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EXHIBIT 4.1
CONVERTIBLE PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT")
OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
AMOUNT: $3,300,000 DATE: AUGUST 31, 2000
FOR VALUE RECEIVED, the undersigned, NETWORK COMPUTING DEVICES, INC., a Delaware
corporation (hereinafter referred to as the "Company" or the "Maker")
unconditionally promises to pay to the order of SCI TECHNOLOGY, INC., an Alabama
corporation ("Holder"), at such place as may be designated by Holder, the
PRINCIPAL SUM of Three Million Three Hundred Thousand US Dollars ($3,300,000),
or so much of such sum as may be due and owing at the time of maturity, together
with interest from the date hereof on the unpaid balance hereunder, computed at
an annual rate of six and one-half percent (6.5%) based on a 360 day year and
the actual number of days elapsed (subject to adjustment pursuant to Section 2).
The indebtedness evidenced hereby shall be due and payable as provided for in
the terms and conditions set forth below:
1. MAKER. The term "Maker" as used in this Note shall include the Maker
and the respective successors and assigns thereto or thereof; provided, however,
that neither this Note nor the obligations of Maker hereunder can be assigned
without the prior written consent of Holder, such consent to be given or
withheld in Holder's sole discretion.
2. INTEREST. During the existence of any Event of Default (as defined in
Section 13) under this Note, the unpaid principal of this Note shall bear
interest on each day until paid at a per annum rate of the WSJ Prime Rate PLUS
2%, but only to the extent that payment of such interest on such principal or
interest is enforceable under applicable law. The "WSJ Prime Rate" is the
highest "Prime Rate" as published daily in THE WALL STREET JOURNAL under the
heading "Money Rates." The WSJ Prime Rate in effect at any time will change each
time and as of the date that a new Prime Rate is published. In the event the WSJ
Prime Rate is discontinued, Holder shall substitute an index determined by the
Holder to be comparable, in its reasonable discretion.
3. PAYMENT; MATURITY DATE. Unless converted as provided herein, the
principal and accrued interest under this Note shall be due and payable in full
on September 30, 2001 (the "MATURITY DATE"). Principal and interest shall be
payable to Holder when due in lawful money of the United States of America in
immediately available funds at such place as Holder may from
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time to time notify the Maker in writing. The Maker may not prepay this Note, in
whole or in part, at any time without the prior written consent of the Holder,
such consent to be given or withheld in its sole discretion.
4. USE OF PROCEEDS. This Note evidences the accounts payable of Maker,
due and owing to Holder at the date hereof as set forth on EXHIBIT "A" attached
hereto.
5. APPLICATION OF PAYMENTS. All payments received hereunder may be
applied, at Holder's option, first to the payment of any expenses or charges
payable hereunder and accrued interest, with the balance being applied to
principal, or in such other order as Holder shall determine.
6. CONVERSION.
(a) OPTIONAL CONVERSION. Subject to and in compliance with the
provisions of this SECTION 6, the entire outstanding principal amount of this
Note, may, at the option of Holder, by notice given to the Maker (a "CONVERSION
NOTICE") at any time commencing on the date hereof and ending sixty days after
the Maturity Date (the "CONVERSION PERIOD"), be converted into the number of
validly issued, fully-paid and nonassessable shares of common stock, par value
$.001 per share, of the Company (the "STOCK") equal to (i) the outstanding
principal amount of the Note DIVIDED BY (ii) $1.00 (the "CONVERSION PRICE").
Shares of Stock issued upon conversion of this Note or of any note issued in
exchange for or upon the transfer of this Note are referred to herein as
"CONVERSION SHARES."
(b) MECHANICS OF CONVERSION. If the Holder exercises its right to
convert this Note, the entire principal balance shall automatically convert into
Conversion Shares at the date of the Conversion Notice ("CONVERSION DATE"). As
promptly as practicable after the Conversion Date, but in no event later than
within 5 days after the Company's receipt of the Conversion Notice, the Maker
shall issue and shall cause its transfer agent to issue and deliver to the
Holder a certificate or certificates for the number of whole shares of Stock
issuable upon the conversion of this Note in the name of the Holder hereof. The
conversion shall be deemed to have been effected immediately prior to the close
of business on the Conversion Date, and at such time the rights of the Holder as
holder of this Note as to the principal balance so converted shall cease, and
the Holder shall be deemed to have become the holder of record of the shares of
Stock so issued.
