CONFIDENTIALITY AGREEMENT

CONFIDENTIALITY AGREEMENT

 

 

THIS AGREEMENT is made this  14th   day of   March  , 2009, by and between Home Work, hereafter referred to as “HW” and Capital Gate Investment, hereafter referred to as “CGI”.

 

WHEREAS, “HW” and “CGI” have expressed an interest in discussing a possible transaction/ agreement with each other and, for the purpose of investigating a possible transaction/agreement, have requested both written and oral information, including without limitation, information concerning the business and financial affairs of “HW” and “CGI”;

 

WHEREAS, during said discussions and investigation “HW” and “CGI” will be in a position to be privy to confidential information as defined in Section 1, below;

 

WHEREAS, “HW” and “CGI” have been advised that the business of “HW” and “CGI” involves valuable, confidential and/or proprietary data and information of various kinds and that it would harm “HW” and/ or “CGI” if either “HW” or “CGI” used any such data of information in ways that adversely affect the interests of “HW” and “CGI”;

 

NOW THEREFORE, in consideration of the promises contained herein and other good and valuable consideration, the parties agree to the following;

 

1.                  The term “Confidential Information” as used in this agreement shall mean all information about “HW” and “CGI” clients, potential clients, products, processes, services and affairs disclosed to “HW” and “CGI” or known by it as a consequence of discussions with or investigation of “HW” and “CGI”.  Confidential Information includes, without limitation, the whole or any portion or phase of any scientific or technical data, design, process, procedure, method, formula, derivation, or improvement; and further includes any trade secrets, business plans, or financial information whether of a technical, operational, or economical nature and whether supplied to or obtained by “HW” or “CGI” in writing, drawings, orally, or by observation.

 

The term “Confidential Information” does not include information which;

 

(i)               is already in “HW” and “CGI” possession provided that such information is not known by “HW” or “CGI” to be subject to another confidentiality transaction/ agreement or other obligation of secrecy with “HW” and “CGI” or another party; or

 

(ii)             becomes generally available to the public other than as a result of a disclosure by “HW” and “CGI” or its directors, officers, employees, agents or advisors; or

 

(iii)           becomes available to “HW” and “CGI” on a non-confidential basis from a source other than from “HW” and “CGI” or its advisors, provided that such source is not known by “HW” and “CGI” to be bound by a confidentiality transaction/ agreement or other obligation of secrecy with the “HW” and “CGI” or another party.

 

The burden of proving that information is not Confidential Information rests with neither “HW” nor(?) “CGI”.

 

2.     “HW” and “CGI” hereby acknowledge “HW” and “CGI” title to and ownership of the Confidential Information and expressly covenants to maintain as confidential all of the Confidential Information(?); “HW” and “CGI” agree to treat all Confidential Information (whether prepared by “HW” and/ or “CGI”, its advisors or otherwise) which is furnished to it by or on behalf of “HW” and/ or “CGI” in accordance with the provisions of this agreement and to take or abstain from taking certain other actions set forth herein;

 

3.     “HW” and “CGI” agree that the Confidential Information will be used for the sole purpose of evaluating a possible transaction/agreement between “HW” and “CGI”, and that such information will be kept confidential by “HW” and “CGI” and its advisors, and that “HW” and “CGI” business and the business of any of its subsidiaries will be conducted as per prior to the disclosure of the Confidential Information provided that;

 

(i)             any such Confidential Information may be disclosed to “HW” and “CGI” directors, officers, and to employees of representatives of its advisors who need to know such information for the purpose of evaluating any possible transaction between “HW” and “CGI” (it being understood that such directors, officers, employees and representatives shall be informed by “HW” and “CGI” of the confidential nature of such Confidential Information and shall be directed by “HW” and “CGI” to treat such information confidentially); and

 

(ii)           no other disclosure of the Confidential Information will be made without the written consent of the “HW” and “CGI” unless such disclosure is required by law.

 

4.               “HW” and “CGI” agree that if the Confidential Information is to be disclosed to its advisors, “HW” and “CGI” will provide prior notice to the “HW” and/ or “CGI” of its intention HWCGIto do so and, where requested, will have such “HW” and “CGI” advisors execute a deed of covenant in which the advisors agree to follow the obligations contained in this confidentiality agreement.

 

In such form as “HW” and “CGI” may require, pursuant to which the advisors agree to observe the obligations contained in this agreement.

