Exhibit 10(iii)(a)
RETIREMENT AND CONSULTING AGREEMENT
This Retirement and Consulting Agreement ("Agreement") is entered into by
and between Xxxxxxx X. Xxxxxxx, an individual residing at 00 Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx, 00000, (hereinafter "Xxxxxxx") and National Fuel Gas Company
("National Fuel"), a New Jersey corporation, on September 5, 2001. For purposes
of this Agreement, as appropriate, the term "National Fuel" refers,
collectively, to National Fuel Gas Company and its subsidiaries and other
affiliates.
RECITALS
WHEREAS, Xxxxxxx is employed by National Fuel pursuant to an employment
agreement dated September 17, 1981, as amended, and currently extended to
September 1, 2002 (the "Employment Agreement"), which affords him the minimum
base salary hereinafter set forth, and (during as well as after the term
thereof) participation in all National Fuel benefits, plans and programs
(including improvements therein) on at least a par with other executive officers
of National Fuel;
WHEREAS, Xxxxxxx has agreed to waive his rights to any automatic extension
of the term of the Employment Agreement and to certain payments and benefits to
which he otherwise would be entitled under the Employment Agreement during the
usual automatic extension thereof and following termination of employment;
WHEREAS, National Fuel wishes to secure for itself the availability of
Xxxxxxx so that it might benefit from Xxxxxxx'x experience, knowledge, talents,
reputation and prominence in the energy industry, and desires that Xxxxxxx
continue to advise National Fuel on issues relating to expansions, mergers,
acquisitions, dispositions and other important matters;
WHEREAS, Xxxxxxx has agreed to cooperate with National Fuel in connection
with National Fuel's request on the timing of payments under the Executive
Retirement Plan, and, in connection therewith, Xxxxxxx has agreed to certain
adjustments in Pension Benefit Guarantee Corporation rates, and to certain other
assumptions and interest rates;
WHEREAS, Xxxxxxx'x employment at the request of National Fuel with National
Fuel after age 65 has reduced the value of benefits he accrued through that date
under National Fuel's pension plans;
WHEREAS, in lieu of seeking other opportunities, Xxxxxxx has agree to
remain available and to continue to provide services to National Fuel, to serve
as a "bridge" in the event his successor should become incapacitated, and not to
compete with National Fuel after the termination of his employment;
WHEREAS, Xxxxxxx recognizes that National Fuel's business and goodwill are
dependent upon National Fuel's trade secrets and confidential and proprietary
information and that National Fuel will sustain great loss and damage if Xxxxxxx
discloses, utilizes or causes to be disclosed or utilized National Fuel's trade
secrets and/or confidential and proprietary information to third parties or for
Xxxxxxx'x own benefit, and Xxxxxxx has agreed that he will not disclose, utilize
or cause to be disclosed or utilized any such trade secrets and/or confidential
and proprietary information;
WHEREAS, Xxxxxxx is not otherwise entitled to the total sums being paid
under this Agreement, except as provided herein;
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions described above and set forth below, the parties to this
Agreement agree as follows:
1. Effective Date of Agreement. This Agreement shall become effective as of
the date first above written.
2. Employment.
(a) Xxxxxxx shall, and Xxxxxxx agrees to, relinquish his current position
of chief executive officer of National Fuel effective October 1, 2001;
provided, however, National Fuel requests that Xxxxxxx commit to
continue to serve on the Board of Directors of National Fuel (the
"Board") after October 1, 2001. Xxxxxxx agrees to resign as a member
of the Board following the first annual meeting of stockholders
following his 72nd birthday consistent with the director tenure policy
to be proposed by Xxxxxxx to the Board at its scheduled September 13,
2001 meeting.
(b) Xxxxxxx shall remain an employee of National Fuel and Chairman of the
Board through January 2, 2002 at which time Xxxxxxx will terminate his
employment with National Fuel and relinquish his position as Chairman
of the Board.
(c) Xxxxxxx shall (i) receive his regular monthly base salary of
$70,679.16, payable by National Fuel and its affiliated corporations
in accordance with their customary practices through January 2, 2002;
(ii) remain a participant in National Fuel's Annual At Risk
Compensation Incentive Program (the "AARCIP") through September 30,
2001, and be paid, in a manner consistent with past practice, during
calendar 2001 and as soon as practicable following the award thereof,
a bonus for fiscal 2001 as shall be determined by the Board's
Compensation Committee; and (iii) for the months of October, November
and December 2001 be paid (in lieu of all other bonuses otherwise
available to him under the Employment Agreement or otherwise) a
monthly bonus of $149,320.84.
(d) Upon termination of Xxxxxxx'x employment on January 2, 2002, Xxxxxxx
shall, in addition to the payments and benefits provided herein
(including, but not by way of limitation, the benefits provided
pursuant to section 4(c)), be
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eligible for and entitled to (i) retiree medical benefit coverage,
subject to the terms and conditions of the respective benefit plan(s)
and/or program(s); (ii) life insurance benefits pursuant to, and as
limited by, the Amended and Restated Split Dollar Insurance Agreement
dated August 28, 1991, as last amended effective as of June 15, 2000
("Life Insurance Agreement"); (iii) retirement benefits pursuant to
the National Fuel Gas Company Retirement Plan; (iv) annuity payments
pursuant to National Fuel Gas Company Deferred Compensation Plan (the
"DCP") Cycles I, II-A, III and III-A; (v) a Distribution of Savings
Account pursuant to DCP Cycle V; (vi) "Tophat" benefits pursuant to
the National Fuel Gas Company Top Hat Plan; and (vii) unexercised
stock options and SARs granted under the National Fuel Gas Company
1997 Award and Option Plan and the predecessors thereof.
(e) Except insofar as is necessary to accommodate the express provision of
Section 2(a), 2(b) and 2(c) of this Agreement, the Employment
Agreement shall remain in full force and effect through January 2,
2002, at which time it shall terminate, provided however such
termination shall not limit or impact Xxxxxxx'x receipt of the
benefits and entitlements identified in clauses (i) through (vii) of
Section 2(d) of this Agreement which benefits for purposes of Section
4 of the Pension Settlement Agreement shall be deemed to be "payable
to Xxxxxxx pursuant to the terms of" this Agreement.
3. Consulting Services.
(a) From January 2, 2002 until June 30, 2004 (the "Consulting Period"),
Xxxxxxx shall, subject to the terms and conditions hereof, make
himself available to render consultation services as requested by the
Chief Executive Officer of National Fuel, for which he shall receive a
non-refundable monthly retainer of $20,833.33 payable on or before
January 2, 2002, and on the 1st day of each succeeding month during
the Consulting Period. The retainer specified in this section 3(a)
shall entitle National Fuel to Xxxxxxx'x consultation services for up
to 48 days during any 16 month period in the Consulting Period. In the
event Xxxxxxx performs consulting services for National Fuel for more
than 48 days during any 16 month period in the Consulting Period or
for more than 4 days during any calendar month during such period,
National Fuel shall, upon receipt of an appropriate invoice,
compensate Xxxxxxx for such additional days at the rate of $3,500 per
day. For purposes of this section 3(a), a "day" of consulting services
shall mean any calendar day or part thereof during which Xxxxxxx
renders consulting services (including any days during which Xxxxxxx
is required to travel on consultation related business).
(b) As needed during the Consulting Period at the request of the chief
executive officer of National Fuel from time to time (and subject to
the limitations provided in section 3(a) above), Xxxxxxx shall advise
and assist National Fuel concerning mergers and acquisitions,
regulatory matters, marketing and customer relations, business
strategy and such other matters as may arise that
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the Chief Executive Officer of National Fuel determines, from time to
time, require Xxxxxxx'x experience and knowledge. In addition, Xxxxxxx
shall represent National Fuel with trade or business associations as
selected by the chief executive officer of National Fuel from time to
time. Service for or in connection with AEGIS, shall not be considered
consultation service for National Fuel for purposes of this Agreement.
