THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED

UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY AP









EXHIBIT 4.5




 




THIS WARRANT AND THE SHARES ISSUABLE

HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, OR

OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT

OR PURSUANT TO RULE 144 AND AN EXEMPTION UNDER APPLICABLE STATE LAW OR AN

OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL,

THAT SUCH REGISTRATION IS NOT REQUIRED.




 




WARRANT TO PURCHASE STOCK




 




	

  Corporation:  


  	

   


  	

  Network Computing Devices,

  Inc.


  	

   


  
	

  Number of Shares:


  	

   


  	

  650,000 shares


  	

   


  
	

  Class of Stock:


  	

   


  	

  Common Stock


  	

   


  
	

  Initial Exercise Price:


  	

   


  	

  $0.50 per share


  	

   


  
	

  Issue Date:  


  	

   


  	

  October 29, 2001


  	

   


  
	

  Expiration Date:


  	

   


  	

  October 29, 2006


  	

   


  





 




THIS WARRANT CERTIFIES THAT,

for the agreed upon value of $1.00 and for other good and valuable

consideration, SILICON VALLEY BANK (“Holder”) is entitled to purchase the

number of fully paid and nonassessable shares of the class of securities (the

“Shares”) of the corporation (the “Company”) at the initial exercise price per

Share (the “Warrant Price”) all as set forth above and as adjusted pursuant to

Article 2 of this Warrant, subject to the provisions and upon the terms

and conditions set forth in this Warrant.




 




ARTICLE 1. EXERCISE.




 




1.1           Method of Exercise.  Holder may exercise this Warrant by

delivering a duly executed Notice of Exercise in substantially the form

attached as Appendix 1 to the principal office of the Company.  Unless Holder is exercising the conversion

right set forth in Section 1.2, Holder shall also deliver to the Company a check for the

aggregate Warrant Price for the Shares being purchased.




 




1.2           Conversion Right.  In lieu of exercising this Warrant as

specified in Section 1.1, Holder may from time to time convert this Warrant, in

whole or in part, into a number of Shares determined by dividing (a)

the aggregate fair market value of the Shares or other securities otherwise

issuable upon exercise of this Warrant minus the aggregate Warrant Price of

such Shares by (b) the fair market value of one Share.  The fair market value of the Shares shall be

determined pursuant to Section 1.3.




 




1.3           Fair Market Value.  If the Shares are traded in a public market,

the fair market value of the Shares shall be the closing price of the Shares

(or the closing price of the Company’s stock into which the Shares are

convertible) reported for the business day immediately before Holder delivers

its Notice of Exercise to the Company. 

If the Shares are not traded in a public market, the Board of Directors

of the Company shall determine fair market value in its reasonable good faith

judgment.




 




1.4           Delivery of Certificate and New Warrant.  Promptly after Holder exercises or converts this Warrant, the

Company shall deliver to Holder certificates for the Shares acquired and, if

this Warrant has not been fully exercised or converted and has not expired, a

new Warrant representing the Shares not so acquired.




 




1.5           Replacement of Warrants.  On receipt of evidence reasonably

satisfactory to the Company of the loss, theft, destruction or mutilation of

this Warrant and, in the case of loss, theft or destruction, on delivery of an

indemnity agreement reasonably satisfactory in form and amount to the 




 





























 




Company or, in the case of

mutilation, or surrender and cancellation of this Warrant, the Company shall

execute and deliver, in lieu of this Warrant, a new warrant of like tenor.




 




1.6           Assumption on Sale, Merger, or Consolidation of the Company.




 




1.6.1        “Acquisition”.  For the purpose of this Warrant, “Acquisition”

means any sale, license, or other disposition of all or substantially all of

the assets of the Company, or any reorganization, consolidation, or merger of

the Company where the holders of the Company’s securities before the transaction

beneficially own less than 50% of the outstanding voting securities of the

surviving entity after the transaction.




