**AMENDEDAND RESTATED**

 

**REGISTRATIONRIGHTS AGREEMENT**

 

                **THIS AMENDED AND RESTATED REGISTRATION RIGHTSAGREEMENT** is made and entered into as of the 29th day of August,2001, by and among **NETWORK COMPUTING DEVICES, INC.,** a Delawarecorporation (the "*Company*"), **SCI TECHNOLOGY, INC.**, anAlabama corporation (“*SCI*”), **GUENTHER PFAFF**, an individual(“*Pfaff*”),and **HOFMANN& CO.,** a Swiss Partnership (“Hofmann”).

 

**ARTICLEI**

 

**BACKGROUND**

 

                ***Section 1.1.           Background***.SCI, Pfaff and Hofmann (each a *“Holder”* and collectively the *“Holders”*)are the holders of certain convertible securities convertible into, andWarrants to purchase, Common Stock, par value $.001 per share *("Stock"),*of the Company.  The partiesdesire to provide for the registration of the shares of Stock issuable orissued to the Holder upon conversion of the convertible securities or exerciseof the Warrants

 

Suchconvertible securities and Warrants have been issued to the Holders withoutregistration under the Securities Act of 1933, as amended (the “*SecuritiesAct*”), and the Stock likewise has not been registered. The partiesdesire to provide for the registration of the Stock.

 

SCIand Pfaff have each entered into Registration Rights Agreements with theCompany (the “Prior Agreements”) pursuant to which the Company granted SCI andPfaff certain registration rights with respect to their Stock.  The parties desire to amend and restate thePrior Agreements by terminating them and replacing them in their entirety withthis Agreement.

 

**ARTICLEII**

 

**DEFINITIONS**

 

***Section 2.1            Definitions***.  For purposes of this Agreement, thefollowing capitalized terms have the respective meanings set forth below:

 

(a)           The term “***Form S-3***” means such form under theSecurities Act as in effect on the date hereof or any successor form under theSecurities Act.

 

 (b)          Theterm “***Holder***”means any person owning or having the right to acquire Registrable Securitiesor any heirs or assigns thereof in accordance with this Agreement.

 

(c)           The term “***register***,” “***registered***,” and “***registration***” refers to a registrationeffected by preparing and filing a registration statement or similar documentin compliance with the Securities Act, and the declaration or ordering ofeffectiveness of such registration statement or document.

 

(d)           The term *“**Other Covered Securities**”* meansthe shares of Common Stock of the Company issued to Tektronix, Inc. on December8, 2000.

 

(e)           The term “***Registrable Securities***” means (i) the sharesof Stock, and (ii) any other securities issued as (or issuable upon theconversion or exercise of any warrant, right or other security which is issuedas) a dividend or other distribution with respect to, or in exchange for or inreplacement of, the shares of Stock listed in clause (i) above.  Notwithstanding the foregoing, Stock orother securities shall only be treated as Registrable Securities if and so longas they have not been (A) effectively registered under the Securities Act andsold or distributed to any Person pursuant to an effective registrationstatement covering it, or (B) sold in a transaction exempt from theregistration and prospectus delivery requirement of the Securities Act so thatall transfer restrictions, and restrictive legends with thereto, if any, areremoved upon the consummation of such sale.

 

(f)            The number of shares of “***Registrable Securities******then outstanding***”shall be the number of shares of Stock that are Registrable Securities whichare then issued and outstanding, plus those which are issuable pursuant to thenexercisable or convertible securities.

 

(g)           The term “***Registration Expenses***” means all expensesincident to the Company's performance of or compliance with Article 3including, without limitation, all registration and filing fees; all fees andexpenses of complying with securities or blue sky laws; all printing expenses;the fees and disbursements of counsel for the Company and of its independentpublic accountants, including the expenses of any special audits required by orincident to such performance and compliance; and the reasonable fees and disbursementsof one counsel for the Holders.

 

(h)           The term “***SEC***” means the Securities and ExchangeCommission.

 

(i)            The term “***Selling Expenses***” means all underwritingdiscounts, selling commissions and transfer taxes applicable to the sale ofRegistrable Securities.