(c) During the Consulting Period, Xxxxxxx shall be an independent
contractor and, as such, shall control the detail, manner and means of
providing consulting services pursuant to this Agreement. Accordingly,
Xxxxxxx shall not be required to work any particular schedule, but
shall use his best efforts to meet National Fuel's deadlines. Further,
Xxxxxxx shall not, within reason, be required to work at any
particular location; however, during the Consulting Period, National
Fuel shall provide reasonable and sufficient executive office space
and executive secretarial assistance, telephone, fax service,
computer, other customary office equipment and support, together with
a garage space and related support when Xxxxxxx'x presence is required
at National Fuel offices. Subject to the approval of the chief
executive officer of National Fuel or his or her designee, and upon
receipt of proper documentation, National Fuel shall reimburse Xxxxxxx
for any reasonable expenses incurred in connection with the
performance of consulting services under this Agreement. Xxxxxxx shall
be entitled to utilize first class commercial air travel, the company
plane or jet service, or comparable facility.
(d) During the Consulting Period, National Fuel shall provide such other
support and facilities as the chief executive officer of National Fuel
shall decide facilitates Xxxxxxx'x business and industry related
exposure and contacts that Xxxxxxx has cultivated, and will cultivate,
for National Fuel.
(e) In view of the success the Company has enjoyed under his leadership
and the record performance it has achieved in recent years, Xxxxxxx
shall, if requested by the Board during the three years following his
retirement, serve on any committee of the Board established to review
any transaction which, if consummated, would constitute a "Change in
Control" under the National Fuel Gas Company 1997 Award and Option
Plan. Such service shall not reduce, or be considered a part of, the
consultation obligation of Section 3(a) or entitle Xxxxxxx to any
compensation pursuant to Section 3(a). Upon the occurrence of any such
"Change in Control" transaction prior to January 1, 2005 (or
thereafter, if the transaction was publicly announced prior to January
1, 2005), in recognition of the success of Xxxxxxx'x efforts in
bringing the Company to its current position and taking into account
the additional value shareholders receive through consummation of such
"Change in Control" transaction, the Compensation Committee shall
consider and recommend to the Board, and the Board shall make, an
award of National Fuel common stock to Xxxxxxx in such amount(s), as
the Compensation Committee and the
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Board, respectively, shall equitably determine in the exercise of
their discretion.
4. Retirement. In addition to the compensation and benefits provided
pursuant to sections 2 and 3 of this Agreement and the compensation
and benefits to which Xxxxxxx is entitled under the terms of National
Fuel's compensation and benefit plans and policies for directors,
Xxxxxxx shall be entitled to the following compensation and benefits,
except as otherwise provided in Section 4(d), upon termination of his
employment by National Fuel:
(a) Xxxxxxx shall receive such support and benefits provided to a
retired chief executive officer and chairman of the Board,
commensurate with National Fuel's past practice; as outlined to
Xxxxxxx in a letter of even date herewith from the Chairman of
the Board's Compensation Committee (the "Letter") and any other
support or benefits as may be approved by National Fuel's chief
executive officer;
(b) All of Xxxxxxx'x stock options and SARs, whether granted before
or after the effective date of this Agreement, shall remain
exercisable for their remaining terms (disregarding, for purposes
of determining the terms of such options and SARs, the
termination of Xxxxxxx'x employment);
(c) To the extent not provided under the Company's retiree welfare
benefits plans and programs (pursuant to Section 2(d) herein),
for the rest of Xxxxxxx'x life, he and, as applicable, his spouse
and his daughter Xxxxxxx shall be entitled to all medical, health
care and dental benefits under National Fuel's medical, health
care and dental plans and/or programs as if Xxxxxxx were still
employed, at the same level of benefits and at the same net
dollar cost to Xxxxxxx as is available to all of National Fuel's
senior executives generally or, if greater, at the same level of
benefits and at the same dollar cost to Xxxxxxx as Xxxxxxx was
receiving or was eligible to receive prior to his retirement on
January 2, 2002; provided, however, that if National Fuel cannot
provide such benefits under its existing plan(s) and/or
program(s) because of limitations under applicable law, National
Fuel shall provide equivalent benefits on an individual basis;
provided, further, that following Xxxxxxx'x death, Xxxxxxx'x
spouse and his daughter Xxxxxxx shall (at their expense, to the
extent not paid for by National Fuel pursuant to National Fuel's
retiree welfare benefit plan(s) or program(s) pursuant to Section
2(d) of this Agreement) remain eligible to participate for their
lives in the medical and dental benefit plan(s) and/or program(s)
that Xxxxxxx and/or his spouse and his daughter Xxxxxxx were
participating in prior to Xxxxxxx'x death; and
(d) As consideration for past services, Xxxxxxx'x agreement to waive
the compensation and other benefits he would otherwise be
entitled to receive under his Employment Agreement through the
remaining term thereof and
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Xxxxxxx'x agreement to be bound by the non-competition covenants
contained in section 8 hereof, the following:
(i) An award effective October 1, 2001 of (or awards
aggregating) 50,000 shares of stock (such number being
adjusted to reflect a stock split, stock dividend or
consolidation after the date of this Agreement, but prior to
October 1, 2001).
(ii) The payments set forth in the Pension Settlement Agreement
by and between National Fuel and Xxxxxxx to be executed
contemporaneously with this Agreement (the "Pension
Settlement Agreement").
5. Death or Disability. In the event of Xxxxxxx'x death or total
disability prior to termination during the term of employment
described in Section 2(b), National Fuel's obligation to pay base
salary and any unearned bonuses as described in section 2(c) shall end
with its prorated payment thereof for the pay period during which such
death or disability occurs. In the event of Xxxxxxx'x death or total
disability during the Consulting Period, National Fuel's obligation to
pay the monthly retainer described in section 3(a) shall end with its
payment thereof for the month during which such death or disability
occurs.
6. Non-Disclosure Agreement.
(a) As part of the consideration for the compensation provided in
this Agreement and for the other covenants made by National Fuel
in this Agreement, Xxxxxxx shall hold in a fiduciary capacity,
for the benefit of National Fuel, all of National Fuel's trade
secrets and confidential and proprietary information. Xxxxxxx
shall not, without the prior written consent of National Fuel, at
any time following the termination of Xxxxxxx'x employment with
National Fuel, utilize, communicate or divulge to anyone other
than National Fuel or those designated by it any of National
Fuel's trade secrets or confidential and proprietary information.
Xxxxxxx shall provide National Fuel with prompt notice of any
subsequent employment, including, but not limited to, the name
and address of any subsequent employer and the title and duties
of Xxxxxxx'x position therewith so that National Fuel can take
whatever steps it deems appropriate in order to protect its
interests under this Agreement. Xxxxxxx understands that, under
appropriate circumstances, National Fuel can xxx Xxxxxxx and/or
any of Xxxxxxx'x future employers for tortious interference with
National Fuel's contracts, interference with National Fuel's
prospective business relations, and/or misappropriation of
National Fuel's trade secrets or confidential and proprietary
information. Except with respect to the monthly retainer
described in section 3(a), in no event shall an asserted
violation of the provisions of this section 6 constitute a basis
for deferring or withholding any
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amounts otherwise payable or provided to Xxxxxxx under this
Agreement or the Pension Settlement Agreement.
(b) The prohibition against Xxxxxxx'x use of National Fuel's trade
secrets and confidential and proprietary information, other than
for the benefit of National Fuel, includes, but is not limited
to, (i) the exploitation of any products or services that embody
or are derived from National Fuel's trade secrets or confidential
and proprietary information, and (ii) the exercise of judgment or
the performance of analysis based upon knowledge of National
Fuel's trade secrets and confidential and proprietary
information. Xxxxxxx represents, warrants and agrees that he has
no proprietary or ownership rights or title to any of National
Fuel's trade secrets or confidential and proprietary information
and no legal right to use, disclose, disseminate, or publish any
of National Fuel's trade secrets or confidential and proprietary
information in any locality.