(c) ADJUSTMENT FOR REORGANIZATION. CONSOLIDATION. MERGER. ETC. In
case at any time or from time to time, the Maker shall effect a reorganization,
consolidate with or merge into any other person, or transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Maker, then, in each such
case, Holder, on the conversion hereof as provided in this Section 6 at any time
after the consummation of such reorganization, consolidation or merger or the
effective date of such dissolution, as the case may be, shall receive, in lieu
of the Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which Holder would have been entitled upon such consummation or in connection
with such dissolution, as the case may be, if Holder had so converted this Note,
immediately prior thereto.
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(i) DISSOLUTION. In the event of any dissolution of the
Maker following the transfer of all or substantially all of its
properties or assets, the Maker, if this Note has not been paid in
full prior to such dissolution and if this Note is thereafter
converted, shall at its expense deliver or cause to be delivered the
stock and other securities and property (including cash) receivable by
the holder of this Note after the effective date of such dissolution.
(ii) CONTINUATION OF TERMS. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any
transfer) referred to in this Section 6, this Note shall continue in
full force and effect and the terms hereof shall be applicable to the
shares of stock and other securities and property receivable on the
conversion of this Note after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following
any such transfer, as the case may be, and shall be binding upon the
issuer of any such stock or other securities, including, in the case
of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Maker, whether or not such person
shall have expressly assumed the terms of this Note.
(d) NO FRACTIONAL SHARES. No fractional shares of Stock or scrip
representing fractional shares shall be issued upon the conversion of this Note.
Instead of any fractional shares of Stock which would otherwise be issuable upon
conversion of this Note, the Maker shall pay to the holder of this Note an
appropriate cash adjustment in respect of any fractional shares.
(e) RESERVATION OF STOCK. The Maker shall at all times reserve
and keep available out of its authorized but unissued shares of Stock, solely
for the purpose of effecting the conversion of this Note, such number of its
shares of Stock as shall from time to time be sufficient to effect the
conversion of this Note, and if at any time the number of authorized but
unissued shares of Stock shall not be sufficient to effect the conversion of
this Note, the Maker shall take such corporate action as may be necessary to
increase its authorized but unissued shares of Stock to such number of shares as
shall be sufficient for such purpose.
(f) TRANSFER RESTRICTION: LEGEND. Each share certificate
evidencing the shares of Stock issued as Conversion Shares may bear the
following legend (and any additional legend required by (i) any applicable state
securities laws and (ii) any securities exchange upon which such shares may, at
the time of such exercise, be listed) on the face thereof unless at the time of
exercise such shares shall be registered under the Securities Act (as defined in
Section 9):
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or any state securities
laws, and may not be sold or transferred in the absence of such
registration or any exemption therefrom under said Act and state
securities laws."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued under a
registration statement of the securities represented thereby) shall also bear
such legend unless the Company receives an opinion of
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counsel for the holder thereof to the effect that the securities represented
thereby are not, at such time, required by law to bear such legend.
(g) ADJUSTMENT UPON CHANGES IN STOCK. The Conversion Price and
the number of shares of Stock issuable hereunder are subject to adjustment from
time to time as follows:
(i) STOCK ISSUANCE. STOCK DIVIDEND. STOCK SPLIT OR
SUBDIVISION OF SHARES. If the number of shares of Stock outstanding at any
time after the date hereof is increased by the issuance of Stock, or
securities convertible into stock, for a consideration per share of Stock
of less than $1.00 per share, or as a result of a stock dividend payable in
shares of Stock, or by a subdivision or split-up of shares of Stock, then,
upon issuance of such Stock or other securities convertible into Stock or
following the record date fixed for the determination of holders of Stock
entitled to receive such stock dividend, subdivision or split-up, as the
case may be, the Conversion Price shall be appropriately decreased and the
number of shares of Stock issuable upon conversion of this Note shall be
appropriately increased in proportion to such increase in outstanding
shares. No adjustment shall be made as a result of the issuance of shares
of Stock pursuant to existing stock option plans of the Company in an
amount up to the maximum number of shares of Stock approved for issuance
under such plans at the date hereof.
(ii) COMBINATION OF SHARES. If, at any time after the date
hereof, the number of shares of Stock outstanding is decreased by a
combination of the outstanding shares of Stock, then, following the record
date for such combination, the Conversion Price shall be appropriately
increased and the number of shares of Stock issuable upon conversion of
this Note shall be appropriately decreased in proportion to such decrease
in outstanding shares.
