NONCOMPETE AND RESTRICTIVE
COVENANT AGREEMENT
THIS AGREEMENT
(the “Agreement”) is
made by and between National Fuel Gas Company, a New Jersey
corporation having offices at 6363 Main Street, Williamsville, New
York 14221 (“National Fuel”) and Mr. Dennis J. Seeley,
141 Gypsy Lane, East Aurora, New York, 14052 (“Mr.
Seeley”) as of February 1, 2006.
WHEREAS , National Fuel and Mr. Seeley (each a
“party,” collectively, the “parties”)
mutually agree that each party shall receive certain consideration,
on the terms set out in this Agreement;
WHEREAS, Mr. Seeley has been employed by National Fuel
Gas Company and/or its various subsidiaries from 1965 through
January 31, 2006, and among other things, has worked on and
provided advice and expertise on matters relating to (i) timber and
sawmill operations, and (ii) exploration, production, gathering,
transportation, distribution, purchasing, brokering, marketing and
trading of, and construction and maintenance of facilities for,
natural gas, electricity and other energy products or
services;
WHEREAS, during the course of Mr. Seeley’s
employment with National Fuel, Mr. Seeley had access to and became
acquainted with National Fuel’s trade secrets and
confidential and proprietary information and materials, including
but not limited to investment plans and strategies;
WHEREAS, during the course of Mr. Seeley’s
employment with National Fuel, Mr. Seeley was aware that the
confidentiality of National Fuel’s trade secrets and
confidential and proprietary information was required to be
maintained by National Fuel’s employees;
WHEREAS, during the course of Mr. Seeley’s
employment with National Fuel, Mr. Seeley was aware that National
Fuel’s oil and gas exploration and development activities,
and other business strategies were subject to restricted use and
disclosure;
WHEREAS, during the course of Mr. Seeley’s
employment with National Fuel, National Fuel took steps to protect
its trade secrets and confidential and proprietary
information;
WHEREAS, Mr. Seeley recognizes that National Fuel’s
business and goodwill are dependent upon National Fuel’s
trade secrets and confidential and proprietary
information;
WHEREAS, National Fuel will sustain great loss and damage
if Mr. Seeley discloses, utilizes or causes to be disclosed or
utilized National Fuel’s trade secrets and/or confidential
and proprietary information to third parties or for Mr.
Seeley’s own benefit;
NOW THEREFORE, THE PARTIES HERETO
AGREE AS FOLLOWS:
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1.
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As used within this Agreement, the terms
“Company,” “we,” “our” or
“us“ collectively refer to National Fuel Gas Company
and its subsidiary and affiliated companies, other related
entities, and successors or assigns. As used within this Agreement,
the terms “Mr. Seeley,” “employee,”
“you” or “your” refers to Dennis J.
Seeley.
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2.
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You have voluntarily decided to apply for
retirement, effective February 1, 2006.
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3.
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The Company agrees to pay you by check mailed to
your then-current home address or via direct deposit to an account
so designated, in writing, by you, a lump sum of Four Hundred Forty
Thousand Dollars ($440,000), less any and all applicable taxes and
withholding. Said lump sum payment shall be made on or about
February 15, 2006. In the event of your death prior to February 15,
2006 , this payment will be payable to your Estate when due.
For the avoidance of doubt, no portion of this payment is intended
to constitute any bonus for any fiscal year and none has been nor
shall be included in the calculation of any pension
benefits.
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4.
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In consideration for the promises set forth in
paragraph 3 of this Agreement, you hereby knowingly and voluntarily
release and unconditionally waive any and all demands, claims and
causes of action, of whatever kind or nature, which you ever had,
now have or which you, your successors, assigns, heirs, executors
or administrators can, shall or may have for any reason as of the
date you execute this Agreement against the Company or any of the
Company's predecessors, successors, assigns, executors,
administrators, directors, officers, employees and agents
(collectively "Releasees") regarding your employment and its
termination, including, but not limited to:
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(a)
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all demands, claims and causes of action for
wages, bonuses, severance pay, perquisites, or back
wages;
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(b)
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all manner of action and actions, cause and
causes of actions, suits, claims and demands whatsoever, in law or
in equity, based on your 2005 Target Incentive Opportunity under
the Performance Incentive Program
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(c)
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all demands, claims and causes of action under
state or federal civil rights and anti-discrimination laws,
regulations or orders, including Executive Order 11246, Title VII
of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990
and the New York Human Rights Law;
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(d)
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all demands, claims and causes of action that
your employment or its termination violated any alleged contractual
relationship with the Company or was in any way unreasonable,
wrongful, or in violation of any Company policy; and
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(e)
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all demands, claims and causes of action for
mental, physical or emotional distress or harm, or defamation
relating in any way to your employment or its
termination.