7. Definition of Confidential Material. National Fuel's "trade secrets"
and "confidential and proprietary information" include, but are not
limited to, any and all memoranda, software, data bases, computer
programs, interface systems, pricing and client information, and
records pertaining to National Fuel's methods or practices of doing
business and marketing its services and products, whether or not
developed or prepared by Xxxxxxx during the term of his employment
with National Fuel or in connection with his providing consulting
service to National Fuel. National Fuel's trade secrets and
confidential and proprietary information also include "writing" or
"writings," which shall mean and include all works, expressed in
words, numbers or other verbal or numerical symbols, regardless of the
physical manner in which they are embodied, including, but not limited
to, books, articles, manuscripts, memoranda, computer programs,
computer software systems, maps, charts, diagrams, technical drawings,
manuals, video and audio tape recordings, and photographs, whether or
not developed or prepared by Xxxxxxx during the term of his employment
with National Fuel or in connection with his providing consulting
services to National Fuel. National Fuel's trade secrets and
confidential and proprietary information shall include any information
or material not generally known to the public (other than by act of
Xxxxxxx or his representatives in breach of this Agreement) which
gives the holder thereof an opportunity to obtain an advantage over
competitors without knowledge of such information, as well as any
information received from third parties under confidential conditions
and information subject to National Fuel's attorney-client or
work-product privilege, the use or disclosure of which might
reasonably be construed to be contrary to National Fuel's interests.
8. Non-Compete Covenants.
(a) In order to protect and safeguard National Fuel's trade secrets
and confidential and proprietary information, and also National
Fuel's goodwill with its customers, during the period beginning
on the date of this Agreement and ending January 2, 2005, Xxxxxxx
will not, within any state in which National
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Fuel does business at any time during such period, directly or
indirectly and without the prior written consent of National Fuel
engage in or be interested in (as owner, partner, shareholder,
employee, director, agent, consultant or otherwise), any business
that is a competitor of National Fuel, as hereafter defined, or
any business that is such a customer. For purposes of this
Agreement, a "competitor" of National Fuel is any entity
including, without limitation, a corporation, sole
proprietorship, partnership, joint venture, syndicate, trust or
any other form of organization or parent, subsidiary or division
of any of the foregoing, which, during such period or the
immediately preceding fiscal year of such entity, was engaged in
(i) the exploration for or production, transportation, purchase,
brokering, marketing, distribution or trading of natural gas or
other energy products or services or (ii) the timber business.
(b) Anything contained herein to the contrary notwithstanding,
nothing in section 8(a) shall be interpreted to prohibit (i)
Xxxxxxx'x present or future investments in the securities of
competing companies listed on a national securities exchange or
traded on the over-the-counter market to the extent such
investments do not exceed 5% of the total outstanding shares of
such company, (ii) Xxxxxxx'x employment with a competitor of
National Fuel provided such employment is limited to areas
unrelated to the exploration for or production, transportation,
purchase, brokering, marketing, distribution or trading of
natural gas or other energy products or services or the timber
business, (iii) continuation of business and professional
relationships with the entities identified on Exhibit A to the
Employment Agreement, or (iv) Xxxxxxx'x engagement in or interest
in any business after obtaining the prior written consent of
National Fuel.
(c) For the period beginning on the date hereof and ending on January
2, 2004 (the second anniversary of Xxxxxxx'x retirement on
January 2, 2002), Xxxxxxx shall not induce or otherwise entice
any employee of National Fuel to leave National Fuel, nor shall
Xxxxxxx attempt to hire any of National Fuel's employees.
(d) The foregoing restrictions contain reasonable limitations as to
the time, geographic area, and scope of activity to be restrained
and these restrictions do not impose any greater restraint than
is necessary to protect the goodwill and other legitimate
business interests of National Fuel. If and to the extent a court
of competent jurisdiction finds one or more restriction contained
in this section 8 to be unreasonable in terms of geographic
scope, time limitation, or otherwise, the restriction(s) found to
be unreasonable shall be deemed modified to the extent necessary
so that the provisions of this section 8 are enforceable to the
greatest extent possible.
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9. Obligations, Enforcement. Except as otherwise provided in section
6 of this Agreement, National Fuel's obligation to make the
payments provided for in this Agreement or the Pension Settlement
Agreement shall not be affected by any set-off, counter-claim,
recoupment, defense or other claim, right or action National Fuel
may have against Xxxxxxx or others. In no event shall Xxxxxxx be
obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to him under any of the
provisions of this Agreement. National Fuel shall pay, or on an
ongoing basis promptly reimburse Xxxxxxx, for all legal fees and
expenses reasonably incurred by Xxxxxxx in connection with
Xxxxxxx'x enforcement of his rights under this Agreement.
10. Binding Consideration. Xxxxxxx understands, represents, warrants
and agrees that National Fuel has no contractual obligation or
legal duty to pay Xxxxxxx severance compensation or wages in lieu
of notice of termination.
11. Binding Agreement. This Agreement is and shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors (including any and all successors of
National Fuel or to all or substantially all of its assets,
whether by way of merger, acquisition, consolidation, share
exchange or other business combination), heirs, executors,
administrators and assigns. Xxxxxxx represents, warrants and
agrees that he has read, understands and intends to be bound by
this Agreement and its recitals, terms, conditions and
representations.
12. Miscellaneous.
(a) This Agreement, the Pension Settlement Agreement and the
Letter (the "Documents") contain and state the entire
agreement of the parties hereto with respect to the subject
matters of the Documents and, except as otherwise expressly
provided in the Documents, supersede and cancel all prior
written and oral agreements and understandings with respect
to the subject matter of the Documents; provided, however,
that notwithstanding the foregoing, this Agreement shall
have no effect upon (i) the Employment Agreement, prior to
its termination on January 2, 2002 except as insofar as is
necessary to accommodate the express provision of Sections
2(a), 2(b) and 2(c) of this Agreement, and (ii) Xxxxxxx'x
rights under the Life Insurance Agreement. Except for awards
or payouts to be made prior to Xxxxxxx'x termination of
employment as provided herein, no payments shall be made
after January 31, 2002, hereunder unless and until the
release required in Section 8 of the Pension Settlement
Agreement is received by National Fuel and may not be
revoked by Xxxxxxx.
(b) The term "affiliate" as used in this Agreement with respect
to a party, means any individual or entity that owns or
controls, is owned or controlled by, or is under common
ownership or control with, such party.
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(c) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Xxxxxxx:
Xxxxxxx X. Xxxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
If to National Fuel:
National Fuel Gas Company
00 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
or to such other address as either party shall have
furnished to the other in writing in accordance herewith.
Notices and communications shall be effective when actually
received by the addressee.
(d) This Agreement shall be governed by the laws of the State of
New York and may be amended or modified only by written
agreement signed by both parties.
(e) Notwithstanding any other provision of this Agreement,
National Fuel may withhold from amounts payable under this
Agreement all federal, state, local and foreign taxes that
are required to be withheld by applicable laws or
regulations; provided, however, without prior approval of
Xxxxxxx, shall not withhold more than the minimum amount
National Fuel reasonably determines is required to be
withheld under such laws or regulations.
(f) The obligations of Xxxxxxx hereunder are personal and cannot
be assigned.
(g) If any term or other provision of this Agreement shall be
declared to be invalid, illegal, or incapable of being
enforced by any rule of law or public policy, all other
terms, provisions and conditions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to
any party to this Agreement. Upon any binding determination
that any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties
to this Agreement as closely as possible in an acceptable
and legally enforceable manner, to the end that the
transactions contemplated hereby may be effected to the full
extent possible.
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(h) The headings in this Agreement are not part of the
provisions hereof and shall have no force or effect.
(i) Except as otherwise provided herein, this Agreement shall
terminate upon satisfaction of each party's obligations
hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written
XXXXXXX X. XXXXXXX NATIONAL FUEL GAS COMPANY
________________________________ By:________________________________________
___________________________________________
Its: Chairman of the Compensation Committee
of the Board of Directors
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Exhibit 10(iii)(b)
Pension Settlement Agreement
This Pension Settlement Agreement (the "Agreement") is entered into by and
between Xxxxxxx X. Xxxxxxx, an individual residing at 00 Xxxxxx Xxxx, Xxxxxxx,
Xxx Xxxx, 00000, (hereinafter, "Xxxxxxx") and National Fuel Gas Company
("National Fuel"), a New Jersey corporation, on September 5, 2001, concurrently
with, and in contemplation of, a Retirement and Consulting Agreement ("R&C
Agreement") entered into by and between said parties on said date.
