisfaction at the Closing of the following conditions (unless waived in
writing by Seller):
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Buyer's representations
and warranties set forth in Article III shall have been true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date as though such representations and warranties were
made at and as of such date and time.
5.2 PERFORMANCE OF AGREEMENT. Buyer shall have fully performed and
complied with all covenants, conditions, and other obligations under this
Agreement to be performed or complied with by it at or prior to the Closing.
5.3 CERTIFICATE. Buyer shall have delivered to Seller at the Closing a
certificate of Buyer, dated the Closing Date, to the effect that the conditions
set forth in Sections 5.1 and 5.2 have been satisfied. Such certificate shall be
deemed an additional representation and warranty of Buyer hereunder.
5.4 REGISTRATION RIGHTS AGREEMENTS. Buyer shall have entered into,
executed and delivered a Registration Rights Agreement, as provided in Section
4.5 hereof.
ARTICLE VI - ADDITIONAL COVENANTS OF THE PARTIES
6.1 CONDUCT OF BUSINESS BEFORE CLOSING. From the date hereof, until
Closing, Seller shall (a) cause the business of the Seller to be operating in
the ordinary course of business and (b) not take any action which would require
a change or addition to or deletion from the disclosures of Seller pursuant to
Article II hereof, without the prior written consent of Buyer.
6.2 PUBLIC DISCLOSURE. No Party to this Agreement shall make any public
disclosure of the terms hereof or the transactions contemplated hereby without
the prior written consent of the other Party, except as required by law. In the
event circumstances shall change requiring, in the opinion of either Party, a
public release, the Party proposing to make the
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announcement will advise the other in advance and will give the other Party the
opportunity to comment on the form of the proposed announcement. Buyer shall not
disclose to any third person any confidential information relating to the
Seller, without the prior written consent of the Seller. Notwithstanding the
foregoing, Buyer may disclose such information, as may be reasonably required,
to his attorneys, accountants, and advisors, financial and otherwise, in order
to evaluate the investment opportunity presented herein.
6.3 FURTHER ASSURANCES. From and after each Closing, the Parties shall
do such acts and execute such documents and instruments as may be reasonably
required to make effective the transactions contemplated hereby.
6.4 DIRECTOR. If Buyer is willing to serve as a member of the Board of
Directors of Seller, Seller's existing Directors have advised Buyer of their
intentions to elect Buyer to the Seller's Board of Directors promptly following
the Closing scheduled hereunder.
ARTICLE VII - INDEMNIFICATION
7.1 SURVIVAL. The respective representations and warranties made by the
Parties in Articles II and III and certificates under Sections 4.4 and 5.3 shall
survive the Closing Date but the right to bring a claim for indemnification
under this Article VII shall expire on the first anniversary of the Closing Date
unless a claim with respect thereto shall have been made against the Party
responsible for indemnification hereunder (the "Indemnifying Party").
7.2 INDEMNIFICATION OF BUYER. Seller shall hold Buyer, and each of his
advisors ("Buyer Indemnified Persons"), harmless and indemnify each of them from
and against, and waives any claim for contribution or indemnity with respect to,
any and all claims, losses, damages, liabilities, expenses or costs ("Buyer
Losses"), plus reasonable attorneys' fees and expenses incurred in connection
with Buyer Losses and/or enforcement of this Agreement. ("Buyer Indemnified
Losses") incurred or to be incurred by any of them to the extent resulting from
or arising out of any breach or violation of Seller's representations,
warranties, covenants, or agreements contained in this Agreement, including
provisions of this Article VII.
7.3 INDEMNIFICATION OF SELLER. Buyer shall hold Seller, its officers,
directors, and affiliates ("Seller Indemnified Persons"), harmless and indemnify
each of them from and against, and waives any claim for contribution or
indemnity with respect to, any and all claims, losses, damages, liabilities,
expenses or costs ("Seller Losses"), plus reasonable attorneys' fees and
expenses incurred in connection with Seller Losses and/or enforcement of this
Agreement. ("Seller Indemnified Losses") incurred or to be incurred by any of
them to the extent resulting from or arising out of any breach or violation of
Buyer's representations, warranties, covenants, or agreements contained in this
Agreement, including provisions of this Article VII.
