Underwriting Agreement
National Fuel Gas Company
6.50% Notes due 2022
September 12, 2002
Goldman, Sachs & Co.,
Xxxxxx X. Xxxxx & Co., L.P.
As representatives (the "Representatives")
of the several Underwriters (the "Underwriters")
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
National Fuel Gas Company, a New Jersey corporation (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto an aggregate of
$97,700,000 principal amount of the Company's 6.50% Notes due 2022 (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-83497) (the "Initial Registration Statement") for the registration of
$625,000,000 in aggregate offering price of its debt securities and common stock, $1.00 par value
(together with the common stock rights appurtenant thereto) under the Securities Act of 1933, as amended
(the "Securities Act"). The Initial Registration Statement and any post-effective amendment thereto have
been declared effective by the Commission and have heretofore been delivered to the Representatives in
the form so declared effective, together with all exhibits thereto and all documents incorporated by
reference in the prospectus contained therein. No other document with respect to the Initial
Registration Statement or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Securities Act); and no stop order suspending the
effectiveness of the Initial Registration Statement or any post-effective amendment thereto has been
issued and no proceeding for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus relating to the Securities and filed with the Commission pursuant to Rule 424(b)
under the Securities Act is hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and any post-effective amendment thereto, including all exhibits thereto
and the documents incorporated by reference in the prospectus contained in the Initial Registration
Statement at the time such part of the Initial Registration Statement became effective but excluding
Form T-1, each as amended at the time such part of the Initial Registration Statement became effective,
are hereinafter collectively called the "Registration Statement"; the prospectus contained in the
Initial Registration Statement, in the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to the applicable form
under the Securities Act (the "Incorporated Documents"), as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus
or the Prospectus, as the case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the Securities in the form in which it is filed with the Commission pursuant
to Rule 424(b) under the Securities Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) (i) At the date of this Agreement and at the time of any further amendments or supplements to the
Registration Statement or the Prospectus relating to the Securities, each of the Registration Statement,
any Preliminary Prospectus and the Prospectus conform and will conform in all material respects with the
applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and in each case the rules and regulations of the Commission thereunder, or pursuant to
said rules and regulations have been or will be deemed to comply therewith; (ii) at the time the
Registration Statement and any amendment thereto became effective, at the date of this Agreement and at
the time any further amendments to the Registration Statement relating to the Securities become
effective, the Registration Statement did not, does not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) at the date of this Agreement and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto relating to the Securities, the
Prospectus as amended or supplemented does not or will not contain an untrue statement of material fact,
or does not or will not omit to state a material fact necessary in order to make the statements made
therein, in the light of circumstances under which they were made, not misleading; and (iv) the
Incorporated Documents, when filed, complied, comply or will comply in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder
and, when read together with the Prospectus as amended or supplemented, did not contain, do not contain
and will not contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing representations and
warranties in this Section 1(b) shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any Underwriter for
use in connection with the preparation of the Registration Statement or the Prospectus as amended or
supplemented;
(c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, (i) the Company's Restated Certificate of Incorporation or By-Laws, each as amended, or any
indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its
Subsidiaries (as defined in Section 1(g) hereof) is now a party or (ii) any order, rule or regulation
applicable to the Company of any court or any federal or state governmental body having jurisdiction
over the Company or its properties;
(d) The summary of the terms of the Securities contained in the Registration Statement and the Prospectus as
amended or supplemented fairly and accurately summarizes the provisions thereof required to be
summarized by the registration statement form;
(e) The financial statements incorporated by reference in the Registration Statement and the Prospectus as
amended or supplemented present fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement and the Prospectus as amended or supplemented,
such financial statements have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and any supporting schedules incorporated by reference in the
Registration Statement and the Prospectus as amended or supplemented present fairly the information
required to be stated therein;
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under
the laws of the State of New Jersey with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus as amended or supplemented; and
the Company is duly qualified as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, the earnings, or business affairs of the
Company and its subsidiaries considered as one enterprise;
(g) Each of National Fuel Gas Distribution Corporation, National Fuel Gas Supply Corporation, Seneca
Resources Corporation, Horizon Energy Development, Inc., National Fuel Resources, Inc. and Highland
Forest Resources, Inc. is a subsidiary of the Company (each, a "Subsidiary" and, collectively, the
"Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the Prospectus as amended or
supplemented and is duly qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, the earnings or the business affairs
of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim;
(h) No authorization, approval or consent of any court or governmental authority or agency (including the
Federal Energy Regulatory Commission) is necessary in connection with the sale of the Securities
hereunder, except such as may be required under the Securities Act, the Trust Indenture Act and the
Public Utility Holding Company Act of 1935, as amended (the "Holding Company Act"), and in each case the
rules and regulations of the Commission thereunder, or state securities or Blue Sky laws;
(i) The Commission has issued an appropriate order under the Holding Company Act dated March 20, 1998 with
respect to the issuance and sale of the Securities, which remains in full force and effect on the date
