consult their own tax advisors regarding the applicability of U.S. federal income tax withholding to them and all other tax consequences to them under applicable tax laws and any applicable tax treaties.
National Fuel must report annually to the IRS and to each shareholder the amount of all actual and deemed dividend distributions and the amount of tax withheld from those distributions. The
Plan Administrator, as required, will report to the participant and to the IRS the sale of any Plan shares.
Description of Common Stock
The following description of National Fuels common stock is a summary and is qualified by reference to the terms and provisions of National Fuels Restated Certificate of
Incorporation, as amended (Restated Certificate of Incorporation), its By-Laws, and the Amended and Restated Rights Agreement, dated as of July 11, 2008, between National Fuel and The Bank of New York, as rights agent (Rights Agreement), which are
filed as exhibits to the registration statement to which this prospectus relates and incorporated herein by reference. Reference is also made to the indenture dated as of October 15, 1974, as supplemented (1974 Indenture), between National Fuel and
The Bank of New York, as trustee. (The 1974 Indenture includes a limitation on the payment of dividends, as described below under Dividend Rights. The Companys other indenture, dated as of October 1, 1999, between National Fuel and
The Bank of New York, contains no such limitation.)
No shares of preferred stock of National Fuel are currently outstanding. However, the Board of Directors of National Fuel has the ability to issue one or more series of preferred stock from
time to time. The actual effect of the preferred stock upon the rights of the holders of National Fuels common stock will not be known until National Fuels Board of Directors determines the respective rights of the holders of one or more
series of preferred stock. Such effects, however, might include: (a) restrictions on dividends on National Fuels common stock if dividends on the preferred stock are in arrears; (b) dilution of the voting power of National Fuels common
stock; (c) restrictions on the rights of the holders of National Fuels common stock to share in National Fuels assets upon liquidation due to satisfaction of any liquidation preference granted to the preferred stock; and (d) dilution of
rights of holders of National Fuels common stock to share in National Fuels assets upon liquidation if the preferred stock is participating with respect to distributions upon such liquidation.
Dividend Rights
: The holders of common stock are entitled to receive dividends as declared by the Board of Directors, out of funds legally available for
the purpose and subject to a limitation in the 1974 Indenture. The 1974 Indenture prohibits the payment of cash dividends on, and the purchase or redemption of, common stock if the cumulative dividends on and amounts paid for purchase or redemption
of common or preferred stock since December 31, 1967 exceed or would exceed consolidated net income available for dividends for that same period plus $10 million plus any additional amount authorized or approved, upon application of National
Fuel, by the SEC.
The Board of Directors ability to declare dividends on common stock may also be limited by the rights and preferences of certain series of preferred stock, which may be issued from time
to time, and by the terms of instruments defining the rights of holders of outstanding indebtedness of National Fuel.
Voting Rights and Classification of the Board of Directors
: The holders of common stock are entitled to one vote per share. The affirmative vote of the
majority of the votes cast by the holders of the common stock is required for the merger or consolidation of National Fuel or for the sale of substantially all of its assets. The Board of Directors is divided into three classes, each with, as nearly
as possible, an equal number of directors.
Liquidation Rights
: Upon any dissolution, liquidation or winding up of National Fuel, the holders of common stock are entitled to receive pro rata all of
National Fuels assets and funds remaining after payment of or provision for creditors and subject to the rights and preferences of each series of preferred stock.
Preemptive Rights
: Holders of common stock and any series of preferred stock that may be issued have no preemptive right to purchase or subscribe for any
shares of capital stock of National Fuel.
Common Stock Purchase Rights
: The holders of the common stock have one right for each of their shares. Each right, which will initially be evidenced by
the common stock certificates representing the outstanding shares of
11
common stock, entitles the holder to purchase one-half of one share of common stock at a purchase price of $75.00 per half share, being $150.00 per full share, subject to adjustment (Purchase Price).
The rights become exercisable upon the occurrence of a distribution date. Subject to redemption or exchange of the rights, at any time following a distribution date, each holder of a right will
be entitled to receive, upon exercise of the right, common stock (or, under certain circumstances, other property of National Fuel) having a value equal to two times the Purchase Price of the right then in effect. However, the rights are subject to
redemption or exchange by National Fuel prior to their exercise as described below.