7.4 NOTICE OF CLAIM. In the event that Buyer seeks indemnification on
behalf of a Buyer Indemnified Person, or Seller seeks indemnification on behalf
of a Seller Indemnified Person, such Party seeking indemnification (the
"Indemnified Party") shall give written notice to the other party (the
"Indemnifying Party") specifying the facts constituting the basis for such claim
and
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the amount, to the extent known, of the claim asserted. The Indemnifying Party
shall pay the amount of any valid claim not more than thirty days (30) after the
Indemnified Party provides notice to the Indemnifying Party of such amount, or
otherwise take the entire burden, including all legal fees and expenses, of
defending and holding harmless the Indemnified Party against such claim or
liability.
ARTICLE VIII - MISCELLANEOUS PROVISIONS
8.1 NOTICE. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given and made upon being delivered either by courier
or telecopier delivery to the Party for whom it is intended, provided that if
delivered by telecopier, a copy thereof is deposited, postage prepaid, certified
or registered mail, return receipt requested, bearing the address shown in this
Agreement for, or such other address as may be designated in writing hereafter
by, such Party:
8.2 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
of the parties hereto with respect to the subject matter hereof, and supersede
all prior and contemporaneous agreements and understandings relative to such
subject matter.
8.3 ASSIGNMENT; BINDING AGREEMENT. This Agreement and various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
Buyer, its successors, and permitted assigns and Seller, its successors and
permitted assigns. Neither this Agreement nor any of the rights, interests, or
obligations hereunder may be transferred, delegated, or assigned (by operation
of law or otherwise) by either of the Parties hereto without the prior written
consent of the other Party. Notwithstanding the foregoing, if the Buyer desires
that a related person or a related entity purchase the Additional Shares, and
Additional Warrants available to Buyer pursuant to Section 1.5 hereof, Seller
agrees to cooperate therein, and so contract with the related party or related
entity, on the same terms and conditions provided for herein except without
election of such related Party to the Sellers Board of Directors.
8.4 COUNTERPARTS. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
8.5 HEADINGS; INTERPRETATION. The article and section headings contained
in this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of the Agreement.
8.6 EXPENSES. Seller and Buyer shall each pay all costs and expenses
incurred by either of them in connection with the negotiation, preparation and
execution of this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, fees and expenses of
attorneys, investment bankers and accountants.
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8.7 GOVERNING LAW. This Agreement shall in all respects be construed in
accordance with and governed by the substantive laws of the State of California,
without reference to its conflict of law rules.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement
to be executed as of the date first above written.
BUYER:
DR. GUENTHER E. PFAFF
__________________________________
SELLER:
NETWORK COMPUTING DEVICES, INC.
By: __________________________________
Name:
Title:
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EXHIBIT A
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NETWORK COMPUTING DEVICES, INC.
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF THE TERMS OF THE
SERIES B PREFERRED STOCK
(Pursuant to Section 151 of the General Corporation Law of the State of
Delaware)
The undersigned President and Chief Executive Officer of Network Computing
Devices, Inc., organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof,
DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the Corporation, the said
Board of Directors on December 14, 2000 adopted the following resolution
creating a series of 290,000 shares of Preferred Stock designated as Series B
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of its Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation"), a series of
Preferred stock of the Corporation be and it hereby is created, and that the
designation and amount thereof and the powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1: DESIGNATION AND AMOUNT.
The shares of such series shall be designated as "Series B Preferred Stock"
(the "Series B Preferred Stock"), par value $.001 per share. The number of
shares initially constituting the Series B Preferred Stock shall be Two Hundred
Ninety Thousand (290,000) Shares.
Section 2: DIVIDENDS AND DISTRIBUTIONS.
