SETTLEMENT AGREEMENT, dated this 24th day of January, 2008 (this “Agreement”), by and among New Mountain Vantage GP, L.L.C., New Mountain Vantage, L.P., New Mountain Vantage (California), L.P., New Mountain Vantage (Texas), L.P., New Mountain Vantage...
Exhibit 99.2
| SETTLEMENT AGREEMENT, dated this 24th day of January, 2008 (this “Agreement”), by and among New Mountain Vantage GP, L.L.C., New Mountain Vantage, L.P., New Mountain Vantage (California), L.P., New Mountain Vantage (Texas), L.P., New Mountain Vantage Advisers, L.L.C., New Mountain Vantage (Cayman) Ltd., New Mountain Vantage HoldCo Ltd., Xx. Xxxxxx X. Xxxxxxx, NMV Special Holdings, L.L.C., California Public Employees’ Retirement System (“CalPERS”), X. Xxx Xxxxxx, III, Xxxxx X. XxXxxxxxxx, Xxxxxxxx X. Xxxxxxx (the foregoing individuals and entities being collectively referred to herein as the “New Mountain Group”), and National Fuel Gas Company, a New Jersey corporation (the “Company”). |
(a) The Company agrees that there shall be four (4) nominees to the Board for election at the
2008 Annual Meeting with terms to expire in 2011. Such nominees shall be Xxxxxx X. Xxxxx, Xxxxxxx
X. Xxxxxx and Xxxx X. Xxxxxxx, all of whom currently serve on the Board (the “Continuing
Nominees”), and Xxxxxxxx X. Xxxxxxx (the “New Mountain Nominee” and, together with the Continuing
Nominees, the “Nominees”). The Board shall recommend that the shareholders of the Company vote to
elect the Nominees as directors of the Company.
(b) The Company shall increase the size of the Board from ten (10) to eleven (11) directors
preceding the 2008 Annual Meeting.
(c) Promptly following the date hereof, the Company shall prepare and file with the SEC a
supplement (the “Supplement”) to the Company’s definitive proxy statement, dated as of January 11,
2008, that gives effect to the foregoing and shall mail the Supplement concurrent therewith to the
Company’s shareholders. Thereafter, the Company shall solicit proxies for the Nominees in
accordance
with the Supplement and shall recommend to and instruct the shareholders of the Company to vote all
proxies pursuant to the Supplement and in accordance with the instructions specified in the related
proxy card. The Company agrees that the Supplement and any other solicitation materials to be
delivered to shareholders in connection with the 2008 Annual Meeting shall be prepared in
accordance with the terms of this Agreement.
(d) As promptly as practicable following the date hereof, the Company shall:
(1) with the cooperation of the New Mountain Group, and acting in good faith, file
motions to withdraw (the “Withdrawal”) its petitions with (A) the New York State Public
Service Commission (the “NYPSC”), filed on December 19, 2007, requesting the issuance of an
order compelling members of the New Mountain Group to disclose the full extent of their
holdings of shares of common stock of the Company (the “Common Stock”) and (B) the
Pennsylvania Public Utility Commission (the “PaPUC”), filed on November 8, 2007, requesting
the issuance of an order compelling members of the New Mountain Group to apply for and
receive a certificate of public convenience. The Company shall, acting in good faith,
request the support of Withdrawal from all interveners and other interested stakeholders,
and with the cooperation of the New Mountain Group, seek the acceptance of the motions.
Until the Termination Date, the Company shall not subsequently make any allegation or
petition to the NYPSC or the PaPUC or any other forum inconsistent with the Withdrawal,
provided, that the New Mountain Group is in compliance with this Agreement, and
(2)
file a notice of dismissal of its complaint, filed on January 18, 2008, with the United States District
Court, Western District of New York.
(e) Xx. Xxxxxxx’x service on the Board shall be without compensation for so long as the New
Mountain Group continues to own any Common Stock of the Company. Promptly following the completion
of the 2008 Annual Meeting, the Board shall appoint the New Mountain Nominee to each of the
Nominating/Corporate Governance Committee and the Compensation Committee, and the New Mountain
Nominee shall serve on such committees through the expiration of his term on the Board, so long as
permitted by applicable law and the New York Stock Exchange (“NYSE”) listing standards. In
addition, the New Mountain Nominee shall be appointed to any special committee that may be
established by the Board, to the extent permitted by applicable law and the NYSE listing standards.
(f) If the New Mountain Nominee is not elected to the Board at the 2008 Annual Meeting or,
after election to the Board, thereafter is removed, resigns or is otherwise unable to serve as a
director of the Company, the New Mountain Group shall be entitled to nominate a new nominee, which
nominee will be chosen with the agreement of the Company, not to be unreasonably withheld (such
nominee shall then also be considered a New Mountain Nominee), and the Board shall promptly appoint
such New Mountain Nominee to the Board to serve until the next annual meeting of shareholders of
the Company after such appointment. At such next annual meeting of shareholders of the Company
after such appointment, the Company shall nominate such New Mountain Nominee to serve the remainder
of the term of the director whom such New Mountain Nominee replaced (i.e., until the annual meeting
of shareholders of the Company in 2011).
(g) Notwithstanding anything in this Agreement to the contrary, once the New Mountain Group
ceases to (1) beneficially own five percent (5%) or more of the Company’s outstanding common
shares, (2) control five percent (5%) or more of the economic interests in the outstanding Voting
Securities (as hereinafter defined in Section 13) or (3) control five percent (5%) or more of the
voting interests in the outstanding Voting Securities, the Company’s obligations under Section 1(f)
of this Agreement shall cease.
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Section 2. Proxy Solicitation; Voting; Company Form 8-K; New Mountain Group Schedule
13D, Preliminary Proxy and Demand.
(a) The New Mountain Group shall immediately cease, and shall cause all of their controlled
Affiliates (as such term is hereinafter defined in Section 13) immediately to cease, any and all
efforts with respect to the Proxy Solicitation, except as hereinafter provided in this Section 2.
(b) Subject to the Company’s compliance with Sections 1(a), 1(b), 1(c) and 1(d)(2) of this
Agreement, the New Mountain Group hereby irrevocably withdraws the nominations of Messrs. Xxxxxx,
XxXxxxxxxx and Xxxxxxx and the related advance notice submitted to the Company on October 17, 2007.
(c) From the date hereof until the Termination Date, each member of the New Mountain Group
shall not make, and shall cause each of its controlled Affiliates not to make, any objection to the
election of each of the Nominees at the 2008 Annual Meeting. Each member of the New Mountain Group
shall, and shall cause each of its controlled Affiliates to:
(1) vote all shares of the Voting Securities which it is entitled to vote at the 2008
Annual Meeting in favor of the election of each of the Nominees at the 2008 Annual Meeting,
(2) vote all shares of the Voting Securities which it is entitled to vote at the 2009
annual meeting of shareholders of the Company (the “2009 Annual Meeting”) in favor of the
election of each of the Company’s nominees to the Board for election at the 2009 Annual
Meeting, provided, that CalPERS shall not be bound by this paragraph (2), and
(3) on every other proposal submitted to the Company’s shareholders by a Person other
than the Company from the date hereof until the Termination Date, vote all shares of the
Voting Securities which it is entitled to vote in accordance with the Board’s
recommendation, provided, that CalPERS shall not be bound by this paragraph (3).
For the avoidance of doubt, any provisions of this Agreement pertaining to the voting of shares of
Voting Securities shall apply equally to actions to be taken without a meeting by written consent.
(d) The Company shall promptly file a Form 8-K reporting the entry into this Agreement and
appending this Agreement and the Press Release (as hereinafter defined in Section 10) as exhibits
thereto. The New Mountain Group shall promptly file an amendment to the Schedule 13D regarding the
Common Stock filed with the SEC on October 30, 2006, and as amended on November 28, 2006, August 7,
2007, September 12, 2007, September 14, 2007, October 19, 2007, November 6, 2007 and November 19,
2007 (the “Schedule 13D”), reporting the entry into this Agreement, amending applicable items to
conform to its obligations hereunder and appending this Agreement and the Press Release as exhibits
thereto. Upon determination by the New Mountain Group, acting in good faith after consultation
with counsel, that it is permitted to file under Schedule 13G in connection with its investment in
the Company rather than Schedule 13D, it will cease filing and updating under Schedule 13D and file
and update under Schedule 13G instead.