Recitals
Whereas, Xxxxxxx is the Chief Executive Officer and Chairman of the Board
of National Fuel and is employed by National Fuel pursuant to an employment
agreement, dated September 17, 1981, as amended and extended to September 1,
2002 (the "Employment Agreement");
Whereas, pursuant to the Employment Agreement, Xxxxxxx is entitled, inter
alia, to participate, on the same basis generally as other executive officers of
National Fuel, in all general employee benefit plans and programs as well as all
benefit plans available to executive officers, including, without limitation,
medical and dental care, health and life insurance, disability protection and
pension plans;
Whereas, at the request of National Fuel, Xxxxxxx has continued to serve
National Fuel and various of its subsidiaries as an executive officer since his
September 1, 1996 normal retirement date;
Whereas, in consideration of Xxxxxxx'x continued service to National Fuel
past normal retirement age, National Fuel has heretofore undertaken to
recompense Xxxxxxx (and, in the event of Xxxxxxx'x death while employed by
National Fuel, Xxxxxxx'x wife) for the adverse retirement benefit-related
consequences of such extended service;
Whereas, in consideration of the undertakings of National Fuel set forth in
this Agreement and in the R&C Agreement, Xxxxxxx has agreed to relinquish his
position and duties as Chief Executive Officer and as Chairman of the Board of
Directors, effective as of October 1, 2001 and January 2, 2002 respectively, and
has agreed to conclude his employment with National Fuel and to the termination
of the Employment Agreement as of January 2, 2002, all in accordance with the
terms and conditions of this Agreement and the R&C Agreement;
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Whereas, differences have arisen between Xxxxxxx and National Fuel
respecting (i) the quantification of Xxxxxxx'x benefits under the National Fuel
Executive Retirement Plan (the "ERP"), (ii) Xxxxxxx'x entitlement to receive
benefits under the ERP in the form of a lump sum payment, and (iii) the
quantification of such lump sum payments; and
Whereas, it is in National Fuel's interest to defer any lump sum payment of
Xxxxxxx'x benefits under the ERP;
Now, therefore, in consideration of the mutual promises, terms, covenants
and conditions described above and set forth below, the parties to this
Agreement agree as follows:
1.) Effective Date. This Agreement shall become effective as of the date
first above written, unless the R&C Agreement shall not have become effective as
of the same date, in which event, this Agreement shall become effective as of
the same date as the R&C Agreement.
2.) Amendment of ERP. National Fuel agrees to amend the ERP to reflect the
intent and prior actions of the Board of Directors of National Fuel in
substantially the form as attached hereto as Exhibit I.
3.) ERP Payments. To resolve all disputes as to the calculation of the
benefits due under the ERP as amended pursuant to paragraph 2 above, the parties
hereto have agreed to the benefits payable under the ERP and agree that the
following amounts, and no other amounts, shall be paid under the ERP to Xxxxxxx,
his spouse, heirs or assigns, as follows:
(a) An annuity in the monthly amount of $183,745 with the first payment
being due January 2, 2002 and payable on the 1st of each month
thereafter for the life of Xxxxxxx.
(b) Xxxxxxx shall have the right to elect prior to November 30, 2003 to
receive a single lump sum payment of $23,000,000 on January 3, 2004 in
lieu of the payments to be made under the ERP after December 31, 2003
as provided in paragraph 3(a) above. Such election shall be made by
means of a written, duly executed and acknowledged irrevocable
election delivered to, and received by, National Fuel's Corporate
Secretary prior to November 30, 2003.
(c) National Fuel's Board of Directors shall have the sole and absolute
right to defer payment of the lump sum payment elected pursuant
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to paragraph 3(b), to the first day of any month prior to July 1,
2004.
(i) If the lump sum payment is deferred for any reason, the payments
due under paragraph 3(a) shall continue and be payable until the
lump sum is paid.
(ii) The amount of the lump sum payment under paragraph 3(b) shall not
change as a result of the deferral for any reason of the lump sum
payment.
(d) If Xxxxxxx'x death occurs prior to (i) the payment of a lump sum
pursuant to an election under paragraph 3(b) above, or (ii) January 1,
2004 (if Xxxxxxx does not make the lump sum election pursuant to
paragraph 3(b) above), Xxxxxxx'x spouse (or Xxxxxxx'x estate should
she predecease him) shall receive a lump sum payment of $23,000,000
within 30 days after Xxxxxxx'x death and no further payments shall be
made under paragraph 3a. Should Xxxxxxx'x date of death occur on or
after the applicable date above, all payments shall cease and no
payments shall be payable to Xxxxxxx'x spouse and estate.
4.) Accord and Satisfaction. Xxxxxxx hereby agrees to accept and receive
the benefits under the ERP as set forth in paragraph 3 above in full
satisfaction and discharge of Xxxxxxx'x entitlements under the ERP and any and
all claims Xxxxxxx has or may have against National Fuel, any of its
subsidiaries or affiliates, the ERP or the National Fuel Gas Company Retirement
Plan (the "Retirement Plan"), their officers, directors, administrators,
fiduciaries or trustees in respect of retirement or other post-employment
benefits, including but not limited to retirement benefits to which he may be
entitled pursuant to the Employment Agreement or under any prior action by
National Fuel's Board of Directors or any committee thereof excepting only such
benefits as are payable to Xxxxxxx pursuant to the terms of the R&C Agreement
and Retirement Plan.
5.) Binding Agreement. This Agreement is and shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
(including any and all successors of National Fuel or all or substantially all
of its assets, whether by way of merger, acquisition, consolidation, share
exchange or other business combination), heirs, executors, administrators and
assigns. Xxxxxxx represents, warrants and agrees that he has read, understands
and intends to be bound by this Agreement and its recitals, terms, conditions
and representations. The officer of National Fuel who executes this Agreement on
behalf of National Fuel represents and warrants that he has all necessary power
and authority to do so.
3
6.) Disputes.
(a) In the event of any dispute or difference with respect to the subject
matter of this Agreement or the enforcement of rights hereunder to
which Xxxxxxx (in his individual capacity), his spouse or estate (each
a "Xxxxxxx Party") and National Fuel and no other person or entity are
parties (a "PSA Dispute") either a Xxxxxxx Party or National Fuel may,
by written notice to the other, require such dispute or difference to
be submitted to arbitration. The arbitrator shall be selected by
agreement of the parties or, if they cannot agree on an arbitrator
within 30 days after the date arbitration is required by either party,
then the arbitrator shall be selected with each party selecting an
individual with such two selected individuals designating the
arbitrator. The determination reached in such arbitration shall be
final and binding on both parties without any right of appeal or
further dispute. Execution of the determination by such arbitrator may
be sought in any court of competent jurisdiction. The arbitrator shall
not be bound by judicial formalities and may abstain from following
the strict rules of evidence. Unless otherwise agreed by the parties,
any such arbitration shall take place in Buffalo, New York and shall
be conducted in accordance with the Employment Dispute Resolution
Rules of the AAA.
(b) In the event of a PSA Dispute, each party shall pay its own legal
fees, court costs, litigation expenses and/or arbitration expenses, as
applicable, and all other similar fees, costs, and expenses. Provided,
however, if the "Dispute Date"/1/ in respect of a PSA Dispute is on or
after the date on which a majority of the members of the Board are not
"Incumbent Directors"/2/ and/or individuals whose election was
supported by the majority of the Incumbent Directors then on the
Board, then National Fuel shall reimburse the applicable Xxxxxxx Party
for his reasonable expenses of arbitration or litigation except in the
event a Xxxxxxx Party does not prevail on at least one material issue.
--------------------
1 "Dispute Date" means the date the written notice of arbitration specified
in paragraph 6(a) is received by National Fuel or a Xxxxxxx Party, as the case
may be, or if earlier, the date a complaint is filed by a Xxxxxxx Party or
National Fuel in a court of competent jurisdiction with respect to the subject
matter of this Agreement.
2 "Incumbent Directors" means the individuals who are directors of National
Fuel on the date of this Agreement.
4
(c) National Fuel shall pay the reasonable expenses of a contest with the
Internal Revenue Service ("IRS") should the IRS assert that a Xxxxxxx
Party is in constructive receipt in 2001 of payments to be made
hereunder in years after 2001.