(a) DIVIDENDS. The holders of the Series B Preferred Stock (the
"Series B Holders each a Holder") shall be entitled to receive when, as and if
declared by the Board of Directors, out of any assets legally available
therefor, dividends not less than, and in preference and priority to any payment
of, any dividend or distribution on the Common Stock or any other class or
series of stock of the Corporation ranking junior to the Series B Preferred
Stock and PRO RATA with payment of any dividend on any class or series of stock
of the Corporation ranking on a parity with the Series B Preferred Stock as to
dividends. Such dividends on the Series B Preferred Stock shall accrue at the
rate of forty-one cents ($.41) per share per annum from the date of issuance to
the date of payment, based on the actual number of days elapsed, and shall be
payable on the payment date fixed by the declaration or, if no payment date is
fixed, shall accrue semi-annually on May 31st, and November 30th of each year,
and upon any Liquidation (as hereinafter defined).
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(b) DISTRIBUTIONS. As used in this Section 2, the term "distribution"
shall mean a transfer of cash, property or securities without consideration,
whether by way of dividend or otherwise, or the purchase or redemption of shares
of the Corporation.
(c) NECESSARY ACTIONS. The Corporation shall take any and all
corporate action necessary to declare and pay the dividends required.
Section 3: LIQUIDATION.
(a) LIQUIDATION DEFINED. "Liquidation" means any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, other than any dissolution, liquidation or winding up in
connection with any reincorporation of the Corporation in another
jurisdiction. A Corporate Transaction (as hereinafter defined) shall be
deemed to be a Liquidation. As used herein, "Corporate Transaction" shall
mean (i) any consolidation or merger of the Corporation with or into any
other corporation or other entity or person, or any other corporate
reorganization, in which the stockholders of the Corporation immediately
prior to such consolidation, merger or reorganization own less than fifty
percent (50%) of the Corporation's voting power immediately after such
consolidation, merger or reorganization, or (ii) any transaction or series of
related transactions approved by the Corporation's Board of Directors in
which in excess of fifty percent (50%) of the Corporation's voting power is
transferred, or (iii) a sale, lease, transfer or other disposition of all or
substantially all of the assets of the Corporation.
(b) RIGHTS. Upon a Liquidation, as hereinabove defined, after payment
or provision for payment of the debts and other liabilities of the Corporation,
and prior to any distribution to the holders of Series A Participating Preferred
Stock or Common Stock of the Corporation, the Series B Holders shall be entitled
to receive, out of the remaining assets of the Corporation available for
distribution to its stockholders, with respect to each share of Series B
Preferred Stock an amount equal to Seven Dollars ($7.00) per Share plus accrued
and unpaid dividends, if any, in accordance with Section 3(a) above (the "Series
B Liquidation Preference"). Following the payment of the full amount of the
Series B Liquidation Preference and any preference that is payable to the
holders of Series A Participating Preferred Stock, the holders of Series B
Preferred Stock and Common Stock and, to the extent provided for in the
Certificate of Incorporation, the Series A Participating Preferred Stock, shall
receive their ratable and proportionate share, on a per share and as-converted
to Common Stock basis, of the remaining assets to be distributed with respect to
such Series B Preferred Stock, Series A Participating Preferred Stock and Common
Stock, respectively. If the Corporation has outstanding a class of capital stock
ranking on a parity with the Series B Preferred Stock, distributions upon a
Liquidation shall be made ratably on the Series B Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon Liquidation, which in the case of the holders of
shares of Series B Preferred Stock shall be the Series B Liquidation Preference.
If upon any Liquidation the assets of the Corporation available for distribution
to its stockholders shall be insufficient to pay the Series B Holders the full
Series B Liquidation Preference to which they shall be entitled, the Series B
Holders shall share pro rata in any distribution of assets in accordance with
such full Series B Liquidation Preference amounts.
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Section 4: VOTING RIGHTS.
In addition to other rights provided herein or by law, the Series B Holders
shall be entitled to vote on all matters submitted to the stockholders of the
Corporation for vote or consent and, except when a single class vote is
required, will vote with the holders of Common Stock as one class. Each Series B
Holder shall be entitled to one vote per share of Common Stock issuable upon
conversion of the shares of Series B Preferred Stock then held by such Series B
Holder.
Section 5: CONVERSION.
(a) RATE. The Series B Shares shall be convertible, at the option of
the Series B Holder, at a rate of ten (10) shares of Common Stock for each share
of Series B Preferred Stock, subject to appropriate adjustment in the event of
any stock split, stock dividend or reverse stock split affecting the Common
Stock where the Series B Preferred Stock is not treated in an equivalent manner.