 




1.6.2        Assumption of Warrant.  Upon the closing of any Acquisition, the

successor entity shall assume the obligations of this Warrant, and this Warrant

shall be exercisable for the same securities, cash, and property as would be payable for the Shares

issuable upon exercise of the unexercised portion of this Warrant as if such

Shares were outstanding on the record date for the Acquisition and subsequent

closing.  The Initial Exercise Price

and/or number of Shares shall be adjusted accordingly.




 




ARTICLE 2. ADJUSTMENTS TO

THE SHARES.




 




2.1           Stock Dividends, Splits, Etc.  If the Company declares or pays a dividend

on its common stock (or the Shares if the Shares are securities other than

common stock) payable in

common stock, or other securities, subdivides the outstanding common stock into

a greater amount of common stock, or, if the Shares are securities other than

common stock, subdivides the Shares in a transaction that increases the amount

of common stock into which the Shares are convertible, then upon exercise of

this Warrant, for each Share acquired, Holder shall receive, without cost to

Holder, the total number and kind of securities to which Holder would have been

entitled had Holder owned the Shares of record as of the date the dividend or

subdivision occurred.  If the

outstanding shares are combined or consolidated, by reclassification or

otherwise, into a lesser number of shares, the Initial Exercise Price shall be

proportionately increased.




 




2.2           Reclassification, Exchange,

Combinations or Substitution.  Upon

any reclassification, exchange, substitution, or other event that results in a

change of the number and/or class of the securities issuable upon exercise or

conversion of this Warrant, Holder shall be entitled to receive, upon exercise

or conversion of this Warrant, the number and kind of securities and property

that Holder would have received for the Shares if this Warrant had been exercised immediately before such

reclassification, exchange, substitution, or other event.  Such an event shall include any automatic

conversion of the outstanding or issuable securities of the Company of the same

class or series as the Shares to common stock pursuant to the terms of the

Company’s Articles of Incorporation upon the closing of a registered public

offering of the Company’s common stock. 

The Company or its successor shall promptly issue to Holder a new

Warrant for such new securities or other property.  The new Warrant shall provide for adjustments which shall be as

nearly equivalent as may be practicable to the adjustments provided for in this

Article 2 including, without limitation, adjustments to the Initial Exercise

Price and to the number of securities or property issuable upon exercise of the

new Warrant.  The provisions of this

Section 2.2 shall similarly apply to successive reclassifications, exchanges,

substitutions, or other events.




 




2.3           Adjustments for

Diluting Issuances.  The Warrant

Price and the number of Shares issuable upon exercise of this Warrant or, if

the Shares are Preferred Stock, the number of shares of common stock issuable

upon conversion of the Shares, shall be subject to adjustment, from time to

time in the manner set forth in the Company’s Certificate of

Incorporation.  The provisions set forth

for the Shares in the Company’s Certificate of Incorporation relating to the

above in effect as of the Issue Date may not be amended, modified or waived, without

the prior written consent of Holder unless such amendment, modification or

waiver affects Holder in the same manner as they affect all other shareholders

of the same series of shares granted to the Holder.




 




2





























 




2.4           No Impairment.  The Company shall not, by amendment of its

Articles of Incorporation or through a 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 to be observed or performed under this Warrant by the Company, but

shall at all times in good faith assist in carrying out of all the provisions

of this Article 2 and in taking all such action as may be necessary or

appropriate to protect Holder’s rights under this Article against impairment.




 




2.5           Fractional Shares.  No fractional Shares shall be issuable upon

exercise or conversion of the Warrant and the number of Shares to be issued

shall be rounded down to the nearest whole Share.  If a fractional share interest arises upon any exercise or

conversion of the Warrant, the Company shall eliminate such fractional share

interest by paying Holder the amount computed by multiplying the fractional interest

by the fair market value of a full

Share.




