AMENDED AND RESTATED
SPLIT DOLLAR INSURANCE AND DEATH BENEFIT AGREEMENT
WHEREAS, National Fuel Gas Company (hereinafter, with any of its
subsidiaries, collectively called the "Company"), in recognition of the highly
valued services of Xxxxxx X. Xxxxxxxx (hereinafter called the "Executive"), the
Executive's importance to the success of the Company, and the need of
Executive's family for financial security in the event of Executive's death, has
authorized the adoption of a split dollar insurance and death benefit agreement
benefiting the Executive; and
WHEREAS, the Executive and the Company desire to amend in certain
respects and to restate in its entirety the terms of the Split Dollar Death
Benefits Agreement between them dated April 1, 1991, as amended by an agreement
dated January 8, 1996; and
WHEREAS, the Executive has agreed not to participate in any
noncontributory group term life insurance program while employed by the Company;
and
WHEREAS, the Company desires to recover the premiums it pays for the
purchase of a life insurance policy or policies for these purposes upon
termination of this Agreement.
NOW THEREFORE, for mutual consideration, the receipt and adequacy of
which the Company and Executive each acknowledge, the Company and Executive
agree as follows:
I. LIFE INSURANCE
By an Irrevocable Trust Agreement dated January 27, 1997, the Executive
has established a trust to which the Executive has assigned all of his interest
in two life insurance policies, Policy Numbers 3484311 and 3646630 (hereinafter,
together with any additional or replacement policy and any supplementary
contracts issued in connection therewith, called the "Policy") in the aggregate
face amount of $3,360,456 issued by the Guardian Life Insurance Company of
America, of New York, New York (hereafter called the "Insurer"). The Trustee or
Trustees acting from time to time under such Trust Agreement (the "Trustee")
shall be the sole owner of the Policy and may exercise all rights and incidents
of ownership with respect to the Policy, except as specifically provided in this
Agreement. To secure the Company's interest under this Agreement, the Trustee
has executed a collateral assignment of the Policy to the Company (the
"Collateral Assignment").
II. PREMIUMS
The Company shall pay the total premiums due on the Policy during the
term of this Agreement. Premiums shall be paid directly to the Insurer on or
before the due date, extended by any grace period. At the Company's election,
Policy dividends may be applied to reduce premiums. Notwithstanding the above,
after the Executive reaches age 65 or if the Executive's employment with the
Company terminates prior to such age, the Company shall have no further
obligation to make premium payments pursuant to this Section II.
III. BENEFICIARY
The Trustee may from time to time while this Agreement is in force, by
such written notice to the Insurer as the Insurer may require, designate the
beneficiary or beneficiaries (the "Beneficiary") to receive the Death Benefit as
provided in this Agreement.
IV. TERMINATION OF AGREEMENT
A. This agreement shall terminate upon the earliest to occur of the
following:
a) February 14, 2014 (the Executive's 70th birthday), unless
the Company and the Executive agree in writing to a later
date;
b) mutual agreement of the Company and the Executive prior
to such date;
c) the Executive's death.
B. If the Executive's employment with the Company is terminated for
Cause, as hereinafter defined, or if the Executive engages in Competition, as
hereinafter defined, with the Company, whether or not the Executive's employment
with the Company has been terminated, the Company may terminate this Agreement
by written notice to the Executive. In the event of termination under this
Subsection B, the Executive shall forfeit all rights under this Agreement and in
the Policy.
V. REPAYMENT OF PREMIUMS TO THE COMPANY
Upon termination of this Agreement, the Company shall be entitled to
repayment of the amount of the total premiums paid by the Company to maintain
the Policy, less the amount of any distributions therefrom to the Company
(including the outstanding balance of any Policy loans to the Company) (the "Net
Premiums"). Such repayment may be made in cash or, if this Agreement terminates
during the Executive's lifetime, in the form of a paid-up policy having
equivalent value, as the Company may elect. If full repayment is not made within
60 days of termination of this Agreement, the Company may enforce its rights
under the Collateral Assignment, including (without limitation) recovery from
the Insurer out of the proceeds of the Policy or by surrender thereof. Upon
receipt of the Net Premiums, the Company shall promptly release the Collateral
Assignment.
