Delaware Investments U.S., Inc. Incentive Compensation Plan
Exhibit
10.3
Delaware
Investments U.S., Inc.
Incentive
Compensation Plan
This
Restricted Stock Unit Award Agreement (the “Agreement”) is by and between
Delaware Investments U.S., Inc., (“DIUS”) on behalf of itself and its affiliates
(including Delaware Management Holdings, Inc. and its subsidiaries (“DMHI”), and
Xxxxxxx X. Xxxxx (the
“Grantee”), and evidences the grant on February 7, 2008 of Restricted
Stock Units to Grantee, and Grantee’s acceptance of the Restricted Stock Units
in accordance with the provisions of the Amended and Restated Delaware
Investments U.S., Inc. Incentive Compensation Plan, effective November 5, 2007,
and any amendments thereto (the “Plan”) and this Agreement. DIUS and
Grantee agree as follows:
1. Number of
Shares Granted. Grantee is
awarded ________
Restricted Stock Units (“RSUs”) subject to the terms and restrictions as
set forth in the Plan and in this Agreement. In the event an
adjustment pursuant to Section 8(c) of the Plan is required, the number of RSUs
awarded under this Agreement and/or the number of shares of common stock issued
pursuant to RSUs granted under this Agreement shall be adjusted in accordance
with Section 8(c) of the Plan. All RSUs after such adjustment (and/or
shares of DIUS common stock issued or issuable pursuant to an RSU granted under
this Agreement) shall be subject to the same restrictions applicable to such
RSUs (and/or shares of DIUS common stock issued or issuable pursuant to an RSU
granted under this Agreement) before the adjustment.
2. Restrictions. The RSUs granted
pursuant to this Agreement shall be subject to the terms of the Plan and the
following restrictions until such time as the restrictions shall lapse, as
described in Paragraph 5 below: (a) neither the RSUs nor any interest or right
therein or part thereof shall be sold, transferred, pledged, hypothecated,
margined or otherwise encumbered by the Grantee; and (b) in the event that
Grantee’s Service (as defined below) with DMHI, Lincoln National Corporation
(“LNC”), and all subsidiaries terminates prior to the vesting dates set forth in
subparagraph 5(a) below, other than under the circumstances described in
subparagraphs 5(b) through (e) below, the RSUs shall be forfeited and
automatically transferred back to DIUS. Upon forfeiture, Grantee
shall have no further rights in such RSUs or shares of common stock issuable
pursuant to an RSU granted hereunder.
For
purposes of this Agreement, the term “Service” includes service as a common law
employee of DMHI, LNC, or any subsidiaries.
3. Voting
Rights. Grantee shall have no voting rights on the
RSUs.
4. Compliance
with Non-Competition, Non-Solicitation, Non-Disparagement and Non-Disclosure
Provisions. Any RSUs may be
cancelled by action of the Committee or its delegate if Grantee fails to comply
with the non-competition, non-solicitation, non-disparagement and/or
non-disclosure provisions described below during the vesting period described in
subparagraphs 4(a) through (d) below. Upon vesting of a RSU granted
pursuant to this Agreement, Grantee shall certify on a form acceptable to the
Committee that Grantee is in compliance with the terms and conditions of the
Plan, and with the provisions in subparagraphs 4(a) through 4(d)
below. Failure to comply with these conditions prior to, or during
the six months after vesting of a RSU granted pursuant to this Agreement shall
cause the shares issued pursuant to the RSU granted hereunder to be rescinded,
except as provided under the Plan
(a) Non-Competition. Grantee
may not become employed by, work on behalf of, or otherwise render services that
are the same or similar to the services rendered by Grantee to the business unit
employing Grantee for any other organization or business which competes with or
provides, or is planning to provide, the same or similar products and/or
services as the business unit in which Grantee was employed or otherwise had
responsibilities for at the time of his/her termination. Grantee
understands and agrees that this restriction is nationwide in
scope. If Grantee has terminated employment, Grantee shall be free,
however, to purchase, as an investment or otherwise, stock or other securities
of such organization or business so long as they are listed upon a recognized
securities exchange or traded over-the-counter and such investment does not
represent a greater than five percent equity interest in the organization or
business.
(b) Non-Solicitation. Grantee
shall not directly or indirectly hire, manage, solicit or recruit any employees,
agents, financial planners, salespeople, financial advisors, vendors or service
providers of DMHI whom Grantee had hired, managed, supervised, or otherwise
became familiar with as a result of his/her employment with DMHI.
(c) Non-Disparagement. Grantee
shall not (i) make any public statements regarding his/her employment with DMHI
(other than factual statements concerning the dates of employment and positions
held) or his/her termination or retirement from DMHI that are not agreed to by
DMHI, such approval not to be unreasonably withheld or delayed; and (ii) Grantee
shall not disparage DMHI or any of its subsidiaries or affiliates, its and their
respective employees, executives, officers, or Boards of Directors.
