EXHIBIT 10.59
NETWORK COMPUTING DEVICES, INC.
WARRANT NO. 12
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER
THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION UNDER SUCH ACT AND THE RULES AND REGULATIONS
THEREUNDER. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF
LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Void after 5:00 p.m. December 28, 2005 Warrants To Purchase Common Stock
(unless earlier redeemed under Dated: December 28, 2000
the circumstances described herein)
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE COMMON STOCK OF
NETWORK COMPUTING DEVICES, INC.
FOR VALUE RECEIVED, NETWORK COMPUTING DEVICES, INC., a corporation
organized and existing under the laws of Delaware (the "Company"), hereby
certifies that the holder identified on the final page (the "Holder") of this
Redeemable Warrant (the "Warrants", and each right to purchase a share of Common
Stock, a "Warrant") is entitled, subject to the terms set forth below, at any
time or from time to time hereafter, but not later than December 28, 2005, to
purchase from the Company fully paid and non-assessable shares of Common Stock
in the amount set forth opposite the Holder's name. These Warrants and all
rights hereunder, to the extent such rights shall not have been exercised, shall
terminate and become null and void at 5:00 p.m., New York time, on December 28,
2005, unless earlier redeemed under the circumstances described herein.
DEFINITIONS
The terms defined below, whenever used in this Warrant, shall have the
respective meanings hereinafter specified. Whenever used in this Warrant, any
noun or pronoun shall be deemed to include both the singular and plural and to
cover all genders.
"Assignment" means the form of Assignment appearing at the end of this
Warrant.
"Common Stock" means the Company's authorized Common Stock, $.001 par
value.
"Commission" means the United States Securities and Exchange Commission, or
any other Federal agency then administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any similar or successor U.S. federal statute, and the rules and regulations of
the Commission (or its successor) thereunder, all as the same shall be in effect
at the time.
"Exercise Period" means the period commencing on the date hereof and
terminating at 5:00 p.m., New York time, on December 28, 2005, unless earlier
redeemed.
"Exercise Price" means the price per share of Common Stock set forth in
Section 1A hereof, as such price may be adjusted from time to time pursuant to
Section 1.
"Form of Subscription" means the Form of Subscription appearing at the end
of this Warrant.
"Holder" means the person in whose name this Warrant is registered on the
books of the Company maintained for such purpose.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar U.S. Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
SECTION 1. EXERCISE OF WARRANTS: TERM; EXERCISE PRICE;
ADJUSTMENTS OF EXERCISE PRICE
1A. EXERCISE OF WARRANTS. Subject to the conditions of this Section 1, the
holder of any Warrant at the holder's option may exercise such holder's rights
under all or any part of the Warrants to purchase shares of the Company's Common
Stock (the "Warrant Shares") at a price (the "Exercise Price") at any time on or
after the date hereof equal to Seventy Five Cents ($.75) per share, subject to
adjustment as hereinafter provided.
1B. ADJUSTMENT OF EXERCISE PRICE FOR OTHER TRANSACTIONS. If and whenever
after the date hereof the Company shall issue or sell any shares of its Common
Stock for a consideration per share less than the Exercise Price in effect
immediately prior to the time of such issue or sale then, forthwith upon such
issue or sale, the Exercise Price with respect to the exercise of any Warrant
subsequent to such event shall be reduced to the lower of the prices (calculated
to the nearest cent) determined as follows:
(a) by dividing (1) an amount equal to the sum of (A) the aggregate
number of shares of Common Stock outstanding immediately prior to such
issue or sale multiplied by the then existing Exercise Price, and (B) the
consideration, if any, received by the Company upon such issue or sale, by
(ii) the aggregate number of shares of Common Stock of all classes
outstanding immediately after such issue or sale; and
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(b) by multiplying the Exercise Price in effect immediately prior to
the time of such issue or sale by a fraction, the numerator of which shall
be (1) the sum of (A) the aggregate number of shares of Common Stock
outstanding immediately prior to such issue or sale multiplied by the
Market Price immediately prior to such issue or sale plus (B) the
consideration received by the Company upon such issue or sale; and the
denominator of which shall be (2) the product of (A) the aggregate number
of shares of Common Stock of all classes outstanding immediately after such
issue or sale, multiplied by (B) the Market Price immediately prior to such
issue or sale.