VI. DEATH BENEFIT WHILE AGREEMENT IS IN FORCE
A. If this Agreement terminates by reason of the Executive's death, the
Beneficiary shall be entitled to receive from the proceeds of the Policy, after
repayment of the Net Premiums, an amount (the "Death Benefit") equal to the sum
of 24 times the base monthly salary payable by the Company to the Executive in
the month preceding the Executive's death (or, if the Executive is retired, in
the month prior to the commencement of such retirement) and two times the most
recent award, if any, paid to the Executive under any of the Company's lump sum
payment programs including the Annual At Risk Compensation Incentive Program
(AARCIP). If the Executive has retired (on disability or otherwise) and becomes
reemployed by the Company, the latest date of commencement of retirement shall
be used for purposes of computing the Death Benefit. If the proceeds of the
Policy after repayment of the Net Premiums are inadequate to pay the Death
Benefit in full, the Company shall have no obligation for the shortfall.
B. The Company shall notify the Insurer of the amount of the Death
Benefit within 30 days of the death of the Executive while this Agreement is in
force, and the Death Benefit shall be paid to the Beneficiary under the
settlement option elected by the Trustee or the Beneficiary.
C. After payment of the Death Benefit, the Company shall be entitled to
any remaining balance of the proceeds of the Policy, and the Beneficiary, the
Trustee and the Executive's estate shall have no further rights in or under this
Agreement or the Policy.
VII. OTHER COMPANY BENEFITS
The Executive shall have no right to participate in any non-contributory
group-term life insurance plan maintained by the Company. In other respects, the
benefits provided to the Executive under this Agreement and the Policy shall be
separate from and in addition to other benefits that may be offered by the
Company to the Executive, including any non-contributory accidental death and
dismemberment coverage that the Company maintains.
VIII. POLICY LOANS
While this Agreement is in force, neither the Trustee nor any Assignee
shall borrow against or pledge the Policy as security for any debt.
IX. ASSIGNMENT OF THE POLICY AND THIS AGREEMENT
A. The Policy may not be assigned, transferred, pledged, surrendered or
otherwise encumbered or alienated without the written consent of the Company.
Any assignee pursuant to this Section and any other successor to the Executive's
interest in the Policy (both referred to herein as the "Assignee") shall be
bound by this restriction.
B. The rights and obligations of this Agreement are personal to the
Executive and the Trustee and may not be assigned; provided that one or more
successor Trustees may be appointed.
X. REPLACEMENT OF THE POLICY
The Company shall have the right to replace the Policy with a new policy
or policies, with the consent of the Executive and the Trustee, which consent
shall not unreasonably be withheld. In the event of such replacement, the
Company shall have the right to receive the cash surrender value of any policy
being canceled or surrendered.
XI. AMENDMENT
This Agreement may be altered, amended or modified only by a written
Agreement signed by the Company, the Executive and the Trustee (or, if the
Policy has been assigned, the Assignee). This Agreement and any amendments
hereto shall be binding upon the Company, the Executive and the Trustee and
their legal representatives, successors, beneficiaries and assigns. In the event
that the Company becomes a party to any merger, consolidation or reorganization,
this Agreement shall remain in full force and effect as an obligation of the
Company or its successors in interest.
XII. DEFINITION OF TERMS
A. "Cause" means serious, willful misconduct in respect of the
Executive's obligations to the Company that has damaged or is likely to damage
the Company, including (without limitation) any endeavor by the Executive,
directly or indirectly, to interfere in the business relations of or otherwise
harm the Company, as the Company shall reasonably determine.
B. "Competition" means any employment, consulting contract or other
arrangement, before or after the termination of the Executive's employment with
the Company, with any person or entity that is then or becomes engaged in a
business enterprise of any sort that is, in any material respect, competitive
with the Company, or any assistance by the Executive to any such enterprise in
engaging in such competition.