7. THE COMPANY'S REPRESENTATIONS. The Company represents and warrants to
the Holder that:
(a) the Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly qualified
to do business and is in good standing in each other jurisdiction where the
conduct of its business or the ownership of its properties require such
qualification and where failure to be so qualified would have a material adverse
effect on the Company. The Company has full corporate power and authority and is
entitled to own or lease its properties and carry on its business as and in all
places where such business is conducted and such properties are owned or leased;
(b) as of the date hereof and before giving effect to this Note, the
Company's total authorized Stock and total issued and outstanding shares of
Stock are as set forth in EXHIBIT B. Except as set forth in EXHIBIT B, there are
no options, warrants or rights to acquire shares or other securities of the
Company authorized, issued or outstanding, nor is the Company obligated in any
other manner to issue shares or other securities. All shares and other
securities of the Company presently issued and outstanding are duly authorized,
validly issued, fully paid and nonassessable and were authorized, offered,
issued and sold without violating the terms of any
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applicable preemptive or similar statutory or contractual rights to which the
Company is a party or that is otherwise binding upon the Company. Neither the
execution and delivery of this Note nor conversion and issuance of the
Conversion Shares, if and when issued, does or will violate the terms of any
applicable preemptive or similar statutory or contractual rights to which the
Company is party or that is otherwise binding upon the Company. Except as set
forth in the Company's certificate of incorporation, as amended, and bylaws, as
amended, there are no restrictions on the transfer of shares of stock or other
securities of the Company other than those imposed by relevant federal and state
securities laws or Nasdaq stock market rules;
(c) the Company has the full corporate power and authority to
execute, deliver and perform this Note (and to borrow hereunder), and that
certain Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT")
dated as of the date hereof. The Company has taken all necessary and appropriate
corporate action to authorize the execution, delivery and performance of this
Note and the Registration Rights Agreement, each of which has been duly and
validly executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company, enforceable in accordance with their
respective terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
by general equitable principles;
(d) the execution, delivery and performance by the Company of
this Note and the Registration Rights Agreement do not and will not violate any
provision of any applicable law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect and known to the
Company, or result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other material agreement, lease or instrument to
which the Company is a party or by which its properties may be bound or affected
(each such indenture, agreement, lease or instrument, a "MATERIAL AGREEMENT");
(e) there is no fact peculiar to the Company which materially
adversely affects (or is reasonably likely to materially adversely affect) the
business, property or assets, or financial condition of the Company which has
not been disclosed to Holder in writing by or on behalf of the Company prior to
the date hereof in connection with the transactions contemplated hereby or by
the Registration Rights Agreement;
(f) there are no legal proceedings pending or to the Company's
knowledge threatened, against, by or affecting the Company before any court or
administrative agency which, if adversely determined, could materially adversely
affect (or is reasonably likely to materially adversely affect) the business,
assets, liabilities, financial condition or results of operations of the
Company, the rights or remedies of Holder under, or the legality, validity or
enforceability of, this Note and the Registration Rights Agreement;
(g) the Company has taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination or
other similar anti-takeover provision under the certificate of incorporation or
bylaws of the Company which is or could become applicable to the Holder or the
issuance of this Note or the Conversion Shares. None of the transactions
contemplated by this Note or the Registration Rights Agreement, including the
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conversion of the Note into shares of Stock, will trigger any poison pill
provisions of any of the Company's stockholders' rights or similar agreements;
(h) the Company has delivered to the Holder copies of its
audited financial statements as of December 31, 1999 and its unaudited financial
statements as of June 30, 2000 included in its most current Form 10-K and Form
10-Q, respectively. (the "Financial Statements"). The Financial Statements are
true, complete and correct and have been prepared in accordance with generally
accepted accounting principles, consistently applied; and
(i) the Company is not engaged principally, or as one of its
important activities, in the business of purchasing or carrying any "margin
stock", as that term is defined in Section 221.2(h) of Regulation U of the Board
of Governors of the Federal Reserve System, and no part of the indebtedness
evidenced by this Note will be or has been used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock, or be used for any purpose which violates, or
which is inconsistent with, the provisions of Regulation X of said Board of
Governors.