 

**ARTICLEIII**

 

**REGISTRATIONRIGHTS**

 

***Section 3.1            Demand Registration.***

 

(a)           If at any time after issuance of theStock to a Holder, the Company receives a written request from such Holder thatthe Company file a registration statement under the Securities Act covering theregistration of all or a portion of the Registrable Securities of the Holderthen outstanding, then the Company shall as soon as practicable effect suchregistration of the Registrable Securities of the Holder.  Such obligation shall include, withoutlimitation, the execution of an undertaking to file post-effective amendmentsand to effect appropriate registrations or qualifications under applicable bluesky or other state securities laws and appropriate compliance with exemptiveregulations issued under the Securities Act and any other governmentalrequirements or regulations.

 

(b)          If the Holder intends to use anunderwriter to distribute the Registrable Securities covered by its request, itshall so advise the Company in its request. In such event, the Holder shall (together with the Company) enter intoan underwriting agreement with an underwriter selected by the Holder, subjectto the approval of the Company which shall not be unreasonably withheld.  The Company shall not register any othersecurities in connection with any such demand registration, other thanRegistrable Securities, Other Covered Securities and securities registered forits own account.  Notwithstanding anyother provision of this subsection, if the underwriter advises the Holder andthe Company in writing that marketing factors require a limitation of thenumber of shares to be included in the underwriting, then shares, if any, otherthan Registrable Securities and Other Covered Securities shall first be excludedfrom such registration to the extent required by such underwriting limitation,and thereafter, Registrable Securities and Other Covered Securities shall beexcluded in proportion, as nearly as practicable, to the respective amounts ofRegistrable Securities and Other Covered Securities held by such Holders andsuch other holders. If the number of shares of Registrable Securities soexcluded exceeds twenty percent (20%) of the number of shares of RegistrableSecurities which the Holder has requested be included in such registration,then the Holder shall be entitled either (i) to require that the registrationbe deferred for such period of time as the Holder, the Company and theunderwriter may mutually agree upon, but in no event for more than ninety (90) daysfrom delivery of a written notice of the Holder to the Company requesting suchdelay, or (ii) to withdraw the registration request, in which case it shall notcount as a demand registration for purposes of the limitation in **Section3.1(d).** The Company shall not effect a public offering of anysecurities of the Company similar to the Registrable Securities being offeredin the underwritten offering, or convertible or exercisable for RegistrableSecurities during the period commencing ten (10) days prior to and ending onehundred twenty (120) days after the effective date of the applicableregistration statement, other than a sale of Other Covered Securities.

 

(c)           Notwithstanding the foregoing, if theCompany shall furnish to the Holder a certificate signed by the President orChief Executive Officer of the Company stating that, in the good faith judgmentof the board of directors of the Company, it would be seriously detrimental tothe Company and its shareholders for such registration statement to be filedand it is therefore essential to defer the filing of such registrationstatement, the Company shall have the right to defer such filing for a periodnot more than ninety (90) days after receipt of the request of the Holder; *provided,however*, that the Company may not utilize this right more than oncein any 12-month period.

 

(d)           Notwithstanding the foregoing, theCompany shall not be obligated to take any action to effect any registration,qualification or compliance pursuant to this Section 3.1 in any particularjurisdiction in which the Company would be required to execute a generalconsent to service of process in effecting such registration, qualification orcompliance unless the Company is already subject to service in suchjurisdiction.

 

(e)           The Company shall not be obligated toeffect, or to take any action to effect, any registration pursuant to **Section3.1(a)** at the request of any Holder after the Company has effectedtwo demand registrations at such Holder’s request and each such registrationhas been declared or ordered effective and kept effective for at least onehundred twenty (120) days. Notwithstanding the immediately preceding sentence or the provisions of **Section3.1(b)**, a registration will not count as a demand registration under**Section 3.1(a)**unless the Holder was able to sell a minimum of seventy-five (75%) of theshares sought to be registered in such registration.