No adjustment of the Exercise Price, however, shall be made in an amount less
than 1% of the Exercise Price, but any such lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment, PROVIDED, HOWEVER, upon the exercise of the Warrants, the Company
shall make all necessary adjustments not theretofore made to the Exercise Price
up to and including the date upon which the Warrant is exercised.
1C. SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a greater number of
shares, the number of shares issuable on exercise of this Warrant shall be
proportionately increased, and conversely, in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller number of shares,
the number of shares issuable on exercise of this Warrant shall be
proportionately reduced.
1D. CHANGES IN COMMON STOCK. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or sale, transfer or other disposition
of all or substantially all of its properties to another corporation, shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby each holder of Warrants shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions herein specified and in lieu of the shares of the Common Stock of the
Company immediately theretofore issuable upon exercise of the Warrants, such
shares of stock, securities or properties, if any, as may be issuable or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
issuable upon exercise of the Warrants had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of each holder of Warrants to the end that
the provisions hereof (including without limitation provisions for adjustment of
the Exercise Price) shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any shares of stock, securities or properties
thereafter deliverable upon the exercise thereof. The Company shall not effect
any such consolidation, merger, sale, transfer or other disposition, unless
prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing or otherwise acquiring such properties
shall assume, by written instrument executed and mailed or delivered to the
holders of Warrants at the last address of such holders appearing on the books
of the Company, the obligation to deliver to such holders such shares of
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stock, securities or properties as, in accordance with the foregoing provisions,
such holders may be entitled to acquire. The above provisions of this
subparagraph shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales, transfers, or other
dispositions.
1E. NOTICE OF ADJUSTMENT. Upon any adjustment of the Exercise Price, then
and in each such case the Company shall give written notice thereof to the
registered Holder, which notice shall state the Warrant price resulting from
such adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon written request of the Holder, the Company shall
promptly obtain the opinion of a firm of independent certified public
accountants (which may be the regular auditors of the Company) of recognized
national standing selected by the Company's Board of Directors, which opinion
shall state the Exercise Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares of Common Stock issuable upon
Exercise of the Warrant or Warrants held by each holder of Warrants, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. The good faith determination of the Board of
Directors based upon such accountants opinion shall be final and binding with
respect to any adjustment required hereunder.
1F. CERTAIN EVENTS. If any event occurs as to which in the opinion of the
Board of Directors of the Company the other provisions of Section 1 hereof are
not strictly applicable or if strictly applicable would not fairly protect the
conversion rights of the holders of the Warrants in accordance with the
essential intent and principles of such provisions, then such Board of Directors
shall appoint a firm of independent certified public accountants (which may be
the regular auditors of the Company) of recognized national standing, which
shall give their opinion upon the adjustment, if any, on a basis consistent with
such essential intent and principles, necessary to preserve, without dilution,
the rights of the holders of the Warrants. Upon receipt of such opinion by the
Board of Directors, the Company shall forthwith make the adjustments described
therein; PROVIDED, HOWEVER, that no such adjustment pursuant to this Section 1F
shall have the effect of increasing the Exercise Price as otherwise determined
pursuant to Section 1 hereof except in the event of a combination of shares of
the type contemplated in Section ID and then in no event to an amount larger
than the exercise price as adjusted pursuant to Section ID.
1G. PROHIBITION OF CERTAIN ACTIONS. The Company will not (i) authorize or
issue, or agree to authorize or issue, any shares of its capital stock of any
class preferred as to dividends or as to the distribution of assets upon
voluntary or involuntary liquidation, dissolution or winding-up of the Company
otherwise than for full and fair consideration in hand paid to the Company
concurrent with any such issuance; or (ii) take any action which would result in
any adjustment of the Exercise Price if the total number of shares of Common
Stock issuable after such action upon exercise of all of the Warrants would
exceed the total number of shares of Common Stock then authorized by the
Company's Certificate of Incorporation.
1H. STOCK TO BE RESERVED. The Company will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon the exercise of Warrants as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise
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of all outstanding Warrants, and the Company will maintain at all times all
other rights and privileges sufficient to enable it to fulfill all its
obligations hereunder.