 

5.               If “HW” and “CGI” or any of its directors, officers, employees, or representatives of its advisors are required by law to disclose any Confidential Information, “HW” and “CGI” will immediately inform “HW” and/ or “CGI” of the requirement and will co-operate with “HW” and/ or “CGI” for the purpose of preserving, so far as is possible, the confidentiality of the Confidential Information.

 

6.               Without the prior written consent of “HW” and/ or “CGI”, “HW” and/ or “CGI” will direct its directors, officers, employees, partners, confidants, and representatives of its advisors not to disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between “HW” and “CGI” or any of the terms, conditions or facts with respect to any such possible transaction, including the status thereof.

 

7.               If “HW” and “CGI” become aware of a suspected or actual breach of any of the obligations within this agreement, “HW” and “CGI” will immediately inform each other of the breach and take all reasonable steps to prevent the suspected or actual breach.

 

8.               “HW” and “CGI” understand and acknowledge that “HW” and “CGI” and any associated persons has made or makes any representation or warranty as to the accuracy or completeness of the Confidential Information or any other information provided to “HW” and/ or “CGI” by “HW” and/ or “CGI”, or any of their associated persons.

 

“HW” and “CGI” agree that “HW” and/ or “CGI”, and any of their associated persons shall have any liability to “HW” and/ or “CGI” or any of its representatives or advisors resulting from the use of any Confidential Information used within the confines as outlined in this confidentiality agreement.

 

9.               “HW” and “CGI” agree that they will not initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer, director, employee, partner, confidant or agent of the “HW” and/ or “CGI” or its subsidiaries regarding their business, operations, prospects or finances except with the express permission of “HW” and/ or “CGI”.

 

 

10.           “HW” and “CGI” agree that unless and until a definitive agreement between “HW” and “CGI” with respect to any transaction/agreement, referred to in this document, has been executed and delivered, both “HW” and/ or “CGI” hereby acknowledge to work in good faith within the confines of this confidentiality agreement to come to an eventual definitive transaction/agreement.  For the purposes of this section, the term “definitive agreement” may include an executed letter of intent or any other preliminary written agreement.  Furthermore, it may include any written or verbal acceptance of an offer on either part.  “HW” and “CGI” further understand that;

 

(i)               “HW” and “CGI” shall be free to conduct any necessary processes and procedures for a possible transaction/agreement;

 

(ii)             any procedures relating to such transaction/agreement may be changed at any time without notice to “HW” and “CGI” or any other person; and

 

(iii)           “HW” may have a claim against “CGI”, if “CGI” or any of its directors, officers, employees, partners, confidants, and representatives of its advisors use the information given to “CGI” by “HW” for personal gain before a definitive agreement with “HW” and “CGI” in accordance with the terms is signed.

 

11.           Nothing in this agreement shall be understood as granting “HW” and “CGI”, expressly or by implication, any rights to or in any of the Confidential Information or under any of the “HW” and “CGI” patents or other intellectual property protections.  Moreover, nothing in this agreement shall be understood as an obligation on the part of the “HW” and “CGI” HWCGIand/or any of the associated persons to compensate “HW” and “CGI” for any reason whatsoever.

 

12.           This confidentiality agreement may only be modified or waived if agreed upon by both parties in writing.

 

13.           This agreement shall be governed by the laws of the Republic of Korea and the parties hereto irrevocably and unconditionally submit to the jurisdiction of the courts of the Republic of Korea with respect to any disputes, actions, suits or proceedings arising out of or relating to this agreement.

 

14.           The English Language text of this agreement shall prevail over any translation, in the event of any dispute.

 

15.           1.    Waiver by “HW” and “CGI” of breach of any provision of this agreement shall not operate or be construed as a waiver of any subsequent breach by “HW” and “CGI”.   No waiver shall be valid unless in writing and signed by an authorized officer of “HW” and “CGI”.

 

     2.    If any provision of the agreement is declared void, such provision shall be deemed severed from this agreement which shall otherwise remain in full force and effect.

 

    3.    This agreement contains the entire understanding of the parties regarding the sharing of Confidential Information as to its subject matter and merges all discussions regarding the subject matter.

 

    4.       In the case where “HW” and “CGI” decide not to proceed further for a transaction/agreement, “CGI” will return any and all copies of information, whether in document form (hard) or data form (soft, file), to “HW”.  VICE VERSA?

 

 

 

 

 

IN WITNESS WHEREOF, the authorized representatives of the parties have duly executed this agreement as of the day and year noted at the beginning of this confidentiality agreement.

 

 

By: HW

Name: Home Work

 

 

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By: Capital Gate Investment

Name:

Title:

 

 

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