Each person (a “recipient”) accessing any information in this secure portal of the NGP Energy Capital Management, L.L.C. (together with its affiliates, “NGP”) website (the “Portal”), including, without limitation, all information in any electronic data room (“EDR”) that relates to a new investment fund that is being formed and offered by NGP (a “New Fund”), hereby indicates acknowledgement of, and agreement to comply with, the terms and conditions set forth below. If a recipient does not accept the terms and conditions set forth below, the recipient shall not use this Portal or access the documents and information in this Portal.
Notwithstanding the obligation of confidentiality set out above to the contrary, to comply with Treas. Reg. Section 1.6011-4(b)(3)(i), an investor in an NGP fund (and such investor’s employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment and tax structure of an investment fund in which it owns an interest or any transactions undertaken by such fund, it being understood and agreed, for this purpose, (i) the name of or contact information for, or any other identifying information regarding, such fund or any existing or future investor (or any employee or affiliate thereof) in such fund, or any investment or transaction entered into by such fund, (ii) any performance information relating to such fund or its investments, and (iii) any performance or other information relating to previous funds or investments sponsored by NGP does not constitute such tax treatment or tax structure information. As used in this paragraph, the term “tax treatment” refers to the purported or claimed U.S. federal income tax treatment and the term “tax structure” refers to any fact that may be relevant to understanding the purported or claimed U.S. federal income tax treatment. Nothing in this paragraph shall limit recipient’s ability to make any disclosure to its tax advisors or to the U.S. Internal Revenue Service or any other taxing authority.
All or any portion of the Portal may be changed at any time without notice to the recipient. NGP is not responsible for information on any third party website that is referred in, or accessible or connected by hyperlink to, the Portal. Hyperlinks to or from the Portal do not constitute third party endorsement of, sponsorship by, or affiliation with, NGP.
NGP disclaims all warranties with respect to the Portal that the law allows to disclaim. The Portal is provided “as is” and “as available.” To the maximum extent not prohibited by law, NGP disclaims all representations and warranties, expressed or implied, of any kind with respect to the Portal, including warranties of merchantability, fitness for a particular purpose and non-infringement of intellectual property and proprietary rights.
THE INFORMATION CONTAINED IN THIS PORTAL IS SUBJECT TO THE DISCLAIMERS, NOTES, AND QUALIFICATIONS SET FORTH HEREIN AND THE DISCLAIMERS, NOTES AND QUALIFICATIONS SET FORTH HEREIN ARE DEEMED TO BE INCORPORATED INTO EACH SUCH DOCUMENT CONTAINED IN THIS PORTAL.
The Information in any EDR for a New Fund does not purport to be all-inclusive or contain all of the information that recipient may need or desire to evaluate a potential investment in such New Fund and is not intended to be relied upon as the basis for an investment decision. The contents of the Information are not to be construed as legal, business, tax, investment, accounting or other advice. Prior to making any decision with respect to an investment in a New Fund recipient must carefully review such New Fund’s confidential private placement memorandum (as modified or supplemented from time to time, the “Memorandum”), limited partnership agreement (as modified or supplemented from time to time, the “LPA”) and subscription documents (the “Subscription Documents,” and together with the Memorandum and LPA, the “Definitive Documents”) and other similar disclosure documents for the New Fund, which describe certain risk factors, tax information and potential conflicts of interest that recipient should carefully consider, and recipient should conduct an independent analysis of the data, analysis and views presented in the Information. The Information contained in the EDR with respect to the New Fund is subject to and qualified in its entirety by reference to the Definitive Documents. Prior to the closing of a private offering of interests in a New Fund, recipient will have the opportunity to ask questions of NGP representatives and receive additional information concerning the terms and conditions of such offering and other relevant matters. Recipient should consult its own attorney, business advisor, and tax advisor as to legal, business, tax, investment, accounting, regulatory (including the U.S. Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder), financial and related matters concerning the Information and such offering and in order to make an independent determination of the suitability and consequences of a potential investment in the New Fund. None of the New Fund, NGP or any of their respective affiliates makes any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and each expressly disclaims any responsibility or liability therefor.
The distribution to recipient of the Information is made for informational purposes only and does not constitute an offer to sell or a solicitation of an offer to buy interests in the New Fund. Any such offer or solicitation will be made only pursuant to such New Fund’s Definitive Documents, and will be subject to the terms and conditions contained in the Definitive Documents, including, without limitation, the legends contained in the Memorandum. Interests in the New Fund: (i) have not been, and will not be, registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), the securities laws of any U.S. state or the securities laws of any other U.S. or non-U.S. jurisdiction, nor is such registration contemplated; (ii) will be offered and sold in the United States under the exemption provided by Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder and other exemptions of similar import in the laws of the states and jurisdictions where the offering will be made; and (iii) will be offered outside of the United States in reliance upon the exemption from registration provided by Regulation D or Regulation S promulgated under the Securities Act and other exemptions of similar import in the laws of the countries and jurisdictions where the offering will be made.
