Last Revised: January 24, 2022
This Non-Disclosure Agreement (the “Agreement”) is made you (“you”) for the benefit of 10 East and its affiliates (collectively, “10 East”), effective as of the earlier of the first date on which you provided your electronic consent to this Agreement (or to utilize the Platform, as defined below) and the date that you accessed any information on the Platform.
You have indicated that you wish to become a member of the Platform (as defined below) and/or consider participating in one or more possible transactions (each a “Transaction”) on or through the online platform hosted by 10 East (the “Platform”). In that connection, you will be receiving certain information regarding, among other things, potential investment opportunities, previous investment opportunities, investment and market research, and 10 East and the Platform generally (as further defined below, the “Confidential Material”) and, in consideration of which, you agree to treat such Confidential Material confidentially in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.
As used herein: “Confidential Material” refers to the any information furnished or made available to you by 10 East or the Platform (irrespective of the form of communication (whether oral, written or electronic) or whether such information is so furnished or made available before, on or after the date hereof) regarding, among other things, investment opportunities, previous investment opportunities, investment and market research, 10 East and the Platform generally, including with respect to companies and other entities in which investment vehicles sponsored by 10 East have invested, are invested or may invest (each, a “Company”), whether prepared by 10 East, a Company, a sponsor of a Company or otherwise, that is furnished to you by or on behalf of 10 East, the Platform, a Company, a Company sponsor, or any of their respective affiliates.
You will not use the Confidential Material in any way, directly or indirectly: (i) that is detrimental to the Platform or 10 East, its directors, members, officers, employees or any of their respective affiliates, or (ii) other than in connection with considering to participate or participating in one or more Transactions on or through the Platform.
You acknowledge that the 10 East and each Company considers the Confidential Material to include highly confidential, sensitive and proprietary information and agree that you will keep the Confidential Material strictly confidential (and protect such Confidential Material with at least the same degree of care that you use to protect your own confidential information, but in no case, less than reasonable care); provided, however, that (i) you may make any disclosure of such information to which 10 East gives its prior written consent, (ii) any of such information may be disclosed to your affiliates and your respective partners, directors, officers, employees, counsel, auditors and advisors (collectively, “Representatives”) solely for the purpose of providing advice and assistance to you in connection with your use of the Platform and/or the analysis of one or more Transactions or Companies and not for any other purpose whatsoever (it being understood that such Representatives shall be informed by you of the confidential nature of such information and shall be directed by you to treat such information in accordance with the terms of this Agreement) and (iii) you may make any disclosure of such information to the extent required by law, subpoena or other legal process or as otherwise requested by any applicable governmental agency, regulatory authority (including, any self-regulatory organization having or claiming to have jurisdiction) or any bank examiner; provided that if you disclose or intend to disclose any Confidential Material to a person pursuant to this clause (iii), then you will inform such person of the confidential nature of such information and, solely to the extent not prohibited by any law or legal process, shall provide reasonable prior notice to 10 East of such disclosure (and if such reasonable prior notification is prohibited by law or legal process, as soon as practicable following the time such notification is not so prohibited), and shall seek, or assist 10 East in seeking, to obtain confidential treatment of such Confidential Material by the persons to whom it is disclosed and shall take reasonable steps to preserve the strict confidentiality of the Confidential Material (including obtaining, or assisting 10 East in obtaining, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such information). You agree to be responsible for any breach of this Agreement that results from the actions or omissions of your Representatives (it being understood that such responsibility will be in addition to and not by way of limitation of any right or remedy 10 East may have against such Representative with respect to any such breach). If you or any Representatives are required to disclose any Confidential Material to a person pursuant to this paragraph, then you and such Representative(s) will not oppose any action (and will, if and to the extent requested by 10 East, cooperate with, 10 East, in any reasonable action) by 10 East to obtain an appropriate protective order or other reliable assurance that strict confidential treatment will be accorded the Confidential Material.
You will immediately notify 10 East in the event of any loss or unauthorized disclosure of any Confidential Material.
You will not reproduce, in any form, Confidential Material except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Material will remain the property of 10 East and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by 10 East.
You shall have no obligation hereunder with respect to any Confidential Material to the extent you can demonstrate with competent evidence that that such information (i) is or becomes publicly available other than as a result of a disclosure by you in violation of this Agreement and otherwise through no fault of yours, or (ii) was within your possession prior to its being furnished pursuant hereto or becomes available to you on a non-confidential basis from a source other than a Company or its Representatives, provided that the source of such information was not known by you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to 10 East, a Company, its sponsor, any affiliate thereof or any other party with respect to such information. Any references to confidentiality in this Agreement are not conditions of confidentiality as defined under the disclosure requirement regulations of Treasury Regulation §1.6011-4(b)(3).