 

***Section 3.2.           Company Registration***.  If at any time the Company proposes toregister any of its securities under the Securities Act, whether or not forsale for its own account, on a form and in a manner which would permitregistration of its shares for sale to the public under the Securities Act(other than a registration statement relating either to the sale of securitiesto employees of the Company pursuant to a stock option, stock purchase orsimilar plan, an offering or sale of securities pursuant to a Form S-4 (orsuccessor form) registration statement, or an SEC Rule 145 transaction), itwill each such time give prompt written notice to the Holder of its intentionto do so, describing such securities and specifying the form and manner and theother relevant facts involved in such proposed registration, and upon thewritten request of the Holder delivered to the Company within thirty (30) daysafter the giving of any such notice, the Company will effect the registrationunder the Securities Act of all Registrable Securities which the Company hasbeen so requested to register by the Holder to the extent required to permit thedisposition (in accordance with the intended methods thereof asaforesaid).  The Company will use itscommercially reasonable efforts to cause the Registrable Securities as to whichregistration shall have been so requested to be included in the securities tobe covered by the registration statement proposed to be filed by the Company,all to the extent required to permit the sale or other disposition by theHolder of such Registrable Securities so registered.  If any registration pursuant to this **Section 3.2** shall be, inwhole or in part, an underwritten public offering of securities, the Companyshall so advise the Holders as a part of the written notice given pursuant tothis Section 3.2.  In such event theright of any Holder to registration pursuant to this Section 3.2 shall beconditioned upon such Holder’s participation in such underwriting to the extentprovided herein.  All Holders proposingto distribute their securities through such underwriting shall (together withthe Company and the other holders distributing their securities through suchunderwriting) enter into an underwriting agreement in customary form with themanaging underwriter selected for such underwriting by the Company, but subjectto the reasonable approval of Holders holding more than a majority of theRegistrable Securities to be included in such registration. Notwithstanding anyother provision of this Section 3.2, if the managing underwriter determinesthat marketing factors require limitation of the number of shares to be underwritten,the managing underwriter may limit the Registrable Securities to be included insuch registration.  The Company shall soadvise all Holders and other holders distributing their securities through suchunderwriting and the number of shares of securities that may be included in theregistration and underwriting (other than in behalf of the Company) shall beallocated among all Holders and such other holders (provided that such otherholders have contractual rights to participate in such registration which arenot subordinate to the Holders’) in proportion, as nearly as practicable, tothe respective amounts of Registrable Securities held by such Holders and suchother holders.

 

***Section 3.3            Form S-3 Registration***.  If, at a time when Form S-3 (or any comparablesuccessor form) is available for the registration of Registrable Securities andthe Company is eligible to use Form S-3 (or such successor form) for suchregistration, the Company shall receive from a Holder a written request thatthe Company effect a registration on Form S-3 (or such successor form) of anyof the Holder's Registrable Securities, the Company will promptly give writtennotice of the proposed registration to the Holder and, as soon as practicable,effect such registration and all such related qualifications and compliances asmay be reasonably requested and as would permit or facilitate the sale anddistribution of all Registered Securities as are specified in suchrequest.  The rights of each Holder torequest registration under this **Section 3.3** shall be in addition to allother registration rights in this Agreement. The Company shall have no obligation to effect a registration under **Section 3.3**more than three times for any particular Holder.

 

***Section 3.4.           Registration Expenses***.  All Registration Expenses incurred inconnection with any registration, qualification or compliance pursuant to **Sections3.1, 3.2 and 3.3** shall be borne by the Company; and all SellingExpenses shall be borne by each Holder and any other holders of the securitiesso registered pro rata on the basis of the number of their shares soregistered.

 

                ***Section 3.5. Registration Procedures***.

 

(a)           When the Company is required toeffect the registration of any Registrable Securities under the Securities Actas provided in this **Article 3**, the Company shall asexpeditiously as possible:

 

(i)            prepare and file with the SEC aregistration statement on the appropriate form with respect to such RegistrableSecurities and use reasonable efforts to cause such registration statement tobecome effective as promptly as practicable, and upon the request of theHolders, keep such registration statement effective for at least one hundredtwenty (120) days;

 