 




2.6           Certificate as to Adjustments.  Upon each adjustment of the Warrant Price,

the Company shall promptly notify Holder in writing, and, at the Company’s

expense, promptly compute such

adjustment, and furnish Holder with a certificate of its Chief Financial

Officer setting forth such adjustment and the facts upon which such adjustment

is based. The Company shall, upon written request, furnish Holder a certificate

setting forth the Warrant Price in effect upon the date thereof and the series

of adjustments leading to such Warrant Price.




 




ARTICLE 3. REPRESENTATIONS

AND COVENANTS OF THE COMPANY.




 




3.1           Representations and Warranties.  The Company represents and warrants to

the Holder as follows:




 




(a)           The initial Warrant Price referenced

on the first page of this Warrant is not greater than (i) the price per share

at which the Shares were last issued in an arms-length transaction in which at

least $500,000 of the Shares were sold and (ii) the fair market value of the

Shares as of the date of this Warrant.




 




(b)           All Shares which may be issued upon

the exercise of the purchase right represented by this Warrant, and all

securities, if any, issuable upon conversion of the Shares, shall, upon

issuance, be duly authorized, validly issued, fully paid and nonassessable, and

free of any liens and encumbrances except for restrictions on transfer provided

for herein or under applicable federal and state securities laws.




 




(c)           The Capitalization Table previously

provided to Holder remains true and complete as of the Issue Date.




 




3.2           Notice of Certain Events.  If the Company proposes at any time (a) to

declare any dividend or distribution upon its common stock, whether in cash,

property, stock, or other securities and whether or not a regular cash

dividend; (b) to offer for subscription pro rata to the holders of any class or

series of its stock any additional shares of stock of any class or series or

other rights; (c) to effect any reclassification or recapitalization of common

stock; (d) to merge or consolidate with or into any other corporation, or sell,

lease, license, or convey all or substantially all of its assets, or to

liquidate, dissolve or wind up; or (e) offer holders of registration rights the

opportunity to participate in an underwritten public offering of the company’s

securities for cash, then, in connection with each such event, the Company

shall give Holder (1) at least 10 days prior written notice of the date on

which a record will be taken for such dividend, distribution, or subscription

rights (and specifying the date on which the holders of common stock will be

entitled thereto) or for determining rights to vote, if any, in respect of the

matters referred to in (c) and (d) above; (2) in the case of the matters

referred to in (c) and (d) above at least 10 days prior written notice of the

date when the same will take place (and specifying the date on which the

holders of common stock will be entitled to exchange their common stock for

securities or other property deliverable upon the occurrence of such event);

and (3) in the case of the matter referred to in (e) above, the same notice as

is given to the holders of such registration rights.




 




3





























 




3.3           Registration Under Securities Act

of 1933, as amended.  The Company

agrees that the Shares or, if the Shares are convertible into common stock of

the Company, such common stock, shall be subject to the registration rights set

forth in the Amended and Restated Registration Rights Agreement among the

Company, SCI Technology, Inc., Guenther Pfaff, and Hofmann & Co. dated as

of August 29, 2001 or similar agreement. 

The provisions set forth in the Company’s Investors’ Right Agreement or

similar agreement relating to the above in effect as of the Issue Date may not

be amended, modified or waived without the prior written consent of Holder

unless such amendment, modification or waiver affects Holder in the same manner

as they affect all other shareholders of the same series of shares granted to

the Holder .




 




ARTICLE 4. REPRESENTATIONS, WARRANTIES OF

THE HOLDER.  The Holder represents

and warrants to the Company as follows:




 




4.1           Purchase for Own Account.  Except for transfers to Holder’s affiliates,

this Warrant and the securities to be acquired upon exercise of this Warrant by

the Holder will be acquired for investment for the Holder’s account, not as a

nominee or agent, and not with a view to the public resale or distribution

within the meaning of the 1933 Act, and the Holder has no present intention of

selling, granting any participation in, or otherwise distributing the

same.  If not an individual, the Holder

also represents that the Holder has not been formed for the specific purpose of

acquiring this Warrant or the Shares.




