EX-10.8



 






Exhibit 10.8




AMENDMENT NO. 1

TO THE

RETIREMENT BENEFIT AGREEMENT

FOR

DAVID F. SMITH




          This Amendment No. 1 (the “Amendment”) is made as of September 8, 2005, by and between
National Fuel Gas Company, a New Jersey corporation (“National”), National Fuel Gas
Distribution Corporation, a New York corporation (“Distribution” and, together with
National and each of National’s wholly owned subsidiaries, the “Company”), and David F.
Smith (the “Executive”).




          WHEREAS, the Company and Executive are parties to the Retirement Benefit Agreement For David
F. Smith, dated as of September 22, 2003 (the “Retirement Agreement”); and




          WHEREAS, the Company and Executive desire to amend the Retirement Agreement in order to ensure
compliance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the guidance promulgated thereunder, by providing that any amounts that
could become payable to the Executive pursuant to the terms and conditions of the Retirement
Agreement shall in no event be paid to him prior to the six month anniversary of his termination of
employment.




          NOW, THEREFORE, in consideration of the mutual covenants contained therein and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:




ARTICLE I

AMENDMENTS



Section 1.1. Amendment to Section 2(b)(ii). Section 2(b)(ii) of the Retirement Agreement
is hereby deleted in its entirety and amended to read as follows:




     “(ii) Payment of Additional Retirement Benefit. If the Executive has not attained age 55 at
the time of termination of employment, the additional benefit under this Agreement will be payable
(1) under Section 2(b)(ii)(A) through August 1, 2008, and (2) under Section 2(b)(ii)(B) commencing
on September 1, 2008. If the Executive has attained age 55 at the time of termination of
employment, the additional benefit under this Agreement will be payable solely under Section
2(b)(ii)(B) commencing on the later of the first day of the first month following the six month
anniversary of such termination and September 1, 2008:



          (A) Payments Prior to Age 55. An amount equal to 1/12 of the Contractual Benefit Base
will be paid to the Executive on the first day of each month commencing on or after the six month
anniversary of his termination of employment and ending on (and including) August 1, 2008. In
addition, any amounts that would have otherwise been payable to the Executive under this Section
2(b)(ii)(A) had the payments hereunder

 









 








commenced on the first day of the first month following the Executive’s termination of employment
shall be paid to the Executive in a single lump sum on the first day of the first month commencing
on or after the six month anniversary of the Executive’s termination of employment (without regard
to whether such date falls after August 1, 2008). If the Executive dies before receiving all of
the payments provided for under the preceding two sentences, and his Wife survives him, then
without regard to whether his death falls prior to the six month anniversary of his termination of
employment, his Wife shall receive (x) commencing on the first day of the first month
following the Executive’s death, any remaining monthly payments and (y) as soon as
practicable following the Executive’s death, any lump sum payment described in the preceding
sentence; provided that the Executive’s Wife shall only be entitled to receive a pro-rata
portion of such lump sum amount, if any, based on the total number of days that had elapsed between
the Executive’s termination of employment and the date of his death.




          (B) Payments After Age 55. The monthly benefit amount will be equal to 1/12 of the
Contractual Benefit Base less the sum of (I) the Retirement Plan Benefit, (II) the ERP Tophat
Benefit and (III) the ERP Supplemental Benefit (all expressed as a single life annuity for the
Executive (the “Monthly Benefit”)) beginning on the later of the first day of the first month
following the six month anniversary of the Executive’s termination of employment and September 1,
2008, and will be payable as follows:





(i) If the Executive is not married to his Wife on the date benefit payments begin
under this Section 2(b)(ii)(B), an amount equal to the Monthly Benefit will be paid
to the Executive commencing on the later of the first day of the first month
following the six month anniversary of the Executive’s termination of employment
and September 1, 2008, and continuing each month through the month that contains
his date of death.




(ii) If the Executive is married to his Wife on the date benefits begin under this
Section 2(b)(ii)(B), the Monthly Benefit will be paid in the form of a joint and
50% survivor annuity, with the 50% survivor benefit payable to his Wife, if she
survives him. The amount to be paid each month will be such that it is actuarially
equivalent, using the actuarial equivalence factors then used under the Retirement
Plan, to the benefit that would be payable to the Executive if he was unmarried.
For the avoidance of doubt, if the Executive dies after termination of employment
but prior to the date that benefits first become payable under this Section
2(b)(II)(B)(ii), and Executive was married to his Wife at the time of his death,
the Executive’s Wife shall be entitled to receive on the later of the date of the
Executive’s death and September 1, 2008 (x) the 50% survivor benefit
described above and (y) a pro-rata portion of the lump sum amount that the
Executive would have become entitled to receive pursuant to Section
2(b)(II)(B)(iii) below, if any, based on the total number of days that had elapsed
between the Executive’s termination of employment and the date of his death.




(iii) In addition to any other amounts payable to the Executive under Section
2(b)(ii)(B) hereof, any amounts that would have otherwise been



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payable to the Executive under Section 2(b)(ii)(B) had the payments hereunder
commenced on the later of September 1, 2008 or the first day of the month following
Executive’s termination of employment shall be paid to the Executive in a single
lump sum on the day that the first Monthly Benefit is actually payable to him under
Section 2(b)(ii)(B).


(C) End of Payments. For the avoidance of doubt, no payments will be made under this
Agreement after the death of the later to die of the Executive and his Wife.”



Section 1.2 Amendment to Section 11. Section 11 of the Retirement Agreement is hereby
amended by adding the following sentence to the end thereof:




          “For the avoidance of doubt, all amounts payable hereunder are intended to comply with Section
409A of the Code and no party hereto shall take any action under this Agreement which would result
in the imposition of an additional tax under Section 409A of the Code on the Executive.”




ARTICLE II

ADDITIONAL PROVISIONS




          Section 2.1 Entire Agreement. This Amendment, together with the Retirement Agreement,
constitutes the entire agreement between the parties hereto with respect thereto. Except as
expressly amended hereby, the Retirement Agreement shall remain in full force and effect.




          Section 2.2 Counterparts. This Amendment may be executed in one or more counterparts
that, together, shall constitute one and the same Amendment.




Signature Page Follows




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     IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the Retirement Agreement
as of the first date written above.



	 	 	 	 	 	 	 
	 	 	NATIONAL FUEL GAS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ P. C. Ackerman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	P. C. Ackerman	 	 
	 

	 	Title:
	 	Chairman of the Board,	 	 
	 

	 	 	 	President & Chief Executive	 	 
	 

	 	 	 	Officer	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL FUEL GAS

DISTRIBUTION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ P. C. Ackerman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	P. C. Ackerman	 	 
	 

	 	Title:
	 	Chairman of the Board	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ David F. Smith	 	 
	 	 	 	 	 
	 	 	DAVID F. SMITH	 	 







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