8. COVENANTS. For so long as any present or future debts, liabilities and
obligations of the Company owing to the Holder (including its successors and
assigns) arising under or in connection with this Note (collectively,
"Obligations") remain outstanding, which Obligations are binding on all of the
Company's successors and assigns, the Company covenants and agrees that:
(a) the Company shall not (i) liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution); or (ii) convey, sell, transfer or
otherwise encumber or dispose of in one transaction or a series of transactions,
all or substantially all of its business or assets;
(b) the Company shall not permit to exist or enter into any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any affiliate of the Company or with any
director, officer or employee of the Company, (i) except for salaries and other
remuneration paid to employees in the ordinary course of business at levels
consistent with past practices (subject to annual increases in compensation
consistent with past practices); (ii) reimbursement of reasonable bona fide
business expenses incurred in the conduct of the Company's business in the
ordinary course consistent with its past practices; or (iii) as approved by the
Board of Directors of the Company by vote of disinterested directors;
(c) as long as Holder holds this Note or owns the Conversion Shares,
the Company will cause the Stock to continue at all times to be registered under
Section 12 of the Securities and Exchange Act of 1934 ("Exchange Act") or
subject to Section 15(d) of the Exchange Act, will timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to
Section 13, 14 or 15(d) of the Exchange Act and will not take any action or file
any document (whether or not permitted by the Exchange Act or the rules
thereunder) to terminate or suspend such reporting and filing obligations. As
long as Holder holds this Note or owns the Conversion Shares, if the Company is
not required to file reports pursuant to Section 13(a) or 15(d) of the Exchange
Act, it will prepare and furnish to the Holder and make publicly available
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in accordance with Rule 144(c) promulgated under the Securities Act annual and
quarterly financial statements, together with a discussion and analysis of such
financial statements in form and substance substantially similar to those that
would otherwise be required to be included in reports required by Section 13(a)
or 15(d) of the Exchange Act, as well as any other information required thereby,
in the time period that such filings would have been required to have been made
under the Exchange Act. The Company further covenants that it will take such
further action as the Holder may reasonably request, all to the extent required
from time to time to enable the Holder to sell the Conversion Shares without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 promulgated under the Securities Act. Upon the request of
Holder, the Company shall deliver to Holder a written certification of a duly
authorized officer as to whether it has complied with such requirements.
(d) the Company shall not sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the issuance of this Note
or the Conversion Shares in a manner that would require the registration under
the Securities Act of the issuance of this Note to Holder or the sale of the
Conversion Shares to Holder, or to issue securities in such circumstances that
is likely to result in such offering being integrated with the issuance of this
Note to Holder or the sale of the Conversion Shares in such manner that
stockholder approval would be required pursuant to any stockholder approval
provision applicable to the Company or its securities.
(e) (1) the Company shall (i) not later than twenty (20) business
days after the date hereof, prepare and file with Nasdaq (as well as any other
national securities exchange or market on which the Stock is then listed)
additional shares listing applications or letters acceptable to Nasdaq covering
and listing a number of shares of Stock which is at least equal to 100% the
maximum number of Conversion Shares then issuable, assuming that the payment of
all future dividends on such shares then outstanding were made in shares of
Stock, (ii) take all steps necessary to cause the Conversion Shares to be
approved for listing on Nasdaq (as well as on any other national securities
exchange or market on which the Stock is then listed) as soon as possible
thereafter, (iii) maintain, so long as any other shares of Stock shall be so
listed, such listing of all Conversion Shares, and (iv) provide to Holder
evidence of such listing. The Company shall promptly provide to Holder copies of
any notices it receives from Nasdaq regarding the continued eligibility of the
Stock for listing on such automated quotation system. The Company shall pay all
fees and expenses in connection with satisfying its obligations under this
subsection (e)(l).
(2) the Company at all times shall reserve a sufficient number
of shares of its authorized but unissued Stock to provide for the full
conversion of this Note into Stock. If at any time the number of shares of Stock
authorized and reserved for issuance is insufficient to cover 100% of the number
of Conversion Shares issuable upon conversion of this Note (based on the
Conversion Price in effect from time to time) without regard to any limitation
on conversions or exercises, the Company will promptly take all corporate action
necessary to authorize and reserve 100% of such required shares of Stock,
including, without limitation, calling a special meeting of stockholders to
authorize additional shares to meet the Company's obligations under this
subsection (e)(2), in the case of an insufficient number of authorized
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shares, and using best efforts to obtain stockholder approval of an increase in
such authorized number of shares.
