Restated Certificate of Incorporation
Article Ninth of Nationals 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.
By-Laws
Article II, Section 8 of the By-Laws of National 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 as now or hereafter in effect, 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.
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.
Indemnification Agreements
National has entered into an Indemnification Agreement with each of its directors (the Director). The Indemnification Agreement provides that National will indemnify the 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 the Directors status as a director, officer, employee, agent or fiduciary of National or any other entity the Director serves at the request of National. In addition, National will
advance, to the extent not prohibited by law, the expenses incurred by the Director in connection with any proceeding.
No indemnification may be made to the Director with respect to any proceeding if a final judgment adverse to the Director establishes that the Director engaged in disqualifying conduct.
Disqualifying conduct means that the Directors actions or omissions
II-4
(i) were in breach of the Directors duty of loyalty to National and its shareholders, (ii) were not in good faith or involved a knowing violation of law, or (iii) resulted in the receipt by the Director of an improper
personal benefit.
Notwithstanding any other provision in the Indemnification Agreement, National will not be obligated to make any indemnity or advance in connection with any claim made against the Director:
(a) for which payment has actually been made to the 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 the Director of securities of National that did, in fact, violate Section 16(b) of the Securities
Exchange Act of 1934 (the Exchange Act) or (ii) any reimbursement of National by the Director of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Director from the sale of securities of
National, 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 the Director alone or in concert with others, including any proceeding
initiated by the Director against National or its directors, officers, employees or other directors, unless (i) the Board of Directors authorized the proceeding prior to its initiation, or (ii) National provides the indemnification, in its sole
discretion, pursuant to the powers vested in National under applicable law; or
(d) in the event that National is advised, in a written opinion of its regular outside legal counsel, that Nationals 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 the Director for any reason, then National will
contribute to Losses incurred by the Director in such proportion as reflects (a) the relative benefits received by National, on the one hand, and the 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 National, on the one hand, and the 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 Nationals
Certificate of Incorporation, By-laws and the Indemnification Agreement, it is the intent of the parties that the Director will enjoy the greater benefits afforded by the change.
National also maintains directors and officers liability insurance coverage with respect to acts or omissions by its directors and officers in their capacity as such.
I
TEM
16. E
XHIBITS
Reference is made to the Index to Exhibits at page II-10, such Index to Exhibits being incorporated into this Item 16 by reference.
I
TEM
17. U
NDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any acts 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
II-5
424(b) if, in the aggregate, the changes in volume and price represent no more than a twenty percent (20%) change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in
the effective registration statement; and
(iii) 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.
Provided
,
however
,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission 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 contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) 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
(ii) 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 a 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 part of the registration statement or made in any such document
immediately prior to such effective date.
(5) 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 a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) 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;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes 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 15(d) of the Securities Exchange Act of 1934 (and,
II-6
where applicable, each filing of an employee benefit plans annual report pursuant to 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.
(c) 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.
(d) The undersigned registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustees to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
II-7
P
OWER OF
A
TTORNEY
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 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.
S
IGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 17th day of March, 2009.
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NATIONAL
FUEL GAS COMPANY
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By:
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/s/
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D.
F. Smith
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D. F. Smith
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President and 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 on behalf of the Registrant in the capacities and on the dates
indicated.
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 Directors
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March 17, 2009
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P. C. Ackerman
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/s/ D. F. Smith
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President, Chief Executive Officer and Director
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March 17, 2009
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D. F. Smith
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/s/ R. J. Tanki
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Treasurer and Principal Financial Officer
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March 17, 2009
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R. J. Tanski
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/s/ K. M. Camiolo
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Controller and Principal Accounting Officer
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March 17, 2009
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K. M. Camiolo
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/s/ R. T. Brady
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Director
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March 17, 2009
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R. T. Brady
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/s/ R. D. Cash
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Director
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March 17, 2009
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R. D. Cash
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/s/ S. E. Ewing
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Director
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March 17, 2009
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S. E. Ewing
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/s/ R. E. Kidder
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Director
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March 17, 2009
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R. E. Kidder
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/s/ C. G. Matthews
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Director
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March 17, 2009
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C. G. Matthews
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II-8
/s/ G. L. Mazanec
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Director
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March 17, 2009
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G. L. Mazanec
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/s/ R. G. Reiten
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Director
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March 17, 2009
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R. G. Reiten
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/s/ F. V. Salerno
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Director
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March 17, 2009
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F. V. Salerno
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II-9
EXHIBIT
INDEX
Exhibit
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Number
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Description
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Method of Filing
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1.1
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Form of Underwriting Agreement with respect to securities
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A form of underwriting agreement with respect to
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other than debt securities
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any securities will be filed as an Exhibit to a report
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on Form 8-K, as contemplated by Item 601(b)(1) of
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Regulation S-K under the Securities Act.
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1.2
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Form of Underwriting Agreement with respect to debt
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A form of underwriting agreement with respect to
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securities
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any securities will be filed as an Exhibit to a report
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on Form 8-K, as contemplated by Item 601(b)(1) of
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Regulation S-K under the Securities Act.
