AGREEMENT, WAIVER AND GENERAL RELEASE
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This Agreement, Waiver and General Release ("Agreement") is made and entered
into on ------------ ----, 2000 by and between H. Xxxxxx XxXxxxxx (hereinafter
referred to as "Xx. XxXxxxxx"), and, Lincoln National Corporation, on behalf
of itself and their affiliates and subsidiaries, and each of their directors,
officers, representatives, agents, attorneys, employees, successors, and
assigns and any other person acting through, by, under or in concert with
any of them (hereinafter collectively referred to as "LFG"), and shall become
effective eight (8) days after the date of execution hereof by Xx. XxXxxxxx.
RECITALS
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A. Xx. XxXxxxxx has been employed with LFG from November 9, 1987, and
tendered his resignation attached as Exhibit A.
B. Xx. XxXxxxxx and LFG have carefully explored this situation and in
spirit of compromise have agreed to enter into the following Agreement.
In consideration of the premises and mutual promises and agreements of the
parties contained herein, it is agreed as follows:
1. Xx. XxXxxxxx will receive a total of fifty-two (52) weeks of severance
pay, in the aggregate amount of $382,000, which includes any amounts due
under the terms of the Lincoln National Corporation Employee's Severance
Pay Policy Plan, paid bi-weekly beginning September 1, 2000, less
applicable withholding taxes and deductions.
2. Xx. XxXxxxxx will be paid $510,540 on January 5, 2001 as the pro rata
share of his 2000 incentive award based on 1999 results. This amount will
be less applicable withholding. Xx. XxXxxxxx'x account under the Lincoln
National Corporation Executive Deferred Compensation Plan for Employees
will be paid out in five (5) annual installments beginning on January 1,
2001. Phantom stock units will be paid out in Lincoln National Corporation
common stock. These payments will be subject to any applicable tax
withholding and reporting requirements.
3. Xx. XxXxxxxx'x outstanding Lincoln National Corporation stock options
will be deemed vested and will be exercisable through December 1, 2000.
Xx. XxXxxxxx will be treated as involuntarily termed (job eliminated) for
purposes of the LNC Stock Option Plan and the LNC Employees' Savings and
Profit-Sharing Plan. Xx. XxXxxxxx will receive cash in lieu of any payment
under the Long Term Incentive Plan ("LTIP"), in an amount equal to the Fair
Market Value of 22,223 shares plus Xx. XxXxxxxx'x dividend equivalent rights
under the LTIP. Fair Market Value will be determined by using the average
of the highest and lowest prices of a share of Lincoln National Corporation's
Common Stock, as quoted on the composite transaction's table of the New York
Stock Exchange for the last five (5) business days of August, 2000. Xx.
XxXxxxxx will provide wire instructions to Xxxx Xxxxxx and payment will be
wired no later than September 6, 2000 in accordance with such instructions.
Xx. XxXxxxxx will be notified of the amount of such wire transfer by Tuesday,
September 5, 2000. The 25,000 restricted shares and all related dividend
equivalent rights that Xx. XxXxxxxx was granted under the LTIP will be
forfeited as of September 1, 2000.
4. Xx. XxXxxxxx will receive $10,000 in lieu of receiving financial
planning during 2000 and tax return preparation assistance for the 2000 tax
year (April, 2001 tax return).
5. Xx. XxXxxxxx'x employee medical, dental and life elections will continue
until September 1, 2000. At that time, Xx. XxXxxxxx'x COBRA election
period commences.
6. Xx. XxXxxxxx will be paid on September 1, 2000 for any accrued and
unused managed time as of September 1, 2000.
7. Xx. XxXxxxxx will be eligible for outplacement assistance with Right
Management Consultants (the Key Executive Plan).
8. Xx. XxXxxxxx will be eligible for a relocation package through September
1, 2002 to assist in his return to Fort Xxxxx, Indiana or to an equivalent
location, in an amount not to exceed $100,000, provided however, that
should Xx. XxXxxxxx be eligible to receive any expense reimbursement from
another employer in connection with such a relocation, the amount he will
be eligible to receive from LFG will be reduced by the amount payable by
the other employer.
9. LFG will cease funding Xx. XxXxxxxx'x split dollar policy on September
1, 2000 and will be entitled to recover the premiums LFG paid for such
policy either as a result of the cancellation of such policy or from the
policy's cash value if Xx. XxXxxxxx elects to keep the policy in effect.
(Xx. XxXxxxxx, at his option, may reimburse LFG directly for the premiums
if he elects to keep the policy in effect.) Xx. XxXxxxxx will be reimbursed
for any taxes he incurs as a result of LFG's recovery of premiums.
10. Xx. XxXxxxxx, for and in consideration of receiving the above, waives
any right to personal recovery and hereby irrevocably, unconditionally and
generally releases, acquits, and forever discharges to the fullest extent
permitted by law, LFG from all charges, complaints, actions, causes of
actions, suits, rights, grievances, costs, losses, debts, expenses, sums of
money, accounts, covenants, contracts, agreements, claims, damages,
liabilities, obligations, and demands of any nature whatsoever, known or
unknown, in law or in equity ("Claim" or "Claims"), which against them Xx.