1I. REGISTRATION AND LISTING OF COMMON STOCK. If any shares of Common
Stock required to be reserved for purposes of exercise of Warrants hereunder
require registration with or approval of any governmental authority under any
Federal or state law (other than the Securities Act) before such shares may be
issued upon exercise, the Company will, at its expense and as expeditiously as
possible, use its best efforts to cause such shares to be duly registered or
approved, as the case may be. Shares of Common Stock issuable upon exercise of
the Warrants shall be registered by the Company under the Securities Act or
similar statute then in effect. If and so long as the Common Stock is listed on
any national securities exchange or quoted on the Nasdaq Stock Market, the
Company will, at its expense, obtain promptly and maintain the approval for
listing or quotation thereon upon official notice of issuance, of shares of
Common Stock issuable upon exercise of the then outstanding Warrants and
maintain the listing or quotation of such shares after their issuance; and the
Company will also cause the listing on such national securities exchange or
quotation on Nasdaq, will register under the Exchange Act and will maintain such
listing or quotation of, any other securities that at any time are issuable upon
exercise of the Warrants, if and at the time that any securities of the same
class shall be listed on such national securities exchange or quoted on Nasdaq
by the Company or shall require registration under the Exchange Act. The Shares
are subject to a separate Registration Rights Agreement.
1J. NO CHARGE FOR ISSUANCE. The issuance of certificates for shares of
Common Stock upon exercise of Warrants shall be made without charge to the
holders of the Warrants, other then payment of the exercise price.
1K. CLOSING OF BOOKS. The Company will at no time close its transfer books
against the transfer of any Warrant or of any shares of Common Stock issued or
issuable upon the exercise of any Warrant in any manner which interferes with
the timely exercise of such Warrant.
1L. NO RIGHTS OR LIABILITIES AS SHAREHOLDERS. No Warrant shall entitle any
holder thereof to any of the rights of a shareholder of the Company. No
provision of this Warrant, in the absence of the actual exercise of such Warrant
or any part thereof by the holder thereof into Common Stock issuable upon such
exercise, shall give rise to any liability on the part of such holder as a
shareholder of the Company, whether such liability shall be asserted by the
Company or by creditors of the Company.
1M. FRACTIONAL SHARES. The Company shall not issue fractional shares of
Common Stock or scrip representing fractional shares of Common Stock upon any
exercise of this Warrant. As to any fractional share of Common Stock which the
Holder would otherwise be entitled to purchase from the Company upon such
exercise, the Company shall purchase from the Holder such fractional share at a
price equal to an amount calculated by multiplying such fractional share
(calculated to the nearest 1/100th of a share) by its Market Price on the date
the Form of Subscription is received by the Company. Payment of such amount
shall be made in cash or by check payable to the order of
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the Holder at the time of delivery of any certificate or certificates arising
upon such exercise.
SECTION 2. METHOD OF EXERCISE OF WARRANTS
The Warrants may be exercised by the surrender of this Certificate, with
the Form of Subscription attached hereto duly executed by the holder, to the
Company at its principal office, accompanied by payment of the Exercise Price
for the number of shares of Common Stock specified. The Warrants may be
exercised for less than the full number of shares of Common Stock called for
hereby by surrender of this Certificate in the manner and at the place provided
above, accompanied by payment for the number of shares of Common Stock being
purchased. If the Warrants should be exercised in part only, the Company shall,
upon surrender of this Warrant Certificate for cancellation, execute and deliver
a new Warrant Certificate evidencing the right of the holder to purchase the
balance of the shares purchasable hereunder. Upon receipt by the Company of this
Warrant Certificate at the office of the Company, in proper form for exercise,
accompanied by the full Exercise Price in cash or certified or bank cashier's
check, the holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Common Stock shall not then be actually delivered to the
holder.
As soon as practicable after the exercise of these Warrants in whole or in
part and, in any event, within ten (10) days thereafter, the Company at its
expense will cause to be issued in the name of and delivered to the holder a
certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock (and any new Warrants) to which the holder shall be
entitled upon such exercise. Each certificate for shares of Common Stock so
delivered shall be in such denominations as may be requested by the holder and
shall be registered in the name of the holder or such other name as the holder
may designate.
SECTION 3. PAYMENT OF TAXES
The issuance of certificates for shares of Common Stock upon exercise of
the Warrants shall be made without charge to the holders of the Warrants
exercised for any issuance tax in respect thereto; PROVIDED, HOWEVER, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer of any certificate or Warrant.