(d) To the full extent permitted under applicable law, National Fuel shall
indemnify a Xxxxxxx Party and hold each harmless in respect of
attorneys' fees and expenses, other litigation expenses and court
costs and all other similar fees, costs, and expenses reasonably
incurred by a Xxxxxxx Party as a defendant in connection with
litigation (other than a PSA Dispute) regarding the validity or
enforceability of, or National Fuel's liability under, any provision
of this Agreement.
7.) Status as General Creditor. The Agreement is intended to be an unfunded
deferred compensation arrangement for a member of management and a highly
compensated employee for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended. Xxxxxxx shall have no interest in any
particular asset or assets of National Fuel by reason of any rights under this
Agreement and shall have the status of a general unsecured creditor at National
Fuel. National Fuel shall establish a Rabbi Trust during January 2002 in
substantially the terms attached as Exhibit 2 and National Fuel shall place in
the Rabbi Trust cash or other assets which it determines are sufficient to meet
its obligations under this Agreement at such time and based on amounts to be
accrued for financial accounting purposes. In addition, upon the occurrence of a
"Change in Control" as such term is defined in the National Fuel Gas Company
1997 Award and Option Plan, as in effect on the date of this Agreement, National
Fuel shall place in the Rabbi Trust such cash and other assets as National Fuel
determines are necessary to satisfy all liabilities under this Agreement.
8.) Release. In consideration of the payments to be made hereunder, Xxxxxxx
agrees to execute at the time of his termination of employment, a full release
and waiver of all claims or potential claims which Xxxxxxx may have against
National Fuel or its affiliates relating to his employment or termination of
employment in the form substantially as attached hereto. Except for the payment
due on January 2, 2002 pursuant to Section 3(a) of this Agreement, no payments
shall be made hereunder until the date such release is received by National Fuel
and may no longer be revoked by Xxxxxxx.
9.) Miscellaneous.
(a) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage
5
prepaid, addressed as follows:
If to Xxxxxxx:
Xxxxxxx X. Xxxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
If to National Fuel:
National Fuel Gas Company
00 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notices and communications
shall be effective when actually received by the addressee.
(b) This agreement shall be governed by the laws of the State of New York
and may be amended or modified only by written agreement signed by
both parties.
(c) If any term or other provision of this Agreement shall be declared to
be invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all other terms, provisions and conditions of this
Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party
to this Agreement. Upon any binding determination that any term or
other provision of this Agreement is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
parties to this Agreement as closely as possible in an acceptable and
legally enforceable manner, to the end that the transactions
contemplated hereby may be effected to the full extent possible.
(d) This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective
successors or legal representatives.
(e) The headings in this Agreement are not part of the provisions hereof
and shall have no force or effect.
(f) Notwithstanding any other provision of this Agreement, National
6
Fuel may withhold from amounts payable under this Agreement all
federal, state, local and foreign taxes that are required to be
withheld by applicable laws or regulations; provided, however, without
prior approval of Xxxxxxx, National Fuel shall not withhold more than
the minimum amount National Fuel determines is required to be withheld
under such laws or regulations.
(g) The rights and benefits of Xxxxxxx under this Agreement may not be
anticipated, assigned, alienated, or subject to attachment,
garnishment, levy, execution, or other legal or equitable process
except as required by law. Any attempts by Xxxxxxx to anticipate,
alienate, assign, sell, transfer, pledge, or encumber the same shall
be void.
(h) Except as otherwise provided herein, this Agreement shall terminate
upon satisfaction of each party's obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXXXX X. XXXXXXX NATIONAL FUEL GAS COMPANY
__________________________ By:____________________________________
_______________________________________
Its: Chairman of the Compensation Committee
of the Board of Directors
I, ___________________, do hereby consent to, and agree with the
settlement as established above and agree that my rights under the ERP, as
modified by prior action of National Fuel and by amendments, will be only those
as set forth in this Agreement.
Witness: _____________________________________
_________________________ Date:_________________________________
7
Exhibit 1 to 10(iii)(b)
AMENDMENT
NATIONAL FUEL GAS COMPANY
AND PARTICIPATING SUBSIDIARIES
EXECUTIVE RETIREMENT PLAN
This Amendment is made as of this ____ day of ________, 2001 by National
Fuel Gas Company (hereafter "NFG").
Background Statement:
National Fuel Gas Company established the National Fuel Gas Company and
Participating Subsidiaries Executive Retirement Plan (the "Plan") effective as
of February 19, 1987. Pursuant to Article 8 of the Plan, NFG wishes to amend the
Plan effective as of August 1, 2001.
NOW THEREFORE, NFG hereby amends the Plan in the following respects:
1. The following new Section 2.1.1 is added following Section 2.1:
2.1.1 Actuarial Adjustment is defined in Section 3.5(b).
2. The following new Section 2.7.1 is added following Section 2.7:
2.7.1. Collar Rate means an annual rate of interest equal to the
lesser of (i) 4.25%, or (ii) the Pension Benefit Guaranty Corporation
Immediate Annuity Rate applicable during the calendar month in which the
current term of a Qualifying Member's Employment Agreement terminates.
3. The following new Sections 2.10.1 and 2.10.2 are added following Section
2.10:
2.10.1 Election Lapse Date is defined in Section 5.4 (c).
2.10.2 Employment Agreement is defined in Section 2.15.1.
4. Section 2.12 (a) is amended to read as follows:
2.12 (a) Final Average Pay means an amount equal to the average of the
Annual Cash Compensation payable by the Company to a Member for the 60
consecutive month period during the 120 consecutive month period
immediately preceding the date the
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Member retires or, in the case of a Qualifying Member, the Valuation Date,
which 60 consecutive month period produces the highest average.
5. A new Section 2.12(b)(v) is added at the end of Section 2.12(b) as follows:
(v) In the event that a Qualifying Member's actual retirement date
does not coincide with the Qualifying Member's Valuation Date, the amount
of the Qualifying Member's Annual Cash Compensation, if any, which relates
to the interval between the Qualifying Member's actual retirement date and
the end of the current term of the Qualifying Member's Employment Agreement
shall be determined by the Compensation Committee of the Board of Directors
in its reasonable discretion and confirmed to the Committee.
6. The following new Sections 2.15.1 and 2.15.2 are added following Section
2.15:
2.15.1 Qualifying Member means a Member who (i) has a written
employment agreement with the Company (hereafter an "Employment
Agreement"), (ii) has, at the express request of the Board of Directors,
served past his Normal Retirement Date, and (iii) who retires either (a) at
the end of the current term of his Employment Agreement, or (b) with the
Board of Directors' consent, during the current term of his Employment
Agreement.
2.15.2 Qualifying Member's Lump Sum Payment is defined in Section
5.4(c).
7. The following new Section 2.17.1 is added following Section 2.17:
2.17.1 Valuation Date means the date on which a Qualifying Member
actually retires, unless (i) the Qualifying Member actually retires prior
to the end of the current term of his Employment Agreement and (ii) the end
of such term occurs in the same fiscal year of the Company as the
Qualifying Member's actual retirement date, in which event, Valuation Date
means the date on which the current term of the Qualifying Member's
Employment Agreement terminates.
8. Section 2.19 is amended to read as follows:
2.19 Years of Service equals the number of Employment Years completed
by a Member. An Employment Year in which a member completed 1,000 or more
but less than the normal number of Hours of Service (as such term is
defined in the Basic Pension Plan) for a full-time employee of the Company
shall be credited as a partial Year of Service equal to the number of Hours
of Service credited in such Employment Year divided by the normal number of
Hours of Service for a full-time employee of the Company. Years of Service
shall not exceed 40 except in the case of a Qualifying
-2-
Member. No more than one Year of Service shall be credited in any
Employment Year. In the case of a Qualifying Member, the Qualifying
Member's Years of Service shall include the interval, if any, between the
Qualifying Member's actual retirement date and his Valuation Date.
9. Section 3.1 is amended to read as follows:
3.1 Total Benefit Base.
(a) Total Benefit Base of Non-Qualifying Member. The Total Benefit
Base of a Vested Member who is not a Qualifying Member shall be a monthly
annuity for his life, commencing at his Normal Retirement Date, under which
the annual payments shall equal an amount calculated by adding the products
of .0197 times the Member's Years of Service not in excess of 30 and .0132
times his Years of Service, if any, in excess of 30 (but not to exceed 10),
and multiplying the sum thereof by his Final Average Pay.