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5.
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In conjunction with the provisions of paragraph
4 herein, the Company and you specifically acknowledge and agree
that:
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(a)
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you do not waive any claim which may arise after
the execution of this Agreement;
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(b)
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you do not waive any claim with respect to
performance by the Company of its obligations under this
Agreement;
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(c)
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you do not waive any right of indemnification by
or contribution from the Company which arises under the provisions
of paragraph 11 of this Agreement, under the Company’s
by-laws or under the corporate laws of New York, Pennsylvania or
New Jersey regarding the relationship between a corporation and its
officers;
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(d)
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but for this Agreement, you would not be
entitled to the benefits set forth in paragraph 3 of this
Agreement;
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(e)
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the Company has advised you to review the
Agreement, and specifically the release contained in paragraph 4
herein, with your attorney prior to signing this
Agreement;
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(f)
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you were given this Agreement on January 30,
2006, and you understand you may review this Agreement for up to
twenty-one (21) days before being required to execute this
Agreement. You and the Company agree that the time period for you
to consider this Agreement before signing it will not be restarted
if any changes, material or non-material, are made to the Agreement
after the date you first received it. You and the Company also
agree that no benefits provided under this Agreement shall be
payable unless and until the time periods referenced herein and in
subparagraph (g) hereof expire and this Agreement becomes
effective;
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(g)
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you may terminate this Agreement at any time
within seven (7) days after your execution of this Agreement. This
Agreement shall not become effective until the time to terminate it
has expired.
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6.
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As a part of the consideration for the
compensation provided in this Agreement and for the other covenants
made by National Fuel in this Agreement, you agree to the following
confidentiality provisions:
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(a)
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You agree that the contents of this Agreement
are confidential and will not be disclosed to any third party,
other than your attorney, your wife, tax advisor, financial
advisor(s), the Internal Revenue Service, the New York State Tax
Department or the tax authority of any state or locality in which
you are, or may be, subject to income tax, unless you are compelled
to do so by a court having jurisdiction over such matter (in which
case you will notify the Company as soon as possible of the
activity and cooperate with the Company in seeking relief from such
compulsion) or as may be necessary in connection with the
enforcement of this Agreement. Notwithstanding the previous
sentence, you may disclose the
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provisions of this paragraph 6 and
paragraphs 7 and 9 hereof to any prospective employer or any other
person or entity for whom you propose to provide
services;
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(b)
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Notwithstanding anything to the contrary
contained in this Agreement, or any other express or implied
agreement, arrangement or understanding, the parties and their
respective affiliates, employees, representatives and other agents
may disclose to any and all persons the tax structure and any of
the tax aspects of the transaction(s) contemplated by this
Agreement, which are necessary to describe or support any United
States federal income tax benefits that may result therefrom or any
materials necessary to comply with United States federal or state
securities laws. For the purposes of this provision, “tax
structure” is limited to facts relevant to the U.S. federal
income tax treatment of the transaction(s) and does not include
information relating to the identity of the parties, their
affiliates, agents or advisors;
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(c)
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You hereby represent that you have returned to
the Company any and all corporate documents, records or copies of
the same, information or property in your possession of which you
are aware, except those relating to either your own employment,
such as payroll stubs and benefits statements, or your
shareholdings in the Company. You agree to return to the Company
any and all such documents, records, copies, information and
property which are or become subject to your control in the future.
The Company acknowledges receipt from you of corporate documents
and information you left behind on the Company’s premises.
Your performance of the obligations set forth in this paragraph
6(c) is a condition precedent to your receipt of any benefits under
paragraph 3 of this Agreement
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