XIII. NONINTERFERENCE
The Executive and the Trustee covenant that the Executive, the Trustee,
any Assignee and the Beneficiary shall not interfere with the Company's rights
under this Agreement or take any voluntary action that causes the Policy to fail
or lapse, in whole or in part. The Executive, the Trustee, any Assignee and the
Beneficiary will cooperate with Company and the Insurer in all respects in
obtaining and maintaining the Policy and shall, if necessary, use their best
efforts to provide, from time to time, such evidence of insurability as the
Insurer may require.
XIV. MISCELLANEOUS
A. If any part of this Agreement or the application of any part to
certain persons or circumstances shall be invalid or unenforceable, the
remainder of the Agreement shall continue to be effective.
B. This Agreement shall be construed and regulated under the laws of the
State of New York.
C. The Executive understands that the benefits provided under this
Agreement will or may result in taxable income to him, and the Company reserves
the right to implement tax withholding respecting such amounts as and when it
may deem such withholding appropriate.
XV. ERISA PROVISIONS
This Agreement constitutes part of a welfare benefit plan ("Welfare
Plan") and, as such, the following provisions are part of this Agreement and are
intended to meet the requirements of Title I of the Employee Retirement Income
Security Act of 1974 ("ERISA"):
1. The named fiduciary of the Welfare Plan is the Company.
2. The funding policies under the Welfare Plan are that all
premiums on the Policy be remitted to the Insurer by the
Company when due, less any amount paid by the Executive or the
Assignee, in their sole discretion.
3. Direct payment by the Insurer is the basis of payment of
benefits under this Agreement.
4. For claims procedure purposes with respect to claims asserted
under the Welfare Plan, the "Claims Manager" shall be Xxxxxx
X. Xxxxx, or such other person as may be designated from time
to time by the Company.
a. If for any reason a claim for benefits is made by a
participant under the Welfare Plan ("Claimant") and is
denied by the Company, the Claims Manager shall deliver to
the Claimant a written explanation specifying the reasons
for the denial, the provisions on which such denial is
based, such other data as may be pertinent, and the
procedures available to the Claimant to obtain review of
the claim, all written in a manner calculated to be
understood by the Claimant. For this purpose,
(i) the claim shall be deemed filed when presented in
writing to the Claims Manager; and
(ii) the Claims Manager's explanation shall be in writing
delivered to the Claimant within 90 days of the date
the claim is filed.
b. The Claimant shall have 60 days following receipt of the
denial of the claim to file with the Claims Manager a
written request for review of the denial. For such review,
the Claimant or his or her representative may submit
pertinent documents and written issues and comments.
c. The Claims Manager shall have discretion to decide the
issue on review and shall furnish the Claimant with a copy
of the decision within 60 days of receiving the Claimant's
request for review of the claim. The decision on review
shall be written in a manner calculated to be understood by
the Claimant and shall specify the reasons for the
decision, as well as the provisions on which the decision
is based. If a copy of the decision is not so furnished to
the Claimant within such 60 days, the claim shall be deemed
denied on review.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
17th
set opposite their respective signatures, to be effective on the ------ day of
September 7
------------, 199--.
NATIONAL FUEL GAS COMPANY
9/17/97 /s/Xxxxxxx X. Xxxxxxx
-------------------------- By: ---------------------------------
Date Xxxxxxx X. Xxxxxxx
Chairman of the Board, President
/s/Xxxxxx X. Xxxxx and Chief Executive Officer
--------------------------
Witness
EXECUTIVE:
August 20, 1997 /s/Xxxxxx X. Xxxxxxxx
-------------------------- ---------------------------------
Date Xxxxxx X. Xxxxxxxx
/s/Xxxxx X. Xxxxxx
--------------------------
Witness
TRUSTEE:
9/4/97 /s/Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------------
Date Xxxxx X. Xxxxxxxx
/s/Xxxxxxx X. Xxxxxx
--------------------------
Witness