A distribution date would occur upon the earlier of:
-
ten days after the public announcement that a person or group has acquired, or obtained the right to acquire,
beneficial ownership of National Fuels common stock or other voting stock
having 10% or more of the
aggregate voting power of National Fuels common stock and other voting stock, except in the
circumstances described below; and
-
ten business days after the commencement or announcement by a person or group of an intention to make a
tender or exchange offer that would result in that person acquiring, or obtaining the
right to acquire,
beneficial ownership of National Fuels common stock or other voting stock having 10% or more of the total
voting power of National Fuels common stock and
other voting stock.
Beneficial ownership of National Fuels common stock includes, among other things, certain derivative or synthetic arrangements having characteristics of a long position in National
Fuels common stock. In addition, the phrase then outstanding, when used with reference to a persons beneficial ownership of securities of National Fuel, means the number of securities then issued and outstanding together with
the number of such securities not then actually issued and outstanding which such person would be deemed to own beneficially under the Rights Agreement.
A distribution date would not occur where the acquisition described in the first bullet point above results from a reduction in the number of National Fuels shares outstanding due to the
repurchase of shares by National Fuel, unless and until the acquiring person or group, after becoming aware of its 10% stake, acquires an additional one percent of National Fuels shares then outstanding. Similarly, a distribution date would
not occur if National Fuels Board of Directors determines that the person or group that acquired the 10% stake did so inadvertently and without any intention of changing or influencing control of National Fuel, and if that person or group,
after being advised of the Board of Directors determination, reduces its stake below 10% within a period of time set by the Board of Directors.
In certain situations after a person or group has acquired beneficial ownership of 10% or more of the total voting power of National Fuels stock as described above, each holder of a right
will be entitled to receive, upon exercise of the right, common stock of the acquiring company having a value equal to two times the Purchase Price of the right then in effect. These situations would arise if National Fuel is acquired in a merger or
other business combination or if 50% or more of National Fuels assets or earning power are sold or transferred.
At any time prior to the end of business on the tenth day following the announcement that a person or group has acquired, or obtained the right to acquire, beneficial ownership of 10% or more
of the total voting power of National Fuel (except in the circumstances described above in which a distribution date would not occur), National Fuel may redeem the rights in whole, but not in part, at a price of $.005 per right, payable in cash,
stock or other assets. A decision to redeem the rights requires the vote of 75% of National Fuels full Board of Directors. Also, at any time following the announcement that a person or group has acquired, or obtained the right to acquire,
beneficial ownership of 10% or more of the total voting power of National Fuel, 75% of National Fuels full Board of Directors may vote to exchange the rights, in whole or in part, at an exchange rate of one share of common stock, or other
property deemed to have the same value, per right, subject to certain adjustments. Notwithstanding the foregoing, the Board of Directors may not effect an exchange after a person or group has acquired, or obtained the right to acquire, beneficial
ownership of 50% or more of the common stock then outstanding.
12
After a distribution date, rights that are owned by an acquiring person will be null and void. Upon exercise of the rights, National Fuel may need additional regulatory approvals to satisfy the
requirements of the Rights Agreement. The rights will expire on July 31, 2018, unless they are exchanged or redeemed earlier than that date.
The rights have anti-takeover effects because they will cause substantial dilution of the common stock if a person attempts to acquire National Fuel on terms not approved by the Board of
Directors.