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3.1
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*Restated Certificate of Incorporation of National Fuel Gas
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Exhibit 3.1, Form 10-K for fiscal year ended
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Company dated September 21, 1998
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September 30, 1998 in File No. 1-3880
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3.2
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*Certificate of Amendment of Restated Certificate of
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Exhibit 3(ii), Form 8-K dated March 14, 2005 in
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Incorporation
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File No. 1-3880
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3.3
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*National Fuel Gas Company By-Laws as amended
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Exhibit 3.1, Form 8-K dated June 11, 2008 in File
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June 11, 2008
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No. 1-3880
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4.1
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*Indenture dated as of October 15, 1974, between National
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Exhibit 2(b), File No. 2-51796
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Fuel Gas Company and The Bank of New York Mellon
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(formerly Irving Trust Company), as Trustee
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4.1.1
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*Third Supplemental Indenture dated as of
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Exhibit 4(a)(4) in File No. 33-49401
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December 1, 1982, to Indenture dated as of October 15,
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1974, between National Fuel Gas Company and The Bank
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of New York Mellon (formerly Irving Trust Company), as
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Trustee
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4.1.2
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*Eleventh Supplemental Indenture dated as of May 1, 1992,
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Exhibit 4(b), Form 8-K dated February 14, 1992 in
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to Indenture dated as of October 15, 1974, between
|
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File No. 1-3880
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National Fuel Gas Company and The Bank of New York
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Mellon (formerly Irving Trust Company), as Trustee
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4.1.3
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*Twelfth Supplemental Indenture dated as of June 1, 1992,
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Exhibit 4(c), Form 8-K dated June 18, 1992 in File
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to Indenture dated as of October 15, 1974, between
|
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No. 1-3880
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National Fuel Gas Company and The Bank of New York
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Mellon (formerly Irving Trust Company), as Trustee
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4.1.4
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*Thirteenth Supplemental Indenture dated as of
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Exhibit 4(a)(14) in File No. 33-49401
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March 1, 1993, to Indenture dated as of October 15, 1974,
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|
|
|
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between National Fuel Gas Company and The Bank of
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New York Mellon (formerly Irving Trust Company), as
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Trustee
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4.1.5
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*Fourteenth Supplemental Indenture dated as of
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Exhibit 4.1, Form 10-K for fiscal year ended
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July 1, 1993 to Indenture dated as of October 15, 1974
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September 30, 1993 in File No. 1-3880
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|
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between National Fuel Gas Company and The Bank of
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New York (formerly Irving Trust Company), as Trustee
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4.1.6
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*Fifteenth Supplemental Indenture dated as of
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Exhibit 4.1, Form 10-K for fiscal year ended
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September 1, 1996, to Indenture dated as of
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September 30, 1996 in File No. 1-3880
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October 15, 1974 between National Fuel Gas Company and
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The Bank of New York Mellon (formerly Irving Trust
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Company), as Trustee
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4.2
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*Indenture, dated as of October 1, 1999, between National
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Exhibit 4.1, Form 10-K for fiscal year ended
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II-10
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Fuel Gas Company and The Bank of New York Mellon
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September 30, 1999 in File No. 1-3880
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(formerly The Bank of New York), as Trustee
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4.2.1
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*Officers Certificate Establishing Medium-Term Notes,
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Exhibit 4.2, Form 10-K for fiscal year ended
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dated October 14, 1999
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September 30, 1999 in File No. 1-3880
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4.2.2
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*Officers Certificate establishing 5.25% Notes due 2013,
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Exhibit 4, Form 10-Q for quarter ended
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dated February 18, 2003
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March 31, 2003 in File No. 1-3880
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4.2.3
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*Officers Certificate establishing 6.50% Notes due 2018,
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Exhibit 4, Form 10-Q for quarter ended
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dated April 11, 2008
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June 30, 2008 in File No. 1-3880
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4.3
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*Amended and Restated Rights Agreement, dated as of
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Exhibit 4.1, Form 8-K dated December 4, 2008 in
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December 4, 2008 between National Fuel Gas Company
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File No. 1-3880
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and The Bank of New York Mellon
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4.4
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Form of Officers Certificate establishing senior
notes,
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Filed herewith
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with form of debt security
attached
|
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|
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4.5
|
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Form of Purchase Contract Agreement
|
|
A form of purchase contract agreement with respect
|
|
|
|
|
to any securities will be filed as an Exhibit to a
|
|
|
|
|
report on Form 8-K, as contemplated by Item
|
|
|
|
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601(b)(4) of Regulation S-K under the Securities
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Act.
|
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5.1
|
|
Opinion of Dewey & LeBoeuf LLP, Counsel for National
|
|
Filed herewith
|
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Fuel Gas Company.
|
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5.2
|
|
Opinion of Lowenstein Sandler PC, New Jersey Counsel
|
|
Filed herewith
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for National Fuel Gas Company
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12.1
|
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*Computation of Ratio of Earnings to Fixed Charges
|
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Exhibit 12, Form 10-Q for the Quarterly Period
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|
|
ended December 31, 2008 in File No. 1-3880
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23.1
|
|
Consent of PricewaterhouseCoopers LLP
|
|
Filed herewith
|
|
23.2
|
|
Consent of Dewey & LeBoeuf LLP
|
|
Filed herewith as part of Exhibit 5.1
|
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23.3
|
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Consent of Lowenstein Sandler PC
|
|
Filed herewith as part of Exhibit 5.2
|
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23.4
|
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Consent of Netherland, Sewell & Associates, Inc. regarding
|
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Filed herewith
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Seneca Resources Corporation
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24.1
|
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Power of Attorney
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The Power of Attorney is contained on the signature
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page of this registration statement.
|
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25.1
|
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Form T-1 Statement of Eligibility under the Trust Indenture
|
|
Filed herewith
|
|
|
Act of 1939 of The Bank of New York Mellon, as Trustee.
|
|
|
|
|
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______________________________________
|
|
|
|
|
*
|
|
Previously filed as indicated and incorporated by
|
|
|
|
|
|
|
reference.
|
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II-11
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