hereof, authorizing the issuance and sale by the Company of the Securities;
(j) Since the most recent date as of which information is given in the Registration Statement or the
Prospectus as amended or supplemented, there has not been any material adverse change in the business,
properties or financial condition of the Company and its subsidiaries considered as one enterprise,
except as set forth in or contemplated by the Registration Statement and Prospectus as amended or
supplemented; since such dates, there has not been any material transaction entered into by the Company
other than transactions disclosed by the Registration Statement and the Prospectus as amended or
supplemented and transactions in the ordinary course of business; and, except as set forth in or
contemplated by the Registration Statement and the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the subject that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future financial position, shareholders' equity or results of
operations of the Company and its subsidiaries considered as one enterprise; and, to the best of the
Company's knowledge, except as set forth in or contemplated by the Registration Statement and the
Prospectus as amended or supplemented, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(k) The Securities have been duly authorized by the Company and, when the Securities have been duly executed
by the Company and authenticated by The Bank of New York, as trustee (the "Trustee"), in accordance with
the provisions of the Indenture (as defined below) and upon payment and delivery in accordance with this
Agreement, the Securities will constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; the Indenture has been duly authorized by the Company and
qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the
Company; and the Indenture dated as of October 1, 1999 between the Company and the Trustee (as it may be
amended or supplemented and including the terms of the Securities established pursuant to Section 301
thereof, the "Indenture") is, and the Securities, when executed and authenticated and upon payment and
delivery as aforesaid, will be enforceable in accordance with their respective terms, except as the same
may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights and remedies
generally and (ii) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including, without limitation, (A)
the possible unavailability of specific performance, injunctive relief or any other remedy and (B)
concepts of materiality, reasonableness, good faith, fair dealing and equitable subordination;
(l) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its
consolidated subsidiaries, are independent public accountants as required by the Securities Act and the
rules and regulations of the Commission thereunder; and
(m) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of 97.1% of the principal amount thereof, the principal amount of Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one or more
definitive global Securities in book-entry form that will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company will deliver the Securities to Xxxxxxx,
Xxxxx & Co., for the account of each Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to
Xxxxxxx, Sachs & Co. at least 48 hours in advance, by causing DTC to credit the Securities to the account of
Xxxxxxx, Xxxxx & Co. at DTC. The Company will cause the certificates representing the Securities to be made
available to Xxxxxxx, Sachs & Co. for checking at least 24 hours prior to the Time of Delivery (as defined below)
at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on September 18, 2002 or such other time and date as the
Representatives and the Company may agree upon in writing. Such time and date are herein called the "Time of
Delivery."
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto
pursuant to Section 7 hereof, including the cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 7(h) hereof, will be delivered at the offices of Xxxxxx Xxxx &
Priest, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Closing Location"), and the Securities will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m.,
New York City time, on the Business Day (as defined below) preceding the Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation to the Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second Business Day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be required by such Rule 424(b);
to make no further amendment or any supplement to the Registration Statement or the Prospectus as
amended or supplemented after the date of this Agreement relating to the Securities and prior to the
Time of Delivery that shall be reasonably disapproved by the Representatives promptly after reasonable
notice thereof; to advise the Representatives promptly of any such amendment or supplement after the
Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the Securities or suspending any
such qualification, to promptly use its commercially reasonable best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 2:00 p.m., New York City time, on the Business Day next succeeding the date of this Agreement
and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus
in New York City as amended or supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in the Prospectus in order to
comply with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their reasonable request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many written and electronic copies
as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement
to the Prospectus that will correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of this Agreement and continuing to and including the later of
(i) the termination of trading restrictions for the Securities, as shall be promptly notified to the
Company by the Representatives upon such termination, but in no event shall such period exceed 30 days
from the Time of Delivery, and (ii) the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company that mature more than one year after the Time of
Delivery and that are substantially similar to the Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Securities Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Indenture, any Blue Sky Memoranda, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky Surveys (such counsel fees not to exceed
$7,500); (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing
the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the Securities; and (vii) all other
costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically
provided for in this Section 6. It is understood, however, that, except as provided in this Section 6, and
Sections 7 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder, in the discretion of the Representatives, shall be
subject to the condition that all representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery, true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have been complied with;
(b) At the Time of Delivery, (i) Xxxxxx Xxxx & Priest LLP, counsel for the Company, (ii) Stryker, Tams &
Xxxx LLP, New Jersey counsel for the Company, (iii) Xxxx Xxxxx Xxxxxxx, counsel for the Subsidiaries,
and (iv) Pillsbury Winthrop LLP, counsel for the Underwriters, shall have furnished to the