Business Combinations
: National Fuels Restated Certificate of Incorporation provides that certain conditions must be met before the consummation of
any merger or other business combination by National Fuel or any of its subsidiaries with any stockholder who is directly or indirectly the beneficial owner of 5% or more of National Fuels outstanding common stock (substantial stockholder) or
with an affiliate of any substantial stockholder. The term substantial stockholder does not include National Fuel, any of its subsidiaries, or any trustee holding common stock of National Fuel for the benefit of the employees of National Fuel or any
of its subsidiaries pursuant to one or more employee benefit plans or arrangements. The conditions, which are in addition to those otherwise required by law, prescribe the minimum amount per share that must be paid to holders of common stock and the
form of consideration paid, and require that the holders of common stock be furnished certain information about the business combination prior to voting on it. A business combination, as defined in the Restated Certificate of Incorporation,
generally means any of the following transactions:
-
a merger, consolidation or share exchange;
-
a sale, lease, exchange or other disposition of any assets in exchange for property having a fair market value
of more than $10 million, if determined to be a business combination by
certain directors of National Fuel in
accordance with provisions of the Restated Certificate of Incorporation;
-
the issuance or transfer of securities in exchange for property having a fair market value of more than $10
million, if determined to be a business combination by certain directors of
National Fuel in accordance with
provisions of the Restated Certificate of Incorporation;
-
the adoption of a plan of liquidation or dissolution of National Fuel; or
-
any reclassification of securities, recapitalization or reorganization that has the effect of increasing the
proportionate share of the outstanding shares of any class of securities of
National Fuel that is owned by any
substantial stockholder or by any affiliate of a substantial stockholder.
The approval of at least three-fourths of the entire Board of Directors or, in the event that the Board of Directors consists of directors elected by the holders of preferred stock, the
approval of a majority of the entire Board, is required to amend or repeal the classified board or business combination provisions contained in the Restated Certificate of Incorporation.
Listing
: The common stock is, and will be, listed on the New York Stock Exchange.
Transfer Agent and Registrar
: The transfer agent and registrar for the common stock is BNY Mellon Shareowner Services.
Miscellaneous
Available Information/Incorporation of Documents by Reference:
National Fuel files annual, quarterly and other reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy any reports, statements or other information National Fuel files with the SEC at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You
can obtain additional information about the Public Reference Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically
with the SEC, including National Fuel.
13
National Fuel also maintains an Internet site (http://www.nationalfuelgas.com). Information contained on National Fuels Internet site does not constitute part of this prospectus.
The SEC allows National Fuel to incorporate by reference the information that National Fuel files with the SEC, which means that National Fuel can disclose important information to
you by referring you to those documents in this prospectus. The information incorporated by reference is an important part of this prospectus. National Fuel is incorporating by reference its Annual Report on Form 10-K for the year ended September
30, 2008 and any future documents that are filed by National Fuel with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (Exchange Act) until National Fuel sells all of these securities. Any of National
Fuels future filings under Section 13(a), 13(c), 14, or 15(d) of the Exchange Act will update, supersede and replace information contained herein and the information contained in any documents incorporated by reference in this prospectus at
the time of the future filings.
Upon request National Fuel will provide, without charge, a copy of any or all of the documents incorporated by reference in this document (other than exhibits to such documents, unless the
exhibits are specifically incorporated by reference in such documents). Your requests for copies should be directed to National Fuel Investor Relations, 6363 Main Street, Williamsville, New York 14221 (Telephone: (716) 857-6987).
You should rely only on the information incorporated by reference or provided in this prospectus or in any prospectus supplement. National Fuel has authorized no one to provide you with
different information. National Fuel is not making an offer to sell its stock or soliciting offers to buy its stock in any state or country where the offer or solicitation is not permitted. You should not assume that the information in this
prospectus or a prospectus supplement is accurate as of any date other than the date on the front of such document or that the information incorporated by reference in this prospectus is accurate as of any date other than the date of the document
incorporated by reference.
Stock Splits, Stock Dividends and Other Distributions:
In the event dividends are paid in National Fuel common stock, or if National Fuel common stock is
distributed in connection with any stock split or similar transaction, each account will be adjusted to reflect the receipt of the common stock so paid or distributed.
Voting of Proxies:
National Fuel will mail you proxy materials including a proxy card representing both the shares for which you hold certificates and
the shares, full and fractional, in your Plan account. The proxy will be voted as indicated by you. If you do not return your signed proxy card or otherwise cast your vote in accordance with the instructions in the proxy package, none of your shares
will be voted.