SECTION 4. MUTILATED OR MISSING WARRANT CERTIFICATES
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant Certificate, and (in
the case of loss, theft or destruction) of reasonably satisfactory
indemnification and upon surrender and cancellation of this Warrant Certificate,
if mutilated, the Company will execute and deliver a new Warrant Certificate of
like tenor and date.
SECTION 5. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS
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5A. IN GENERAL. This Warrant and the Common Stock issued upon the exercise
hereof shall not be transferable except upon the conditions hereinafter
specified, which conditions are intended to insure compliance with the
provisions of the Securities Act and any applicable state securities laws in
respect of the transfer of this Warrant or any such Common Stock.
5B. RESTRICTIVE LEGENDS. This Warrant (including each Warrant issued upon
the transfer of any Warrant) shall bear on the face thereof a legend
substantially in the form of the notice endorsed on the first page of this
Warrant.
Each certificate for shares of Common Stock initially issued upon the
exercise of this Warrant and each certificate for shares of Common Stock issued
to a subsequent transferee of such certificate shall, bear on the face thereof a
legend reading substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER THE SECURITIES
NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION UNDER SUCH
ACT AND THE RULES AND REGULATIONS THEREUNDER. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
In the event that a registration statement covering the shares of Common
Stock issued upon exercise of this Warrant shall become effective under the
Securities Act or in the event that the Company shall receive an opinion of its
counsel that, in the opinion of such counsel, such legend is not, or is no
longer, necessary or required (including, without limitation, because of the
availability of the exemption afforded by Rule 144 of the Regulations of the
Securities and Exchange Commission), the Company shall, or shall instruct its
transfer agents and registrars to, remove such legend from the certificates
evidencing such shares of Common Stock or issue new certificates without such
legend in lieu thereof.
5C. NOTICE OF PROPOSED TRANSFER; REGISTRATION NOT REQUIRED. The Holder of
this Warrant or the holder of any shares of Common Stock issuable upon the
exercise hereof (the "Warrant Shares") by acceptance hereof or thereof, agrees
to give written notice to the Company, prior to any transfer of this Warrant,
the Warrant Shares or any portion hereof or thereof, of its intention to make
such transfer which notice shall include a brief description of such proposed
transfer.
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If in the opinion of counsel to the Company or counsel to the transferor
reasonably acceptable to the Company the proposed transfer may be effected
without registration or qualification under any Federal or state law whereupon
the Holder shall be entitled to transfer this Warrant or Warrant shares in
accordance with the terms of the notice delivered to the Company and the opinion
of counsel. The Company shall not be required to implement any unregistered
transfer of the Warrant or Warrant Shares without such opinion of counsel.
5D. REQUIRED REGISTRATION AND QUALIFICATION. Upon the written request of
the Holder, Company shall include the Warrant Shares in any registration under
the Securities Act filed by the Company (other than a registration limited to
employees or other specified transaction offerees) provided that on notice of
such registration, the Holder of the Warrant or Warrant Shares shall request
inclusion therein and specify the number of shares to be registered or qualified
and the jurisdictions in which such registration or qualification is desired.
Promptly upon receipt of any request pursuant to this Section 5D the Company
shall promptly (a) take such steps as are reasonably necessary or appropriate to
prepare for registration and qualification of shares of Common Stock and (b)
give written notice to the holders of the Warrants and shares of Common Stock
issuable upon the exercise thereof of a proposed registration or qualification
by the Company under the Securities Act and under the securities or blue sky
laws of the requested jurisdictions and shall as expeditiously as possible, in
good faith, use its best efforts to effect any such registration or
qualification of:
(i) the number of shares of Common Stock issuable upon the exercise hereof
designated in such request, and
(ii) the number of shares of Common Stock issuable upon the exercise of any
other Warrants the holders of which shall have requested the Company,
in writing within 30 days after the date of such notice by the
Company, to have such shares of Common Stock registered or qualified;
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof) by the prospective sellers of the shares of Common
Stock to be registered or qualified, with notification to or approval of, any
governmental authority under any Federal or state law, or any listing with any
securities exchange or qualification on the Nasdaq Stock Market, which may be
required to permit the sale or disposition of any shares of Common Stock
issuable upon the exercise of such Warrants which the holders thereof propose to
make, and the Company will keep effective and current such registration or
qualification for such period as may be reasonably necessary to effect such sale
or disposition, not to exceed nine (9) months after the effective date of such
registration statement.