 




4.2           Disclosure of Information.  The Holder has received or has had full

access to all the information it considers necessary or appropriate to make an

informed investment decision with respect to the acquisition of this Warrant

and its underlying securities.  The Holder

further has had an opportunity to ask questions and receive answers from the

Company regarding the terms and conditions of the offering of this Warrant and

its underlying securities and to obtain additional information (to the extent

the Company possessed such information or could acquire it without unreasonable

effort or expense) necessary to verify any information furnished to the Holder

or to which the Holder has access.




 




4.3           Investment Experience.  The Holder understands that the purchase of

this Warrant and its underlying securities involves substantial risk.  The Holder: 

(i) has experience as an investor in securities of companies in the

development stage and acknowledges that the Holder is able to fend for itself,

can bear the economic risk of such Holder’s investment in this Warrant and its

underlying securities and has such knowledge and experience in financial or

business matters that the Holder is capable of evaluating the merits and risks

of its investment in this Warrant and its underlying securities and/or (ii) has

a preexisting personal or business relationship with the Company and certain of

its officers, directors or controlling persons of a nature and duration that

enables the Holder to be aware of the character, business acumen and financial

circumstances of such persons.




 




4.4           Accredited Investor Status.  The Holder is an “accredited investor”

within the meaning of Regulation D promulgated under the 1933 Act.




 




ARTICLE 5. MISCELLANEOUS.




 




5.1           Term:  This Warrant is exercisable in whole or in

part at any time and from time to time on or before the Expiration Date.  




 




5.2           Legends.  This Warrant and the Shares (and the

securities issuable, directly or indirectly, upon conversion of the Shares, if

any) shall be imprinted with a legend in substantially the following form:




 




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED OR UNDER ANY APPLICABLE STATE LAWS, AND MAY NOT BE SOLD, PLEDGED OR

OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THERE OF UNDER SUCH ACT

AND AN EXEMPTION UNDER APPLICABLE STATE LAW OR PURSUANT TO 




 




4





























 




RULE 144 OR AN OPINION OF 

COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT

SUCH REGISTRATION IS NOT REQUIRED.




 




5.3           Compliance with Securities Laws on

Transfer.  This Warrant and the

Shares issuable upon exercise of this Warrant (and the securities issuable,

directly or indirectly, upon conversion of the Shares, if any) may not be

transferred or assigned in whole or in part without compliance with applicable

federal and state securities laws by the transferor and the transferee

(including, without limitation, the delivery of investment representation

letters and legal opinions reasonably satisfactory to the Company, as

reasonably requested by the Company). 

The Company shall not require Holder to provide an opinion of counsel if

the transfer is to an affiliate of Holder or if there is no material question

as to the availability of current information as referenced in Rule 144(c),

Holder represents that it has complied with Rule 144(d) and (e) in reasonable

detail, the selling broker represents that it has complied with Rule 144(f),

and the Company is provided with a copy of Holder’s notice of proposed sale.




 




5.4 Transfer Procedure.  Subject to the provisions of Section 5.3,

Holder may transfer all or part of this Warrant or the Shares issuable upon

exercise of this Warrant (or the securities issuable, directly or indirectly,

upon conversion of the Shares, if any) to Silicon Valley Bancshares, or The

Silicon Valley Bank Foundation, or to any affiliate of Holder at any time

without prior notice to Company; provided, however, if Holder

transfers this warrant to any other transferee, Holder will give the Company

notice of the portion of the Warrant being transferred with the name, address

and taxpayer identification number of the transferee and surrendering this

Warrant to the Company for reissuance to the transferee(s) (and Holder if

applicable).  The Company may refuse to

transfer this Warrant to any person who directly competes with the Company

unless the Company’s stock is publicly traded.