Responsibility of National Fuel Gas Company and the Plan Administrator:
Neither National Fuel Gas Company nor the Plan Administrator will be liable for
any act it does in good faith or for any good faith omission to act. This includes, without limitation, any claims of liability:
-
For failure to terminate your account upon your death prior to receiving written notice of such death; or
-
Relating to purchases or sales prices reflected in your Plan account or the dates of purchases or sales of your
Plan shares; or
-
For any fluctuation in the market value after purchase or sale of shares.
The payment of dividends is at the discretion of National Fuels Board of Directors and will depend upon future earnings, the financial condition of National Fuel Gas Company and other
factors. The Board may change the amount and timing of dividends at any time without notice.
Neither National Fuel Gas Company nor the Plan Administrator can assure you a profit or protect you against a loss on the shares you purchase under the Plan.
Legal Matters:
Stryker, Tams & Dill LLP has given its opinion regarding the legality of the common stock covered by this prospectus and the valid
issuance of the common stock purchase rights appurtenant to the common
14
stock covered by this prospectus. Certain matters of U.S. federal income tax law were passed upon by Dewey & LeBoeuf LLP.
Plan Modification or Termination:
National Fuel reserves the right to suspend, modify or terminate the Plan at any time. You will receive notice of any
such suspension, modification or termination. National Fuel and the Plan Administrator also reserve the right to change any administrative procedures of the Plan.
Change of Eligibility; Termination:
National Fuel reserves the right to deny, suspend or terminate participation by a shareholder who is using the Plan
for purposes inconsistent with the intended purpose of the Plan. In such event, the Plan Administrator will notify you in writing and will continue to safekeep your shares but will no longer accept optional cash investments or reinvest your
dividends. The Plan Administrator will issue a certificate to you for your shares upon written request.
Foreign Participation:
If you live outside the United States, you should first determine if there are any laws or governmental regulations that would
prohibit your participation in the Plan. National Fuel reserves the right to terminate participation of any shareholder and to refuse Plan participation to any person if it deems it advisable under any foreign laws or regulations.
Experts:
The financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is included
in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended September 30, 2008 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The information incorporated in this prospectus by reference to National Fuels Annual Report on Form 10-K for the year ended September 30, 2008, relating to the oil and gas reserves of
Seneca Resources Corporation, has been so incorporated in reliance on the audit report of Netherland, Sewell & Associates, Inc., an independent petroleum engineering firm, given on the authority of said firm as experts in petroleum engineering.
15
National Fuel Gas Company
6363 Main Street
Williamsville, New York 14221
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
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Printing Expenses
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$
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6,000
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Accounting Fees and Expenses
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6,500
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Legal Fees and Expenses
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30,000
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Miscellaneous Expenses
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5,000
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Total Expenses
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$
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47,500
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* Estimated
Item 15. Indemnification of Directors and Officers.
Article Ninth of National Fuels Restated Certificate of Incorporation, as amended, provides as follows:
No director or officer of this corporation shall be personally liable to the corporation or any of its shareholders for monetary damages for breach of any duty owed to the corporation or
any of its shareholders, except to the extent that such exemption from liability is not permitted under the New Jersey Business Corporation Act, as the same exists or may hereafter be amended, or under any revision thereof or successor statute
thereto.
Article II, Paragraph 8 of the By-Laws of National Fuel provides as follows:
A. The Corporation shall indemnify any person who is or was a Director or officer of the Corporation, to the fullest extent permitted and in the manner provided by the laws of the State
of New Jersey, including, without limitation, the indemnification permitted by N.J.S. 14A:3-5(8), against all liabilities (including amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties) and expenses (including,
without limitation, attorneys fees and disbursements) imposed upon or incurred by such person in connection with any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal
therein and any inquiry or investigation which could lead to such action, suit or proceeding (Proceeding) in which such person may be made, or threatened to be made, a party, or in which such person may become involved by reason of such
person being or having been a Director or officer of the Corporation, or of serving or having served at the request of the Corporation as a director, officer, trustee, employee or agent of, or in any other capacity with, another foreign or domestic
corporation, or any partnership, joint venture, sole proprietorship, employee benefit plan, trust or other enterprise, whether or not for profit.