Date, Accuracy of Information, and No Reliance. The Information includes data and other information that has been obtained from published and non-published sources prepared by third-parties or has been obtained from companies in which investments have been made by entities affiliated with NGP. While such information is believed to be reliable for the purpose used herein, NGP has not independently verified such information and does not make any representation or warranty, express or implied, with respect to the accuracy or completeness of any of such information (including but not limited to economic, market or other information obtained from third parties), and NGP will not be liable with respect to use or reliance upon any of the Information in the evaluation of a potential investment with NGP. Except where otherwise indicated herein, the Information is based on matters as they exist as of the date of preparation and not as of any future date, and NGP assumes no obligation to update or otherwise revise the Information to reflect information that subsequently becomes available, or circumstances existing or changes occurring after the date hereof, and if NGP determines to update or revise such information, NGP has no obligation to notify anyone of such update or revision.
Forward-Looking Information; Performance; Targets and Projections. The Information includes “forward-looking statements”, which are not historical facts but rather statements based on current expectations, estimates, projections, forecasts, opinions and/or beliefs that can be identified by the use of terms such as “may”, “will”, “should”, “expect”, “anticipate”, “forecast”, “estimate”, “intend”, “continue”, “target” or “believe” (or the negatives thereof) or other variations thereon or comparable terminology. Such statements involve known and unknown risks, uncertainties and other factors, and no prospective investor should rely on such statements. Due to various risks and uncertainties, actual events or results or actual performance of the New Fund may differ materially from those reflected or contemplated in such forward-looking statements. In addition, no representation or warranty is made with respect to the reasonableness of any estimates, forecasts, illustrations, prospects or returns, which should be regarded as illustrative only, or that any profits will be realized. In no circumstances should any forward looking statements in the Information be regarded as a prediction that the New Fund will achieve or is likely to achieve any particular result, or that investors will be able to avoid losses, including a total loss of their investment. As a result, recipient should not rely on such forward-looking statements in making an investment decision. No representation or warranty is made as to future performance or such forward-looking statements. None of the Information has been filed with the U.S. Securities and Exchange Commission (“SEC”), any securities administrator under any securities laws of any U.S. or non-U.S. jurisdiction, or any other U.S. or non-U.S. governmental or self-regulatory authority. No such governmental or self-regulatory authority will pass on the merits of the offering of interests in the New Fund or the adequacy of the Information. Any representation to the contrary is unlawful.
Unless otherwise indicated, all internal rates of return (“IRR”) and returns on investment (“ROI”) of prior NGP funds and investments shown in the Information are presented on a “gross” basis (i.e., before management fees, fund-level expenses, carried interest and similar items);. for a description of such fees, carried interest, and expenses, please see – “Summary of Terms” of the private placement memorandum of the New Fund and Form ADV Part 2 maintained by NGP, a copy of which will be made available in the EDR to each investor prior to its admission to the New Fund. Information about NGP or any prior NGP fund, including past performance of such prior funds and investments, described in the Information is not necessarily indicative of future results and there can be no assurance that the New Fund will achieve comparable results or that the New Fund will be able to implement its investment strategy or achieve its investment objective. The Information may contain unrealized valuations of investments. The ultimate realized value of currently unrealized investments held by prior NGP funds, as described in the Information, will depend on, among other factors, future operating results, the value of the assets and market conditions at the time of disposition, any related transaction costs and the timing and manner of sale, and may be materially lower than the figures presented. There can be no assurance that any target rates of return will be achieved with respect to any or all investments. Sample portfolio investments held by prior NGP funds are presented for illustrative purposes only, have been selected in order to provide examples of the types of investments made by NGP and do not purport to be a complete list thereof. Further, references to specific investments should not be construed as a recommendation of any particular investment or security. Past deal flow of NGP is not necessarily indicative of future deal flow with respect to the New Fund.
Aggregate, composite or cumulative investment performance data herein represents aggregate data across prior NGP funds. However, NGP fund investments were made during different varying economic cycles and any such performance reflects neither a specific prior NGP fund nor a group of investments managed as a single portfolio. The actual return realized by any investor in a NGP fund will likely vary based on the timing of capital contributions and distributions and may differ materially from those reflected or contemplated in the composite data presented in this presentation. No individual investor has received the investment performance indicated by such composite performance data.
Projected performance is not necessarily indicative of future results, and there can be no assurance that the New Fund or the investments will achieve comparable results to those presented herein, that the New Fund will be able to implement its investment strategies or achieve its investment objectives or that the returns generated by any investments will equal or exceed any past or projected returns presented herein. Any estimated future returns set forth herein (the “Projections”) are hypothetical, have been prepared and are set out for illustrative purposes only, and do not constitute a forecast. They have been prepared based on NGP’s current view in relation to future events and various estimations and assumptions made by NGP or the applicable investments, including estimations and assumptions about events that have not yet occurred. Such estimations and assumptions may require modification as additional information becomes available and as economic and market developments warrant. Any such modification could be either favorable or adverse. While the Projections are based on assumptions that NGP believes are reasonable under the circumstances, they are subject to uncertainties, changes (including changes in economic, operational, political, legal, tax and other circumstances) and other risks, including, but not limited to, broad trends in business and finance, tax and other legislation affecting the New Fund, its investors, investments, monetary and fiscal policies, interest rates, inflation, market conditions, the level and volatility of trading markets, the availability and cost of short-term or long-term funding and capital, all of which are beyond NGP’s control and any of which may cause the relevant actual, financial and other results to be materially different from the results expressed or implied by such Projections. Industry experts may disagree with the estimations and assumptions used in preparing the Projections. No assurance, representation or warranty is made by any person that any of the Projections will be achieved, and no recipient of this Information should rely on the Projections. None of NGP, their affiliates or any of the respective directors, officers, employees, managers, members, partners, shareholders, advisers, representatives or agents of any of the foregoing makes any assurance, representation or warranty as to the accuracy of the Projections. Nothing contained herein may be relied upon as a guarantee, promise or forecast or a representation as to the future.