If the managing underwriter, to be selected by the Company, subject to
reasonable approval by the person(s) holding a majority of the shares of Common
Stock being registered, advises the prospective sellers in writing that the
aggregate number of shares of Common Stock to be sold in the proposed
distribution should be less than the number of shares of Common Stock requested
to be registered, the number of shares of Common Stock to be sold by each
prospective seller shall be reduced, so that each prospective seller may sell
that proportion of the shares of Common Stock to
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be sold in the proposed distribution which the number of shares of Common Stock
issuable upon the exercise of its Warrant proposed to be sold by such
prospective seller bears to the aggregate number of shares of Common Stock
issuable upon the exercise of the Warrants proposed to be sold by all
prospective sellers.
5E. ALLOCATION OF EXPENSES. If the Company is required by the provisions
hereof to use its best efforts to effect the registration or qualification under
the Securities Act or any state securities or blue sky laws of any of the shares
of Common Stock issuable upon the exercise of the Warrants, the Company will pay
all expenses in connection therewith, including, without limitation, (a) all
expenses incident to filing with the National Association of Securities Dealers,
Inc., (b) registration fees, (c) printing expenses, (d) accounting and legal
fees and expenses, (e) expenses of any special audits incident to or required by
any such registration or qualification, (f) premiums for insurance in such
amount, if any, deemed appropriate by the managing underwriter and (g) expenses
of complying with the securities or blue sky laws of any jurisdictions in
connection with such registration or qualification; provided, however, the
Company shall not be (i) liable for any discounts or commissions to any
underwriter.
5F. CROSS-INDEMNIFICATION. In connection with any registration or
qualification of securities hereunder, the Company hereby indemnifies the Holder
and the holders of any shares of Common Stock issuable upon the exercise hereof
and each underwriter thereof, including each person, if any, who controls the
Holder or such stockholder or underwriter within the meaning of Section 15 of
the Securities Act, against all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) caused by any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement, preliminary prospectus, prospectus or notification or offering
circular (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or caused by any omission, or alleged
omission, to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by any untrue
statement or alleged untrue statement or omission or alleged omission based upon
information furnished in writing to the Company by the Holder expressly for use
therein. The Company and each officer, director and controlling person of the
Company or underwriter within the meaning of Section 15 of the Securities Act
are hereby indemnified by the Holder and by the holders of any shares of Common
Stock issuable upon the exercise hereof against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) caused by
any untrue, or alleged untrue, statement of a material fact contained in any
registration statement, preliminary prospectus or notification or offering
circular (as amended or supplemented) or caused by any omission, or alleged
omission, to state therein a material fact necessary to make the statements
therein not misleading, but only to the extent that such alleged untrue
statement or alleged omission was based upon information furnished in writing to
the Company by the Holder or any such stockholder expressly for use therein.
Promptly upon receipt by a party indemnified under this Section 5F of
notice of the commencement of any action against such indemnified party in
respect of which indemnity or reimbursement may be sought against any
indemnifying party under this Section 5F, such indemnified
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party shall notify the indemnifying party in writing of the commencement of such
action, but the failure so to notify the indemnifying party shall not relieve it
of any liability which it may have to any indemnified party otherwise than under
this Section 5F unless such failure shall materially adversely affect the
defense of such action. In case notice of commencement of any such action shall
be given to the indemnifying party as above provided, the indemnifying party
shall be entitled to participate in and, to the extent it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and satisfactory to such
indemnified party. The indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel (other than reasonable costs of investigation)
shall be paid by the indemnified party unless (a) the indemnifying party agrees
to pay the same, (b) the indemnifying party fails to assume the defense of such
action with counsel reasonably satisfactory to the indemnified party or (c) the
named parties to any such action (including any impleaded parties) have been
advised by such counsel that representation of such indemnified party and the
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party). No indemnifying party shall be liable for any settlement
entered into without its consent.
5G. SUPPLYING INFORMATION. The Company, the Holder and each holder of
shares of Common Stock issuable upon the exercise hereof shall cooperate with
each other in supplying such information as may be necessary for any of such
parties to complete and file any information reporting forms presently or
hereafter required by the Commission or any commissioner or other authority
administering the blue sky or securities laws of any jurisdiction where shares
of Common Stock are proposed to be sold pursuant hereto.