(b) Total Benefit Base of Qualifying Member. The Total Benefit Base of
a Vested Member who is a Qualifying Member shall be a monthly annuity for
his life commencing at his actual retirement date (payable on the 1st day
of each month). Annual payments of the Qualifying Member's Total Benefit
Base shall equal an amount calculated by adding the products of (x) .0197
times the Member's Years of Service not in excess of 30, (y) .0132 times
such Member's Years of Service, if any, in excess of 30 (but not to exceed
10), and (z) .018 times such Member's Years of Service in excess of 40, if
any, and then multiplying the sum of (x), (y) and (z) by such Member's
Final Average Pay, and adding to the product thus obtained an amount equal
to the Actuarial Adjustment calculated under Section 3.5(b).
10. The following new Section 3.3.1 is added following Section 3.3:
3.3.1 Additional Benefit Base of Qualifying Member. The Additional
Benefit Base of a Vested Qualifying Member shall be a monthly annuity for
his life commencing at his actual retirement date (payable on the 1st day
of each month) under which the annual payments shall equal the Qualifying
Member's Total Benefit Base less the sum of (x) .0125 times his Years of
Service (up to but not exceeding 40) times his Social Security Benefit and
(y) the Qualifying Member's Benefit Base (as reduced, if at all, on account
of Benefit Limitations) under the Basic Pension Plan. Notwithstanding any
provision of this Plan to the contrary, the Additional Benefit Base of a
Vested Qualifying Member will not exceed $200,000 per month.
11. Section 3.5 is amended to read as follows:
-3-
3.5 Late Retirement.
(a) Non-Qualifying Member. A Member's Years of Service shall be
credited if they extend beyond his Normal Retirement Date, (but shall not
exceed 40 in total, except in the case of a Qualifying Member), and the
Final Average Pay determination shall reflect such Years of Service.
However, except as provided in subsection (b) of this Section 3.5, there
shall be no actuarial adjustment to his Additional Benefit Base on account
of a Member's retirement after Normal Retirement Date; for such purpose the
Additional Benefit Base hereunder shall be computed as if his late
retirement date were his Normal Retirement Date.
(b) Qualifying Member. Upon a Qualifying Member's retirement, the
benefits which he would have been entitled to receive under the Basic
Pension Plan had he retired on his Normal Retirement Date together with the
benefits which he would have been entitled to receive under this Plan had
he retired on his Normal Retirement Date, shall be actuarially increased to
reflect his late retirement, using the most recently published actuarial
table that is both generally accepted by American actuaries and reasonably
applicable to the Basic Pension Plan as well as this Plan, and a 6% per
annum interest rate. The difference in the total annual benefit payable
under this Plan and the Basic Pension Plan at his Normal Retirement Date
and as actuarially adjusted at his actual retirement date shall be the
amount of the "Actuarial Adjustment".
12. Section 5.4 is amended to read as follows:
5.4 Lump Sum Payment Option.
(a) There shall be one exception to Section 5.1 in the case of a
Member who is a Qualifying Member, and one exception to Section 5.1 in the
case of a Member who is not a Qualifying Member:
(b) Non-Qualifying Member. A Member who is not a Qualifying Member may
elect to receive Retirement Benefits in the form of a lump sum payment even
if he does not or may not select such option under the Basic Pension Plan.
Such election may only be made by means of an irrevocable election executed
in the calendar year prior to the year in which the Member's Retirement
Date occurs. The most recently published mortality table that is generally
accepted by American actuaries and reasonably applicable to the Plan, and a
6 percent annual interest rate or discount rate, shall be used to convert
the Member's Additional Benefit Base to a lump sum equivalent.
(c) Qualifying Member. During the period commencing six months prior
to his actual retirement date and ending at the close of business on the
last business day of the
-4-
22nd calendar month following the calendar month during which his actual
retirement date occurs, a Qualifying Member may elect to receive the
actuarial equivalent of the future payments of his Additional Benefit Base
in the form of a lump sum payment (the "Qualifying Member's Lump Sum
Payment") even if he does not or may not elect a lump sum payment under the
Basic Pension Plan. Such election may only be made by means of a written,
duly executed and acknowledged irrevocable election delivered to, and
received by, the Company's Corporate Secretary prior to the close of
business on the last business day of the 22nd calendar month following the
calendar month in which the Qualifying Member's actual retirement date
occurs (the "Election Lapse Date'). If the Qualifying Member makes the
election prior to the Election Lapse Date, monthly benefit payments shall
be made as otherwise determined under the Plan beginning with the month in
which his actual retirement occurs and for the 23 months which follow the
month in which his actual retirement occurs. The Qualifying Member's Lump
Sum Payment will be paid on the first business day of the second month
following the Election Lapse Date.
The Qualifying Member's Lump Sum Payment shall be the actuarial
equivalent amount of the future payments of his Additional Benefit Base
computed as of the first business day of the second month following the
Election Lapse Date and using the most recently published mortality table
and scale that are generally accepted by American actuaries and reasonably
applicable to the Plan, and an interest rate equal to the Collar Rate.
Notwithstanding any provision of this Plan to the contrary, the Qualifying
Member's Lump Sum Payment will not exceed $25,000,000.
(d) Qualifying Member's Death. In the event that a Qualifying Member's
death occurs (i) after his actual retirement date and on or before the
Election Lapse Date, or (ii) on or before his actual retirement date, the
Qualifying Member's spouse (or the Qualifying Member's estate, in the event
that such spouse shall predecease him) shall receive a lump sum death
benefit calculated as described in this paragraph. The lump sum death
benefit will be equal to the amount the Qualifying Member would have been
entitled to receive pursuant to Section 5.4(c) calculated as if he had
timely and properly made the election to receive a lump sum payment and
without any adjustment for time of payment. For purposes of the preceding
sentence, in the event the Qualifying Member's death occurs prior to his
actual retirement date, the first day of the month in which his death
occurred will be treated as his actual retirement date in order to
determine the Election Lapse Date and to calculate the Qualifying Member's
Lump Sum Payment. Payment of the lump sum death benefit under this
paragraph will be made within 30 days of such Qualifying Member's death.
In the event that a Qualifying Member's death occurs after the
Election Lapse Date and the Qualifying Member has made a lump sum election
pursuant to Section 5.4(c) of the Plan, but such lump sum has not been
paid, the Qualifying Member's spouse (or the Qualifying Member's estate, in
the event that such spouse shall predecease him) shall receive, within 30
days of such Qualifying Member's death, a lump sum payment
-5-
equal to the amount of the lump sum payment that such Qualifying Member
would have been entitled to receive pursuant to Section 5.4(c) and without
adjustment for time of payment.
In the event that a Qualifying Member's death occurs after the
Election Lapse Date and such Qualifying Member made no lump sum election
pursuant to Section 5.4(c) of this Plan, survivor benefits, if any, shall
be paid as provided in the form of benefit selected by the Qualifying
Member under the Plan.
Notwithstanding any provision of this Plan to the contrary, the lump
sum payment made on account of a Qualifying Member's death will not exceed
$25,000,000.
(e) With respect to other forms of benefit available under the Plan,
the mortality table used in the Basic Pension Plan and described in Section
1.01 thereof, or a successor section, shall continue to be used. If the
Member's Additional Benefit Base, had it been paid in the form of an
annuity, would otherwise have been expected to increase or decrease
subsequent to the Member's Retirement Date, (for example, due to cost of
living increases that effectively raise the maximum amounts that may be
paid from the Basic Pension Plan as a result of the operation of Code
Section 415 limits, or due to expected post-retirement AARCIP awards or
other performance-related lump sum compensation), the Company may adjust
such lump sum payment accordingly and shall later true it up either by
paying an additional sum to the Member or by receiving a refund of any
excess from the Member.
