AIR-4









EXHIBIT

10.75




 




NON-COMPETITION

AND CONFIDENTIALITY AGREEMENT




 




THIS AGREEMENT is made as of  March 22, 2002, among NETWORK COMPUTING DEVICES, INC.,

a Delaware Corporation (“NCD”) and NEOWARE SYSTEMS, INC., a Delaware

corporation (“Neoware”). As used in Sections 2 and 3 herein, the term “NCD”

includes, in addition to NCD, each Person (as defined in the Purchase

Agreement) 50% or more of the equity interests of which is beneficially owned

by NCD or that is otherwise controlled by NCD.




 




W I T N E S S E T H :




 




WHEREAS,

contemporaneously with the execution and delivery hereof, Neoware is acquiring

the goodwill and certain assets used or useful by NCD in designing, developing,

manufacturing, distributing and selling the Windows-based thin client devices

marketed under the ThinStar brand name (the “Product Line”), pursuant to an

Asset Purchase Agreement, dated as of March 22, 2002, to which Neoware and NCD

are parties (the “Purchase Agreement”); and




 




WHEREAS, execution

by NCD of this Agreement is a condition precedent to Neoware’s obligation to

perform under the Purchase Agreement; and




 




WHEREAS, by virtue

of the purchase of the Product Line, Neoware is and will be engaged throughout

the Area in the Thin Client Business which was, in part, formerly conducted by

NCD; and




 




WHEREAS,

competition by NCD with Neoware or disclosure by NCD, of certain confidential

and proprietary information of NCD will result directly in damage to Neoware

and its business, properties, assets, and goodwill and will cause the loss by

Neoware of the benefit of its bargain with NCD;




 




NOW, THEREFORE, in

consideration of the mutual covenants herein contained and for other good and

valuable consideration, the receipt and sufficiency of which are hereby

acknowledged, the parties, intending to be legally bound hereby, agree as

follows:




 




1.             Definitions.  The following terms shall have the

definitions set forth below:




 




(a)           “Affiliate” of a person shall mean

any Person that directly or indirectly controls, is controlled by, or is under

common control with, the indicated Person.




 




(b)           “Area” shall mean anywhere within any

state of the United States of America or any other country in which Neoware or

it Affiliates, directly or indirectly, at any time carries on or engages in the

Thin Client Business.




 




(c)           “Closing Date” shall mean the date of

this Agreement.




 





























 




(d)           “Confidential Information” shall mean

all of the following materials and information (whether or not reduced to

writing and whether or not patentable) pertaining to Product Line;




 




(1)           All items of information relating to

the Product Line that could be classified as a trade secret pursuant to law;




 




(2)           The names and addresses of the

customers of the Product Line and the nature and amount of business done with

such customers;




 




(3)           The names and addresses of employees,

with respect to the Product Line;




 




(4)           The discoveries, concepts and ideas,

whether patentable or not, related to the nature and results of research and

development activities, processes and techniques related to research and

development, designs, drawings and specifications of NCD relating to the

Product Line;




 




(5)           Source and object codes, flow charts,

algorithms, coding sheets, design concept and related documentation and manuals

of NCD which relate to the Product Line;




 




(7)           Production processes, marketing tech­niques,

purchasing information, price lists, pricing policies, quoting procedures,

financial information, customer names and requirements, customer data and other

materials or information relating to NCD’s manner of doing business with

respect to the Product Line, excluding customer names and requirements and

customer data relating to customers in Europe, the Middle East or Africa; and




 




(8)           Any other materials or information

related to the Product Line which are not generally known to others engaged in

similar business activities.




 




Neoware’s or NCD’s

failure to make and keep any of the foregoing confidential shall not affect its

status as part of the Confidential Information under the terms of this

Agreement.