(e) Promptly following the date hereof, the New Mountain Group shall notify the SEC that it is
withdrawing the New Mountain Group Proxy Statement.
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(f) The New Mountain Group hereby irrevocably withdraws its Demand, and shall promptly return
to the Company or destroy, in its sole discretion, all materials and summaries or duplicates
thereof that have been delivered to the New Mountain Group or its representatives pursuant to the
Demand prior to the date hereof. In the case of destruction, such destruction shall be certified
in writing to the Company by an authorized officer supervising such destruction.
(g) The New Mountain Group agrees not to allege that the Company’s definitive proxy statement
or any additional soliciting materials filed with the SEC in connection with the 2008 Annual
Meeting violate any of the rules or regulations promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statement not misleading.
(h) The New Mountain Group shall not vote or cause to be voted any proxies that may be
received pursuant to the New Mountain Group Proxy Statement.
(i) The Company acknowledges and agrees that:
(1) the New Mountain Nominee may share confidential information, other than
confidential information that may be privileged, obtained in his capacity as a director,
with certain employees and advisors of the New Mountain Group, as listed on Schedule
A hereto (collectively, the “New Mountain Investment Group”), provided, that (A) such
schedule may be amended from time to time by the New Mountain Group (i) in its sole
discretion, to add or remove certain employees of the New Mountain Group (the total number
of such employees listed on Schedule A not to exceed fifteen (15) at any given time)
and (ii) with the approval of the Company in its sole discretion, to add or remove certain
advisors of the New Mountain Group, (B) the New Mountain Investment Group shall be comprised
solely of natural persons and (C) the New Mountain Group shall provide the Company with
three (3) business days’ prior notice of any amendment to Schedule A to be made
pursuant to subclause (i)(1)(A)(i) of this Section 2; provided, further, that each member of
the New Mountain Investment Group that is to receive such confidential information agrees in
a mutually acceptable written agreement with the Company, in the form attached hereto as
Exhibit A, to (w) keep such information strictly confidential, (x) use such
information only for the purpose of monitoring the New Mountain Group’s investment in the
Company, (y) be bound by the standstill obligations contained herein and (z) acknowledge
that such information may constitute material non-public information under applicable
federal and state securities laws, and that he or she will not trade on the basis of such
information in violation of such laws;
(2) the New Mountain Group shall be liable to the Company for any breach by a party
other than the Company of a confidentiality agreement entered into under paragraph (1) of
this Section 2(i); and
(3) no member of the New Mountain Group shall be liable to the Company for any breach
of fiduciary duty by reason of fact that a member of the New Mountain Group pursues or
acquires a business opportunity for itself, directs such opportunity to another Person (as
hereinafter defined in Section 13), or does not present such business opportunity to the
Company, in each case, so long as such business opportunity is not (i) derived directly or
indirectly from the confidential information referred to in Section 2(i)(1) hereto or (ii)
otherwise derived directly or indirectly from the New Mountain Nominee. The Company agrees
that, to the extent any court might hold the conduct of a member of the New Mountain Group
that is permitted under this paragraph (3) as a breach of duty to the Company, the Company
waives any and all claims and causes of action the Company may have for such activity
against a member of
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the New Mountain Group. Notwithstanding the foregoing, the definition of “New Mountain
Group” in this paragraph (3) shall exclude the New Mountain Nominee.
Section 3. Standstill. Without the prior written consent of the Board specifically
expressed in a written resolution adopted by a majority vote of the entire Board, each member of
the New Mountain Group will not, and will cause each of its respective controlled Affiliates,
employees, agents and other Persons, in each case acting on behalf of any member of the New
Mountain Group, not to, do any of the following from the date hereof through the Termination Date,
provided, that if any such controlled Affiliates, employees or agents of any member of the New
Mountain Group violates this Section 3 while not acting on behalf of any member of the New Mountain
Group, the New Mountain Group, upon becoming aware of such violation, shall use its reasonable best
efforts to promptly remedy or cure such violation, and if it is not possible to remedy or cure such
violation, the New Mountain Group shall terminate its relationship with such controlled Affiliate,
employee or agent; provided, further, that nothing in this Section 3 shall (x) limit any actions
that may be taken by the New Mountain Nominee acting as a director of the Company consistent with
his fiduciary duties, (y) require any member of the New Mountain Group to vote in any way (except
as required by Section 2(c) of this Agreement) on matters put to shareholders of the Company for
their approval or (z) in any way limit the New Mountain Group’s or the New Mountain Nominee’s
ability to make suggestions, recommendations or proposals to the Company, the Board or any of the
directors of the Company so long as such suggestions, recommendations or proposals would not
reasonably be expected to require the Company to make public disclosure thereof:
(a) acquire, offer or propose to acquire, or agree to acquire (except by way of stock
dividends or other distributions or offerings made available to holders of Voting Securities
generally on a pro rata basis, provided that any such securities so received shall be subject to
the provisions hereof), directly or indirectly, whether by purchase, tender or exchange offer,
through the acquisition of control of another Person, by joining a partnership, limited
partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange
Act), or otherwise, any Voting Securities, if after giving effect to such acquisition the New
Mountain Group (by itself or with any other Person with whom it has any agreement, understanding or
arrangement with respect to Voting Securities) would (1) beneficially own more than 9.6% of the
outstanding Voting Securities or (2) influence or exercise, directly or indirectly through swap
transactions, other hedging transactions or otherwise, any voting power with respect to more than
9.6% of the outstanding Voting Securities; provided, however, that no sales by any member of the
New Mountain Group shall be required if the increase in the beneficial ownership of Voting
Securities over 9.6% of the outstanding Voting Securities results exclusively from a reduction in
the number of outstanding Voting Securities by reason of the Company’s repurchase of its Common
Stock; provided, further, that no member of the New Mountain Group acquires any additional Voting
Securities following disclosure by the Company of information indicating that the New Mountain
Group beneficially owns in excess of 9.6% of the outstanding Voting Securities (for the purposes of
computing the beneficial ownership of the New Mountain Group at the time of any purchase, the
number of outstanding Voting Securities shall be determined by the latest available Company filing
with the SEC);
(b) engage, or in any way participate, directly or indirectly, in any “solicitation” (as such
term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or
consents (whether or not relating to the election or removal of directors), seek to advise,
encourage or influence any Person with respect to the voting of any Voting Securities; initiate,
propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC
under the Exchange Act) shareholders of the Company for the approval of shareholder proposals
whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; or induce or
attempt to induce any other Person to initiate any such shareholder proposal; or otherwise
communicate to any Third Party (as
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hereinafter defined in Section 13) how it intends to vote the shares of Voting Stock beneficially
owned by it on any matter put to the shareholders of the Company for their approval;
(c) except as required pursuant to Item 4 of Schedule 13D in connection with a Disposition (as
hereinafter defined in Section 4) of Voting Securities expressly permitted under Section 4 of this
Agreement, seek, propose, or make any statements to any Third Party with respect to, any merger,
consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or
purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar
transactions involving the Company or any of its controlled Affiliates;
(d) form, join or in any way participate in any “group” (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that (1)
includes all or some lesser number of the Persons identified as “Reporting Persons” (or controlled
Affiliates thereof) in the Schedule 13D and the signatories to this Agreement and (2) does not
include any other members who are not currently identified as Reporting Persons (or controlled
Affiliates thereof) or the signatories to this Agreement;
(e) deposit any Voting Securities in any voting trust or subject any Voting Securities to any
arrangement or agreement with respect to the voting of any Voting Securities, except as expressly
set forth in this Agreement;
(f) otherwise act, alone or in concert with others, to control or seek to control or influence
or seek to influence the management, the Board or policies of the Company, except as otherwise
expressly permitted in this Agreement;
(g) seek, alone or in concert with others, (1) to call a meeting of shareholders or solicit
consents from shareholders, (2) to obtain representation on the Board except as otherwise set forth
in this Agreement, or (3) to effect the removal of any member of the Board;
(h) seek to amend any provision of the Company’s certificate of incorporation or by-laws;
(i) submit any demand pursuant to Section 14A:5-28 of the New Jersey Business Corporation Act;
(j) make any proposal (including to disclose or discuss any proposal with a Third Party) or
enter into any discussion regarding any of the foregoing, or make any statement or inquiry, or
disclose any intention, plan or arrangement (whether written or oral) inconsistent with the
foregoing or any other provision of this Agreement, in each case, to any Third Party, or make or
disclose to any Third Party any request to amend, waive or terminate any provision of this
Agreement;
(k) have any discussions or communications, or enter into any arrangements, understanding or
agreements (whether written or oral) with, or advise, finance, assist, induce or knowingly
encourage, any Third Party either in connection or inconsistent with any of the foregoing, or make
any investment reasonably understood to be controlling in or enter into any arrangement in relation
to any of the foregoing with, any Third Party that engages, or offers or proposes to engage, in any
of the foregoing; or
(l) otherwise take or cause any action inconsistent with any of the foregoing.