Representatives their written opinions in substantially the form and substance prescribed in Annexes A,
B, C and D, respectively, hereto, with such changes therein as may be agreed upon by the Company and the
Representatives;
(c) On the date of the Prospectus and at the Time of Delivery, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters, dated the respective dates of delivery thereof, to
the effect that: (i) they are independent accountants with respect to the Company and its subsidiaries
within the meaning of the Securities Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the consolidated financial statements of the Company and its subsidiaries audited
by them and incorporated by reference in the Registration Statement and the Prospectus as amended or
supplemented comply as to form in all material respects with the applicable accounting requirements of
the Securities Act and the Exchange Act and in each case the published rules and regulations thereunder;
(iii) on the basis of (A) performing procedures as specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in Statement on Auditing
Standard No. 71, Interim Financial Information, on the unaudited consolidated balance sheets and the
unaudited consolidated statements of income and earnings reinvested in the business and of cash flows of
the Company incorporated by reference in the Registration Statement and the Prospectus as amended or
supplemented and included in the Company's quarterly reports on Form 10-Q filed by the Company with the
Commission under Section 13 of the Exchange Act, (B) a reading of the minutes of meetings of the Board
of Directors, the Financing Committee thereof and shareholders of the Company and its subsidiaries since
the close of the most recent audited fiscal year as set forth in the minute books through a specified
date and (C) making inquiries of certain officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters (it being understood that the foregoing procedures
do not constitute an audit made in accordance with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect to the comments made in such letter, and
accordingly that they make no representation as to the sufficiency of such procedures for the
Underwriters' purposes), nothing has come to their attention that caused them to believe that (1) the
unaudited consolidated financial statements of the Company included or incorporated by reference in the
Registration Statement and the Prospectus as amended or supplemented do not comply as to form in all
material respects with the accounting requirements of the Securities Act or the Exchange Act and the
published rules and regulations thereunder or that any material modifications should be made to said
unaudited consolidated financial statements included in or incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented for them to be in conformity with generally
accepted accounting principles or (2) at the date of the latest available financial statements of the
Company, if any, and at a subsequent date not more than five days prior to the date of such letter,
there was any change in the common stock or long-term debt of the Company and its subsidiaries, or any
decrease in total common stock equity or net assets of the Company and its subsidiaries (other than as
occasioned by the declaration of regular dividends), as compared with amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented, except in all instances for such changes or decreases that the
Registration Statement and the Prospectus as amended or supplemented disclose have occurred or may occur
or that are described in such letter; and (iv) they have carried out certain procedures and made certain
findings, as specified in such letter, with respect to certain amounts included in the Registration
Statement and the Prospectus as amended or supplemented (including Exhibit 12 to the Registration
Statement) and such other items as the Representatives may reasonably request;
(d) Since the respective dates as of which information is given in the Prospectus as amended prior to the
date of this Agreement, (i) neither the Company nor any of its subsidiaries shall have sustained any
loss or interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended prior to the date of this
Agreement and (ii) there shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of this Agreement, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Securities;
(e) On or after the date of this Agreement (i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(f) On or after the date of this Agreement there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange;
(ii) a suspension or material limitation in trading in the Company's securities on New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New
York State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in
the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Securities;
(g) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the
furnishing of prospectuses on the Business Day next succeeding the date of this Agreement; and
(h) The Company shall have furnished or caused to be furnished to the Representatives at the Time of
Delivery a certificate or certificates of officers of the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Company herein at and as of the Time of
Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or
prior to the Time of Delivery, as to the matters set forth in subsections (a) and (d) of this Section
and as to such other matters as the Representatives may reasonably request.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter, its officers, directors,
employees and agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act as follows:
(i) Against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(ii) Against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the Company; and
(iii) Against any and all expense whatsoever, as incurred (including, subject to Section
8(c) hereof, the fees and disbursements of counsel chosen by the Representatives), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any
such expense is not paid under paragraph (i) or (ii) above; and any and all expense whatsoever incurred
for appearing as a witness in any third-party litigation or proceeding relating to this Agreement;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense
to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto); provided further, however, that this
indemnity shall not inure to the benefit of any Underwriter and each person if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act on account of any loss, liability, claim, damage or
expense arising from the sale of the Securities to any person if a copy of the Prospectus, as the same may then
be supplemented or amended (excluding, however, any document then incorporated or deemed incorporated therein by
reference), was not sent or given by or on behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the alleged omission or alleged untrue statement was corrected in the
Prospectus as supplemented or amended at the time of such confirmation, unless the failure to send or give the
Prospectus as so amended or supplemented resulted from the Company's failure to comply with Section 5(a) hereof.