XxXxxxxx at any time heretofore ever had, owned, or held or claimed to have
had, owned, or held or which Xx. XxXxxxxx now has, owns, or hold, or claims
to have, own, or hold, or which Xx. XxXxxxxx can, shall or may have, or which
Xx. XxXxxxxx'x heirs, executors, administrators, personal representatives,
successors, or assigns hereinafter can, shall or may have, in any way connected
with or relating to Xx. XxXxxxxx'x employment and/or the termination of his
employment with LFG.
11. Paragraph 10 above includes, but is not limited to, claims, disputes or
causes of action or right to personal recovery under tort, contract, or
other laws of the State of Indiana and the Commonwealth of Pennsylvania,
(including, but by no means limited to, claims for unemployment
compensation and claims arising out of or alleging breach of contract,
wrongful termination, breach of implied employment, breach of good faith
and fair dealing, impairment of economic opportunity, intentional
infliction of emotional harm or emotional distress, fraud [actual or
constructive]), defamation [libel or slander], under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. [SECTION XXXX] 621, et seq., as amended
by the Older Worker's Benefit Protection Act ("OWBPA"), under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. [SECTION XXXX] 2000e, et seq., as
amended, by the Civil Rights Act of 1991, under the Americans with Disabilities
Act of 1990, 42 U.S.C. [SECTION XXXX] 12101, et seq., as amended, under the
Family and Medical Leave Act of 1993, 29 U.S.C. [SECTION XXXX] 2601, et seq.,
under 42 U.S.C. [SECTION XXXX] 1981, under the Fair Labor Standards Act, 29
U.S.C. [SECTION XXXX] 201, et seq., under the Fair Credit Reporting Act, 15
U.S.C. [SECTION XXXX] 1681, et seq., under any theory of retaliation, under
any federal or state law or municipal ordinance relating to discrimination in
employment, or under any other laws, ordinances, executive orders, rules,
regulations or administrative or judicial case law arising under the statutory
or common laws of the United States, the State of Indiana and the Commonwealth
of Pennsylvania, or any political subdivision of the State of Indiana and the
Commonwealth of Pennsylvania.
Paragraph 10 is not intended to nor does it affect Xx. XxXxxxxx'x right to
receive benefits under any or all pension, salary continuation or other
such plans under which Xx. XxXxxxxx is entitled to receive benefits in
accordance with the terms of such plans.
12. Xx. XxXxxxxx knowingly and voluntarily specifically waives any rights
or claims arising under 29 U.S.C.621 et seq., as amended by the OWBPA and,
more specifically, any right or claim under 29 U.S.C.626. Xx. XxXxxxxx
specifically states and acknowledges that:
A. This waiver is part of an Agreement written in a manner calculated to be
understood by him.
B. He does not waive rights or claims that may arise after the date that
this Agreement is executed.
C. He is receiving consideration in addition to anything of value to which he
would already have been entitled prior to executing this Agreement.
D. He has been and is hereby advised, in writing, to consult an attorney
prior to executing this Agreement.
E. He further acknowledges that he has been given a period of at least
twenty-one (21) days within which to consider this Agreement.
13. It is provided that for a period of seven (7) days following the
execution of this Agreement, Xx. XxXxxxxx may revoke said Agreement by notice
to LFG. Further, this Agreement shall not become effective or enforceable
until the revocation period has expired.
14. Xx. XxXxxxxx warrants and represents that in executing this document he
does so with full knowledge of any and all rights which he may have with
respect to all matters released. Xx. XxXxxxxx further understands,
acknowledges and agrees that the payment of any consideration is not an
admission of liability on the part of LFG, but to the contrary, represents
a negotiated compromise and agreement. This Agreement, shall not in any
way be interpreted to render Xx. XxXxxxxx a "prevailing party" for any
purpose, including, but not limited to, an award of attorney's fees under
any statute or otherwise.
15. Xx. XxXxxxxx represents that he has not filed any complaints or claims
against LFG with any local, state or federal court or agency, that Xx.
XxXxxxxx will not do so at any time hereafter for claims which arose prior
to the date he signs this Agreement, and that if any such court or agency
assumes jurisdiction of any complaint or claim against LFG which arose
prior to the execution of this Agreement, he will immediately request such
court or agency to dismiss the matter and take all such additional steps
necessary to facilitate such dismissal with prejudice. As a further
material inducement to LFG to enter into this Agreement, Xx. XxXxxxxx
covenants and agrees not to xxx, or join with others in suing, LFG on any
of the released Claims.
16. LFG hereby releases Xx. XxXxxxxx of any and all claims, demands,
actions, liabilities or indebtedness, whether known or unknown, arising out
of his employment and services provided to LFG, excepting, however, claims
not known to LFG involving fraud, theft, or misappropriation of LFG property,
assets, confidential information or trade secrets or which arise under this
Agreement, including, but not limited to, Paragraphs 19, 20 and 21.