9. HOLDER'S REPRESENTATIONS. By its acceptance of this Note, the Holder
hereby acknowledges and represents and warrants to the Maker that:
(a) Holder is experienced in evaluating and investing in companies
such as the Company, and is an "accredited investor" (as such term is defined in
Section 2(15) of the Securities Act of 1933 (the "SECURITIES ACT");
(b) Holder is acquiring the Note for investment for Holder's own
account and not with a view to, or for resale in connection with, any
distribution thereof. Holder understands that the Note has not been registered
under the Securities Act by reason of an exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of Holder's investment intent; and
(c) The Note must be held indefinitely unless it is subsequently
registered under the Securities Act or an exemption from such registration is
available.
10. FINANCIAL INFORMATION. The Maker will from time to time deliver to the
Holder such information respecting the condition or operations, financial or
otherwise, or property of the Maker and its subsidiaries as the Holder may
reasonably request, including, without limitation all public filings made with
the Securities and Exchange Commission.
11. EXPENSES. Maker herewith agrees to pay, on demand, all costs and
expenses of collection of this Note or of any endorsement or guaranty hereof
and/or the enforcement of Holder's rights with respect to this Note, including,
without limitation, reasonable attorneys fees actually incurred by Holder if
this Note is collected by an attorney-at-law.
12. HOLDER. The term "Holder" as used in this Note shall include Holder's
successors, endorsees and assigns.
13. EVENTS OF DEFAULT.
(a) The occurrence of any one or more of the following events will
constitute a default by the Maker hereunder (each, an "Event of Default"): (i)
the Maker fails to pay when due any amount payable under this Note and Holder
does not deliver a Conversion Notice within the Conversion Period; (ii) Maker
fails to perform or breaches a covenant or agreement in this Note or in the
Registration Rights Agreement, or the Maker takes or omits to take any action
that if taken or not taken by the Maker would constitute a breach of any such
covenant or agreement and Maker fails to cure such breach or omission within
thirty days after written notice from Holder; (iii) any statement,
representation, or warranty made by the Maker or on its behalf in connection
with this Note or in the Registration Rights Agreement proves to have been
untrue, incorrect, misleading or incomplete in any material respect as of the
date made; (iv) the Maker is in default under any other agreement with the
Holder (or any of its affiliates) or under any other instrument executed by the
Maker in favor of the Holder (or any of its affiliates); (v) the Maker
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shall fail to pay when due any other indebtedness for borrowed money owed by it
to any person in an amount in excess of $1,000,000 and such default shall
continue beyond any applicable grace period and is not otherwise waived by such
person; (vi) the Maker becomes insolvent as defined in the Uniform Commercial
Code or any similar law in its jurisdiction of incorporation or makes an
assignment for the benefit of creditors, or an action is brought by the Maker
seeking its dissolution or liquidation of its assets or seeking the appointment
of a trustee, interim trustee, receiver or other custodian for any of its
property, or the Maker commences a voluntary case under the U.S. Federal
Bankruptcy Code or any similar law in any relevant jurisdiction, or a
reorganization or arrangement proceeding is instituted by the Maker for the
settlement, readjustment, composition or extension of any of its debts upon any
terms, or an action or petition is otherwise brought by the Maker seeking
similar relief or alleging that it is insolvent or unable to pay its debts as
they mature; (vii) an action is brought against the Maker seeking its
dissolution or liquidation of any of its assets or seeking the appointment of a
trustee, interim trustee, receiver or other custodian for any of its property,
and such action is consented to or acquiesced in by the Maker or is not
dismissed within sixty (60) days of the date upon which it was instituted, or a
proceeding under the U.S. Federal Bankruptcy Code or any similar law in any
relevant jurisdiction is instituted against the Maker and an order for relief is
entered in such proceeding or such proceeding is consented to or acquiesced in
by it or is not dismissed within sixty (60) days of the date upon which it was
instituted, or a reorganization or arrangement proceeding is instituted against
the Maker for the settlement, readjustment, composition or extension of any of
its debts upon any terms and such proceeding is consented to or acquiesced in by
it or is not dismissed within sixty (60) days of the date upon which it was
instituted, or an action or petition is otherwise brought against the Maker
seeking similar relief or alleging that it is insolvent, unable to pay its debts
as they mature or generally not paying its debts as they become due and such
action or petition is consented to or acquiesced in by it or is not dismissed
within sixty (60) days of the date upon which it was brought; or (viii)
dissolution of or liquidation of the Maker.
(b) Subject to Section 6, upon the occurrence of an Event of Default,
Holder, at its option, without demand or notice of any kind, may declare this
Note immediately due and payable, whereupon the Maturity Date hereunder shall be
the date of such declaration and all outstanding principal and accrued interest
shall become immediately due and payable; provided, however, that upon the
occurrence of any Event of Default described in clause (vi) or (vii) above, this
Note, without demand, notice or declaration by the Holder of any kind, shall
automatically and immediately become due and payable.