Confidential Material is and will remain the sole property of the 10 East. You agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Material disclosed in connection with this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Material. You will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Material. You agree that no contract or agreement with respect to any Transaction(s) shall be deemed to exist unless and until appropriate definitive documentation has been executed and delivered. You also agree that unless and until such definitive agreement(s) regarding a Transaction have been executed and delivered, neither this Agreement nor the disclosure of any Confidential Material will result in any obligation on the part of 10 East to enter into any further agreement with you, license any products or services to you, or to require 10 East to disclose any particular Confidential Material, except for the matters specifically agreed to herein. Nothing in this Agreement creates or will be deemed to create any employment, joint venture, or agency between the parties.
Upon the termination of this Agreement and at any time 10 East or any 10 East Representative so requests or directs, you and your Representatives will promptly either return to 10 East or destroy all Confidential Material and all copies, extracts or other reproductions in whole or in part thereof, including Confidential Material stored digitally on electronic mail, computer files or similar storage devices, and, if requested by 10 East and applicable, you or a qualified officer of your firm overseeing such return or destruction process will execute a certification attesting to the completion of the return or destruction of such Confidential Material. Notwithstanding the foregoing, you (i) shall not be required to return any Confidential Material located on backup servers and similar devices; and (ii) may retain Confidential Material to the extent necessary to comply with legal and regulatory requirements to which you are subject (or pre-existing, bona fide written internal compliance policies and procedures); provided that in each case such Confidential Material shall continue to remain subject to all applicable obligations under this Agreement until returned or destroyed.
The Confidential Material has been prepared to assist interested parties in making their own evaluation of the Platform, the Companies, their sponsors, and the Transactions and does not purport to be all-inclusive or to contain all of the information that a prospective participant may consider material or desirable in making its decision to become a member of (or use) the Platform and/or engage in any Transaction. You should take such steps as you deem necessary to assure that you have the information you consider material or desirable in making your decision to become a member of or use the Platform and/or engage in a Transaction and should perform your own independent investigation and analysis of each Transaction, Company (and its sponsor(s)) and other applicable affiliates and counterparties. The information and data contained herein are not a substitute for your independent evaluation and analysis and is not, and should not be considered as, a recommendation by 10 East that you become a member of (and use) the Platform or enter into any Transaction(s). You understand and agree that neither 10 East nor its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Material. You also agree that neither 10 East nor any of the 10 East’s Representatives will have any liability to you or your Representatives relating to or resulting from the use of the Confidential Material or any errors therein or omissions therefrom. 10 EAST IS PROVIDING CONFIDENTIAL MATERIAL ON AN “AS IS” BASIS FOR USE BY YOU AT YOUR OWN RISK.
The Confidential Material is expected to include certain forward looking statements and projections provided by 10 East, Companies, sponsors of Companies and/or any of their respective affiliates. Any such statements and projections reflect various estimates and assumptions by 10 East and/or the applicable Company(ies), sponsor(s) or their affiliate(s) concerning anticipated results. No representations or warranties are made by 10 East, the Company(ies), its sponsor(s) or any of their respective affiliates as to the accuracy of any such statements or projections. Whether or not any such forward looking statements or projections are in fact achieved will depend upon future events some of which are not within the control of 10 East, the Company(ies), its sponsor(s) or their respective affiliates. Accordingly, actual results may vary from the projected results and such variations may be material.
You are aware of the restrictions imposed by the United States laws on the purchase or sale of securities by any person who has received material, non-public information (which may be included in Confidential Material) with respect to such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
You agree that money damages would not be a sufficient remedy for breach of this Agreement, and that in addition to all other remedies available at law or in equity, 10 East and its Representatives shall be entitled to equitable relief, including injunction and specific performance, without proof of actual damages. You will be responsible for 10 East’s and its Representatives’ costs and expenses of enforcement of this Agreement against you or any of your Representatives for breach of this Agreement.
For the 12-month period beginning on the last date that you receive Confidential Material with respect to any Company or Transaction, you agree not to directly or indirectly circumvent 10 East by directly or indirectly seeking to make an investment or engage in a transaction with such Company or participate in such Transaction otherwise than through 10 East.
This Agreement embodies the entire understanding and agreement between the parties with respect to the Confidential Material and supersedes all prior understandings and agreements relating thereto. With respect to Confidential Material regarding a specific Transaction, the terms and conditions of this Agreement shall be superseded by the terms of the definitive agreements in respect of a Transaction that may be entered into by the parties thereto relating to the confidentiality of the Confidential Material. If you do not enter into a Transaction contemplated by any Confidential Materials, the application of this Agreement shall terminate with respect to such Confidential Material on the date falling five years after the last date of your receipt of any such Confidential Materials.
You agree that no failure or delay by 10 East or its Representatives in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity will not be deemed to affect any other provision hereof or the validity of the remainder of this Agreement, and such invalid provision will be deemed deleted herefrom to the minimum extent necessary to cure such violation.
This Agreement and your obligations hereunder will be binding on your Representatives, assigns and successors and will inure to the benefit of the assigns and successors of such party, provided, however, that you may not assign or transfer any of its rights or obligations hereunder without the prior written consent of 10 East and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
You agree that the software programs and technology of 10 East, including without limitation, all technical aspects of the Platform, contain valuable confidential information and agree that you will not modify, reverse engineer, decompile, create other works from, or disassemble any such programs or technical aspects contained in the Confidential Material without the prior written consent of 10 East.