(b) Each Underwriter, acting severally and not jointly, agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement (or any amendment thereto), and each
person, if any, who controls the Company within the meaning of Section 15 of the Securities Act against any and
all loss, liability, claim, damage and expense described in the indemnity contained in Section 8(a) hereof as
incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. If
it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such action with counsel chosen by it
reasonably satisfactory to such indemnified parties in such action. If an indemnifying party assumes the defense
of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action; provided, however, that if such
indemnified parties reasonably object to such assumption on the ground that there may be legal defenses available
to them that are different from or in addition to those available to such indemnifying party, then the fees and
expenses of separate counsel for the indemnified parties shall be paid by the indemnifying parties. In no event
shall the indemnifying parties be liable for the fees and expenses of more than one counsel for all indemnified
parties in connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in Section 8(a) or 8(b) hereof is unavailable to an indemnified
party in respect of any loss, liability, claim, damage or expense referred to therein, then each indemnifying
party under such Section, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in
such proportion as is appropriate to reflect (i) the relative benefits received by the Company and the
Underwriters from the offering of the securities, (ii) the relative fault of the Company and of the Underwriters
in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense
and (iii) any other relevant equitable considerations. The relative benefits received by the Company and the
Underwriters shall be determined by reference to the respective proportions that the net proceeds from the
offering (before deducting expenses) received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus as amended or
supplemented, bear to the aggregate public offering price of the Securities. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant
to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the equitable considerations
referred to in Section 8(d) hereof. The amount paid or payable by an indemnified party as a result of the loss,
liability, claim, damage and expense referred to in Section 8(d) hereof shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligation of each Underwriter, acting severally and not
jointly, to contribute pursuant to this Section 8 shall be in the proportion that its underwriting obligation
hereunder bears to the underwriting obligations of all other Underwriters. The obligations of each of the Company
and the Underwriters under this Section 8 shall be in addition to any liability that the Company and the
respective Underwriters, as the case may be, may otherwise have.
9. (a) If any Underwriter shall default in its obligation to purchase the Securities that it has
agreed to purchase under this Agreement, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms contained herein. If within 36 hours
after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of 36 hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that they have so arranged for the
purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase
of such Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for
a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements,
and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the
Prospectus that in the opinion of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section 9 with like effect as if such
person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided in Section 9(a) hereof, the
aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase
under this Agreement and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Securities that such Underwriter agreed to purchase under this Agreement) of
the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided in Section 9(a) hereof, the
aggregate principal amount of Securities that remains unpurchased exceeds one-eleventh of the aggregate principal
amount of the Securities, as referred to in Section 9(b) hereof, or if the Company shall not exercise the right
described in Section 9(b) hereof to require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and other statements of the Company
and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 or if the Securities are not delivered by or
on behalf of the Company solely as a result of the failure to satisfy the condition set forth in Section 7(f)
hereof, the Company shall not then be under any liability to any Underwriter with respect to the Securities
covered by this Agreement except as provided in Sections 6 and 8 hereof; but, if for any other reason the
Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Securities except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of Securities shall act on behalf of
each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in this Agreement.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail or facsimile transmission to the address of the Representatives
as set forth in this Agreement; and if to the Company shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement: Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent
by mail or facsimile transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
14. The Company is authorized, subject to applicable law, to disclose any and all aspects of this potential
transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with
respect to such transaction, and all materials of any kind (including tax opinions and other tax analyses)
related to those benefits, without the Underwriters imposing any limitation of any kind.
15. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof.
Very truly yours,
National Fuel Gas Company
By: /s/ P.C. Xxxxxxxx
Name: P.C. Xxxxxxxx
Title: Chairman of the Board, President,
and Chief Executive Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxx X. Xxxxx & Co., L.P.
By: /s/ Xxxxxxx, Sachs & Co.
(Xxxxxxx, Xxxxx & Co.)
Xxxxxx X. Xxxxx & Co., L.P.
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Principal
On behalf of each of the Underwriters
SCHEDULE I
Principal
Amount of
Underwriter Securities to
be Purchased
Xxxxxxx, Xxxxx & Co...................................................... $22,000,000
Xxxxxx X. Xxxxx & Co., L.P............................................... 75,700,000
Total.................................................................... $97,700,000
===========
ANNEX A
[XXXXXX XXXX & PRIEST LLP LETTERHEAD]
September __, 2002
Xxxxxxx, Sachs & Co.,
Xxxxxx X. Xxxxx & Co., L.P.
As representatives of the several Underwriters (the "Underwriters")
named in Schedule I to the Agreement referred to below,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for National Fuel Gas Company (the "Company") in connection with the issuance
and sale of an aggregate of $97,700,000 principal amount of 6.50% Notes due 2022 (the "Notes") being issued under
the Company's Indenture, dated as of October 1, 1999, to The Bank of New York, as Trustee (the "Trustee"),
including the terms of the Notes set forth in, or determined in a manner provided in, a certificate dated the
date hereof delivered pursuant to Section 301 thereof (the "Indenture").
We have reviewed the Company's Registration Statement on Form S-3 (File No. 333-83497) (the
"Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), as of the Effective
Date (as defined below); the Company's Prospectus dated August 20, 1999, as supplemented by the Prospectus
Supplement dated September 12, 2002 (such Prospectus, as so supplemented, the "Prospectus"), filed by the Company
pursuant to Rule 424(b) of the rules and regulations of the Securities and Exchange Commission (the "Commission")
under the Securities Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended September 30, 2001 (the "Annual Report"), the Quarterly Reports on Form
10-Q of the Company for the quarterly periods ended December 31, 2001, March 31, 2002 and June 30, 2002 (the
"Quarterly Reports") (the Annual Report, together with the Quarterly Reports, the "Exchange Act Documents"), each
as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In
addition, we have reviewed, and have relied as to matters of fact upon, the documents delivered to you at the
closing, and upon originals or copies, certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such certificates or comparable documents of public
officials and of officers and representatives of the Company and its subsidiaries, and have made such other and
further investigations, as we have deemed relevant and necessary as a basis for the opinions hereinafter set
forth. In such review, we have assumed the genuineness of all signatures, the legal capacity of natural persons,
the authenticity of all documents submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the authenticity of such latter documents. For
purposes of this opinion, "Effective Date" means the date the Annual Report was filed by the Company with the
Commission under the Exchange Act.