II-1
B. The right to indemnification conferred by this Section 8 shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any Proceeding
in advance of its final disposition, and the Corporation shall, to the fullest extent permitted by law, promptly advance expenses (including, without limitation, attorneys fees and disbursements) that are incurred, from time to time, in
connection therewith by any such current or former Director or officer of the Corporation, subject to the receipt by the Corporation of an undertaking of such person as required by law.
C. Nothing in this Section 8 shall restrict or limit the power of the Corporation to indemnify its employees, agents and other persons, to advance expenses (including attorneys fees) on
their behalf and to purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation in connection with any Proceeding.
D. The indemnification provided by this Section 8 shall not exclude any other rights to which a person seeking indemnification may be entitled under the Certificate of Incorporation, By-Laws,
agreement, vote of shareholders or otherwise. The indemnification provided by this Section 8 shall continue as to a person who has ceased to be a Director or officer, and shall extend to the estate or personal representative of any deceased Director
or officer.
E. Any repeal or modification of this Section 8 shall not adversely affect any rights to indemnification and to the advancement of expenses of a Director or officer of the Corporation existing
at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Section 14A:3-5 of the New Jersey Statutes Annotated provides:
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES.
(1) As used in this section,
(a) Corporate agent means any person who is or was a director, officer, employee or agent of the indemnifying corporation or
of any constituent corporation absorbed by the indemnifying corporation in a consolidation or merger and any person who is or was a director, officer, trustee, employee or agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the legal representative of any such director, officer, trustee, employee or agent;
(b) Other enterprise means any domestic or foreign corporation, other than the indemnifying corporation, and any
partnership, joint venture, sole proprietorship, trust or other enterprise, whether or not for profit, served by a corporate agent;
(c) Expenses means reasonable costs, disbursements and counsel fees;
(d) Liabilities means amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties;
(e) Proceeding means any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or
proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding; and
II-2
(f) References to other enterprises include employee benefit plans; references to fines include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to serving at the request of the indemnifying corporation include any service as a corporate agent which imposes duties on, or involves services by, the
corporate agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner the person reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the corporation as referred to in this section.
(2) Any corporation organized for any purpose under any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses and liabilities in connection with any proceeding involving the corporate agent by reason of his being or having been such a corporate agent, other than a proceeding by or in the right of the
corporation, if
(a) such corporate agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that such corporate agent did not meet the applicable standards of conduct set
forth in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses in connection with any proceeding by or in the right of the corporation to procure a judgment in its favor which involves the corporate agent by reason of his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, in such proceeding no indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the corporation, unless and only to the extent that the Superior Court or the court in which such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all circumstances of the case, such corporate agent is fairly and reasonably entitled to indemnity for such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or special law of this State shall indemnify a corporate
agent against expenses to the extent that such corporate agent has been successful on the merits or otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered by a court, under subsection 14A:3-5(3), may be
made by the corporation only as authorized in a specific case upon a determination that indemnification is proper in the circumstances because the corporate agent met the applicable standard of conduct set forth in subsection 14A:3-5(2) or
subsection 14A:3-5(3). Unless otherwise provided in the certificate of incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a majority vote of a quorum consisting of directors who were not
parties to or otherwise involved in the proceeding; or
II-3
(b) if such a quorum is not obtainable, or, even if obtainable and such quorum of the board of directors or committee by a majority vote
of the disinterested directors so directs, by independent legal counsel, in a written opinion, such counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or a resolution of the board of directors or of the shareholders
so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding may be paid by the corporation in advance of
the final disposition of the proceeding as authorized by the board of directors upon receipt of an undertaking by or on behalf of the corporate agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified
as provided in this section.
(7) (a) If a corporation upon application of a corporate agent has failed or refused to provide indemnification as
required under subsection 14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a corporate agent may apply to a court for an award of indemnification by the corporation, and such court
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(i)
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may award indemnification to the extent authorized under subsections 14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent required under subsection 14A:3-5(4), notwithstanding any contrary determination
which may have been made under subsection 14A:3-5(5); and
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(ii)
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may allow reasonable expenses to the extent authorized
by, and subject to the provisions of, subsection 14A:3-5(6), if the court
shall find that the corporate agent has by his pleadings or during the
course of the proceeding raised genuine issues of fact or law.