(d) Non-Disclosure. Grantee
shall not, without prior written authorization from DMHI, disclose to anyone
outside DMHI or Lincoln National Corporation (“LNC”), or use in other than
DMHI’s or LNC’s business, any information or material relating to the business
of DMHI or LNC that DMHI or LNC considers confidential and/or proprietary
pursuant to its Code of Conduct.
5. Vesting
of Restricted Stock Units. Subject to
Paragraph 4 above, the RSUs indicated below shall vest on the earlier of the
following dates:
(a) [# units
or ¼] on February 7,
2009;
[# units or ¼] on February 7, 2010;
[# Units or ¼] on February 7, 2011;
[# Units
or ¼] on February 7, 2012;
or
(b) The date
on which the Grantee is certified as disabled and becomes eligible for long-term
disability (“LTD”) benefits under a LTD program sponsored by DMHI or LNC;
or
(c) The date
of the Grantee’s death; or
(d) The date
on which a Change of Control occurs as that term is defined by Section 2(c)
of the Plan pursuant to the definition in effect on the day immediately
preceding such Change of Control; or
(e) The date
Grantee’s position is job eliminated, as that term is defined under the LNC
Severance Pay Plan, and Grantee no longer provides Service to DMHI, LNC, or any
subsidiaries.
Unless a
Restricted Stock Unit has been canceled or forfeited, a share of common stock of
DIUS, shall be distributed to Grantee (or to Grantee’s estate) subject to the
restrictions set forth in this Agreement, the Plan, the DIUS certificate of
incorporation, by-laws, and applicable law as soon as practicable after vesting,
but in no event later than March 15th of the
calendar year following the calendar year in which the RSU has
vested. The appropriate officer or agent of DIUS shall create a book
entry account in the name of the Grantee, to which shares of DIUS common stock
representing the RSUs shall be credited.
6. Ownership. Grantee
is required to and agrees to maintain ownership of at least seventeen (17%)
percent of the gross vested RSUs at all times.
7. Tax
Withholding.
Grantee must remit to DMHI (or if directed by DMHI, to DIUS) an amount
equal to any tax withholding required by federal, state, or local law on the
value of the RSUs at such time as they are taxable to
Grantee. Grantee may elect, in accordance with procedures established
by the Committee, to surrender shares of DIUS common stock (including the shares
which are a part of this award) with a fair market value on the date of
surrender that satisfies all or part of the withholding
requirements.
8. Investment
Intent. Grantee is acquiring the RSUs and the underlying DIUS
common stock for investment only and without any present intention to sell or
distribute them to others in violation of any law, rule or regulation, and by
Grantee’s signature below, Grantee hereby certifies the
foregoing. Neither the RSUs nor the underlying shares of common stock
have been registered under the Securities Act of 1933, as amended (the "Act"),
or any applicable state securities laws and, therefore, they cannot be sold
unless they are subsequently registered under the Act and such state laws or an
exemption from such registration is available. Grantee agrees not to
sell or otherwise transfer the RSUs or the underlying shares of common stock
unless such transfer is made (i) pursuant to a registration statement under the
Act and applicable state securities laws or in accordance with an exemption from
the registration requirements of the Act and any applicable state securities
laws, and (ii) in accordance with the restrictions on transfer contained in the
Plan and DIUS' certificate of incorporation, as amended from time to time, and
its bylaws.
The
shares underlying the common stock shall not be issued with respect to RSUs
unless the issuance and delivery of such common stock shall comply with all
relevant provisions of state and federal laws, rules and regulations, and, in
the discretion of the DIUS, shall be further subject to the approval of counsel
for DIUS with respect to that compliance. Grantee acknowledges that
shares of common stock issued pursuant to RSUs granted hereunder may be
uncertificated. Grantee consents to the imposition of a legend on the
certificate (if any) or such other document as determined by DIUS representing
the underlying shares of common stock and restricting their transferability as
may be required by the Plan, DIUS' certificate of incorporation and bylaws and
applicable laws, rules and regulations.
9. Incorporation
of Plan Terms. This Award is subject to the terms and
conditions of the Plan, including the right of DMHI or DIUS to call shares of
DIUS stock under section 4(d) of the Plan. Such terms and conditions
of the Plan are incorporated into and made a part of this Agreement by
reference. In the event of any conflicts between the provisions of
this Agreement and the terms of the Plan, the terms of the Plan will
control. Capitalized terms used but not defined in the Agreement
shall have the meanings set forth in the Plan unless the context clearly
requires an alternative meaning.
IN
WITNESS WHEREOF, LNC, by its duly authorized officer has signed this Agreement
as of the effective date set out above. The terms and provisions of
this Agreement are acknowledged and agreed to by Grantee, as evidenced by his or
her signature below.
DELAWARE
INVESTMENTS U.S., INC.
By:
Xxxxxx X. Xxxxx
Executive Vice President
Agreed
and Acknowledged by Grantee:
By: ______________________