Section 4. Dispositions of Voting Securities.
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(a) Until the Termination Date and subject to Section 4(b) hereof, no member of the New
Mountain Group shall, and no such member will permit their controlled Affiliates to, directly or
indirectly, sell, assign, transfer, grant an option with respect to or otherwise dispose of any
interest in (or enter into an agreement or understanding with respect to the foregoing)
(collectively, a “Disposition”) any Voting Securities; provided, however, that the foregoing
limitation shall not prohibit any Disposition which complies with Section 4(b) hereof (a “Permitted
Disposition”).
(b) The term “Permitted Disposition” shall mean and include any of the following: (1) any
Disposition to or through a nationally recognized broker-dealer (a “Block Positioner”) so long as
any such Disposition is not to a Person who, together with its controlled Affiliates and after
giving effect to such Disposition, would, to the knowledge of any member of the New Mountain Group,
after reasonable inquiry, beneficially own five percent (5%) or more of the outstanding Voting
Securities, unless such Person is either a reporting person with respect to the Voting Securities
on Schedule 13G or is an institutional investor eligible to use such Schedule 13G; (2) a
Disposition pursuant to a transaction effected on any inter-dealer quotation system or on the floor
of a nationally recognized securities exchange in which no member of the New Mountain Group has any
knowledge that the purchaser is a Person who, after giving effect to the Disposition, would,
together with its controlled Affiliates, beneficially own five percent (5%) or more of the
outstanding Voting Securities, (3) a Disposition pursuant to a tender offer, an exchange offer, a
merger, sale or any other transaction in which all shareholders of the Company have a right to
participate; (4) any Disposition by any member of the New Mountain Group to any controlled
Affiliate of the New Mountain Group who agrees to be bound by the terms of this Agreement
applicable to the New Mountain Group or (5) any Disposition made in connection with any hedging
activity, provided, that no such hedging activity could reasonably be considered to result in the
decoupling of the economic and voting interests in any of the subject Voting Securities such that a
Person (other than the New Mountain Group or any of its controlled Affiliates), together with its
controlled Affiliates, to the knowledge of any member of the New Mountain Group, after reasonable
inquiry, would, after giving effect to any such hedging activity, control five percent (5%) or more
of the economic interests or of the voting interests (or of both the economic and voting interests)
relating to outstanding Voting Securities, unless such Person is either a reporting person with
respect to the Voting Securities on Schedule 13G or is an institutional investor eligible to use
such Schedule 13G, and provided, further, that the New Mountain Group shall promptly, but in any
event within two business days, keep the Company advised of any such Dispositions made pursuant to
this subclause (5). For the avoidance of doubt, all Permitted Dispositions shall be in accordance
with the Company’s “Policy on Xxxxxxx Xxxxxxx in National Fuel Stock” in effect on the date hereof
and as amended from time to time, applicable to the non-executive directors of the Company and as
such would be applicable to the New Mountain Group if the New Mountain Group were a non-executive
director of the Company, and a copy of which has been provided to the New Mountain Group.
(c) If any member of the New Mountain Group or any controlled Affiliate of any member of the
New Mountain Group acquires any Voting Securities in violation of this Agreement, it will
immediately dispose of such Voting Securities to Persons who are not members of the New Mountain
Group or controlled Affiliates thereof in a manner permitted by Section 4(b) hereof; provided, that
the Company may also pursue any other available remedy to which it may be entitled as a result of
such violation.
Section 5. Additional Agreements.
(a) Until the Termination Date and on a semi-annual basis (or such other more
frequent basis as the Board determines in its sole discretion), no more than four (4) designated
representatives (the “Designated Representatives”) of the New Mountain Group shall be afforded an
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opportunity to meet with the Board. The New Mountain Nominee shall not be considered a Designated
Representative. Prior to the first such meeting, the New Mountain Group shall notify in writing
the Chairman of the Board of the identity of its Designated Representatives and any specific topics
they may wish to address with the Board. By written notice to the Company, the Designated
Representatives may be changed from time to time. Such meetings shall occur as part of a regularly
scheduled Board meeting or on a date that is mutually agreed to be convenient for the Board and the
Designated Representatives. Such meetings may include participation by members of the Board by
conference telephone or other means that would satisfy the Company’s by-law requirement for a Board
meeting, so long as at least a majority of the members of the entire Board are present in person.
(b) The New Mountain Group and the Company agree that the Company’s Appalachian acreage is
extremely valuable, and as such, the Company intends to develop its Appalachian acreage, including
the deeper Marcellus Shale, with all reasonable speed and on a commercially reasonable best efforts
basis. The Company agrees to address such development, to the extent material and not
competitively sensitive, on its quarterly calls with the Company’s shareholders.
(c) The New Mountain Group agrees to provide the Company with copies of all reports and
analyses in its possession developed by or based on the research and analysis of Schlumberger Data
& Consulting Services, including but not limited to the report referenced by the New Mountain Group
in its Schedule 14A, filed with the SEC on November 6, 2007 (the “Schlumberger Materials”). The
Company agrees to provide the New Mountain Nominee with a copy of the Xxxxxx Xxxxxxx report and any
other reports, materials and information reviewed by the non-executive directors of the Board, in
evaluating or analyzing the New Mountain Group’s suggestions, including any minutes of any meetings
at which the New Mountain Group’s suggestions were discussed. Within sixty (60) days from the date
hereof, the Company also agrees to discuss with the New Mountain Nominee, and to cause its relevant
advisors, including Xxxxxx Xxxxxxx, to discuss and answer all questions concerning, its analysis of
and response to each of the New Mountain Group’s suggestions as raised in the context of the Proxy
Solicitation. To the extent the Board, the Company or any of the Company’s advisors have not
already considered any of the New Mountain Group’s suggestions as raised in the context of the
Proxy Solicitation, or a certain aspect thereof, or new facts, circumstances, ideas or legal
structures have been introduced or have arisen that were not otherwise factored into the foregoing
analyses, the Board shall reasonably consider, in a manner consistent with the Board’s usual
practice, any reasonable requests made by the New Mountain Nominee for further analysis. For the
avoidance of doubt, at any meeting of the Board or a committee of the Board, the New Mountain
Nominee shall have no lesser or greater rights than a director of the Company and have no lesser or
greater obligations than a director of the Company as compared to the other members of the Board
generally, and each motion made in good order by the New Mountain Nominee will be seconded by one
or more other members of the Board.