A broad range of risk factors could cause the New Fund to fail to meet its investment objectives, and there can be no assurance that the New Fund will achieve these objectives. Additionally, the Projections in many cases may not reflect the value obtainable in a sale of such investments under current market conditions. If the New Fund were to liquidate such investments under current market conditions, the values obtained may, with respect to certain investments, be materially lower than those indicated in the Projections, as the Projections generally assume the successful implementation of the New Fund’s business plans at the time of disposition, which may, among other factors, include an improvement in current market conditions.
Certain Estimates. Any projections/estimates regarding the number, size or type of investments that the New Fund may make (or similar estimates) are estimates based only on NGP’s intent as of the date of such statements and are subject to change due to market conditions and/or other factors.
Non-Public Information. The Information may contain material information about certain companies with publicly traded equity or debt securities, some of which information has not been made available to the investing public. In general, it is a violation of federal securities laws to buy or sell securities of such a company if one has knowledge of material information about the company that has not been publicly disclosed. Furthermore, it is also illegal to recommend trading to others or to pass information along to others who may trade. Violations may result in civil and criminal penalties, including fines and jail sentences. Accordingly, by accessing, or receiving a copy of, any of the Information, recipients acknowledge the foregoing and agree not to trade, or recommend that others trade, in the securities of any company described herein on the basis of the Information and further agree not to pass along any of the Information to others.
Portfolio Company Sales and EBITDA. Historical portfolio company sales and EBITDA figures presented in these materials may be reflected on a pro forma basis for material add-on acquisitions and divestitures, and other significant transactions (e.g., material sale-leaseback transactions, etc.), if applicable. Additionally, amounts contained in these materials are generally unaudited and may be flash or preliminary amounts reported by portfolio company management. Portfolio company EBITDA reported to NGP may be adjusted for purposes of determining the estimated fair value of such portfolio company in accordance with NGP’s valuation policy. Sales and EBITDA figures discussed in these materials with respect to portfolio investments pre-acquisition are believed to be from reliable sources, but NGP does not attest to their accuracy.
Financial Statements. The EDR may include financial statements (the “Financials”). Any such Financials are provided as a courtesy, as a sample of the financial information provided to current investors, and not for any other purpose. To the extent that such Financials contain references to the historical performance of any NGP fund or any investment thereof, investors must consider the Information therein only in the broader context of the Information prepared by NGP, and particularly subject to the gross and net performance data contained in this EDR.
Comparisons to Indices. Any references to a securities index or securities indices or other benchmark are made for comparison purposes only and an investment in a private investment fund (e.g., the New Fund) is unlike an investment in an index of securities or the aggregate funds constituting such benchmark. Such indices are shown for informational purposes only. The investment characteristics of such indices differ materially from the New Fund, and an investment in the New Fund is not comparable to an investment in such an index (or benchmark) or in the securities that compose the index (or benchmark). The risk/return profile in such indices or benchmarks are also typically materially different from that of any New Fund. Further, unless otherwise specified, such indices or benchmarks are not necessarily used or selected by NGP as an appropriate benchmark to compare relative to the performance of any NGP fund, but rather they are included herein solely because they are well known and widely recognized indices or benchmarks.
Placement Agent. For certain recipients, Information has been made available through a distribution by TCG Securities, L.L.C., the limited purpose broker/dealer affiliate of The Carlyle Group registered with the SEC and member of the Financial Industry Regulatory Authority (“FINRA”). Related financial products and services are only available to investors deemed to be “qualified purchasers” as defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended, and “accredited investors” as defined in Rule 501 of Regulation D of the Securities Act.
EACH RECIPIENT ACKNOWLEDGES AND AGREES THAT IT IS RECEIVING THIS INFORMATION ONLY FOR THE PURPOSES STATED ABOVE AND SUBJECT TO ALL APPLICABLE CONFIDENTIALITY OBLIGATIONS AS WELL AS THE UNITED STATES SECURITIES LAWS PROHIBITING ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION FROM PURCHASING OR SELLING SECURITIES OF THE APPLICABLE ISSUER OR FROM COMMUNICATING SUCH INFORMATION TO ANY OTHER PERSON UNDER CIRCUMSTANCES IN WHICH IT IS REASONABLY FORESEEABLE THAT SUCH PERSON IS LIKELY TO PURCHASE OR SELL SUCH SECURITIES.