(c) Upon the occurrence of an Event of Default hereunder, the Holder,
without notice or demand of any kind, may hold and set off against any or all
outstanding principal or interest owing under this Note as the Holder may elect,
any balance or amount to the credit of the Maker in any deposit, agency,
reserve, holdback or other account of any nature whatsoever maintained by or on
behalf of the Maker with the Holder or any of its affiliates at any of its
offices, regardless of whether such accounts are general or special and
regardless of whether such accounts are individual or joint.
14. USURY. In no event shall the amount or rate of interest due and
payable under this Note exceed the maximum amount or rate of interest allowed by
applicable law and, in the event
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any such excess payment is made by the Maker or received by the Holder, such
excess sum shall be credited as a payment of principal (or if no principal shall
remain outstanding, shall be refunded to the Maker). It is the express intent
hereof that the Maker not pay and the Holder not receive, directly or indirectly
or in any manner, interest in excess of that which may be lawfully paid under
applicable law. All interest (including all charges, fees or other amounts
deemed to be interest) which is paid or charged under this Note shall, to the
maximum extent permitted by applicable law, be amortized, allocated and spread
on a pro rata basis throughout the actual term of this Note.
15. TIME OF THE ESSENCE. Time is of the essence with respect to the
obligations of the Maker evidenced hereby. Demand, presentment, notice, notice
of demand, notice for payment, protest and notice of dishonor are hereby waived
by the Maker. The Holder shall not be deemed to waive any of its rights under
this Note unless such waiver be in writing and signed by the Holder. No delay or
omission by the Holder in exercising any of its rights under this Note shall
operate as a waiver of such rights and a waiver in writing on one occasion shall
not be construed as a consent to or a waiver of any right or remedy on any
future occasion.
16. CHOICE OF LAW. This Note shall be governed by and construed under the
internal laws of the State of Alabama without giving effect to conflicts of
laws. Whenever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
17. WAIVER OF JURY TRIAL
MAKER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT MAKER MAY HAVE UNDER ANY APPLICABLE LAW TO A TRIAL BY JURY WITH RESPECT TO
ANY SUIT OR LEGAL ACTION WHICH MAY BE COMMENCED BY OR AGAINST HOLDER CONCERNING
THE INTERPRETATION, CONSTRUCTION, VALIDITY, ENFORCEMENT OR PERFORMANCE OF THIS
NOTE OR ANY OTHER AGREEMENT OR INSTRUMENT EXECUTED IN CONNECTION HEREWITH,
INCLUDING THE REGISTRATION RIGHTS AGREEMENT. IN THE EVENT ANY SUCH SUIT OR LEGAL
ACTION IS COMMENCED BY HOLDER, MAKER HEREBY EXPRESSLY AGREES, CONSENTS AND
SUBMITS TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN
THE COUNTY IN WHICH HOLDER'S ADDRESS SHOWN BELOW IS LOCATED WITH RESPECT TO SUCH
SUIT OR LEGAL ACTION, AND MAKER ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND
AGREES THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND
COUNTY AND MAKER HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER
APPLICABLE LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE IN SAID
COURTS AND COUNTY. THE JURISDICTION AND VENUE OF THE COURTS CONSENTED AND
SUBMITTED TO AND AGREED UPON IN THIS PARAGRAPH ARE NOT EXCLUSIVE BUT ARE
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CUMULATIVE AND IN ADDITION TO THE JURISDICTION AND VENUE OF ANY OTHER COURT
UNDER ANY APPLICABLE LAW OR IN EQUITY.
18. NOTICES. All notices and other communications hereunder shall be in
writing and shall be delivered to Maker by overnight courier or mailed,
first-class postage prepaid, addressed to Maker at the address set forth beneath
Maker's signature below. Notice shall be effective upon the earlier of (I)
receipt or (ii) five days after mailing as provided above.
IN WITNESS WHEREOF, Maker has caused this Note to be executed and sealed by
its authorized officers on the date first above written.
NETWORK COMPUTING DEVICES, INC.
[CORPORATE SEAL] By: ________________________________
Rudolph G. Morin
President and Chief Executive Officer
Attest:
By:
Title:
Address for notices:
301 Ravendale Drive
Mountain View, California 94043-5207
Attn:
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