5H. COMPLIANCE WITH RULE 144. At the request of any Holder of this Warrant
or holder of shares of Common Stock issuable upon the exercise hereof who
proposes to sell shares of Common Stock issuable upon the exercise hereof in
compliance with Rule 144 of the Commission, or any similar Rule, assuming that
at such time the provisions of such Rule are applicable to such Holder or holder
and, in the event the Holder or holder is or could be deemed an "affiliate" of
the Company, and the Company is then required to file reports under Section 13
or 15(d) of the Exchange Act, the Company shall (a) forthwith furnish to such
Holder or holder a written statement as to its compliance with the filing
requirements of the Commission as set forth in such Rule and (b) make such
additional filings of reports with the Commission as will enable the Holder or
holder to make sales of shares of Common Stock issued upon exercise hereof
pursuant to such Rule.
SECTION 6 MISCELLANEOUS
6A. NONWAIVER. No course of dealing or any delay or failure to exercise
any right hereunder on the part of the Holder shall operate as a waiver of such
right or otherwise prejudice the Holder's rights, powers or remedies.
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6B. NOTICE GENERALLY. Any notice, demand or delivery to be made pursuant
to the provisions of this Warrant shall be sufficiently given or made if sent by
first class mail, postage prepaid, addressed to (a) the Holder at its last known
address appearing on the books of the Company maintained for such purpose or (b)
the Company at its principal office referred to in the Purchase Agreement. The
Holder and the Company may each designate a different address by notice to the
other pursuant to this Section 6B.
6C. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company
and the Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
6D. AMENDMENT. This Warrant may not be modified or amended except by
written agreement of the parties.
6E. HEADINGS. The headings of the Sections of this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
6F. GOVERNING LAW. Except to the extent the corporation statute of
Delaware applies, this Agreement shall be governed by and construed and enforced
under the laws of California without reference to the principles of the
conflicts of laws thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed, as of the day and year first above written.
WARRANT NO. 12 WARRANTS TO PURCHASE
600,000 WARRANT SHARES
ISSUED TO: Dr. Guenther E. Pfaff
NETWORK COMPUTING DEVICES, INC.
By:_______________________________
Name: Rudolph G. Morin
Title: President and Chief Executive Officer
Dated: Mountain View, California
December 28, 2000
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FORM OF SUBSCRIPTION
DATE: _______________, 19___
WARRANT # ____________
TO: NETWORK COMPUTING DEVICES, INC.
The Undersigned, the holder of the within Warrants, hereby, irrevocably
elects to exercise all or part of the purchase right represented by such
Warrants for, and to purchase thereunder, shares of Common Stock of NETWORK
COMPUTING DEVICES, INC. (the "Company") and herewith makes payment of
$__________ to the Company, evidenced by delivery of the Holder's certified or
bank check and requests that the certificate representing such shares be issued
in the name of, and be delivered to Holder, at the address indicated below.
___________________________
(Name of Holder)
___________________________
(Authorized Signatory)
___________________________
(Address)
___________________________
(Telephone #)
ASSIGNMENT FORM
(To be executed only upon the assignment
of the within Warrant)
TO: NETWORK COMPUTING DEVICES, INC.
FOR VALUE RECEIVED the undersigned registered Holder of the within Warrant
hereby sells, assigns and transfers unto________________________________________
whose address is________________________________________________________________
all of the rights of the undersigned under the within Warrant, with respect to a
certain Warrant to purchase shares of Common Stock of NETWORK COMPUTING DEVICES,
INC. and if such shares of Common Stock shall not include all the shares of
Common Stock issuable as provided in the within Warrant, then a new Warrant of
like tenor for the number of shares of Common Stock of NETWORK COMPUTING
DEVICES, INC., not being transferred hereunder shall be issued in the name of
and delivered to the undersigned, and does hereby irrevocably constitute and
appoint_________________________________________________________________________
___________________________________________________________________
as attorney in fact to register such transfer on the books of The Company
maintained for the purpose, with full power of substitution in the premises.
Dated ________________, ______
Signature Guaranteed: By:
(Signature of Registered Holder)
By:
[TITLE: ]
NOTICE: The signature to this Assignment must correspond with the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatever.
The signature to this Assignment must be guaranteed by a commercial bank or
trust company of the United States or a member firm of the New York Stock
Exchange.