EX-10.5



 





Exhibit 10.5




AMENDED AND RESTATED




RETIREMENT BENEFIT AGREEMENT




FOR




DAVID F. SMITH




     This AGREEMENT, dated as of September 22, 2003, amended as of September 8, 2005 and further
amended and restated as of September 20, 2007, is between National Fuel Gas Company, a New Jersey
corporation, (“National”) National Fuel Gas Supply Corporation, a New York corporation, (“Supply”;
Supply, National, and each of National’s wholly owned subsidiaries are hereafter collectively
referred to as the “Company”), and David F. Smith (the “Executive”).



RECITALS:





	 	A.	 	The Executive currently is employed as the President of
Supply, a wholly owned subsidiary of National.
	 
	 	B.	 	Supply, National and the Executive desire to set forth the
Executive’s additional retirement benefits if the Executive’s employment with
the Company is terminated by the Company without Cause or if the Executive
terminates employment with the Company with Good Reason prior to March 1,
2011.





     NOW, THEREFORE, in consideration of the premises and of the covenants contained in this
Agreement, Supply, National and the Executive agree as follows:




1. Definitions.



                 (a) “Board of Directors” or “Board” means the Board of Directors of National.



                 (b) “Cause” means (i) the willful and continued failure by the Executive to substantially
perform his duties with the Company after written



 









 




warnings specifically identifying the lack of
substantial performance are delivered to him by the Company, or (ii) the willful engaging by the
Executive in illegal conduct, gross misconduct, fraud or dishonesty, which is materially and
demonstrably injurious to the Supply, National, or the Company, as determined in good faith by a
vote of at least 2/3 of the non-employee directors of National at a meeting of the Board at which
the Executive is provided an opportunity to be heard (with representation by counsel of his
choosing, should he so desire).




                 (c) “Good Reason” means




       (i) a significant reduction in the nature and scope of the
Executive’s duties and direct reporting responsibilities from the
nature and scope of those duties and direct reporting
responsibilities at the effective date of this Agreement (by way
of illustration but not of limitation, if Executive is serving as
President of Supply, National, or National Fuel Gas Distribution
Corporation, a significant reduction in duties will not have
occurred),




       (ii) a significant reduction in the Executive’s total
potential compensation from that total potential compensation at
the effective date of this Agreement, or




       (iii) a requirement that the Executive relocate more than 100
miles away from National’s headquarters, as it may be located from
time to time.




The Executive will have a period of six-months from the happening
of an event that gives rise to Good Reason to terminate his
employment on account of Good Reason.




2. Supplemental Retirement.



                 (a) Modification of Rights and Coordination of Benefits. Notwithstanding any provision in the
National Fuel Gas Company and



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Participating Subsidiaries Executive Retirement Plan, as adopted
July 10, 1987, and as subsequently amended, (the “ERP Plan”), the provisions of this Section are in
addition to any benefits payable under the terms of the ERP Plan, the National Fuel Gas Company
Retirement Plan (the “Retirement Plan”), or any other plan or arrangement sponsored or maintained
by Supply, National or the Company, if there is a termination of the Executive’s employment with
the Company prior to Executive attaining age 57 1/2 (i) by the Company without Cause or (ii) by the
Executive with Good Reason.




                 (b) Benefit for Termination Prior to Age 57 1/2. The intent of this Agreement is to provide, in
certain situations described below, additional benefits to the Executive such that he will receive
benefits that are, in total, equivalent to what he would have received under the terms of the ERP
Plan and Retirement Plan if he had attained age 57 1/2 at the time of his termination of employment.
If the Executive’s employment with the Company is terminated prior to his attaining age 57 1/2 (i) by
the Company without Cause or (ii) by the Executive with Good Reason, the Executive will be entitled
to receive under this Agreement an additional retirement benefit calculated and payable as follows:



                      (i) Definitions:




     (A) The Contractual Benefit Base will be an
amount equal to the sum of (I) the Retirement Plan
Benefit, (II) the ERP Tophat Benefit and (III) the ERP
Supplemental Benefit, all calculated as if the Executive
had attained age 57 1/2 at the time of his termination.




     (B) The Retirement Plan Benefit is the amount
payable as the Benefit Base, determined, based on
Executive’s service and compensation at time of
termination, under the terms of the National
Fuel Gas Company Retirement Plan (expressed as a
single life annuity for the Executive).



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     (C) The ERP Tophat Benefit is the amount
payable determined, based on Executive’s service and
compensation at time of termination, under Section 3.4(a)
of the ERP Plan as the Adjusted Basic Pension Plan Benefit
Base minus the Basic Pension Plan Benefit (expressed as a
single life annuity for the Executive).