(d) The Company agrees to address its strategy and to provide updates on its progress in the
Gulf of Mexico, to the extent material and not competitively sensitive, on its quarterly calls with
the Company’s shareholders. The Company will reaffirm to its shareholders that the Company intends
to evaluate the divestiture of this asset as one key alternative if performance targets set by the
Company are not met during its 2008 fiscal year. The Company agrees to keep its shareholders
apprised of the Company’s progress with respect to such asset, to the extent material and not
competitively sensitive, on its quarterly calls with the Company’s shareholders.
Section 6. Corporate Governance. A meeting of the directors of the Company will be
held immediately after the 2008 Annual Meeting (the “Next Board Meeting”). At the Next Board
Meeting, the Company shall:
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(a) elect separate individuals to the positions of the Chairman of the Board and the Chief
Executive Officer, with the expectation that Xxxxxx X. Xxxxxxxx will become Chairman of the Board
and Xxxxx X. Xxxxx will become Chief Executive Officer;
(b) cause the charters of the Audit Committee, the Compensation Committee and the
Nominating/Corporate Governance Committee of the Board to be amended to provide for annual
performance reviews of individual directors to be presented to the full Board;
(c) cause the adoption and public disclosure of resolutions of the Board requiring that each
director, in order to receive compensation for service as a director, must beneficially own at
least five hundred (500) shares of Common Stock during the first year of service, at least one
thousand (1,000) shares during the second year of service and at least two thousand five hundred
(2,500) shares thereafter; and that the transfer of shares issued by the Company to outside
directors as compensation for service as directors is prohibited under currently effective
resolutions until the later of (1) two years from the date of issuance of such shares or (2) six
months after such director’s cessation of service as a director of the Company; and
(d) cause the Compensation Committee of the Board to amend its administrative rules to provide
that, subject to certain exceptions, future equity awards shall vest or become exercisable only
upon the attainment of certain performance goals to be established by the Compensation Committee.
Section 7. Representations and Warranties.
(a) The members of the New Mountain Group jointly and severally represent and warrant as
follows:
(1) Each member of the New Mountain Group has the power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby.
(2) This Agreement has been duly and validly authorized, executed and delivered by each
member of the New Mountain Group, constitutes a valid and binding obligation and agreement
of each such member and is enforceable against each such member in accordance with its
terms.
(3) Each member of the New Mountain Group, together with its controlled Affiliates, has
the sole power to vote the number of shares of Common Stock as set forth by beneficial owner
and amount on Schedule B hereto and such shares of Common Stock constitute all of
the Voting Securities of the Company beneficially owned by the members of the New Mountain
Group and their controlled Affiliates.
(4) Xx. Xxxxxxx meets the membership eligibility requirements, as now in effect,
established by (A) the Company’s publicly disclosed corporate governance documents, (B) the
SEC, (C) the New York Stock Exchange for each committee of the Board to which he shall be
appointed and (D) applicable law (collectively, the “Eligibility Requirements”).
(b) The Company hereby represents and warrants as follows:
(1) The Company has the power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and to consummate the transactions contemplated hereby.
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(2) This Agreement has been duly and validly authorized, executed and delivered by the
Company, constitutes a valid and binding obligation and agreement of the Company and is
enforceable against the Company in accordance with its terms.
(3) To the Company’s knowledge, Xx. Xxxxxxx meets the Eligibility Requirements.
(4) None of the actions to be taken by the Company or the New Mountain Group through
the Termination Date required by the terms of this Agreement shall cause a change of control
or acceleration of any award or benefit under any employee agreements or employee benefit
arrangements with any employee of the Company or any of its subsidiaries.
Section 8. Specific Performance. Each of the members of the New Mountain Group, on
the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury
to the other party hereto would occur in the event any of the provisions of this Agreement were not
performed in accordance with its specific terms or was otherwise breached and that such injury
would not be adequately compensable in damages. It is accordingly agreed that the members of the
New Mountain Group, on the one hand, and the Company, on the other hand, shall each be entitled to
specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and
the other party hereto will not take any action, directly or indirectly, in opposition to the party
seeking relief on the grounds that any other remedy or relief is available at law or in equity.
Section 9. Termination and Survival. Except as set forth in the following sentence,
the provisions of this Agreement shall terminate upon, and this Agreement shall remain in full
force and effect and shall be fully binding on the parties hereto in accordance with the provisions
hereof until, the Termination Date. The provisions of Section 2(i)(2), Section 2(i)(3), this
Section 9 and Section 11 shall survive the Termination Date.
Section 10. Press Release and Other Public Disclosures. Immediately following the
execution and delivery of this Agreement, the Company and the New Mountain Group shall issue the
joint press release attached hereto as Schedule C (the “Press Release”). None of the
parties hereto shall (a) make any public statements (including in any filing with the SEC or any
other regulatory or governmental agency, including any stock exchange) that are inconsistent with,
or otherwise contrary to, the statements in the Press Release issued pursuant to this Section 10,
(b) otherwise make any public statements that may reasonably be understood to be disparaging of any
of the other parties hereto, including, without limitation, any materials or information (including
the Schlumberger Materials) provided by the New Mountain Group or the New Mountain Nominee to the
Company or (c) except as required by law, issue or cause the publication of any press release or
other public announcement with respect to (1) this Agreement, without the prior written consent of
the parties hereto or (2) the Company, its management or the Board or the Company’s business,
without the prior written consent of the Company.
Section 11. Release.
(a) The New Mountain Group hereby agrees for the benefit of the Company, and each controlled
Affiliate, officer, director, shareholder, agent, employee, attorney, assigns, predecessor and
successor, past and present, of the Company (the Company and each such Person being a “Company
Released Person”) as follows: the New Mountain Group, for themselves and for their members,
officers, directors, assigns, agents and successors, past and present, hereby agree and confirm
that, effective from and after the date of this Agreement, they hereby acknowledge full and
complete satisfaction of, and
-10-
covenant not to xxx, and forever fully release and discharge each Company Released Person of, and
hold each Company Released Person harmless from, any and all claims of any nature whatsoever
(“Claims”), whether known or unknown, suspected or unsuspected, including, but not limited to,
those arising in respect of or in connection with the nomination and election of directors or other
actions to be taken at the 2008 Annual Meeting, occurring any time or period of time on or prior to
the date of this Agreement; provided, that nothing herein shall release any Company Released Person
from any Claim arising in respect of or in connection with actions of any Company Released Person
taken or omitted after the date hereof (whether or not arising from the same, similar or related
facts to those underlying any released Claims).
(b) The Company hereby agrees for the benefit of the New Mountain Group, and each controlled
Affiliate, officer, director, member, partner, manager, shareholder, agent, employee, attorney,
assigns, predecessor and successor, past and present, of each member of the New Mountain Group (the
New Mountain Group and each such Person being a “New Mountain Released Person”) as follows: the
Company, for itself and for its officers, directors, assigns, agents and successors, past and
present, hereby agrees and confirms that, effective from and after the date of this Agreement, it
hereby acknowledges full and complete satisfaction of, and covenants not to xxx, and forever fully
releases and discharges each New Mountain Released Person of, and holds each New Mountain Released
Person harmless from, any and all Claims, whether known or unknown, suspected or unsuspected,
including, but not limited to, those arising in respect of or in connection with the nomination and
election of directors or other actions to be taken at the 2008 Annual Meeting, occurring any time
or period of time on or prior to the date of this Agreement; provided, that nothing herein shall
release any New Mountain Released Person from any Claim arising in respect of or in connection with
actions of any member of the New Mountain Group taken or omitted after the date hereof (whether or
not arising from the same, similar or related facts to those underlying any released Claims).
Section 12. Expenses. Immediately following the certification of the results of the
votes taken at the 2008 Annual Meeting, the Company shall reimburse the New Mountain Group for its
reasonable, documented and actual out-of-pocket fees and expenses incurred by the New Mountain
Group prior to the date hereof in connection with the Proxy Solicitation and related matters, not
to exceed $1,000,000 in the aggregate. All other fees and expenses incurred by each of the parties
hereto in connection with the matters contemplated by this Agreement will be borne by such party.