 




5.5           Notices.  All notices and other communications from

the Company to the Holder, or vice versa, shall be deemed delivered and

effective when given personally or mailed by first-class registered or

certified mail, postage prepaid, at such address as may have been furnished to

the Company or the Holder, as the case may be, in writing by the Company or

such holder from time to time.  All notices

to the Holder shall be addressed as follows:




 




Silicon

Valley Bank




Attn:  Treasury Department




3003

Tasman Drive, HG 110




Santa

Clara, CA 95054




 




5.6           Waiver.  This Warrant and any term hereof may be

changed, waived, discharged or terminated only by an instrument in writing

signed by the party against which enforcement of such change, waiver, discharge

or termination is sought.




 




5.7           Attorney’s Fees. 

In the event of any dispute between the parties concerning the terms and

provisions of this Warrant, the party prevailing in such dispute shall be entitled

to collect from the other party all costs incurred in such dispute, including

reasonable




 




5.8           Automatic Conversion upon

Expiration.  In the event that, upon

the Expiration  Date, the fair market

value of one Share (or other security issuable upon the exercise hereof) as

determined in accordance with Section 1.3 above is greater than the Exercise

Price in effect on such date, then this Warrant shall automatically be deemed

on and as of such date to be converted pursuant to Section 1.2 above as to all

Shares (or such other securities) for which it shall not previously have been

exercised or converted, and the Company shall promptly deliver a certificate

representing the Shares (or such other securities) issued upon such conversion

to the Holder.




 




5.9           Governing Law.  This Warrant shall be governed by and

construed in accordance with the laws of the State of California, without

giving effect to its principles regarding conflicts of law.




 




5





























 




	

   


  	

  “COMPANY”


  
	

   


  	

   


  
	

   


  	

  NETWORK

  COMPUTING DEVICES, INC.


  
	

   


  	

   


  
	

   


  	

  By:


  	

  /s/

  Rudolph G. Morin


  	

   


  
	

   


  	

   


  
	

   


  	

  Name:

  


  	

  Rudolph

  G. Morin


  	

   


  
	

   


  	

  (Print)


  
	

   


  	

  Title:

  


  	

  Chairman

  of the Board, President or


  Vice President


  
	

   


  	

   


  
	

   


  	

  By:


  	

  /s/

  Michael Garner


  	

   


  
	

   


  	

   


  
	

   


  	

  Name:

  


  	

  Michael

  Garner


  	

   


  
	

   


  	

  (Print)


  	

   


  
	

   


  	

  Title:

  


  	

  Chief

  Financial Officer, Secretary,


  Assistant Treasurer or Assistant


  Secretary


  
	

   


  	

   


  
	

   


  	

  “HOLDER”


  
	

   


  	

   


  
	

   


  	

  Silicon Valley Bank


  
	

   


  	

   


  
	

   


  	

  By: 


  	

  /s/ Milad Hanna


  	

   


  
	

   


  	

   


  
	

   


  	

  Name: 


  	

  Milad T. Hanna


  	

   


  
	

   


  	

   


  
	

   


  	

  Title: 


  	

   Senior Vice President


  	

   


  
															





 




6





























 




APPENDIX

1




 




NOTICE

OF EXERCISE




 




1.             Holder elects to purchase                          shares of the Common/Series                               Preferred

[strike one] Stock of                                         

pursuant to the terms of the attached Warrant, and tenders

payment of the purchase price of the shares in full.




 




1.             Holder elects to convert the attached Warrant into

Shares/cash [strike one] in the manner specified in the Warrant.  This conversion is exercised for                                         of the Shares covered by the Warrant.




 




[Strike paragraph that does not apply.]




 




2.             Please issue a certificate or certificates

representing the shares in the name specified below:




 




	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Holders Name


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  (Address)


  	

   


  
	

   


  	

   


  	

   


  	

   


  





 




3.   The undersigned represents it is acquiring the shares solely for

its own account and not as a nominee for any other party and not with a view

toward the resale or distribution except in compliance with applicable

securities laws.




 




 




	

   


  	

   


  	

  HOLDER:


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Title:


  	

   


  	

   


  
	

  (Date)


  	

   


  	

   


  	

   


  
								





 




8