13. In all other respects the Plan shall remain unchanged.
-6-
Exhibit 2 to 10(iii)(b)
TRUST UNDER PENSION SETTLEMENT AGREEMENT
(a) THIS AGREEMENT made this _____ day of _______, 2001 by and between
National Fuel Gas Company (Company) and ____________(Trustee);
(b) WHEREAS, Company has adopted the National Fuel Gas Company and
Participating Employers Executive Retirement Plan (Plan), a nonqualified
deferred compensation plan;
(c) WHEREAS, Company has entered into a certain Pension Settlement
Agreement with Xxxxxxx X. Xxxxxxx, dated __________, 2001 (Pension Settlement
Agreement), a copy of which is attached to this Trust Agreement as Schedule A,
which settles all claims of Xxxxxxx X. Xxxxxxx and his beneficiaries under the
Plan;
(d) WHEREAS, Company has incurred or expects to incur liability under the
terms of the Pension Settlement Agreement with respect to Xxxxxxx X. Xxxxxxx;
(e) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Company's Insolvency, as herein defined, until paid to
Xxxxxxx X. Xxxxxxx and his beneficiaries in such manner and at such times as
specified in the Pension Settlement Agreement;
(f) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of either the
Plan or Pension Settlement Agreement as an unfunded plan maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974;
(g) WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Pension Settlement Agreement;
(h) WHEREAS, it is the intention of the parties that, except as
specifically described in this Trust Agreement, no other trust or source of
funds will be made available to make payments under the Pension Settlement
Agreement;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) Company shall deposit with Trustee in trust the assets listed on
Schedule B attached to this Trust Agreement, which shall become the principal of
the Trust to be held, administered and disposed of by Trustee as provided in
this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Xxxxxxx X. Xxxxxxx and his beneficiaries, under the
Pension Settlement Agreement, and general
- 2 -
creditors as herein set forth. Xxxxxxx X. Xxxxxxx, and his beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust. Any rights created under the Pension Settlement Agreement and this
Trust Agreement shall be mere unsecured contractual rights of Xxxxxxx X. Xxxxxxx
and his beneficiaries against Company. Any assets held by the Trust will be
subject to the claims of Company's general creditors under federal and state law
in the event of Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with Trustee to
augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Pension Settlement
Agreement beneficiary or their beneficiaries shall have any right to compel such
additional deposits.
(f) Upon a Change of Control, Company shall, as soon as possible, but in no
event longer than 30 days following the Change of Control, as defined herein,
make an irrevocable contribution to the Trust in an amount that is sufficient to
pay all amounts remaining to be paid under the Pension Settlement Agreement to
Xxxxxxx X. Xxxxxxx and his beneficiaries.
SECTION 2. PAYMENTS TO PENSION SETTLEMENT AGREEMENT BENEFICIARIES AND THEIR
BENEFICIARIES.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of Xxxxxxx X. Xxxxxxx (and his
beneficiaries under the Pension Settlement Agreement), that provides a formula
or other instructions acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for or
available under the Pension Settlement Agreement), and the time of
- 3 -
commencement for payment of such amounts. Except as otherwise provided herein,
Trustee shall make payments to Xxxxxxx X. Xxxxxxx and his beneficiaries in
accordance with such Payment Schedule. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to the
terms of the Pension Settlement Agreement and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by Company.
(b) The entitlement of Xxxxxxx X. Xxxxxxx or his beneficiaries to benefits
under the Pension Settlement Agreement is and shall be as set forth in the
Pension Settlement Agreement. Any dispute between Xxxxxxx X. Xxxxxxx or his
beneficiaries, on the one hand, and the Company or the Trustee, on the other
hand, respecting that entitlement shall be deemed to constitute a "PSA Dispute"
as defined in, and shall be considered and resolved as such pursuant to the
procedures set forth in, Section 6 of the Pension Settlement Agreement. Trustee
shall abide by the results of those procedures.
(c) Company may make payment of benefits directly to Xxxxxxx X. Xxxxxxx or
his beneficiaries as they become due under the terms of the Pension Settlement
Agreement. Company shall notify Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to Xxxxxxx X. Xxxxxxx or
his beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Pension Settlement Agreement, Company shall make the balance of
each such payment as it falls due. Trustee shall notify Company where principal
and earnings are not sufficient.
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[(d) In the case of a difference in interpretation of this Trust Agreement
and the Pension Settlement Agreement, the Pension Settlement Agreement shall
control.]
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN COMPANY IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Xxxxxxx X. Xxxxxxx and his
beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company shall
have the duty to inform Trustee in writing of Company's Insolvency. If a person
claiming to be a creditor of Company alleges in writing to Trustee that Company
has become Insolvent, Trustee shall determine whether Company is Insolvent and,
pending such determination, Trustee shall discontinue payment of benefits to
Xxxxxxx X. Xxxxxxx or his beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or has
received notice from Company or a person claiming to be a creditor alleging that
Company is Insolvent, Trustee shall have no duty to inquire whether Company is
Insolvent. Trustee may in all
- 5 -
events rely on such evidence concerning Company's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for making a
determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to Xxxxxxx X. Xxxxxxx and his beneficiaries
and shall hold the assets of the Trust for the benefit of Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Xxxxxxx X. Xxxxxxx and his beneficiaries as general creditors of Company with
respect to benefits due under the Pension Settlement Agreement or otherwise.
(4) Trustee shall resume the payment of benefits to Xxxxxxx X. Xxxxxxx or
his beneficiaries in accordance with Section 2 of this Trust Agreement only
after Trustee has determined that Company is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Xxxxxxx
X. Xxxxxxx and his beneficiaries under the terms of the Pension Settlement
Agreement for the period of such discontinuance, less the aggregate amount of
any payments made to Xxxxxxx X. Xxxxxxx and his beneficiaries by Company in lieu
of the payments provided for hereunder during any such period of discontinuance.
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SECTION 4. PAYMENTS TO COMPANY.
Except as provided in Section 3 hereof, Company shall have no right or
power to direct Trustee to return to Company or to divert to others any of the
Trust assets before all payment of benefits have been made to Xxxxxxx X. Xxxxxxx
and his beneficiaries pursuant to the terms of the Pension Settlement Agreement.
SECTION 5. INVESTMENT AUTHORITY.
[(a)] Trustee may invest only in insurance contracts with insurance
companies with an A.M. Best rating of ____ or better, treasury securities or
money market mutual funds. It is the intent of the parties that assets
contributed by Company generally will not be sold or otherwise disposed of by
Trustee. However, if the A.M. Best rating of an insurance company falls below
_____ while an insurance policy with that company is held in the Trust, Trustee
may sell or otherwise dispose of that policy only after consultation with the
Company. All rights associated with assets of the Trust shall be exercised by
Trustee or the person designated by Trustee, and shall in no event be
exercisable by or rest with Xxxxxxx X. Xxxxxxx or his beneficiaries.
[(b) Company shall have the right at anytime, and from time to time in its
sole discretion, to substitute assets, only of the type described in (a), of
equal fair market value for any asset held by the Trust. The right is
exercisable by Company in a nonfiduciary capacity without the approval or
consent of any person in a fiduciary capacity.]
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SECTION 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested, except if the Trust is
fully funded pursuant to the Pension Settlement Agreement, realized income
(including realized capital gain) will be paid out to Company on a monthly [?]
basis.
SECTION 7. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 30 days following the close of each calendar year
and within 30 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
SECTION 8. RESPONSIBILITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided,
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however, that Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by Company which is
contemplated by, and in conformity, the terms of the Pension Settlement
Agreement or this Trust and is given in writing by Company. In the event of a
dispute between Company and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If Trustee (or a former Trustee) undertakes or defends any litigation
arising in connection with this Trust, Company agrees to indemnify Trustee
against Trustee's costs, expenses and liabilities (including, without
limitations, attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments. If Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (whom may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist in it performing any of
its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy.
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(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
Company shall pay all administrative and Trustee's fees and expenses. If
not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 90 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon shorter
notice accepted by Trustee
(c) Upon a Change of Control, as defined herein, Trustee may not be removed
by company for 24 months.
(d) If Trustee resigns within 24 months after a Change of Control, as
defined herein, Company shall apply to a court of competent jurisdiction for the
appointment of a successor Trustee or for instructions.
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(e) If Trustee resigns or is removed within 24 months of a Change of
Control, as defined herein, Trustee shall select a successor Trustee in
accordance with the provisions of Section 11(b) hereof prior to the effective
date of Trustee's resignation or removal.
(f) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 30 days after receipt of notice of
resignation, removal or transfer, unless Company extends the time limit.