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(b)
Application
for such indemnification may be made
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(i)
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in the civil action in which the expenses were or are to be incurred or other amounts were or are to be paid; or
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(ii)
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to the Superior Court in a separate proceeding. If the application is for indemnification arising out of a civil action, it shall set forth reasonable cause for the failure to make application for such relief in the action
or proceeding in which the expenses were or are to be incurred or other amounts were or are to be paid.
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The application shall set forth the disposition of any previous application for indemnification and shall be made in such manner and form as may be required by the applicable rules of court or, in the absence thereof, by
direction of the court to which it is made. Such application shall be upon notice to the corporation. The court may also direct that notice shall be given at the expense of the corporation to the shareholders and such other persons as it may
designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or granted pursuant to the other subsections of this
section shall not exclude any other rights, including the right to be indemnified against liabilities and expenses incurred in proceedings by or in the right of the corporation, to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided that no indemnification shall be made to or on behalf of a corporate agent if a judgment or other final adjudication adverse to the corporate agent establishes that his
acts or
II-4
omissions (a) were in breach of his duty of loyalty to the corporation or its shareholders, as defined in subsection (3) of N.J.S. 14A:2-7, (b) were not in good faith or involved a knowing violation of law or (c) resulted
in receipt by the corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or special law of this State shall have the power to
purchase and maintain insurance on behalf of any corporate agent against any expenses incurred in any proceeding and any liabilities asserted against him by reason of his being or having been a corporate agent, whether or not the corporation would
have the power to indemnify him against such expenses and liabilities under the provisions of this section. The corporation may purchase such insurance from, or such insurance may be reinsured in whole or in part by, an insurer owned by or otherwise
affiliated with the corporation, whether or not such insurer does business with other insureds.
(10) The powers granted by this section may be exercised by the corporation, notwithstanding the absence of any provision
in its certificate of incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification shall be made or expenses advanced by a corporation
under this section, and none shall be ordered by a court, if such action would be inconsistent with a provision of the certificate of incorporation, a bylaw, a resolution of the board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the proceeding, which prohibits, limits or otherwise conditions the exercise of indemnification powers by the corporation or the rights of
indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporations power to pay or reimburse expenses incurred by a corporate agent in
connection with the corporate agents appearance as a witness in a proceeding at a time when the corporate agent has not been made a party to the proceeding.
The Company has entered into an Indemnification Agreement with each of its directors (each, a Director). The Indemnification Agreement provides that the Company will indemnify
Director against any and all expenses, judgments, costs, fines and amounts paid in settlement (collectively, Losses), to the fullest extent permitted by law, in connection with any present or future threatened, pending or completed
proceeding based upon, arising from, relating to, or by reason of Directors status as a director, officer, employee, agent or fiduciary of the Company or any other entity the Director serves at the request of the Company. In addition, the
Company will advance, to the extent not prohibited by law, the expenses incurred by Director in connection with any proceeding.
No indemnification may be made to Director with respect to any proceeding if a final judgment adverse to Director establishes that Director engaged in disqualifying conduct. Disqualifying
conduct means that Directors actions or omissions (i) were in breach of Directors duty of loyalty to the Company and its shareholders, (ii) were not in good faith or involved a knowing violation of law, or (iii) resulted in the
receipt by Director of an improper personal benefit.
Notwithstanding any other provision in the Indemnification Agreement, the Company will not be obligated to make any indemnity or advance in connection with any claim made against Director:
(a) for which payment has actually been made to Director under any insurance policy, other indemnity provision, contract or agreement;
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Director of securities of the Company that did, in fact, violate Section 16(b) of the Securities
Exchange
II-5
Act of 1934 (the Exchange Act) or (ii) any reimbursement of the Company by Director of any bonus or other incentive-based or equity-based compensation or of any profits realized by Director from the sale of
securities of the Company, as required in each case under the Exchange Act;
(c) except as otherwise provided in the Indemnification Agreement, in connection with any proceeding initiated by Director alone or in concert with others, including any proceeding initiated by
Director against the Company or its directors, officers, employees or other Directors, unless (i) the Board of Directors authorized the proceeding prior to its initiation, or (ii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company under applicable law; or
(d) in the event that the Company is advised, in a written opinion of its regular outside legal counsel, that the Companys performance of any provision of the Indemnification Agreement
would violate Section 13(k) of the Exchange Act.