     (D) The ERP Supplemental Benefit is the
amount payable determined, based on Executive’s service
and compensation at time of termination, under Section
3.4(c) of the ERP Plan (expressed as a single life annuity
for the Executive) .




     (E) Wife means the individual to whom
Executive is married at the time benefits first become
payable under Section 2(b)(ii)(B) below.




     (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



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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) on the date that is 60 days
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 number of total number of days that had elapsed
between the
Executive’s termination of employment and the date of
his death.



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     (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



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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 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) 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.



     3. Termination. This Agreement will terminate on (a) March 1, 2011, if benefits have
not been payable pursuant to its terms, or (b) the first date that both the Executive and his Wife
are deceased. Notwithstanding the preceding sentence, this Agreement will terminate earlier on the
occurrence of the Executive’s termination of



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employment prior to March 1, 2011 for any reason
(including, termination on account of death or due to disability) other than a termination (i) by
the Company without Cause or (ii) by the Executive with Good Reason.




     4. Withholding for Taxes. The Company will deduct or withhold from payments made
under this Agreement, and from other payments made to the Executive, all amounts that may be
required to be deducted or withheld under any applicable Social Security contribution, income tax
withholding or other similar law now in effect or that may become effective during the term of this
Agreement.



     5. Non-exclusivity of Rights. Except as otherwise specifically provided in Section 2,
nothing in this Agreement may prevent or limit the Executive’s continued or future participation in
any benefit, incentive, or other plan, practice, or program provided by the Company and for which
the Executive may qualify.



     6. No Obligation to Seek Other Employment. The Executive is not obligated to seek
employment with any entity that is not the Company or to take other action to mitigate any amount
payable to him under this Agreement.



     7. Confidentiality. Neither the Executive nor the Company will disclose any of the
terms of this Agreement or any information regarding the Executive’s employment with the Company to
any other person (other than the Executive’s disclosure to his spouse, attorney and accountant)
without the prior written consent of the other, except as may be necessary or appropriate in the
ordinary course of the Company’s operations, and except as may be required by law.



     8. Successors.



          (a) This Agreement is personal to the Executive and is not assignable by the Executive or his
Wife. This Agreement will inure to the benefit of and be enforceable by the Executive’s and his
Wife’s legal representatives.




          (b) This Agreement will inure to the benefit of and be binding on Supply, National and its
successors and assigns.



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          (c) In the event the Executive ceases to be employed by Supply as a result of the transfer of
the Executive’s employment to National or to another wholly owned subsidiary of National, for
purposes of this Agreement, National or such other subsidiary, as the case may be, will
automatically be deemed to be Supply from and after the date of such transfer and shall have the
same rights, duties and obligations hereunder as Supply had immediately prior to such transfer.




          (d) Supply and National will require any successor (whether direct or indirect, by acquisition
of assets, merger, consolidation or otherwise) to all or substantially all of the operations or
assets of Supply or National or any other successor and without regard to the form of transaction
used to acquire the operations or assets of Supply or National with whom Executive continues to be
employed by after the time of such transaction, to assume and agree to perform this Agreement in
the same manner and to the same extent that Supply or National would be required to perform it if
no such succession had taken place. As used in this Agreement, “Company” means the Company and any
successor to its operations or assets as set forth in this Section that is required by this clause
to assume and agree to perform this Agreement or that otherwise assumes and agrees to perform this
Agreement.




     9. Dispute Resolution. Supply, National and the Executive will attempt to resolve
between them any dispute that arises under this Agreement. If they do not agree within 10 days
after either party submits a demand for arbitration to the other, the issue will be submitted to
arbitration with each party having the right to appoint one arbitrator and those two arbitrators
mutually selecting a third arbitrator. The rules of the American Arbitration Association under its
national rules for the Resolution of Employment Disputes will apply, and the decision of two of the
three arbitrators will be
final. The arbitrators must reach a decision within 60 days after the selection of the third
arbitrator. The arbitration will take place in Erie County, New York. The arbitration will apply
New York law. Each party will pay his or its own attorney fees and costs of arbitration, the fee
of the arbitrator he or it selects, one-half the fee of the third arbitrator, and one-half of the
fees and expenses of the American Arbitration Association.