With respect to legal matters governed by the laws of the State of New Jersey we understand that you are
relying upon the opinion of Stryker, Tams & Xxxx LLP, New Jersey counsel for the Company, dated the date hereof
and addressed to you, which is being furnished to you pursuant to the Underwriting Agreement dated September 12,
2002 between the Company and you (the "Agreement"). We do not pass upon the incorporation of the Company. With
respect to certain other legal matters relating to the Company and to the due incorporation of, and various other
matters relating to, certain subsidiaries of the Company, we understand that you are relying upon the opinion of
Xxxx Xxxxx Xxxxxxx, Esq., counsel for the Company and such subsidiaries, dated the date hereof and addressed to
you, which is being furnished to you pursuant to the Agreement.
Based upon the foregoing and subject to the qualifications and limitations stated herein, we hereby
advise you that in our opinion:
1. The Company had full power and authority to execute the Indenture and the Indenture has been
duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and assuming due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding instrument enforceable against the Company in accordance
with its terms, except as the same may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights
and remedies generally and (ii) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including, without limitation, (x) the
possible unavailability of specific performance, injunctive relief or any other remedy and (y) concepts of
materiality, reasonableness, good faith, fair dealing and equitable subordination.
2. The Notes have been duly authorized by the Company and, when the Notes have been duly
authenticated by the Trustee in accordance with the provisions of the Indenture and upon payment and delivery in
accordance with the Agreement, the Notes, subject to the qualifications in paragraph 1 above, will constitute
legal, valid and binding obligations of the Company enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture.
3. The Company is not an "investment company," as such term is defined in the Investment Company
Act of 1940, as amended.
4. The Registration Statement has become and is effective under the Securities Act; and to the
best of our knowledge, no proceedings for a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
5. The statements made in the Prospectus under "Description of Debt Securities" and "Description
of the Notes," insofar as they purport to constitute summaries of the terms of the Notes, and under
"Underwriting," insofar as they purport to describe the provisions of the laws and documents referred to therein,
constitute accurate summaries of the terms of such documents in all material respects.
6. The Commission has issued an appropriate order under the Public Utility Holding Company Act of
1935, as amended, dated March 20, 1998 with respect to the issuance and sale of the Notes (the "Holding Company
Act Order"), which, to the best of our knowledge, remains in full force and effect on the date hereof,
authorizing the issuance and sale by the Company of such Notes; and the Holding Company Act Order is the only
approval or consent of any governmental body legally required for the authorization of the issuance and sale of
the Notes by the Company pursuant to the terms of the Agreement, except for such approvals or consents as may be
required under the Securities Act or the Trust Indenture Act or under state or other securities or blue sky laws.
7. The Agreement has been duly authorized, executed and delivered by the Company.
8. The Company is in good standing under the laws of the State of New York.
We have not independently verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraph 5 above or as they relate to us. In the course of
the preparation by the Company of the Registration Statement and the Prospectus (excluding the Exchange Act
Documents), we participated in conferences with certain of its officers and employees, with other counsel for the
Company, with representatives of PricewaterhouseCoopers LLP, the Company's independent accountants, and with your
representatives and your counsel. We did not prepare the Exchange Act Documents or participate in the selection
of information contained therein or omitted therefrom by the Company; however, we did review drafts of the
Exchange Act Documents prior to their filing with the Commission. Based on our review of the Registration
Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement and the Prospectus (excluding in each case the Exchange Act Documents)
and our participation in the conferences referred to above, (i) we are of the opinion that each of the
Registration Statement, as of the Effective Date, and the Prospectus, at the time it was filed under Rule 424(b)
of the rules and regulations of the Commission under the Securities Act, complied as to form in all material
respects with the requirements of the Securities Act and the Trust Indenture Act and the applicable rules and
regulations of the Commission under such Acts and that the Exchange Act Documents complied as to form when filed
in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no opinion with respect to the financial
statements or other financial or statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of the Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, at the time it was filed under Rule 424(b) of the rules and regulations of the Commission
under the Securities Act or as of the date hereof, included or includes any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statement or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and we do not express any opinion herein concerning
any law other than the law of the State of New York, the Federal law of the United States and, to the extent set
forth herein, the law of the State of New Jersey. Insofar as the opinions expressed herein relate to or are
dependent upon matters governed by the laws of the State of New Jersey, we have relied upon the opinion of
Stryker, Tams & Xxxx LLP referred to above.