 




(e)           “Thin Client Services” shall mean the

designing, developing, manufacturing, distributing and selling, directly or

indirectly, any thin client devices using embedded operating systems, browsers,

terminal emulators, or RDP or ICA protocols, or remotely displaying

applications from Unix, Windows or mainframe computers or from the Internet,

excluding NCD’s existing NC900 products, as described below (“Thin Client

Devices”).  As used in this Agreement,

NCD’s existing NC900 products shall consist of the NC900 X Window terminal

product line, which is based upon the QED RM5231 processor and supports the

X11R6 and ICA3 protocols, as it exists on the date of this Agreement.  NCD may replace end-of-life components of

the NC900 products, except for the processor itself, and perform minor bug

fixes thereto.




 




(g)           “ThinPath Products” shall mean those

products listed in Exhibit A to the ThinPath License and Distribution Agreement

between the parties, dated the date hereof, as well as enhancements to and

replacements thereof.




 




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(h)           “Thin Client Business” shall mean any

business, person or entity which is engaged in providing Thin Client Services.




 




2.             NCD covenants that it shall, for a

period of five (5) years from and after Closing Date, observe the following

separate and independent covenants:




 




(a)           Agreement Not to Compete.  Except as set forth in this Agreement, NCD

shall not, on its own behalf or in the service or on behalf of others

(i) provide Thin Client Services, except with respect to NCD activities

pursuant to the OEM Supply Agreement (as defined in the Purchase Agreement); or

(ii) use, or become financially interested in (other than as a holder of

less than five percent of the outstanding securities of any entity whose voting

securities are listed on a national securities exchange or on the Nasdaq Stock

Market), or render any services to as a consultant, partner or in any other

relationship whatsoever, any business, person or entity that uses NCD’s

ThinPath Products to support Thin Client Devices developed, designed,

manufactured, sold or distributed by the vendors who are direct competitors of

Neoware who are designated on Appendix A hereto or by such additional vendors

who are direct competitors of Neoware whose names may be added to Appendix A on

a quarterly basis during the five-year period upon the consent of the parties,

which consent shall not be unreasonably withheld. Notwithstanding the

foregoing, (i) the agreement not to compete set forth in this Section 2(a)

does not apply to the supply of TS500 and 332 units to be supplied to Neoware

under the OEM Supply Agreement, and (ii) in the event that NCD upgrades the ICA

client in its NC900 product, as it exists on the date of this Agreement, and

ships at least one such upgraded unit to one of its customers, NCD will pay to

Neoware $10 for each unit of NC900, whether or not containing the foregoing

upgrade, thereafter shipped by NCD to its customers worldwide, payment to be

made within sixty (60) days of the date of shipment.  NCD agrees that if it is obligated to make payments to Neoware

under clause (ii) herein, NCD shall maintain true and accurate records

containing the data reasonably required for verification of amounts to be paid,

and Neoware shall have the right, during normal business hours upon reasonable

prior notice to NCD, to inspect the relevant records of NCD to verify

compliance with the provisions of clause (ii) herein.




 




(b)           Agreement Not to Solicit Customers.  NCD shall not, either directly or

indirectly, on its own behalf or in the service or on behalf of others,

solicit, divert, or appropriate, or attempt to solicit, divert, or appropriate,

to any Thin Client Business, any person or entity whose account was sold or

serviced by or under the direction or supervision of NCD at any time prior to

the Closing Date.




 




(c)           Agreement Not to Solicit Employees.  NCD shall not, either directly or

indirectly, on its own behalf or in the service or on behalf of others,

solicit, divert or hire away, or attempt to solicit, divert, or hire away, to

any Thin Client Business, any person employed by Neoware, whether or not such

employee is a full-time employee or a temporary employee of Neoware and whether

or not such employment is pursuant to written agreement and whether or not such

employment is for a determined period or is at will.




 




(d)           Non-Interference with Third-Party

Relationships.  NCD shall not, in

addition to the covenants contained in Sections 2(a), (b) and (c),

intentionally interfere with, or intentionally 




 




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disrupt the relationship

between Neoware and any third party, including without limitation, any

customer, supplier, distributor or employee of Neoware.




 




3.             Ownership and Non-Disclosure and

Non-Use of Confidential Information. 