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          10. Notice. All communications to parties required under this Agreement must be in
writing and (a) delivered in person, (b) mailed by registered or certified mail, return receipt
requested, (any mailed notice to be effective four days after the date it is mailed) or (c) sent by
facsimile transmission, with confirmation sent by way of one of the above methods, to the party at
the address given below for that party (or to such other address as such party designates in a
writing complying with this Section, delivered to the other party):




     If to the Supply:




National Fuel Gas Supply Corporation

6363 Main Street

Williamsville, NY 14221

Attention: General Counsel

Telephone: (716) 857-7548

Telecopier: (716) 857-7614



     If to National:




National Fuel Gas Company

6363 Main Street

Williamsville, NY 14221

Attention: Corporate Secretary

Telephone: (716) 857-7858

Telecopier: (716) 857-7856



     If to the Executive:




David F. Smith

6363 Main Street

Williamsville, NY 14221

Telephone: (716) 857-7977

Telecopier: (716) 857-7856



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     with a copy to:




Lucy A. Smith

9295 Hunt Club Lane

Clarence, New York 14031

Telephone: (716) 741-1744



          11. Source of Payments. All payments to be made hereunder shall be paid in cash from
the general funds of Supply, provided, however, that such payments shall be reduced by the amount
of any payments made to the Executive or his dependents, beneficiaries or estate from any trust or
special or separate fund established by Supply or National to assure such payments. To the extent
that Supply does not pay any such amount when due, National shall, or shall cause Supply, to make
such payment. Neither Supply nor National shall be required to establish a special or separate
fund or other segregation of assets to assure such payments, and, if Supply or National shall make
any investments to aid it in meeting its obligations hereunder, the Executive shall have no right,
title or interest whatever in or to any such investments except as may otherwise be expressly
provided in a separate written instrument relating to such investments. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be construed to create a
trust of any kind or a fiduciary relationship, between Supply or National and the Executive or any
other person. To the extent that any person acquires a right to receive payments from Supply or
National such right shall be no greater than the right of an unsecured creditor of Supply or
National.




          12. Miscellaneous. No course of action or failure to act by the Company or the
Executive may constitute a waiver by that party of any right or remedy
under this Agreement, and no waiver by either party of any right or remedy under this
Agreement will be effective unless made in writing. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be enforceable under applicable law. However,
if any provision of this Agreement is deemed unenforceable under applicable law by a court having
jurisdiction, that provision will be unenforceable only to the extent necessary to make it
enforceable without invalidating the remainder of



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it or any of the remaining provisions of this
Agreement. This Agreement (a) may not be amended, modified or terminated orally or by any course
of conduct pursued by the Company or the Executive, but may be amended, modified or terminated only
by a written agreement duly executed by Supply, National and the Executive, (b) constitutes the
entire agreement between Supply, National and the Executive with respect to the additional
retirement benefits payable under this Agreement, and supersedes all oral and written proposals,
representations, understandings and agreements previously made or existing with respect to such
subject matter, and (c) will be governed by, and interpreted and construed in accordance with, the
laws of the State of New York, without regard to principles of conflicts of law. 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.




          IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.




	 	 	 	 	 	 	 
	 	 	NATIONAL FUEL GAS SUPPLY CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James R. Peterson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James R. Peterson	 	 
	 

	 	Title:
	 	Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL FUEL GAS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Philip C. Ackerman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Philip C. Ackerman	 	 
	 

	 	Title:
	 	Chairman/CEO	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE:	 	 
	 
	 	 	 	 	 	 
	 	 	     /s/ David F. Smith	 	 
	 	 	 	 	 
	 	 	DAVID F. SMITH	 	 






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	STATE OF NEW YORK

	 	) 
	 

	 	): ss.
	COUNTY OF ERIE

	 	) 






     On the 22nd day of October, in the year 2007, before me, the undersigned,
personally appeared James R. Peterson, 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/she executed the same in his/her capacity as the Secretary of National
Fuel Gas Supply Corporation, the corporation described in and which executed the foregoing
instrument, and that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	/s/ Sarah J. Mugel

	 	[Notary Stamp Omitted]
	 
	 	 
	Notary Public
	 	 
	 
	 	 
	STATE OF NEW YORK

	 	) 
	 

	 	): ss.
	COUNTY OF ERIE

	 	) 






     On the 23rd day of October, in the year 2007, before me, the undersigned,
personally appeared Philip C. Ackerman, 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/she executed the same in his/her capacity as the Chairman/CEO of
National Fuel Gas Company, the corporation described in and which executed the foregoing
instrument, and that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	/s/ Sarah J. Mugel

	 	[Notary Stamp Omitted]
	 
	 	 
	Notary Public
	 	 
	 
	 	 
	STATE OF NEW YORK

	 	) 
	 

	 	:ss.
	COUNTY OF ERIE

	 	) 






     On the 22nd day of October, in the year 2007, before me, the undersigned personally
appeared David F. Smith, 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 executed the same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed the instrument.



	 	 	 
	/s/ Sarah J. Mugel
 


	 	[Notary Stamp Omitted] 
	Notary Public
	 	 







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