(ii)           prepare and file with the SEC suchamendments and supplements to such registration statement and the prospectusused in connection therewith as may be necessary to keep such registrationstatement effective and to comply with the provisions of the Securities Actwith respect to the disposition of all Registrable Securities covered by suchregistration statement until the earlier of: (a) such time as all of suchRegistrable Securities have been disposed of in accordance with the intendedmethods of disposition by the Holders set forth in such registration statement;or (b) the expiration of one hundred and twenty (120) days after suchregistration statement becomes effective;

 

(iii)          furnish to the Holders such number ofconformed copies of such registration statement and of each such amendment andsupplement thereto (in each case including all exhibits), such number of copiesof the prospectus included in such registration statement (including eachpreliminary prospectus and any summary prospectus), in conformity with therequirements of the Securities Act, such documents incorporated by reference insuch registration statement or prospectus, and such other documents, as theHolder may reasonably request;

 

(iv)          use its best efforts to register andqualify all securities covered by such registration statement under such othersecurities or blue sky laws of such jurisdictions as the Holders shallreasonably request, and do any and all other acts and things which may benecessary or advisable to enable the Holders to consummate the disposition insuch jurisdictions of its Registrable Securities covered by such registrationstatement, except that the Company shall not for any such purpose be requiredto qualify generally to do business as a foreign corporation in anyjurisdiction wherein it is not so qualified, or to subject itself to taxationin any such jurisdiction, or to consent to general service of process in anysuch jurisdiction;

 

(v)           furnish to each Holder a signedcounterpart, addressed to the seller, of (A) an opinion of counsel for theCompany, dated the effective date of such registration statement (and, if suchregistration includes an underwritten public offering, dated the date of theclosing under the underwriting agreement), and (B) a "cold comfort"letter signed by the independent public accountants who have certified theCompany's financial statements included in such registration statement,covering substantially the same matters with respect to such registrationstatement (and the prospectus included therein) and, in the case of suchaccountants' letter, with respect to events subsequent to the date of suchfinancial statements, as are customarily covered in opinions of issuer'scounsel and its accountants' letters delivered to underwriters in underwrittenpublic offerings of securities and, in the case of the accountants' letter,such other financial matters, as the Holder may reasonably request;

 

(vi)          in the event of any underwrittenpublic offering, enter into and perform its obligations under an underwritingagreement in usual and customary form, with the managing underwriter of suchoffering;

 

(vii)         immediately notify the Holders, at anytime when a prospectus relating thereto is required to be delivered under theSecurities Act, of the happening of any event as a result of which theprospectus included in such registration statement, as then in effect, includesan untrue statement of a material fact or omits to state any material factrequired to be stated therein or necessary to make the statements therein notmisleading in the light of the circumstances then existing, and at the requestof each Holder prepare and furnish a reasonable number of copies of asupplement to or an amendment of such prospectus as may be necessary so that,as thereafter delivered to the purchasers of such Registrable Securities, suchprospectus shall not include an untrue statement of a material fact or omit tostate a material fact required to be stated therein or necessary to make thestatements therein not misleading in the light of the circumstances thenexisting; and

 

(viii)        otherwise use its best efforts to complywith all applicable rules and regulations of the SEC, and make available to itssecurities holders, as soon as reasonably practicable, an earnings statementcovering the period of at least twelve months, but not more than eighteenmonths, beginning with the first month of the first fiscal quarter after theeffective date of such registration statement, which earnings statement shallsatisfy the provisions of Section 11(a) of the Securities Act.

 

The Company may requireeach Holder, when any registration is being effected with respect to any of theHolder's Registrable Securities, to furnish the Company such informationregarding the Holder and the distribution of the securities as the Company mayfrom time to time request in writing for inclusion in the applicableregistration statement as required by law or by the SEC in connectiontherewith.

 

***Section 3.6.           Preparation; Reasonable Investigation***.  In connection with the preparation andfiling of each registration statement registering Registrable Securities underthe Securities Act, the Company will give the Holders and any underwriter, ifany, and their counsel and accountants, a reasonable opportunity to participatein the preparation of such registration statement and other documents relatedthereto, and will give them reasonable access to books and records andpersonnel such as is reasonably necessary to facilitate preparation of suchdocuments and filing.

