Exhibit 99.3
[New Mountain Capital LLC Letterhead]
October 18, 2006
Xx. X. Xxx Xxxxxx III
000 Xxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Dear Fox,
This letter amends and restates the letter between the parties, dated July
13, 2006. In connection with your services to New Mountain Capital, LLC
("NMC"), the parties agree as follows:
Services and Arrangement
1. You agree to advise and assist NMC and New Mountain Vantage,
L.P. (together with its related funds, "Vantage"), with respect to
their investment in National Fuel Gas Company (the "Company").
2. NMC will refer to you as a Senior Advisor to NMC.
3. You are being retained as an independent contractor to NMC
and you are not authorized to bind NMC in any way.
Compensation
4. NMC will pay you a total of $50,000 for the duration of this
agreement. Payments will be made in 12 equal monthly installments on
the 15th day of each month, unless such day is a weekend or a national
holiday, in which case payment will be made on the business day
immediately preceding such day. No federal, state or local income
taxes will be withheld from these payments. NMC will provide you with
a 1099 form for the appropriate tax period. The first payment will be
made on August 15, 2006.
5. NMC will compensate you for your reasonable out-of-pocket expenses
incurred in performing your obligations hereunder in accordance with
NMC's expense reimbursement policies.
6. Unless otherwise agreed by NMC and you, NMC will pay to you, for
your contributions as a Senior Advisor, an annual success fee based
upon the performance of Vantage's investment in the Company (the
"Success Fee"). The Success Fee shall be equal to the product of (a) a
fraction, the numerator of which is the marked to market gains during
the calendar year of the Total Investment (other than any gains
reflected in a prior year's Success Fee) and the denominator of which
is the Total Investment multiplied by (b) $1,000,000. "Total
Investment" shall mean the aggregate purchase price of Vantage's
investment in the Company (disregarding any dispositions of such
investment). The Success Fee shall be paid to you by January 15th of
the year following the year on which such calculation is based. No
federal, state or local income taxes will be withheld from these
payments. NMC will provide you with a 1099 form for the appropriate
tax period.
7. You agree that NMC will be the only person or entity that you
advise or assist with respect to an investment in or other transaction
with the Company. You further agree that you will notify NMC of any
trade made by you or your affiliates in securities of the Company on
the same calendar day of such trade.
8. Your entitlement to any compensation is contingent on your not
breaching the terms of this agreement.
Confidentiality
9. You will be furnished by NMC with certain information which is
non-public, confidential and/or proprietary in nature. This
information, together with analyses, compilations, forecasts, studies
or other documents which contain such information, as well as any
other information concerning NMC's investment in or other transaction
with the Company or NMC's consideration thereof will be kept
confidential by you and will not, without NMC's prior written consent,
be disclosed by you to any third party and will not be used by you for
your own account or in any way detrimental to NMC. All copies of such
information will, at NMC's election, be destroyed or returned to NMC
promptly upon NMC's request.
Indemnity
10. Vantage shall indemnify you and hold you harmless against all
losses or claims to which you may become subject in connection with
the performance of your services hereunder; provided, however, that
nothing herein shall require indemnification with respect to any such
loss or claim arising from your negligence, fraud, bad faith or
willful misconduct or your violation of any contractual obligations to
which you are subject.
11. Promptly after receipt by you of notice of your involvement in any
action for which indemnification is being sought hereunder, you shall
notify NMC in writing of such involvement. NMC shall be entitled to
assume and direct your defense in connection with such action, and you
shall have the right to employ a separate counsel at your own expense
and to participate in the defense of such action. NMC and Vantage
shall not be liable for any settlement of any action effected without
their written consent.
General
12. This agreement, except for the provisions of Sections 6 through
11, will terminate automatically 13 months from the date hereof,
unless (i) terminated earlier by NMC (which termination shall not,
subject to Section 8, affect your entitlement to compensation set
forth herein) or (ii) extended upon the parties' mutual written
agreement. The provisions of Sections 6 through 11 will survive the
termination of this agreement and continue until Vantage no longer
holds any securities of the Company.
13. This agreement shall be governed by the laws of the State of New
York (other than the conflicts of laws provisions thereof).
We look forward to you joining our team. Should you have any questions
about this agreement, please feel free to contact Xxxxx XxXxxxxxxx or
myself.
Sincerely,
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Managing Director
Accepted and agreed to:
/s/ X. Xxx Xxxxxx III
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X. Xxx Xxxxxx III