This opinion is rendered to you in connection with the above-described transaction. This opinion may not
be relied upon by you or the other Underwriters for any other purpose, or relied upon by, or furnished to, any
other person, firm or corporation without our prior written consent.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
ANNEX B
[LETTERHEAD OF STRYKER, TAMS & XXXX LLP]
September __, 2002
Xxxxxxx, Sachs & Co.,
Xxxxxx X. Xxxxx & Co., L.P.
As representatives of the several Underwriters (the "Underwriters")
named in Schedule I to the Agreement referred to below,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Referring to the issuance by National Fuel Gas Company (the "Company") of an aggregate of $97,700,000
principal amount of 6.50% Notes due 2022 (the "Notes") being issued under the Company's Indenture, dated as of
October 1, 1999, to The Bank of New York, as Trustee (the "Trustee"), including the terms of the Notes set forth
in, or determined in a manner provided in, a certificate dated the date hereof delivered pursuant to Section 301
thereof (the "Indenture"), we advise you as follows:
We have been New Jersey counsel for the Company for many years and have examined certified copies of its
Restated Certificate of Incorporation and each amendment and supplement thereof to date (as amended and
supplemented, the "Restated Charter"), together with the original corporate records in connection with the
incorporation of the Company. We have also examined a certified copy of its By-Laws, as amended to date (as
amended, the "By-Laws"). We have reviewed the minutes of (i) the meetings of the Board of Directors of the
Company held on December 11, 1997, December 10, 1998 and September 13, 2001 and (ii) the meeting of the Financing
Committee of the Board of Directors of the Company held on October 14, 1999 and September 12, 2002 and have
examined certified copies of the resolutions adopted at each of those meetings.
We have examined the Company's Registration Statement on Form S-3 (File No. 333-83497) and the
Prospectus contained therein, as supplemented by the Prospectus Supplement dated September 12, 2002, relating to
the Notes and a certified copy of the order of the Securities and Exchange Commission with respect to such
Registration Statement. We have also examined other documents used in connection with the sale of the Notes,
including the form of the Underwriting Agreement dated September 12, 2002 between the Company and you (the
"Agreement").
In addition, we have examined and, as to matters of fact, have relied upon the documents delivered to
you at the closing and upon originals or copies, certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a basis for the opinions hereinafter expressed.
Based upon the foregoing and upon such examination of law as we have deemed necessary in order to give
this opinion, it is our opinion that:
1. The Company was duly incorporated and is validly existing as a corporation under the laws of
the State of New Jersey, and is authorized by such laws and the Restated Charter to carry on its current business.
2. The Company has full power and authority to execute the Indenture and the Indenture has been
duly authorized, executed and delivered by and, insofar as New Jersey law applies and assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable
against the Company in accordance with its terms, except as the same may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights and remedies generally and (ii) the application of general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law), including, without limitation, (x) the possible unavailability of specific performance, injunctive relief
or any other remedy and (y) concepts of materiality, reasonableness, good faith, fair dealing and equitable
subordination.
3. The Notes have been duly authorized by the Company and, insofar as New Jersey law applies, when
the Notes have been duly authenticated by the Trustee in accordance with the provisions of the Indenture and upon
payment and delivery in accordance with the Agreement, the Notes, subject to the qualifications in paragraph 2
above, will constitute legal, valid and binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture.
4. The use of facsimile signatures of officers of the Company upon the Notes has been duly
authorized and is valid under the laws of the State of New Jersey.
5. The Agreement has been duly authorized, executed and delivered by the Company and does not
contravene the Restated Charter or the By-Laws.
We express no opinion herein concerning the applicability of state securities or "blue sky" laws,
including, without limitation, the New Jersey Uniform Securities Law, as amended, to the proposed issuance and
sale of the Notes by the Company or to the distribution thereof by the Underwriters. We also express no opinion
regarding the authority of the Company to issue and sell the Notes under the Public Utility Holding Company Act
of 1935, as amended.
We have read the opinions of even date herewith rendered to you by Xxxxxx Xxxx & Priest LLP and
Pillsbury Winthrop LLP, and we concur in the legal conclusions expressed therein insofar as such conclusions
involve questions of New Jersey law.
This opinion is rendered to you in connection with the above-described transaction. This opinion may not
be relied upon by you or any of the other Underwriters for any other purpose or relied upon by, or furnished to,
any person, firm or corporation without our prior written consent; provided however, that a copy of this opinion
is being delivered to each of Xxxxxx Xxxx & Priest LLP and Pillsbury Winthrop LLP who, in their respective
opinions to you of even date herewith and, in the case of Xxxxxx Xxxx & Priest LLP, to the Trustee as well, are
entitled to rely upon the opinions expressed herein concerning matters of New Jersey law to the same extent as if
this opinion had been addressed to each of them.
Very truly yours,
STRYKER, TAMS & XXXX LLP
ANNEX C
[LETTERHEAD OF XXXX XXXXX XXXXXXX]
September __, 2002
Xxxxxxx, Xxxxx & Co.,
Xxxxxx X. Xxxxx & Co., L.P.
