EXHIBIT 10.38
FORM OF NON-DISCLOSURE AGREEMENT
THIS AGREEMENT, dated and made effective this _____ day of _______, ______, is
made by and between TCSI Corporation, a Nevada Corporation ("Company"), with its
principal office located at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx
00000 and _______________ ("Recipient").
WHEREAS, Company is the owner of proprietary information hereinafter referred to
as "Confidential Information" as more fully defined below;
WHEREAS, the Recipient currently serves as a director of Company, or it has been
proposed that Recipient serve as a director of Company, and in so doing will
receive or create Confidential Information;
WHEREAS, Company is willing to disclose Confidential Information to Recipient
solely in connection with Recipient's duties as a director of Company (or as an
executive officer of Company or in any other authorized capacity, as
applicable); and
WHEREAS, Recipient is willing to receive such Confidential Information solely
for the purposes of fulfilling Recipient's fiduciary duties under the laws of
Nevada as director of Company (or as an executive officer of Company or in any
other authorized capacity, as applicable);
NOW, THEREFORE, the parties hereto do mutually agree that the above recitals are
incorporated into and made a part of this Agreement by reference and also agree,
intending to be legally bound, as follows:
Section 1. Confidential Information. For purposes of this Agreement, the
term "Confidential Information" means any information disclosed to Recipient,
whether orally, in writing, in any other medium, however documented (or not
documented), by or on behalf of Company, including, without limitation,
Company's actual and proposed business(es); historical and protected financial
information; budgets; services; products; trade secrets; techniques; processes;
operations; formulae; product specifications; know-how; processes; compositions;
inventions; discoveries; designs; sketches; drawings; samples; formats;
marketing and manufacturing plans and materials; analyses; strategies;
forecasts; research and development; concepts; ideas; names, addresses and any
other characteristics, identifying information or aspects of Company's existing
or potential customers, employees, vendors or suppliers; or any information
derived, summarized or extracted from any of the foregoing.
Confidential Information shall not include any information which (i) is or
becomes available to the public other than as a consequence of a breach by any
person of any fiduciary duty or obligation of confidentiality, including,
without limitation, catalogues, product descriptions and sales literature that
Company has distributed to the public generally; (ii) is disclosed as required
by a final, unappealable court order and no suitable protective order, or
equivalent remedy, is available; or (iii) Recipient was aware of prior to its
disclosure to Recipient by Company from a source not bound by a
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confidential obligation. Recipient hereby agrees that in the event an order by
any court or other governmental entity is issued requiring Recipient to turn
over any Confidential Information, Recipient shall give Company written notice
of such court order immediately upon knowledge thereof and shall cooperate with
any efforts of Company to protect the confidentiality of the information.
Section 2. Non-Disclosure of Confidential Information. Except in the course
of performing Recipient's duties as a director of the Company, or, if
applicable, as an executive officer of Company or in another authorized
capacity, Recipient hereby agrees to hold in strict confidence and trust all
Confidential Information and not to disclose or otherwise provide or transfer,
directly or indirectly, any Confidential Information or anything related to the
Confidential Information to third parties, including, but not limited to,
Recipient's affiliates, subsidiaries and business partners. Recipient further
agrees that he may use the Confidential Information only in connection with the
fulfillment of his fiduciary duties to Company under the laws of Nevada and not
for any other purpose or for the benefit of any third party.
Section 3. Return of Confidential Information. Recipient further agrees
that in the event of resignation or termination of Recipient's duties as
director of Company, Recipient will, promptly upon request by Company, return to
Company all written Confidential Information received by Recipient from or on
behalf of Company, including any and all copies or duplicates of such
Confidential Information, and all summaries or extracts thereof in any medium
prepared by or on behalf of Recipient. Recipient shall, upon the request of
Company, supply Company with a written confirmation that he has fulfilled his
obligations under this Section 3.
Section 4. Irreparable Harm. Recipient understands that in the event
Recipient fails to comply with this Agreement, Company may suffer irreparable
harm which may not be adequately compensated for by monetary damages alone.
Recipient, therefore, agrees that in the event of recipient breach or threatened
breach of this Agreement, Company will be entitled to injunctive and/or other
preliminary or equitable relief, in addition to any other remedies available at
law.
Section 5. Jurisdiction; Service of Process. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of California County of Alameda or, if it has or can acquire jurisdiction, in
the United States District Court for the Northern District of California and
each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to
in the preceding sentence may be served on any party anywhere. Recipient waives
any requirement that Company prove the economic value of any Confidential
Information or post a bond or other security in connection with the enforcement
of its rights hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
__________, 2001.
TCSI Corporation
By:
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(Name, Title)
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