To the fullest extent permitted by applicable law, if the indemnification provided for in the Indemnification Agreement is unavailable to Director for any reason, then the Company will
contribute to Losses incurred by Director in such proportion as reflects (a) the relative benefits received by the Company, on the one hand, and Director, on the other hand, as a result of the events or transactions giving rise to the proceeding, or
(b) if the allocation described in clause (a) above is not permitted by applicable law, the relative fault of the Company, on the one hand, and Director, on the other hand, in connection with such events or transactions.
The Indemnification Agreement provides that, to the extent a change in New Jersey law permits greater indemnification or advancement of expenses than would be afforded under the Companys
Certificate of Incorporation, By-laws and the Indemnification Agreement, it is the intent of the parties that Director will enjoy the greater benefits afforded by the change.
The Company also maintains directors and officers liability insurance coverage with respect to acts or omissions by such directors and officers in their capacity as such.
Item 16. Exhibits.
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Exhibit
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Number
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Description of Exhibits
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3(i)
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Articles of Incorporation:
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*
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Restated Certificate of Incorporation dated September
21, 1998 (Exhibit 3.1, Form 10-K for the fiscal year ended September 30, 1998
in File No. 1-3880).
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*
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Certificate of Amendment of Restated Certificate
of Incorporation (Exhibit 3(ii), Form 8-K dated March 14, 2005 in File No. 1-3880).
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3(ii)
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By-Laws:
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*
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By-Laws as amended June 11, 2008 (Exhibit 3.1, Form
8-K dated June 16, 2008 in File No. 1-3880).
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4
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Instruments Defining the Rights of Security Holders,
including Indentures:
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*
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Indenture dated as of October 15, 1974, between National
Fuel Gas Company and The Bank of New York (formerly Irving Trust Company) (Exhibit
2(b), File No. 2-51796).
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*
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Third Supplemental Indenture dated as of December
1, 1982, to Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company) (Exhibit 4(a)(4)
in File No. 33-49401).
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II-6
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*
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Eleventh Supplemental Indenture dated as of May 1,
1992, to Indenture dated as of October 15, 1974, between National Fuel Gas Company
and The Bank of New York (formerly Irving Trust Company) (Exhibit 4(b), Form
8-K dated February 14, 1992 in File No. 1-3880).
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*
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Twelfth Supplemental Indenture dated as of June 1,
1992, to Indenture dated as of October 15, 1974, between National Fuel Gas Company
and The Bank of New York (formerly Irving Trust Company) (Exhibit 4(c), Form
8-K dated June 18, 1992 in File 1-3880).
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*
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Thirteenth Supplemental Indenture dated as of March
1, 1993, to Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4(a)(14) in File No. 33-49401).
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*
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Fourteenth Supplemental Indenture dated as of July
1, 1993 to Indenture dated as of October 15, 1974 between National Fuel Gas Company
and The Bank of New York (formerly Irving Trust Company) (Exhibit 4.1, Form 10-K
for fiscal year ended September 30, 1993 in File No. 1-3880).
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*
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Fifteenth Supplemental Indenture dated as of September
1, 1996, to Indenture dated as of October 15, 1974 between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company) (Exhibit 4.1,
Form 10-K for fiscal year ended September 30, 1996 in File No. 1-3880).
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*
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Indenture dated as of October 1, 1999, between National
Fuel Gas Company and The
Bank of New York (Exhibit 4.1, Form 10-K for fiscal year ended September 30, 1999 in File No. 1-3880).
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*
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Officers Certificate Establishing Medium-Term Notes, dated October 14, 1999 (Exhibit 4.2, Form 10-K for fiscal year ended September 30,
1999 in File No. 13880).
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*
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Officers Certificate establishing 5.25% Notes due 2013,
dated February 18, 2003 (Exhibit 4, Form 10-Q for the quarterly period ended
March 31, 2003 in File No. 1-3880).