(g) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date or resignation or
removal under paragraph(s) (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed in accordance with Section 10(a) or
(b) hereof, Company may appoint any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law, as
a successor to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by Company or the successor Trustee to evidence the
transfer.
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(b) If Trustee resigns or is removed pursuant to the provisions of Section
10(c) hereof and selects a successor Trustee, Trustee may appoint any third
party, such as a bank trust department or other party that may be granted
corporate trustee powers under state law. The appointment of a successor Trustee
shall be effective when accepted in writing by the new Trustee. The new Trustee
shall have all the rights and powers of the former Trustee, including ownership
rights in Trust assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the successor Trustee to evidence the
transfer.
(c) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Pension Settlement Agreement or shall make the
Trust revocable.
(b) The Trust shall not terminate until the date on which Xxxxxxx X.
Xxxxxxx and his beneficiaries are no longer entitled to benefits pursuant to the
terms of the Pension Settlement Agreement. Upon termination of the Trust any
assets remaining in the Trust shall be returned to Company.
- 12 -
(c) Upon written approval of Xxxxxxx X. Xxxxxxx, Company may terminate this
Trust prior to the time all benefits payments under the Pension Settlement
Agreement have been made. All assets in the Trust at termination shall be
returned to Company.
(d) Except with the written consent of Xxxxxxx X. Xxxxxxx, or his
beneficiaries, as the case may be, this Trust Agreement may not be amended by
Company for 36 months following a Change of Control, as defined herein. However,
the Trust may terminate prior to the end of such 36-month period in accordance
with the terms of this Trust Agreement.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Xxxxxxx X. Xxxxxxx and his beneficiaries under this
Trust Agreement may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of New York.
(d) For purposes of this Trust, Change of Control shall be defined as under
the National Fuel Gas 1997 Award and Option Plan, as in effect on the date of
the Pension Settlement Agreement. The Board of Directors and the Chief Executive
Officer of Company shall have the
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duty to inform Trustee in writing of a Change of Control. Unless Trustee has
received a written notice from Company or Xxxxxxx X. Xxxxxxx or his beneficiary,
Trustee shall have no duty to inquire whether a Change of Control has occurred.
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be ______________, 2001.
Signed: __________________________________
NATIONAL FUEL GAS COMPANY
Dated: __________________________________
Signed: __________________________________
TRUSTEE
Dated: __________________________________
STATE OF NEW YORK )
:SS.
COUNTY OF ERIE )
On the _____ day of ____________, in the year 2001, before me, the undersigned,
a notary public in and for said state, personally appeared
______________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is
- 14 -
subscribed to the within instrument and acknowledged to me that he or she
executed the same in his or her capacity as the__________________ of National
Fuel Gas Company, the corporation described in and which executed the foregoing
instrument, and that by his or her signature on the instrument, the individual,
or the person upon behalf of which the individual acted, executed the
instrument.
__________________________________
Notary Public
STATE OF NEW YORK )
:SS.
COUNTY OF ERIE )
On the _____ day of ____________, in the year 2001, before me, the undersigned,
a notary public in and for said state, personally appeared
______________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he or she executed the same in his
or her capacity as the __________ of __________, the corporation described in
and which executed the foregoing instrument, and that by his or her signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
__________________________________
Notary Public
- 15 -
Exhibit 3 to 10(iii)(b)
RELEASE AND WAIVER OF CLAIMS
WHEREAS, Xxxxxxx X. Xxxxxxx (hereinafter "Xxxxxxx") has faithfully and
successfully served as the Chief Executive Officer and Chairman of National Fuel
Gas Company ("National Fuel") since 1988 and 1989 respectively and has now
decided to retire from those posts; and
WHEREAS, in connection with Xxxxxxx'x retirement arrangements he and
National Fuel have entered into several agreements, including a Pension
Settlement Agreement; and
WHEREAS, pursuant to Section 8 of the Pension Settlement Agreement Xxxxxxx
has agreed to execute a release and waiver of all claims and potential claims
which Xxxxxxx may have against National Fuel or its affiliates relating to his
employment or retirement therefrom.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements and in consideration of the payments to be made pursuant to the
Pension Settlement Agreement, the parties agree as follows:
1. This Release and Waiver of Claims ("Release") is contemplated in, and
executed pursuant to, the Retirement and Consulting Agreement and the
Pension Settlement Agreement between the parties hereto. Accordingly,
notwithstanding any provision of this release, it does not cover
"claims" arising under said agreements. By executing this Release,
Xxxxxxx unconditionally releases, discharges, and holds harmless
National Fuel, together with its affiliates, the individuals who are
its officers, directors, employees, agents and representatives and
their respective assigns from each and every actual or potential
claim, cause of action, right, liability or demand of any kind and
nature in existence at the time this agreement is executed, and from
any claims which may be derived therefrom (collectively called
"claims"), that Xxxxxxx had, has, or might claim to have against
National Fuel or its affiliates arising under United States Code Title
29, Chapter 14 (29 USCss.ss.621-634) or otherwise relating to his
employment or retirement therefrom.
Notwithstanding the foregoing, the parties acknowledge and agree that
the terms of this Release shall not be interpreted or construed in a
manner which would prevent Xxxxxxx from asserting on his or National
Fuel's behalf any available defense or counterclaim with respect to
any claims or causes of action which may be brought, after the date of
this Release, against Xxxxxxx, National Fuel, or both, whether or not
such claim or cause of action is covered by directors and officers
liability insurance.
2. Xxxxxxx covenants not to xxx National Fuel or any party released
herein on account of any claim released hereby.
3. This Release is entered into without reliance upon any statements and
representations of any party hereto or parties hereby released other
than the statements and representations referred to in this Release.
4. This Release shall not be interpreted or construed in a manner which
would limit or modify the rights or benefits to which Xxxxxxx is
entitled pursuant to the Retirement and Consulting Agreement, the
Pension Settlement Agreement and any other contemporaneous agreement
entered into between the parties.
5. The parties acknowledge the adequacy of the "additional consideration"
provided pursuant to the Pension Settlement Agreement and the
Retirement and Consulting Agreement, that this is a legally binding
document, and that they intend to comply with its terms.
6. The parties acknowledge that this agreement contains the entire
understanding of the parties respecting the subject matter thereof and
that it may not be modified without the express written consent of the
parties hereto.
7. Any failure on the part of Xxxxxxx, National Fuel or its affiliates to
enforce their respective rights or privileges under this Release shall
not be deemed to constitute a waiver of any rights or privileges
contained herein.
8. If any term or other provision of this Release shall be declared to be
invalid, illegal, or incapable of being enforced by any rule of law or
public policy, all other terms, provisions and conditions of this
Release shall nevertheless remain in full force and effect so long as
the economic or legal substance of the arrangements contemplated
hereby is not affected in any manner materially adverse to any party
to this Release. Upon any binding determination that any term or other
provision of this Release is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify
this Release so as to effect the original intent of the parties to
this Agreement as closely as possible in an acceptable and legally
enforceable manner, to the end that the arrangements contemplated
hereby may be effected to the full extent possible.
9. All notices and communications made pursuant to this Release shall be
in writing and shall be made in accordance with Section 9 of the
Pension and Settlement Agreement.
10. This agreement shall be governed by the laws of the State of New York,
except to the extent preempted by Federal law.
11. By signing this document, the parties acknowledges that:
a. They have read and understand the provisions thereof;
b. Pursuant to advice, they have consulted with their respective
attorneys before signing this document;
x. Xxxxxxx is hereby afforded a period of 21 days from the date this
document is presented to him for execution to consider the same
before signing it, should he so desire; and,
d. They have entered into this agreement knowingly and voluntarily.
12. Xxxxxxx may revoke this Release within seven (7) calendar days after
signing it. To be effective, such revocation must be received in
writing by National Fuel at National Fuel's place of business at the
address set forth in Section 9 of the Pension Settlement Agreement.
Revocation may also be made by hand delivery, or facsimile.
IN WITNESS WHEREOF the undersigned have set their hands to this Release as
of the dates written below.
XXXXXXX X. XXXXXXX
_______________________________
Date:__________________________
NATIONAL FUEL GAS COMPANY
WITNESS:
_______________________________ By:____________________________
Its: [___________________________]
Date:__________________________