Section 13. Certain Definitions. As used in this Agreement, (a) the term “Affiliates”
shall have the meaning set forth in Rule 12b-2 under the Exchange Act and shall include persons who
become Affiliates of any Person subsequent to the date hereof; (b) the term “Person” shall mean any
individual, partnership, corporation, group, syndicate, trust, government or agency thereof, or any
other association or entity, (c) the term “Voting Securities” shall mean the Company’s Common Stock
and any other securities of the Company entitled to vote in the election of directors, or
securities convertible into, or exercisable or exchangeable for Common Stock or other securities,
whether or not subject to the passage of time or other contingencies, (d) the term “Termination
Date” shall mean the earlier of (i) September 15, 2009, (ii) thirty (30) days prior to the last day
on which notice of intent to nominate candidates for election as directors pursuant to Article 1,
Section 7 of the Company’s by-laws (or any other provision of the Company’s certificate of
incorporation or by-laws or any other governing document) concerning the election of directors at
the annual meeting of the shareholders of the Company to be held in 2010 and (iii) a material
breach by the Company of its obligations under this Agreement and (e) the term “Third Party” shall
mean any Person other than (i) any member of the New Mountain Group, any then current member of the
New Mountain Investment Group, the New Mountain Nominee, the Company, the Board or any director or
officer of the Company and (ii) legal counsel to each member of the New Mountain Group, provided,
that any discussions or other communications between a member of the New Mountain Group
-11-
and its respective legal counsel with respect to matters contemplated by this Agreement shall be
subject to attorney-client privilege, which privilege shall not be waived.
Section 14. No Waiver. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement. The failure of a party to insist upon
strict adherence to any term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
Section 15. Successors and Assigns. All the terms and provisions of this Agreement
shall inure to the benefit of and shall be enforceable by the successors and assigns of the parties
hereto.
Section 16. Entire Agreement; Amendments. This Agreement and the confidentiality
agreement, originally dated as of December 18, 2007 (together with the subsequent extensions
covering the period of time through the date of this Agreement, the “Confidentiality Agreement”),
contain the entire understanding of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations, warranties, covenants or other
undertakings other than those expressly set forth in this Agreement and in the Confidentiality
Agreement. This Agreement may be amended only by a written instrument duly executed by the parties
or their respective successors or assigns.
Section 17. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 18. Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b)
upon sending if sent by electronic mail or facsimile, with electronic confirmation of sending,
provided, however, that a copy is sent on the same day by registered mail, return receipt
requested, in each case to the appropriate mailing and electronic mail or facsimile addresses set
forth below, (c) one (1) day after being sent by nationally recognized overnight carrier to the
addresses set forth below or (d) when actually delivered if sent by any other method that results
in delivery (with written confirmation of receipt):
If to the Company:
National Fuel Gas Company
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the New Mountain Group:
-12-
New Mountain Vantage Advisers, L.L.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxxxxxx & Xxxxxxx LLP
The New York Times Building
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
The New York Times Building
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
in each case, or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
Section 19. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without reference to the conflict of
laws principles thereof.
Section 20. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one and the same Agreement.
Section 21. No Admission. Nothing contained herein shall constitute an admission by
any party hereto of liability or wrongdoing.
Section 22. Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, will remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination, the parties shall
negotiate in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
[Remainder of page intentionally left blank.]
-13-
NATIONAL FUEL GAS COMPANY |
||
By: |
/s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | ||
| Title: President and Chief Operating Officer | ||
NEW MOUNTAIN VANTAGE GP, L.L.C. |
||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
NEW MOUNTAIN VANTAGE, L.P. |
||
By:
|
New Mountain Vantage GP, L.L.C., its general partner | |
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
NEW MOUNTAIN VANTAGE (CALIFORNIA), L.P. |
||
By:
|
New Mountain Vantage GP, L.L.C., its general partner | |
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
NEW MOUNTAIN VANTAGE (TEXAS), L.P. |
||
By:
|
New Mountain Vantage GP, L.L.C., its general partner | |
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
[Signature pages to Settlement Agreement]
NEW MOUNTAIN VANTAGE ADVISERS, L.L.C. |
||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
NEW MOUNTAIN VANTAGE (CAYMAN) LTD. |
||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Director | ||
NEW MOUNTAIN VANTAGE HOLDCO LTD. |
||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Director | ||
NMV SPECIAL HOLDINGS, L.L.C. |
||
By:
|
New Mountain Vantage GP, L.L.C., its managing member | |
By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Member | ||
CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM |
||
By: |
/s/ Xxxxxxxxxxx Xxxx | |
| Name: Xxxxxxxxxxx Xxxx | ||
| Title: Senior Investment Officer | ||
XXXXXX X. XXXXXXX |
||
| /s/ Xxxxxx X. Xxxxxxx | ||
[Signature pages to Settlement Agreement]
X. XXX XXXXXX, III |
||
| /s/ X. Xxx Xxxxxx, III | ||
XXXXX X. XXXXXXXXXX |
||
| /s/ Xxxxx X. XxXxxxxxxx | ||
XXXXXXXX X. XXXXXXX |
||
| /s/ Xxxxxxxx X. Xxxxxxx | ||
[Signature pages to Settlement Agreement]
Schedule A
New Mountain Group
Xxxxxx X. Xxxxxxx
Xxxxx X. XxXxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxx Xxxxx
Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx X. XxXxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxx Xxxxx
Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Advisors
X. Xxx
Xxxxxx, III
Xxxxx X. X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx X. X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxx
A-1
Schedule B
Beneficial Ownership of Shares of Common Stock, par value $1.00 per share,
of National Fuel Gas Company (“Common Stock”)
of National Fuel Gas Company (“Common Stock”)
| Name | Number of Shares | |||
Xxxxxx X. Xxxxxxx |
7,505,100 | |||
New Mountain Vantage GP, L.L.C. |
5,310,700 | |||
New Mountain Vantage Advisers, L.L.C. |
4,828,100 | |||
California Public Employees’ Retirement System |
3,242,806 | (1) | ||
NMV Special Holdings, L.L.C. |
2,677,000 | |||
New Mountain Vantage (Cayman) Ltd. |
2,194,400 | |||
New Mountain Vantage HoldCo Ltd. |
2,194,400 | |||
New Mountain Vantage, L.P. |
904,800 | |||
New Mountain Vantage (California), L.P. |
909,100 | |||
New Mountain Vantage (Texas), L.P. |
819,800 | |||
Xxxxx X. XxXxxxxxxx |
100 | |||
Xxxxxxxx X. Xxxxxxx |
100 | |||
X. Xxx Xxxxxx, III |
5100 | (2) | ||
Total |
8,076,206 | (3) | ||
| (1) | For purposes of Section 2(c) of the Settlement Agreement, CalPERS has sole voting power with respect to shares of Common Stock that may be deemed to be beneficially owned by NMVSH. | |
| (2) | Xx. Xxxxxx shares the power to vote or direct the vote and to dispose or to direct the disposition of the 5,000 shares of Common Stock that may be deemed to be beneficially owned by Xxxxxx Energy, Inc. | |
| (3) | Represents the total number of shares of Common Stock, collectively, beneficially owned by the New Mountain Group. |
B-1
Schedule C
National Fuel Gas Company and New Mountain Vantage
Settle Proxy Contest
Settle Proxy Contest
(January 24, 2008) Williamsville, N.Y. and New York, N.Y. — National Fuel Gas Company (NYSE: NFG)
(“National Fuel” or the “Company”) and New Mountain Vantage GP, L.L.C. and its affiliates,
including the California Public Employees’ Retirement System, (“Vantage”) jointly announced today
that they have reached a settlement in the proxy contest pertaining to the election of directors to
the National Fuel Gas Company Board of Directors (the “Board”) at the Company’s 2008 Annual Meeting
of Stockholders. The Company and Vantage have determined that the Company’s shareholders,
employees, retirees and customers would be best served by resolving this matter and working
together in a cooperative and productive manner.