 

***Section 3.7.           Furnish Information***.  It shall be a condition precedent to theobligation of the Company to take any action pursuant to this **Article 3**with respect to the Registrable Securities of any Holder that the Holder shallfurnish to the Company such information regarding itself, the RegistrableSecurities held by it, and the intended method of disposition of suchsecurities as shall be required to effect the registration of the Holder'sRegistrable Securities.

 

***Section 3.8.           Indemnification***. In theevent any Registrable Securities are included in a registration statement underthis **Article3**:

 

(a)           The Company will indemnify and holdharmless the Holder, its directors and officers, and each other person, if any,who controls the Holder within the meaning or the Securities Act, against anylosses, claims, damages, liabilities and expenses (including reasonable legalfees and expenses and costs of investigation), joint or several, to which theHolder or any such director or officer or controlling person may become subjectunder the Securities Act or otherwise, insofar as such losses, claims, damages,liabilities or expenses (or actions or proceedings in respect thereof) ariseout of or are based upon (i) any untrue statement or alleged untrue statementof any material fact contained in any registration statement under which suchsecurities were registered under the Securities Act, any preliminaryprospectus, final prospectus or summary prospectus included therein, or anyamendment or supplement thereto, or any document incorporated by referencetherein, or (ii) any omission or alleged omission to state therein a materialfact required to be stated therein or necessary to make the statements thereinnot misleading, and the Company will reimburse the Holder, and each suchdirector, officer, and controlling person for any legal or any other expensesreasonably incurred by them in connection with investigating or defending anysuch loss, claim, liability, action or proceeding; provided that the Companyshall not be liable to such an indemnified person in any such case to the extent(but only to the extent) that any such loss, claim, damage, liability (oraction or proceeding in respect thereof) or expense arises out of or is basedupon an untrue statement or alleged untrue statement or omission or allegedomission made in such registration statement, any such preliminary prospectus,final prospectus summary prospectus, amendment or supplement or any documentsincorporated by reference in any of the above in reliance upon and inconformity with written information furnished by such indemnified person to theCompany and designated by such person to be for use therein.  Such indemnity shall remain in full forceand effect regardless of any investigation made by or on behalf of the Holderor any such director, officer, or controlling person and shall survive thetransfer of such securities by the Holder.

 

(b)           To the extent permitted by law, theHolder will indemnify and hold harmless the Company, each of its directors,each of its officers who has signed the registration statement and each otherperson, if any, who controls the Company within the meaning of the SecuritiesAct, with respect to any statement in or omission from such registrationstatement, any preliminary prospectus, final prospectus or summary prospectusincluded therein, or any amendment or supplement thereto or any documentsincorporated by reference in any of the above, if such statement or omissionwas made solely in reliance upon and in conformity with written informationfurnished to the Company through an instrument duly executed by the Holderspecifically stating that it is for inclusion in such registration statement,preliminary prospectus, final prospectus, summary prospectus, amendment orsupplement. Such indemnity shall remain in full force and effect regardless ofany investigation made by or on behalf of the Company or any such director,officer or controlling person and shall survive the transfer of such securitiesby the Holder; *provided, however*, that the Holder's liability hereundershall not exceed the aggregate net offering proceeds received by the Holder.

 

(c)           If the indemnification provided forin this **Section3.8** is unavailable or insufficient to hold harmless an indemnifiedparty in respect of any losses, claims, damages, liabilities, expenses oraction in respect thereof referred to herein, then the indemnifying party shallcontribute to the amount paid or payable by such indemnified party as a resultof such losses, claims, damages, liabilities, expenses or actions in suchproportion as is appropriate to reflect the relative fault of the indemnifyingparty on the one hand, and the indemnified party on the other, in connectionwith the statement or omissions which resulted in such losses, claims, damages,liabilities, expenses or actions as well as any other relevant equitableconsiderations, including the failure to give the notice requiredhereunder.  The relative fault of theindemnifying party and the indemnified party shall be determined by referenceto, among other things, whether the untrue or alleged untrue statement of amaterial fact relates to information supplied by the indemnifying party or theindemnified party and the parties' relative intent, knowledge, access toinformation and opportunity to correct or prevent such statement or omission.  The Company and the Holder agree that itwould not be just and equitable if contributions pursuant to this **Section3.8(c)** were determined by pro rata allocation or by any other methodof allocation which did not take account of the equitable considerationsreferred to above.  The amount paid orpayable to an indemnified party as a result of the losses, claims, damages,liabilities or action in respect thereof, referred to above, shall be deemed toinclude any legal or other expenses reasonably incurred by such indemnifiedparty in connection with investigating or defending any such action orclaim.  Notwithstanding the contributionprovisions of this **Section 3.8**, in no event shall the amountcontributed by the Holder exceed the aggregate net offering proceeds receivedby such seller from the sale of such shares. No person guilty of a fraudulent misrepresentation (within the meaningof Section 11(f) of the Securities Act) shall be entitled to contribution fromany person who is not guilty of such fraudulent misrepresentation.