As representatives of the several Underwriters (the "Underwriters")
named in Schedule I to the Agreement referred to below,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Please refer to the sale and issuance by National Fuel Gas Company (the "Company") of an aggregate of
$97,700,000 principal amount of 6.50% Notes due 2022 (the "Notes") being issued under the Company's Indenture,
dated as of October 1, 1999, to The Bank of New York, as Trustee. I have served as counsel for the Company and
National Fuel Gas Distribution Corporation ("Distribution"), National Fuel Gas Supply Corporation ("Supply"),
Seneca Resources Corporation ("Seneca"), Horizon Energy Development, Inc. ("Horizon"), National Fuel Resources,
Inc. ("NFR") and Highland Forest Resources, Inc. ("Highland"), all of which (the "Subsidiaries") are wholly-owned
subsidiaries of the Company. I am a member of the New York Bar and I am familiar with the legal aspects of real
property acquisitions in the States of California, New York, Texas, the Commonwealth of Pennsylvania and the
Outer Continental Shelf of the United States by the Subsidiaries. I am also familiar with the litigation to which
the Subsidiaries are parties, with their respective corporate records and with the minutes of their respective
Boards of Directors.
Based upon the foregoing, I am of the opinion that:
1. Supply, Seneca and Highland have been duly incorporated and are now validly existing as
corporations in good standing under the laws of the Commonwealth of Pennsylvania.
2. Distribution, Horizon and NFR have been duly incorporated and are now validly existing as
corporations in good standing under the laws of the State of New York.
3. Each of the Subsidiaries has full corporate power to conduct the business now being conducted
by it as set forth in or incorporated by reference in the Prospectus dated August 20, 1999, as supplemented by
the Prospectus Supplement dated September 12, 2002, relating to the Notes (such Prospectus, as so supplemented,
the "Prospectus") and is in good standing under the laws of each other state in which such qualification is
legally required, except where the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, the earnings or the business affairs of the Company and its subsidiaries
considered as one enterprise.
4. Methods used in connection with investigating title to properties, or interests therein, owned
by each of the Subsidiaries in the States of California, New York, Texas, the Commonwealth of Pennsylvania and
the Outer Continental Shelf of the United States of America are consistent with good practice and established
methods used by prudent companies engaged in similar businesses and are adequately designed to provide for the
acquisition of such titles or interests. Substantially all of the properties now owned by the Subsidiaries in the
States of California, New York, Texas, the Commonwealth of Pennsylvania and the Outer Continental Shelf of the
United States of America are held by subsidiaries of the Company without any unfavorable adjudicated claim.
5. To the best of my knowledge and other than as set forth in or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that,
if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of my knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
6. Of the Company and the Subsidiaries, only Distribution carries on a public utility business in
the State of New York or the Commonwealth of Pennsylvania. Distribution holds franchises that I consider to be
adequate and sufficient to permit it to engage in the business that it presently conducts, and there is no
pending litigation concerning its rights to render services under any such franchise.
7. The consummation of the transactions contemplated by the Underwriting Agreement dated September
12, 2002 between the Company and you (the "Agreement") and the fulfillment of the terms thereof will not result
in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the
Restated Certificate of Incorporation and each amendment and supplement thereof to date or the By-Laws, as
amended to date, of the Company, or any material contract, agreement or other instrument to which the Company is
a party or by which it may be bound or (ii) any laws, order, rule or regulation applicable to the Company of any
court or any federal or state governmental body having jurisdiction over the Company or its properties.
Very truly yours,
Xxxx Xxxxx Xxxxxxx
ANNEX D
[PILLSBURY WINTHROP LLP LETTERHEAD]
September __, 2002
Xxxxxxx, Xxxxx & Co.,
Xxxxxx X. Xxxxx & Co., L.P.
As representatives of the several Underwriters (the "Underwriters")
named in Schedule I to the Agreement referred to below,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to the Underwriters in connection with the issuance and sale by National Fuel
Gas Company (the "Company") of an aggregate of $97,700,000 principal amount of 6.50% Notes due 2022 (the "Notes")
being issued under the Company's Indenture, dated as of October 1, 1999, to The Bank of New York, as Trustee (the
"Trustee"), including the terms of the Notes set forth in, or determined in a manner provided in, a certificate
dated the date hereof delivered pursuant to Section 301 thereof (the "Indenture").
We have reviewed the Company's Registration Statement on Form S-3 (File No. 333-83497) (the
"Registration Statement") filed by the Company under the Securities Act of 1933 (the "Securities Act"); the
Company's Prospectus dated August 20, 1999 as supplemented by the Prospectus Supplement dated September 12, 2002
(such Prospectus, as so supplemented, the "Prospectus"), filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Securities and Exchange Commission (the "Commission") under the Securities Act,
which pursuant to Form S-3 under the Securities Act incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended September 30, 2001 (the "Annual Report") and the Quarterly Reports on Form
10-Q of the Company for the quarterly periods ended December 31, 2001, March 31, 2002 and June 30, 2002 (the
"Quarterly Reports" and, together with the Annual Report, the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); and the Indenture. In addition, we have reviewed, and have
relied as to matters of fact upon, the documents delivered to you at the closing, and upon originals or copies,
certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials and of officers and representatives
of the Company and its subsidiaries, and have made such other and further investigations, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth. In such review, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of such latter documents.