As part of the settlement, the Company has agreed to increase the size of its Board from 10 to
11 directors and to nominate, as a new director, Vantage’s candidate Xxxxxxxx X. Xxxxxxx. In
accordance with Vantage’s policies and at their request, Xx. Xxxxxxx will receive no compensation
for his Board service for as long as Vantage continues to own Common Stock of the Company. Xx.
Xxxxxxx will be added to the Company’s original slate of the following continuing directors:
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxxx.
All four candidates will be nominated to serve for a term to expire in 2011. Upon election to
National Fuel’s Board, Xx. Xxxxxxx will join the Compensation and the Nominating/Corporate
Governance Committees.
“We are pleased to announce this settlement and look forward to welcoming Xxxx Xxxxxxx to our
Board. We are confident that, in finding common ground where we can jointly focus our attention on
continuing to grow shareholder value, National Fuel is very well positioned to maintain its long
record of providing superior returns to all of our investors,” said Xxxxxx X. Xxxxxxxx, Chairman
and Chief Executive Officer, National Fuel.
“We have always sought to achieve a productive relationship with National Fuel’s management
and Board for the benefit of all shareholders,” said Xxxxx XxXxxxxxxx, Managing Director of
Vantage. “We believe that together we can successfully advance the Company’s interests by focusing
on developing the Appalachian acreage, including the Marcellus Shale, by carefully evaluating
ongoing and future activities in the Gulf of Mexico, by considering Vantage’s other suggestions,
and by taking important steps to improve corporate governance.”
The Company will file a supplement to its Proxy Statement and a new voting card to reflect
these nominees, which will be mailed to its shareholders. Likewise, Vantage will immediately cease
efforts related to its own proxy solicitation, and withdraw its Proxy Statement and its own
nominations.
Certain of the provisions in the Settlement Agreement relate to corporate governance matters.
For example, in order to have separate individuals serve as Chairman of the Board of Directors and
as Chief Executive Officer, the parties agree that, following the February 2008 Annual Meeting,
Xxxxxx X. Xxxxxxxx will continue to serve as Chairman of the Board and Xxxxx
C-1
X. Xxxxx will be named Chief Executive Officer of the Company. In addition, future equity
awards will vest or become exercisable only upon the attainment of certain performance goals to be
established by the Compensation Committee.
| Other elements of the Settlement Agreement include: | |||
| Ø | The Company and Vantage have agreed to a standstill whereby, until September 2009, Vantage will not, among other things: acquire Voting Securities that would increase its beneficial ownership to more than 9.6 percent of the Company’s Voting Securities; engage in any proxy solicitations or advance any shareholder proposals; attempt to control the Company’s Board, management or policies; call a meeting of shareholders; obtain additional representation to the Board; or effect the removal of any member of the Board. | ||
| Ø | The Company and Vantage agree that the Company’s Appalachian acreage, including the Marcellus Shale, is extremely valuable and should be developed with all reasonable speed and on a commercially reasonable best efforts basis. The Company will provide, in conjunction with its quarterly conference call, information on these development efforts, to the extent material and not competitively sensitive. | ||
| Ø | The Company reaffirms that it intends to evaluate the divestiture of its assets in the Gulf of Mexico as one key alternative if performance targets set by the Company are not met during this fiscal year. The Company will keep shareholders apprised of its progress in conjunction with its quarterly conference call, to the extent material and not competitively sensitive. | ||
| Ø | Vantage will provide to the Company copies of all reports and analyses developed or based upon the research and analysis of Schlumberger Data and Consulting Services. | ||
| Ø | The Company will provide its new director, Xx. Xxxxxxx, with a copy of the Xxxxxx Xxxxxxx report and the other reports, materials and information reviewed by non-executive directors of the Board in evaluating or analyzing Vantage’s suggestions. | ||
| Ø | The Company will, with the cooperation of Vantage, file motions to withdraw the petitions it previously filed with the Pennsylvania Public Utility Commission and the New York State Public Service Commission that had requested each regulatory agency take action with respect to the Vantage’s investment in the Company. | ||
| Ø | The Company and Vantage agree that, on a semi-annual basis designated representatives from Vantage will be provided an opportunity to meet with the Board. These meetings will afford Vantage an opportunity to bring its ideas to the Board for its reasonable consideration. | ||
| Ø | In addressing other corporate governance matters, the Company will amend the charters of the Audit Committee, the Compensation Committee and the Nominating/Corporate Governance Committee to provide for annual performance reviews of individual directors to be presented to the full Board; amend its administrative rules to provide that, subject to |
| certain exceptions, future equity awards will vest or become exercisable only upon the attainment of certain performance goals; and cause the adoption or disclosure of target levels of beneficial ownership of shares of Common Stock for each director. |
About the Nominees to the National Fuel Gas Company Board of Directors:
Xxxxxx X. Xxxxx has been a member of the National Fuel Gas Company Board since 1995. He has
been the Chairman of Moog Inc. (“Moog”) since February 1996, has served as President and Chief
Executive Officer since 1988 and has been a member of the Moog Board of Directors since 1984. Moog
is a worldwide designer, manufacturer and integrator of precision control components and systems
with a total return of 27 percent, 82 percent and 250 percent for the one, three and five year
periods ending September 30, 2007. Xxxxx also serves as a Director of Astronics Corporation, M&T
Bank Corporation and Seneca Foods Corporation. He currently Chairs the regular executive sessions
of non-management Directors of the National Fuel Gas Company Board of Directors and is the
designated contact for shareholders to communicate with the non-management directors on the Board.
Xxxxxxx X. Xxxxxx has been a member of the National Fuel Gas Company Board since 2002. He
served as the Executive Director of the Xxxxxx X. Xxxxxxx Center, Inc., in Jamestown, New York,
from 2002 until 2006. He is the founder of Xxxxxx Exploration, Inc., an independent Appalachian
oil and gas company and served as its Chairman and President from 1984 to 1994. Xxxxxx is also a
former Director of the Independent Oil and Gas Association of New York and the Pennsylvania Natural
Gas Associates — both Appalachian-based energy associations. He was an elected member of the New
York State Assembly from 1975 to 1982, is a former Trustee of the New York Power Authority, was on
the Xxxx’x Advisory Council of the University at Buffalo School of Law from 1996 to 2001 and was
Vice President and investment advisor for X.X. Xxxxxxxx & Co., Inc. from 1994 until 2001.
Xxxx X. Xxxxxxx has been a member of the National Fuel Gas Company Board since 2002. He was
President and CEO of GTI (the Gas Technology Institute), the leading research, development and
training organization serving the natural gas industry, from April 2000 to December 2005. Xxxxxxx
served as President and CEO of MidCon Corporation, a company engaged in interstate and intrastate
natural gas transportation as well as wholesale marketing of natural gas, from October 1988 to
January 1998. In 1998, he directed Occidental Petroleum Corporation’s divestiture and sale of
MidCon to KN Energy, Inc and served as Vice Chairman of KN Energy from February 1998 to February
1999. Xxxxxxx has been a director of Nicor Inc. since 2001, twice served as Chairman of the
Interstate Natural Gas Association of America (INGAA), is the former President of the commodity
chemical business at Occidental Petroleum and former President of the natural gas liquids business
at Cities Service Company. He has also served as a director of Occidental Petroleum, Chicago
Bridge & Iron Company and as a Trustee of Niagara University.
Xxxxxxxx X. Xxxxxxx has, since 2006, served as a Senior Advisor to New Mountain Capital,
L.L.C. Xxxxxxx retired as Vice Chairman and CFO of Verizon, Inc. in September 2002 after more than
37 years in the telecommunications industry. Prior to the Xxxx Atlantic/GTE merger,
which created Verizon, he was Senior Vice Chairman and CFO of Xxxx Atlantic and President and
CEO of New York Telephone. Xxxxxxx serves as Trustee of the Inner City Scholarship Fund and in 1990
was appointed Chairman of the Board of Trustees of the State University of New York, a position he
held until 1996. Xxxxxxx has previously served as a Director of Con Edison, Keyspan and Orion
Power. He is currently a director of Akamai Technologies, Inc., Bear Xxxxxxx & Company, Inc.,
Intercontinental Exchange, Inc., Popular, Inc., Viacom, Inc. and CBS Corp.