 

(d)           Promptly after receipt by anindemnified party of notice of the commencement of any action or proceedinginvolving a claim referred to in the preceding subdivisions of this **Section 3.8**,such indemnified party will, if a claim in respect thereof is to be madeagainst an indemnifying party, give written notice to the latter of thecommencement of such action; *provided, that* the failure of anyindemnified party to give notice as provided herein shall not relieve theindemnifying party of its obligations under the preceding subdivisions of this **Section 3.8**except to the extent the failure to give notice is prejudicial to theindemnifying party. In case any such action is brought against an indemnifiedparty, the indemnifying party shall be entitled to participate in and to assumethe defense thereof, jointly with any other indemnifying party similarlynotified, to the extent that it may wish, with counsel reasonably satisfactoryto such indemnified party, and after notice from the indemnifying party to suchindemnified party of its election so to assume the defense thereof, theindemnifying party shall not be liable to such indemnified party for any legalor other expenses subsequently incurred by the latter in connection with thedefense thereof; provided, however, that if the indemnified party or partiesreasonably determine that there may be a conflict between the positions of theindemnifying party or parties and of the indemnified party or parties inconducting the defense of such action or proceeding or that there may be legaldefenses available to such indemnified party or parties different from or inaddition to those available to the indemnifying party or parties, then counselfor the indemnified party or parties shall be entitled to conduct the defenseto the extent reasonably determined by such counsel to be necessary to protectthe interests of the indemnified party or parties (and the indemnifying partyor parties shall bear the reasonable legal and other expenses incurred in connectiontherewith).  No indemnifying party willconsent to entry of any judgment or enter into any settlement which does notinclude as an unconditional term thereof the giving by the claimant orplaintiff to such indemnified party of a full and final release from allliability in respect to such claim or litigation.

 

***Section 3.9.           Rule 144 and 144A***.  The Company will file the reports requiredto be filed by it under the Securities Act and the Securities Exchange Act of1934 (the "Exchange Act') (or, if the Company is not required to file suchreports, will, upon the request of a Holder, make publicly available otherinformation necessary to comply with Rule 144(c) and Rule 144A, as applicable),and will take such further action as a Holder may reasonably request, all tothe extent required from time to time to enable the Holder to sell shares ofthe Company without registration under the Securities Act within the limitationof the exemptions provided by (a) Rule 144 under the Securities Act, as suchRule may be amended from time to time, or (b) any similar rule or regulationhereafter adopted by the SEC.  Upon therequest of a Holder, the Company will deliver to the Holder (i) a verified,written statement of the President or Chief Financial Officer as to whether ithas complied with such requirements; (ii) if applicable, a copy of the mostrecent annual or quarterly report of the Company; and (iii) such other reportsand documents as the Holder may reasonably request to avail itself of Rule 144,144A or any other rule or regulation of the SEC allowing the Holder to sell itsshares of the Company without registration.

 

***Section 3.10.        Termination***. Any registration rights grantedpursuant to this Article III shall terminate with respect to any Holder at suchdate when the Registrable Securities beneficially owned by such Holderrepresents not more than 1% of the Company’s outstanding Common Stock and maybe sold under Rule 144 during any ninety (90) day period.

 

**ARTICLEIV**

 

**GENERAL**

 

***Section 4.1.           Amendments and Waivers***.  Any term of this Agreement may be amendedand the observance of any term of this Agreement may be waived (eithergenerally or in a particular instance and either retroactively orprospectively) only with the written consent of the Company and Holdersbeneficially owning a majority of the Registrable Securities then outstanding.