With respect to legal matters governed by the law of the State of New Jersey, we understand that you are
relying upon the opinion of Stryker, Tams & Xxxx LLP, New Jersey counsel for the Company, dated the date hereof
and addressed to you, which is being furnished to you pursuant to the Agreement. We do not pass upon the
incorporation or qualification to do business of the Company. With respect to certain other legal matters
relating to the Company and to the due incorporation of, and various other matters relating to, certain
subsidiaries of the Company, we understand that you are relying upon the opinion of Xxxx Xxxxx Xxxxxxx, Esq.,
counsel for the Company and such subsidiaries, dated the date hereof and addressed to you, which is being
furnished to you pursuant to the Agreement.
Based upon the foregoing and subject to the qualifications and limitations stated herein, we hereby
advise you that in our opinion:
1. The Company has full power and authority to execute the Indenture and the Indenture has been duly
authorized, executed and delivered by the Company and, and assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally binding instrument enforceable against the Company in
accordance with its terms, except as the same may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of
creditors' rights and remedies generally and (ii) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law), including, without limitation,
(x) the possible unavailability of specific performance, injunctive relief or any other remedy and (y) concepts
of materiality, reasonableness, good faith, fair dealing and equitable subordination; and, to the best of our
knowledge, the Indenture has been duly qualified under the Trust Indenture Act of 1939 (the "Trust Indenture
Act").
2. The Notes have been duly authorized by the Company and, when the Notes have been duly authenticated by
the Trustee in accordance with the provisions of the Indenture and upon payment and delivery in accordance with
the Agreement, the Notes, subject to the qualifications in paragraph 1 above, will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to
the benefits of the Indenture.
3. The statements made in the Prospectus under "Description of Debt Securities" and "Description of the
Notes," insofar as they purport to constitute summaries of the terms of the Notes, and under "Underwriting,"
insofar as they purport to describe the provisions of the laws and documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects.
4. The Commission has issued an appropriate order under the Public Utility Holding Company Act of 1935
dated March 20, 1998 with respect to the issuance and sale of the Notes (the "Holding Company Act Order"), which,
to the best of our knowledge, remains in full force and effect on the date hereof, authorizing the issuance and
sale by the Company of such Notes; and the Holding Company Act Order is the only approval or consent of any
governmental body legally required for the authorization of the issuance and sale of the Notes by the Company
pursuant to the terms of the Agreement, except for such approvals or consents as may be required under the
Securities Act or the Trust Indenture Act or under state or other securities or blue sky laws.
5. The Agreement has been duly authorized, executed and delivered by the Company.
We have not independently verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraph 3 above or as they relate to us. In the course of
the preparation by the Company of the Registration Statement and the Prospectus (excluding the Exchange Act
Documents), we participated in conferences with certain of its officers and employees, with counsel for the
Company, with representatives of PricewaterhouseCoopers LLP, the Company's independent accountants, and with your
representatives. We did not prepare the Exchange Act Documents or participate in the selection of information
contained therein or omitted therefrom by the Company; however, we did review drafts of the Exchange Act
Documents prior to their filing with the Commission. Based on our review of the Registration Statement, the
Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the
Registration Statement and the Prospectus (excluding in each case the Exchange Act Documents) and our
participation in the conferences referred to above, (i) we are of the opinion that each of the Registration
Statement, as of the date it was declared effective by the Commission under the Securities Act, and the
Prospectus, at the time it was filed under Rule 424(b) of the rules and regulations of the Commission under the
Securities Act, complied as to form in all material respects with the requirements of the Securities Act and the
Trust Indenture Act and the applicable rules and regulations of the Commission under such Acts and that the
Exchange Act Documents complied as to form when filed in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we
express no opinion with respect to the financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii)
we have no reason to believe that the Registration Statement, as of the date the Annual Report was filed by the
Company with the Commission under the Exchange Act, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, at the time it was filed under Rule 424(b) of the rules and regulations of the Commission
under the Securities Act or as of the date hereof, contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York, and we do not express any opinion herein concerning
any law other than the law of the State of New York, the Federal law of the United States of America and, to the
extent set forth herein, the law of the State of New Jersey. Insofar as the opinions expressed herein relate to
or are dependent upon matters governed by the law of the State of New Jersey, we have relied upon the opinion of
Stryker, Tams & Xxxx LLP referred to above.
This opinion is rendered to you in connection with the above-described transaction. This opinion may not
be relied upon by you or any of the other Underwriters for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation, without our prior written consent.
Very truly yours,
PILLSBURY WINTHROP LLP