The parties hereby agree that this Agreement is for the benefit of 10 East, the 10 East Representatives and their respective partners, directors, members, directors, officers, employees, representatives and agents and their respective successors and assigns and will be governed by and construed in accordance with the law of the State of New York, without regard to principles of conflicts of law. Any and all disputes, claims, losses or controversies arising out of or relating to this Agreement (including any controversy or claim relating to the validity, scope or enforceability of this section) or its breach, enforcement, interpretation or validity, including the determination of the scope or applicability of this agreement to arbitrate, shall be confidentially submitted exclusively to JAMS for final and binding arbitration before a commercial panel of three neutral arbitrators (the “Arbitrators”) pursuant to the rules and procedures adopted by JAMS from time to time. All filing fees and costs of the arbitration, including payment for the Arbitrators, shall be borne by the party initiating the arbitration. Arbitration hearings shall be held in New York City, New York. Judgment on an award of the Arbitrators may be entered in any court of competent jurisdiction, and each party irrevocably submits to the jurisdiction of such court. All arbitration discussions, proceedings and awards (or mediated outcome) shall be confidential except as, and to the limited extent necessary and unavoidable, in connection with a motion to compel arbitration or to confirm, modify or vacate an award of the Arbitrators, in which event all documents and allegations shall be filed and asserted under seal. YOU HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVES ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT.
This Agreement may only be modified, or any rights under it waived, by the parties’ mutual written consent. For purposes of this section, however, you shall be deemed to consent to any amendment of this Agreement by not objecting in writing within 20 days to any amendment to the Agreement that 10 East provides to you by notice or posting to the Platform.
All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, electronic mail, or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices will be sent to you at the address provided by you to 10 East (including via the Platform), and to 10 East 53rd Street, 28th Floor, New York, NY 10022, in the case of 10 East.
AGREEMENT
The person providing their electronic consent through the Platform has executed and agreed to this Agreement effective as of the applicable date and year first referenced above. If an individual executed and agreed this Agreement on behalf of a corporation, partnership or other entity or organization, the individual person (“Authorized Representative”) expressly represents and warrants that he or she has authority to execute and thereby bind such corporation, partnership or other organization to the terms of this Agreement and agrees to indemnify and hold harmless 10 East in full from any claim that such authority did not exist.
Copyright 2025 Portage Technologies Inc. — All Rights Reserved
There can be no assurance that 10 East will be able to identify investments that are positioned to benefit from its investment approach or that the investments identified will be able to realize, in whole or in part, the opportunities identified in any investment approach. Investing in alternative investments, including through 10 East, is inherently risky and illiquid. It involves a high degree of risk (including of significant and/or complete loss) and is suitable only for sophisticated and qualified investors. There is no guarantee that you will be able to sell, transfer or otherwise exit your investments or that you can do so at a specific price. Any historical, projected or expected returns presented herein are not guaranteed and may not reflect actual performance. No offer or sale of any securities or other investment instrument(s) will occur without the delivery of offering and other definitive documentation, and nothing herein shall otherwise constitute an offer to sell or constitute a solicitation of an offer (or recommendation) to buy, sell or hold any security (or other financial instrument), make any investment, or adopt any investment strategy, or constitute investment, legal, tax, accounting, regulatory or financial advice. 10 East members must seek their own such, and other, professional advice. No sale will constitute a binding agreement unless and until such documentation is finalized and, where applicable, fully executed. 10 East Partners LLC is an SEC-registered investment adviser. Neither Portage Technologies Inc. nor 10 East is a registered broker-dealer.
Certain information herein contains “forward-looking” information under applicable laws and otherwise (“forward-looking statements”). Such forward-looking statements may include, without limitation, expectations, projections (including in each case with respect to investment performance and/or investment term(s)) and anticipated business developments, among others. Forward-looking statements are not guarantees of future activities, performance or otherwise and should not be relied on in any respect. Forward-looking statements are subject to numerous assumptions, risks and uncertainties, which change over time, and 10 East assumes no duty to and does not undertake to update forward-looking statements. Actual results could differ materially from those anticipated in forward-looking statements.
10 East employees, principals, directors, partners and/or advisors (including each of their respective affiliates) invest, if at all, in 10 East offerings in amounts to be determined by such investors at the time of the applicable commitment(s) or investment(s), and have done so, and may continue to do so, directly with the underlying investment sponsor, where applicable, or otherwise outside of the investing entities in which 10 East members will directly invest. In connection with such investments, such investors are not expected to pay management fees or carried interest to 10 East or its affiliates, or bear expenses charged at the level of the investing entities in which 10 East members will directly invest (or will pay reduced rates). To the extent such investors do invest in a 10 East offering via the 10 East investing entities in which 10 East members invest, such investors will not typically pay management fees or carried interest to 10 East or its affiliates.
Past performance is not indicative or a guarantee of future results