EXHIBIT 10.37
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT, dated and made effective this 15th day of October 2001, 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 Xxxxxxx X. Xxxxxxxx ("Recipient").
WHEREAS, Company is the owner of proprietary information hereinafter referred to
as "Confidential Information" as more fully defined below;
WHEREAS, it has been proposed that Recipient serve as a director of Company and
that in so doing will receive Confidential Information;
WHEREAS, Company is willing to disclose Confidential Information to Recipient
solely in connection with Recipient's duties as a director of Company; 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;
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:
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; or (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 confidential
obligation and Recipient provides Company written notice of such fact prior to
the execution of this Agreement or promptly upon Recipient's learning that the
information was Confidential Information. 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.
2. Non-Disclosure of Confidential Information. Recipient hereby agrees to
hold in strict confidence and trust all Confidential Information and agrees 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 (other than
Xxxxxxx
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Luskin as President of Intrinsic Value Asset Management, a significant
shareholder of the company), subsidiaries and business partners. Recipient
further agrees that it 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.
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 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 supply Company with a written confirmation that he has fulfilled
his obligations under this Section 3.
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.
5. Indemnification. Recipient hereby indemnifies and agrees to defend and
hold harmless Company, its shareholders, directors, officers, employees and
agents, from and against any damages, losses, costs and expenses (including,
without limitation, attorneys' fees) suffered by any such party, as a result of
a breach of this Agreement by Recipient or persons for whom Recipient is
responsible, or suffered as a result of the enforcement by Company of this
Agreement. If Company shall prevail in any action at law or in equity to enforce
the provisions of this Agreement, Recipient shall pay Company's costs and
expenses, including reasonable attorneys' fees, incurred by Company in enforcing
this Agreement.
6. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
October 15, 2001.
TCSI Corporation
By: /s/ Xxxxxxx X. Xxxxx, CFO
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(Name, Title)
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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