Exhibit A
[Date]
[___]
Subject: Confidentiality Agreement
Dear [___]:
Pursuant
to Section 2(i)(1) of the Settlement Agreement, dated as of
January 24, 2008 (the
“Settlement Agreement”), by and among New Mountain Vantage GP, L.L.C., New Mountain Vantage, L.P.,
New Mountain Vantage (California), L.P., New Mountain Vantage (Texas), L.P., New Mountain Vantage
Advisers, L.L.C., New Mountain Vantage (Cayman) Ltd., New Mountain Vantage HoldCo Ltd., Xx. Xxxxxx
X. Xxxxxxx, NMV Special Holdings, L.L.C., California Public Employees’ Retirement System, X. Xxx
Xxxxxx, III, Xxxxx X. XxXxxxxxxx, Xxxxxxxx X. Xxxxxxx (the foregoing individuals and entities being
collectively referred to herein as the “New Mountain Group”), and National Fuel Gas Company, a New
Jersey corporation (the “Company”), the New Mountain Nominee (as defined in the Settlement
Agreement) may disclose, furnish or reveal to you, either orally, in writing or otherwise, or give
you access to, certain information about the business, financial condition, operations, assets and
liabilities of the Company (the “Information”). As a condition to, and in consideration of, the
Company’s willingness to permit the disclosure of Information by the New Mountain Nominee to you,
the Company requires your agreement to the terms and conditions of this letter agreement (this
“Agreement”).
1. As used in this Agreement, the term “Evaluation Material” shall include all Information,
other than Information that may be privileged, obtained in the New Mountain Nominee’s capacity as a
director of the Company, whether (a) prepared by the Company, its advisors or otherwise or gathered
by inspection, (b) in written, oral, electronic or other form, (c) identified as “confidential” or
otherwise or (d) prepared prior to, on or after the date of this Agreement, that is furnished to
you by or on behalf of the New Mountain Nominee, regardless of the manner or medium in which such
Evaluation Material is furnished, including, without limitation, all information and documentation
that the Company is obligated to treat as confidential pursuant to any course of dealing or any
agreement to which the Company is a party; all information and documentation relating to the
Company’s financial, tax and accounting matters and other information regarding business operations
and structure, marketing practices and techniques, business strategies and capabilities, business
plans and relationships with customers, suppliers, principals, employees and others and any
information that is a trade secret within the meaning of applicable trade secret law; and other
documentation and materials prepared by you, containing or based in whole or in part on any
Information furnished by or on behalf of the New Mountain Nominee. Evaluation Material also shall
include (y) any discussions, negotiations and investigations regarding the Information and (z) the
fact that any particular Evaluation Material has been made available to you. Evaluation Material
does not include information that: (a) is or becomes generally available to the public other than
as a result of disclosure, directly or indirectly, by you in violation of this Agreement or any
other obligation of secrecy to the Company or another party, (b) becomes available to you on a
non-confidential basis from a source other than the Company or the New Mountain Nominee; provided,
that such source is not known by you (after due inquiry) to be bound by a confidentiality agreement
with or other obligation of secrecy to the Company or another party, (c) was within your
possession and developed by you prior to it being furnished to you by or on behalf of the New
Mountain Nominee pursuant to Section 2(i)(1) of the Settlement Agreement, provided, that such
source is not known by you (after due inquiry) to be bound by a confiden-
tiality agreement with or other obligation of secrecy to the Company or another party and (d) is
independently developed by you without any reference whatsoever to any Evaluation Material or
violation of this Agreement or any other obligation of secrecy to the Company or another party.
2. You shall use the Evaluation Material solely for the purpose of monitoring the New Mountain
Group’s investment in the Company (the “Permitted Purpose”) and for no other purpose. You shall
not, directly or indirectly, at any time disclose any Evaluation Material to any Person (other than
the Company, the New Mountain Nominee or any member of the New Mountain Investment Group (as
defined in the Settlement Agreement), in each case, if consistent with the Settlement Agreement) in
any manner, or permit or assist any Person (other than the Company, the New Mountain Nominee or any
member of the New Mountain Investment Group, in each case, if consistent with the Settlement
Agreement) to use any Evaluation Material. The term “Person” shall mean any individual,
partnership, corporation, group, syndicate, trust, government or agency thereof, or any other
association or entity.
3. In the event that you are legally required to disclose any Evaluation Material, you shall
give the Company prompt written notice of such requirement so that the Company may seek an
appropriate protective order or other remedy, and/or waive compliance with certain provisions of
this Agreement, and you shall cooperate with the Company to obtain such protective order. In the
event that such protective order or other remedy is not obtained or the Company waives compliance
with the relevant provisions of this Agreement, you shall furnish only that portion of the
Evaluation Material that is legally required to be disclosed and use your reasonable best efforts
to obtain assurances that confidential treatment shall be accorded to such Evaluation Material.
4. At any time upon request by the Company on or after the date on which you cease to be a
member of the New Mountain Investment Group, which shall be no later than the Termination Date (as
defined in the Settlement Agreement), you shall return to the Company (or destroy, with the written
consent of the Company) within five (5) days after such request, all documents, materials and other
items containing Evaluation Material without retaining any copies, extracts or other reproductions
in whole or in part of such material, and shall provide a certification in form and substance
reasonably satisfactory to the Company, signed by you, as to the completeness of the return or
destruction of such materials. Upon such request, you also shall destroy all documents, materials
and other items created by you embodying the Evaluation Material in whatever format, and shall
provide a similar certification to the Company as to the completeness of the destruction of such
materials. Compliance with this paragraph shall not relieve you of your other obligations under
this Agreement.
