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EXHIBIT 4.3




 




NETWORK COMPUTING DEVICES, INC.







AMENDED AND RESTATED




CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS




OF THE TERMS OF THE SERIES B AND SERIES C 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, on August 29, 2001, the Board of Directors of

the Corporation adopted the following resolution changing the designations,

preferences and rights of the terms of the Series B Preferred Stock and

creating a series of 530,000 shares of Preferred Stock designated as

Series C Preferred Stock:




RESOLVED, that the designations, preferences and

rights of the Series B Preferred Stock of the Corporation are hereby amended,

and a new series of Preferred stock of the Corporation, designated Series C

Preferred Stock, is hereby 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, and “Series C Preferred Stock” (the “Series C Preferred Stock”), par

value $.001 per share.  The number of

shares initially constituting the Series B Preferred Stock and the Series C

Preferred Stock shall be 290,000 shares and 530,000 shares, respectively.  The Series B Preferred Stock and Series C

Preferred Stock are sometimes referred to together as the “Series Preferred

Stock.”




Section

2:               DIVIDENDS AND

DISTRIBUTIONS.




(a)           Dividends.

The holders of the Series B Preferred Stock (the “Series B Holders”) and the

holders of the Series C Preferred Stock (the “Series C Holders” or, collectively

with the Series B Holders, the “Series Holders”) 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

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

Preferred Stock as to dividends.  Such

dividends on the Series B Preferred Stock and the Series C Preferred Stock

shall accrue at the rate of $.41 per share and $.23 per share, respectively,

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). In the event dividends in less than the

full preferential amount shall be paid to the holders of the Series Preferred

Stock, such dividends shall be distributed ratably among such holders in

proportion to the full preferential amont that each such holder is otherwise

entitled to receive under this Section 2(a).




(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) 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 Holders shall be entitled to receive, out

of the remaining assets of the Corporation available for distribution to its

stockholders, an amount equal to $7.00 per share plus accrued and unpaid

dividends, if any, with respect to each share of Series B Preferred Stock (the

“Series B Liquidation Preference”) and an amount equal to $3.80 per share

plus accrued and unpaid dividends, if any, with respect to each share of Series

C Preferred Stock (the “Series C Liquidation Preference”).  Following the payment of the full amount of

the Series B Liquidation Preference and the Series C Liquidation

Preference and any preference that is payable to the holders of any other

series of Preferred Stock, the holders of Series Preferred Stock and

Common Stock and, to the extent provided for in the Certificate of

Incorporation, such other series of 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 Preferred Stock, such other series of Preferred Stock and Common Stock,

respectively.  If upon any Liquidation

the assets of the Corporation available for distribution to its stockholders

shall be insufficient to pay to the Series Holders and the holders of any

other class of capital stock ranking on a parity with the Series Preferred

Stock (“Parity Holders”) the full Series B Liquidation Preference, Series

C Liquidation Preference and liquidation preference payable to such Parity

Holders (“Parity Preference”), respectively, the Series B Holders, Series

C Holders and Parity Holders shall share pro rata in any distribution of assets

in accordance with such full 




 




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Series B

Liquidation Preference, Series C Liquidation Preference and Parity Preference

amounts, respectively.




Section 4:               VOTING

RIGHTS.




In addition to

other rights provided herein or by law, the Series 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 Holder shall be entitled to one vote per share of Common

Stock issuable upon conversion of the shares of Series Preferred Stock then

held by such holder.




Section

5:               CONVERSION.




(a)           Rate.  The Series B Preferred Stock and the Series

C Preferred Stock shall be convertible, at the option of the holder thereof at

a rate of ten (10) shares of Common Stock for each share of Series B Preferred

Stock or Series C 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 or Series C Preferred Stock is

not treated in an equivalent manner. 

Notwithstanding the foregoing, the Series C Preferred Stock shall not be

convertible unless and until the Certificate of Incorporation of the

Corporation is amended to increase the number of authorized shares of Common

Stock by not less than 5,300,000, provided that, while this restriction remains

in effect, the Series C Holders shall have the same rights upon a Liquidation

under Section 3 and the same voting rights under Section 4 as they would have

absent this restriction.




(b)           Mechanics

of Conversion.  Upon delivery to the

Company of the certificate or certificates for the shares of Series 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 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 and the Series C Preferred Stock may not be redeemed by the Corporation

without the consent of the holders of all of the Series B Preferred Stock or

Series C Preferred Stock, respectively, then outstanding.




Section

7:               NO REISSUANCE.




No shares of Series

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 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 




 




 




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majority

of the outstanding Series B Preferred Stock, and the Series C Holders owning a

majority of the outstanding Series C Preferred Stock, each voting 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 such series of Preferred Stock;




(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 shares of any series or class

of the Company’s capital stock.




(b)           Financial

Reports. The Company will furnish to the Series 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 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 Holders against impairment. Without limiting

the generality of the foregoing, the Company will take all such action as may

be




 




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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 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

Holders at their addresses appearing on the stock ownership records of the

Company and delivered by a nationally recognized overnight 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.




3.             That

the foregoing amendment has been duly adopted in accordance with Section 242 of

the General Corporation Law of the State of Delaware.




 




 




 




 




 




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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 29th day of August, 2001.




 




	

   


  	

   


  	

   


  
	

  /s/


  	

  Rudolph G. Morin


  
	

   


  	

  Rudolph G. Morin, President and Chief Executive

  Officer


  
	

   


  	

   


  	

   


  





 




 




 




 




 




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