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*
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Officers Certificate establishing 6.50% Notes due 2018,
dated April 11, 2008 (Exhibit 4.1, Form 10-Q for the quarterly period ended June
30, 2008 in File No. 1-3880).
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*
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Amended and Restated Rights Agreement, dated as of
July 11, 2008 between National Fuel Gas Company and The Bank of New York, as
rights agent (Exhibit 4.1, Form 8-K dated July 15, 2008 in File No. 1-3880).
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5.1
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Opinion of Stryker, Tams & Dill LLP, Counsel for National Fuel Gas Company.
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8.1
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Opinion of Dewey & LeBoeuf LLP, Counsel for National Fuel Gas Company.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Stryker, Tams & Dill LLP (contained in Exhibit 5.1).
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23.3
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Consent of Netherland, Sewell & Associates, Inc.
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23.4
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Consent of Dewey & LeBoeuf LLP (contained in Exhibit 8.1).
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24
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The Power of Attorney is contained on the signature
page of this registration statement.
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*Incorporated herein by reference
as indicated.
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Item 17. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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II-7
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
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(2)
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That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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That, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement;
and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was
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II-8
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part of the registration statement or
made in any such document immediately prior to such effective date.
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(5)
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That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser
in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will be sellers
to the purchaser and will be considered to offer or sell such securities
to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or their securities provided by or on behalf of the undersigned registrant;
and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(6)
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That, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants
Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(b)
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Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such issue.
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II-9
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below hereby appoints the agents for service named in this registration statement, and each of them severally, as his
attorney-in-fact to sign in his name and on his behalf, in any and all capacities stated below, and to file with the SEC, any and all amendments, including post-effective amendments, to this registration statement, and the registrant hereby also
appoints each such agent for service as its attorney-in-fact with the authority to sign and file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Amherst, State of New York, on the 26th day of November, 2008.
NATIONAL FUEL GAS COMPANY
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By:
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/s/ D. F. Smith
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D. F. Smith
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President and
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ P. C. Ackerman
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Chairman of the Board of
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November 26, 2008
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P. C. Ackerman
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Directors
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/s/ D. F. Smith
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President, Chief Executive
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November 26, 2008
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D. F. Smith
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Officer and Director
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/s/ R. J. Tanski
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Treasurer and Principal
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November 26, 2008
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R. J. Tanski
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Financial Officer
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/s/ K. M. Camiolo
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Controller and Principal
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November 26, 2008
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K. M. Camiolo
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Accounting Officer
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/s/ R. T. Brady
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Director
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November 26, 2008
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R. T. Brady
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/s/ R. D. Cash
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Director
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November 26, 2008
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R. D. Cash
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/s/ S. E. Ewing
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Director
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November 26, 2008
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S. E. Ewing
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/s/ R. E. Kidder
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Director
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November 26, 2008
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R. E. Kidder
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/s/ C. G. Matthews
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Director
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November 26, 2008
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C. G. Matthews
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/s/ G. L. Mazanec
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Director
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November 26, 2008
|
G. L. Mazanec
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/s/ R. G. Reiten
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Director
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November 26, 2008
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R. G. Reiten
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/s/ F. V. Salerno
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Director
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November 26, 2008
|
F. V. Salerno
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EXHIBIT INDEX
|
|
Exhibit
|
|
Number
|
Description of Exhibits
|
|
5.1
|
Opinion of Stryker, Tams & Dill LLP, Counsel for National Fuel Gas Company.
|
8.1
|
Opinion of Dewey & LeBoeuf LLP, Counsel for National Fuel Gas Company.
|
23.1
|
Consent of PricewaterhouseCoopers LLP.
|
23.2
|
The Consent of Stryker, Tams & Dill LLP is contained
in its opinion filed as Exhibit 5.1 to this registration statement.
|
23.3
|
Consent of Netherland, Sewell & Associates, Inc.
|
23.4
|
Consent of Dewey & LeBoeuf LLP (contained in Exhibit 8.1).
|
24
|
The Power of Attorney is contained on the signature page of this registration statement.
|
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