5. [Paragraph 5 for members of the New Mountain Group shall read as follows: You acknowledge
that the Evaluation Material may constitute material non-public information under applicable
federal and state securities laws, and that you shall not trade on the basis of such information in
violation of such laws. You further acknowledge that you are bound by Section 3 of the Settlement
Agreement as a member of the New Mountain Group, and as a condition to the provision of any
Evaluation Material to you, you agree that you shall be bound by the terms of Section 3 of the
Settlement Agreement as if also set forth herein, mutatis mutandis.] [Paragraph 5 for non-members
of the New Mountain Group shall read as follows: You acknowledge that the Evaluation Material may
constitute material non-public information under applicable federal and state securities laws, and
that you shall not trade on the basis of such information in violation of such laws. As a
condition to the provision of any Evaluation Material to you, you agree that, until the Termination
Date, without the prior written consent of the Board of Directors of the Company (the “Board”)
specifically expressed in a written resolution adopted by a majority vote of the entire Board, you
shall not do any of the following:
(a) acquire, offer or propose to acquire, or agree to acquire (except by way of stock
dividends or other distributions or offerings made available to holders of shares of the
Company’s common stock (the “Common Stock”) and any other securities of the Company entitled
to vote in the election of directors, or securities convertible into, or exercisable or
exchangeable for Common Stock or other securities, whether or not subject to the passage of
time or other contingencies (the Common Stock and such other securities, collectively, the
“Voting Securities”) generally on a pro rata basis, provided that any such securities so
received shall be subject to the provisions hereof), directly or indirectly, whether by
purchase, tender or exchange offer, through the acquisition of control of another Person, by
joining a partnership, limited partnership, syndicate or other “group” (within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), or otherwise, any Voting Securities, if after giving effect to such acquisition you
(by yourself or with any other Person with whom you have any agreement, understanding or
arrangement with respect to Voting Securities) would (1) beneficially own more than [the
signatory’s ownership as of date of this agreement]% of the outstanding Voting Securities or
(2) influence or exercise, directly or indirectly through swap transactions, other hedging
transactions or otherwise, any voting power with respect to more than [the signatory’s
ownership as of date of this agreement]% of the outstanding Voting Securities; provided,
however, that no sales by you shall be required if the increase in the beneficial ownership
of Voting Securities over [the signatory’s ownership as of date of this agreement]% of the
outstanding Voting Securities results exclusively from a reduction in the number of
outstanding Voting Securities by reason of the Company’s repurchase of its Common Stock;
provided, further, that you acquire any additional Voting Securities following disclosure by
the Company of information indicating that you beneficially own in excess of [the
signatory’s ownership as of date of this agreement]% of the outstanding Voting Securities
(for the purposes of computing your beneficial ownership at the time of any purchase, the
number of outstanding Voting Securities shall be determined by the latest available Company
filing with the United States Securities and Exchange Commission (the “SEC”));
(b) engage, or in any way participate, directly or indirectly, in any “solicitation”
(as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of
proxies or consents (whether or not relating to the election or removal of directors), seek
to advise, encourage or influence any Person with respect to the voting of any Voting
Securities; initiate, propose or otherwise “solicit” (as such term is defined in Rule
14a-1(l) promulgated by the SEC under the Exchange Act) shareholders of the Company for the
approval of shareholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under
the Exchange Act or otherwise; or induce or attempt to induce any other Person to initiate
any such shareholder proposal; or otherwise communicate to any other Person how you intend
to vote the shares of Voting Stock beneficially owned by you on any matter put to the
shareholders of the Company for their approval;
(c) seek, propose, or make any statements to any Third Party with respect to, any
merger, consolidation, business combination, tender or exchange offer, sale or purchase of
assets, sale or purchase of securities, dissolution, liquidation, restructuring,
recapitalization or similar transactions involving the Company or any of its controlled
Affiliates (as such term is defined in Rule 12b-2 under the Exchange Act);
(d) form, join or in any way participate in any “group” (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any Voting Securities;
(e) deposit any Voting Securities in any voting trust or subject any Voting Securities
to any arrangement or agreement with respect to the voting of any Voting Securities;
(f) otherwise act, alone or in concert with others, to control or seek to control or
influence or seek to influence the management, the Board or policies of the Company;
(g) seek, alone or in concert with others, (1) to call a meeting of shareholders or
solicit consents from shareholders, (2) to obtain representation on the Board or (3) to
effect the removal of any member of the Board;
(h) seek to amend any provision of the Company’s certificate of incorporation or
by-laws;
(i) submit any demand pursuant to Section 14A:5-28 of the New Jersey Business
Corporation Act;
(j) make any proposal (including to disclose or discuss any proposal with any Third
Party) or enter into any discussion regarding any of the foregoing, or make any statement
or inquiry, or disclose any intention, plan or arrangement (whether written or oral)
inconsistent with the foregoing or any other provision of this Agreement, in each case, to
any Third Party;
(k) have any discussions or communications, or enter into any arrangements,
understanding or agreements (whether written or oral) with, or advise, finance, assist,
induce or knowingly encourage, any Third Party either in connection or inconsistent with
any of the foregoing, or make any investment reasonably understood to be controlling in or
enter into any arrangement in relation to any of the foregoing with, any Third Party that
engages, or offers or proposes to engage, in any of the foregoing; or
(l)
otherwise take or cause any action inconsistent with any of the foregoing. Notwithstanding anything herein to the contrary, you agree that any
suggestions, recommendations, proposals or other communications made to the
Company, the Board or any director or officer of the Company permitted by any
of the foregoing are subject to the condition that such suggestions,
recommendations, proposals or other communications would not reasonably be
expected to require the Company to make public disclosure thereof.]
6. You acknowledge and agree that the Company: (i) has not made any representation or
warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or (ii)
shall not have any liability whatsoever to you relating to or resulting from the use of the Evaluation
Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of
any Evaluation Material to you shall be deemed by implication or otherwise to vest in you rights in
or to the Evaluation Material, other than the right to use such Evaluation Material solely for the
Permitted Purpose.
7. You agree that any contacts or communications initiated by you with the Company as to any
Evaluation Material shall be made to the New Mountain Nominee or the Company’s Chairman of the
Board, Chief Executive Officer or Chief Financial Officer. Accordingly, you agree not to directly
or indirectly initiate contact or communication with any other executive or employee of the Company
concerning Evaluation Material, or to seek any information in connection therewith from any such
Person, without the prior consent of the Company.
8. You acknowledge that the covenants contained in this Agreement are fundamental for the
protection of the Company’s legitimate business and proprietary interests and that in the event of
any violation by you of any such covenants, the Company’s remedies at law would be inadequate. In
the event of any violation or attempted violation of this Agreement, the Company shall be entitled
to specific performance and injunctive relief or other equitable remedy without any showing of
irreparable harm or damage, and you hereby waive any requirement for proof of the economic value of
any trade secret or the securing or posting of any bond or other security in connection with any
such remedy. You also agree to indemnify and hold harmless the Company against and to pay to any
loss or expense incurred by the
Company by reason of or arising out of any breach by you of the obligations in this Agreement,
including, any costs, expenses or other liabilities incurred by the Company in connection with the
enforcement of any of its rights or the obligations hereunder. Such remedies shall not be deemed
to be the exclusive remedies for any breach of this Agreement but will be in addition to all other
remedies available at law or in equity to the Company. Any trade secrets included in the
Evaluation Material will also be entitled to all of the protections and benefits under applicable
trade secret law.
9. This Agreement shall be governed by and construed in accordance with the substantive laws
of the State of New York. If for any reason any court of competent jurisdiction determines it is
impossible to so construe any provision of this Agreement and holds that provision to be invalid,
all other provisions of this Agreement shall remain in full force and effect. This Agreement was
negotiated by sophisticated parties at arms’ length, and neither party hereto shall be construed as
the drafting party against which the Agreement could be construed. You hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New
York for any actions, suits or proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby (and you agree not to commence any action, suit or proceeding
relating thereto except in such courts, and further agree that service of any process, summons,
notice or document by U.S. registered mail to your address set forth above shall be effective
service of process for any action, suit or proceeding brought against you in any such court). You
hereby irrevocably and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of New York, and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
10. Except as otherwise provided herein, the restrictions and covenants set forth herein shall
terminate and be of no further force or effect upon the eighteen month anniversary of the date on
which you cease to be a member of the New Mountain Investment Group, which shall be no later than
the eighteen month anniversary of the Termination Date; provided, however, that with respect to
Evaluation Material which constitutes a trade secret under applicable law, your obligations
pursuant to this Agreement shall survive so long as the Evaluation Material remains a trade secret.
11. This Agreement shall not be assignable by you without the prior written consent of the
Company. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by and
against the successors and assigns of each party to this Agreement.
12. Neither the failure nor any delay by the Company in exercising any right, power or
privilege under this Agreement will operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any right, power
or privilege hereunder. The rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law. 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 shall not be deemed to affect
any other provision hereof or the validity of the remainder of this agreement, and such invalid
provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such
violation.
13. Any amendment or modification of the terms and conditions set forth herein or any waiver
of such terms and conditions must be agreed to in a writing signed by the Company and you. This
Agreement may be executed in counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same agreement. Signatures to this Agreement
transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”)
form, or by any other elec-
tronic means intended to preserve the original graphic and pictorial appearance of a document,
will have the same effect as physical delivery of the paper document bearing the original
signature.
14. This Agreement and the provisions of the Settlement Agreement referenced herein contain
the entire agreement and supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and thereof.
15. Notwithstanding anything herein to the contrary, you shall permit the New Mountain Group
or any of its members to enforce the provisions of this Agreement against you, including but not
limited to, in any actions, suits or proceedings in a court of law.
[Remainder of page left intentionally blank]
Please execute and return one copy of this Agreement, which will constitute your agreement
with respect to the subject matter hereof.
| Yours truly, | ||
| NATIONAL FUEL GAS COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
Agreed to, confirmed and accepted as
of the date first above written:
of the date first above written:
[___]
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