(b) MECHANICS OF CONVERSION. Upon delivery to the Company of the
certificate or certificates for the shares of Series B Preferred Stock to be
converted, duly endorsed or assigned in blank to the Company (if required by
it), the Company shall issue and deliver to or upon the written order of a
Series B Holder, to the place designated by such holder, a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled.
Section 6: REDEMPTION.
The Series B Preferred Stock may not be redeemed by the Corporation without
the consent of the holders of all of the Series B Preferred Stock then
outstanding.
Section 7: NO REISSUANCE.
No shares of Series B Preferred Stock acquired by the Company by reason of
exchange, conversion or otherwise shall be reissued and all such shares shall be
canceled, retired and eliminated from the shares of Series B Preferred Stock
which the Company shall be authorized to issue.
Section 8: PROTECTIVE PROVISIONS.
(a) REQUIRED CONSENTS. In addition to any other vote or consent
required herein or by law, the affirmative vote or written consent of the Series
B Holders owning a majority of the outstanding Series B Preferred Stock, voting
together as a separate class, shall be necessary for effecting or validating the
following actions:
(i) Any amendment, alteration, repeal, or waiver of any
provision of the Certificate of Incorporation of the Company (including the
filing of any Certificate of Designations), as in effect from time to time (the
"Certificate of Incorporation"), or the Bylaws of the Company, that affects
adversely the voting powers, preferences, priorities or other special rights or
privileges, qualifications, limitations, or restrictions of the Series B
Preferred Stock;
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(ii) Any redemption or repurchase of capital stock of the Company
(except for acquisitions of Common Stock by the Company under stock option or
restricted stock agreements with employees approved by the Board of Directors);
(iii) Any material disbursement of funds outside of the ordinary
course of the Company's business;
(iv) Any consolidation or merger of the Company with or into any
other Company or other entity or person, or the entering into any other
corporate reorganization;
(v) Any termination of the Company's line of business as of the
date of the first issuance of Series B Preferred Stock or substitution of an
unrelated line of business as its principal focus of the Company's activities;
(vi) Any voluntary dissolution, liquidation winding-up or partial
liquidation of the Company, or any distribution or transaction in the nature of
a partial liquidation or distribution, or any sale or other transfer of all or
substantially all of the assets of the Company (including shares, or all or
substantially all of the assets, of any subsidiary of the Company); or
(vii) Any increase or decrease in the authorized number of Series
B Preferred Stock or in the number of shares of any series or class of the
Company's capital stock which is authorized or outstanding.
(b) FINANCIAL REPORTS. The Company will furnish to the Series B
Holders, as soon as practicable, and in any case within 75 days after the end of
each fiscal quarter, unaudited quarterly financial statements, and within 90
days after the end of each fiscal year, annual audited financial statements (all
prepared in accordance with generally accepted accounting principles
consistently applied).
Section 9: NO IMPAIRMENT
The Company will not, by amendment of its Certificate of Incorporation 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 the Series B
Preferred Stock set forth herein, and 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 Series B
Holders against impairment. Without limiting the generality of the foregoing,
the Company will take all such action as may be necessary or appropriate in
order that the Company may reserve for issuance, and validly and legally issue
fully paid and non-assessable Company Shares on the conversion of all Series B
Preferred Stock from time to time outstanding.
Section 10: NOTICES.
All notices, requests and other communications shall be in writing
addressed to the Company at its principal office or to the Series B Holders at
their addresses appearing on the stock ownership records of the Company and
delivered by a nationally recognized overnight
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mail carrier, certified mail return receipt requested or facsimile. Any
notice sent by nationally-recognized overnight mail carrier shall be deemed
to be delivered on the expected date of delivery. Any notice sent by
certified mail, return receipt requested, shall be deemed to be delivered 3
days after mailing. Any notice sent by facsimile shall be deemed delivered
upon the receipt by sender of written confirmation of transmission.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, I have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this ____day of
December, 2000.
________________________________
Rudolph G. Morin, President
and Chief Executive Officer
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