NCD acknowledges and agrees that all Confidential Information, and all

physical embodiments thereof, are confidential to and shall be and remain the

sole and exclusive property of Neoware, provided, however, that NCD shall

continue to jointly own, and have the right to use, such Confidential

Information solely for the purpose of manufacturing, selling and distributing

its existing NC900 products.  NCD agrees

that it will not (i) disclose or make available any Confidential Information to

any person or entity; or (ii) make or cause to be made, or permit, either on

its own behalf or in the service or on behalf of others, any use of such

Confidential Information.




 




4.             Acknowledgment.  NCD acknowledges that it has been for many

years, and that Neoware is now, engaged in the Thin Client Business throughout

the Area, that the within and foregoing covenants are made by it in consequence

of and as an inducement to Neoware to acquire the Product Line and to protect

and preserve to Neoware the benefit of its bargain in the acquisition of the

Product Line, including, particularly, the goodwill associated therewith; that

each of the above and foregoing covenants is reasonable and necessary to

protect and preserve the benefits of such purchase; and that irreparable loss

and injury would result should NCD breach any of the foregoing covenants.




 




5.             Severability.  Each of the covenants hereinabove contained

shall be deemed separate, severable, and independent covenants, and in the

event any covenant shall be declared invalid by any court of competent

jurisdiction, such invalidity shall not in any manner affect or impair the

validity or enforceability of any other part or provision of such covenant or

of any other covenant contained herein.




 




6.             Partial Enforcement.  If any of the covenants contained in Section

2, or any part thereof, is held to be unenforceable because of the duration of

such provision or the scope of the subject matter thereof or the area covered

thereby, the parties agree that the court making such determination shall have

the power to reduce the duration, scope and/or area of such provision and, in

its reduced form, said provision shall then be enforceable.




 




7.             Enforcement.  In addition to all other remedies provided

at law or in equity, Neoware shall be entitled to both preliminary and

permanent injunctions against NCD to prevent a breach or contemplated or

threatened breach by NCD of any of the foregoing covenants, without the

necessity of proving actual damages; and the existence of any claim, demand,

cause of action, or action of NCD against Neoware, whether predicated upon this

Agreement or otherwise, shall not constitute a defense to the enforcement by

Neoware of any such covenants.  In the

event of an actual breach of any of the foregoing covenants, Neoware shall have

the right to recover damages for all losses, actual and contingent.  In the event of an actual breach of any of

the foregoing covenants, Neoware shall have the right to recover damages for

all losses, actual and contingent, and the right to require NCD to account for

and pay over to Neoware all profits or other benefits (collectively “Benefits”)

derived or received by NCD as a result of any transactions constituting such

breach, and NCD hereby agrees to account for and pay over such Benefits to Neoware.  Each of the rights and remedies enumerated




 




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above shall be

independent of the other, and shall be severally enforceable, and all of such

rights and remedies shall be in addition to, and not in lieu of, any other

rights and remedies available to Neoware at law or equity.




 




8.             Governing Law.  This Agreement shall be governed by and

construed in accordance with the laws of the Commonwealth of Pennsylvania.




 




9.             Counterparts.  This Agreement may be executed and delivered

in any number of counterparts, each of which, when executed and delivered,

shall be an original, but all of which shall together constitute one and the

same agreement.




 




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IN WITNESS WHEREOF,

the undersigned have caused this Agreement to be duly executed as of the date

first above written.




 




 




	

   


  	

   


  	

  NETWORK COMPUTING DEVICES, INC.


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ Guenther Pfaff


  
	

   


  	

   


  	

  Name:


  	

  Guenther Pfaff


  
	

   


  	

   


  	

  Title:


  	

  Chief Executive Officer


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  NEOWARE SYSTEMS, INC.


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ Michael Kantrowitz


  
	

   


  	

   


  	

  Name:


  	

  Michael Kantrowitz


  
	

   


  	

   


  	

  Title:


  	

  Chief Executive Officer


  
								





 




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Appendix A




Direct

Competitors of Neoware




 




 




Wyse Technology




 




Vendors who sell any products produced by Wyse Technology under OEM

labels, such as Compaq Computer Corporation




 




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