 

***Section 4.2            Notices***. Except as otherwise provided in this Agreement, notices and othercommunications under this Agreement shall be in writing and shall be delivered,or mailed by first-class mail, postage prepaid, addressed, if to a Holder, tothe attention of such Holder, addressed in the manner set forth beneath theHolder’s signature below or at such address, or to the attention of such otherofficer, as the Holder shall have furnished to the Company in writing a noticeproperly given hereunder or, if to the Company, to the attention of itsSecretary, addressed in the manner set forth beneath the Company's signaturebelow, or at such other address, or to the attention of such other officer, asthe Company shall have furnished to the Holder in a notice properly givenhereunder.

 

***Section 4.3.           Adjustments***.  This Agreement shall apply to any shares ofStock issued to the Holder with respect to, upon exercise or conversion of, orin exchange for, any Registrable Securities, held by the Holder, by way of astock dividend or stock split or in connection with a combination of shares,recapitalization, merger, consolidation or other reorganization or otherwise,except for shares of capital stock which have been distributed by the Holder tothe public pursuant to a registration statement or Rule 144 (or any successorprovision) under the Securities Act.

 

***Section 4.4.           Miscellaneous.***

 

(a)           This Agreement shall be binding uponand inure to the benefit of and be enforceable by the respective successors andassigns of the parties hereto, whether so expressed or not.  This Agreement may not be assigned by anyHolder other than to a transferee of all of the Registrable Securities thatsuch Holder holds or has the right to acquire.

 

(b)           This Agreement embodies the entireagreement and understanding between the Holder and the Company and supersedesall prior agreements and understandings relating to the subject matter hereof.

 

 (c)          Theheadings in this Agreement are for purposes of reference only and shall notlimit or otherwise affect the meaning hereof.

 

(d)           This Agreement may be executed in twoor more counterparts (including by facsimile), each of which shall be deemed anoriginal, but all of which together shall constitute one and the sameinstrument.

 

(e)           Time is of the essence under thisAgreement.

 

(f)            This Agreement shall be governed byand construed under the internal laws of the State of Delaware without givingeffect to conflicts of laws.  Wheneverpossible, each provision of this Agreement shall be interpreted in such manneras to be effective and valid under applicable law, but if any provision of thisAgreement shall be prohibited by or invalid under applicable law, such provisionshall be ineffective only to the extent of such prohibition or invalidity,without invalidating the remainder of such provision or the remainingprovisions of this Agreement.

 

(g)           Each of the Prior Agreements ishereby terminated and shall be of no further force or effect.

 

                IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed and delivered by their respective dulyauthorized corporate officers as of the date first written above.

 
|   |   | "Company"                                |
|--------|--------|----------------------------------------------------|
|   |   | **NETWORK COMPUTING DEVICES, INC.**                |
|   |   |                                               |
|   |   |                                               |
|   |   | By:                                                |   |
|   |   | Name:  Rudolph G. Morin                       |
|   |   | Title:  President and Chief Executive Officer |
|   |   |                                               |
|   |   | Address for notices:                               |
|   |   | 301  Ravendale Drive                               |
|   |   | Mountain  View, California 94043-5207              |

 

 
|   |   | "Holders" |  
 

 

 

 
 

 

**SCI TECHNOLOGY, INC.**

 
 

 

 

 
 

 

 

 
 

 

By:

 
 

 

 

 
 

 

Title:

 

 
 

 

 

 
 

 

Address for notice:

 
 

 

 

 
 

 

 

 

 
 

 

 

 

 
 

 

 

 

 
 

 

 

 
 

 

**GUENTHER PFAFF**

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

Address for notice:

 
 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 
 

 

 

 
 

 

**HOFMANN & CO.**

 
 

 

 

 
 

 

 

 
 

 

By: 

 

 
 

 

Name: 

Gottfried Hofmann

 
 

 

Title:

Partner

 
 

 

 

 
 

 

Address for notice:

 
 

 

Wiesenrain  5

 
 

 

6314  Unteraegeri

 
 

 

Switzerland

 
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