17. Xx. XxXxxxxx, due to the knowledge and information he possesses gained
as a result of his employment with LFG hereby agrees to make himself
available, at reasonable times, to cooperate, consult, testify, etc. with
respect to current and future legal actions including but not limited to
litigation, arbitrations, mediation, administrative, and/or regulatory
proceedings in which LFG is a party. LFG will pay Xx. XxXxxxxx for the
reasonable value of his time with the express understanding that any such
payment is not made for or as an inducement to the substance of his
testimony.
18. Xx. XxXxxxxx will be entitled to indemnification (including
reimbursement of legal expenses) by LFG to the extent permitted by its
bylaws on the same basis as the indemnification provided to other former
officers. Xx. XxXxxxxx will be entitled to coverage under LFG's directors
and officers liability insurance policy on the same basis as the coverage
provided to other former officers.
19. As a result of Xx. XxXxxxxx'x position as Executive Vice President and
Chief Investment Officer of Lincoln National Corporation and his service on
LFG's Senior Management Committee, he has been instrumental in developing
the strategic direction of LFG's investment businesses and has participated
in developing LFG's overall strategic direction. He also has developed,
obtained or learned specific confidential information or trade secrets
which are the property of LFG. Xx. XxXxxxxx hereby covenants and agrees to
use his best efforts and utmost diligence to guard and protect such
confidential information and trade secrets and that he will not disclose or
permit to be disclosed to any third party by any method whatsoever any such
confidential information or trade secret. Confidential information or
trade secrets shall include, but not be limited to, any and all records,
notes, memoranda, data, ideas, processes, methods, devices, programs,
computer software, writings, research, personnel information, customer
information, financial information, plans or any information of whatever
nature, in the possession or control of LFG which has not or have not been
published or disclosed to the general public or which gives LFG an
opportunity to obtain an advantage over competitors who do not know or use
it.
20. Xx. XxXxxxxx shall not directly, or indirectly solicit or endeavor to
entice away from LFG any person who is currently employed by LFG.
21. For a period of three (3) years following the termination of Xx.
XxXxxxxx'x employment, he agrees that neither he nor any entity directly or
indirectly controlled by him will directly or indirectly participate in a
proscribed activity. A "proscribed activity" shall mean either (1)
soliciting others to invest in the common stock of Lincoln National
Corporation ("LNC") for the purpose of effecting an acquisition of control
of LNC or his directly investing in more than 1% of the common stock of LNC
or (2) using confidential information or trade secrets (as described in
paragraph 16 above) to assist any person, entity or group of persons which
intends to or does attempt to effect an acquisition of control of LNC. The
term "Control" shall be defined for purposes of this paragraph to have the
meaning of control contained in Ind. Code Xxx. Sec. 27-1-23-1(e).
22. Xx. XxXxxxxx warrants and represents that no other person or entity has
any interest in the matters released and that he has not assigned or
transferred or purported to assign or transfer to any person or entity all
or any portion of the matters released.
23. Xx. XxXxxxxx represents and acknowledges that he is not relying and has
not relied on any representation or statements made by LFG, or any of them,
with respect to any of the matters released or with regard to his rights or
asserted rights in connection therewith. Xx. XxXxxxxx and LFG each hereby
assume the risk of any mistake of fact with regard to any of the matters
released or with regard to any of the facts which are now unknown to him
relating thereto.
24. Xx. XxXxxxxx represents and agrees that he shall not communicate the
terms of this Agreement and that he will not hereafter disclose any
information concerning this Agreement, or any information discussed by the
parties in negotiation of this Agreement to any person, corporation, or
other entity for any purpose whatsoever without prior written permission
from LFG, except to the extent necessary to Right Management Consultants,
Xx. XxXxxxxx'x attorney, tax preparer, accountant, or other financial
advisor, or as required by law. This provision shall no longer be binding
upon Xx. XxXxxxxx if the terms of the Agreement are publicly disclosed by
LNC as required by law.
25. This Agreement may not be introduced in evidence or relied on by either
party in subsequent legal proceedings except only proceedings alleging or
arising out of, and seeking redress for breach of the terms hereof.
26. This Agreement shall be binding upon Xx. XxXxxxxx and upon his heirs,
executors, administrators, personal representatives, successors and
assigns, and shall inure to the benefit of LFG and each of them, and to
respective heirs, administrators, representatives, executors, successors
and assigns, as the case may be.
27. This Agreement is made and entered into in the State of Indiana, and
shall in all respects be interpreted, enforced and governed under the
internal laws (and not the conflicts of laws rules) of said State. Should
any provision of this Agreement be declared or determined to be null, void,
inoperative, illegal or invalid for any reason, the validity of the
remaining parts, terms or provisions shall not be affected thereby and they
shall retain their full force and effect, and said null, void, inoperative,
illegal or invalid part, term, or provision shall be deemed not to be a part
of this Agreement. As used in this Agreement, the singular or plural number
shall be deemed to include the other whenever the context so indicates or
requires. The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or
against any of the parties.
28. LFG and Xx. XxXxxxxx recognize that in the event a dispute should arise
between them concerning the interpretation or implementation of this
Agreement, lengthy and expensive litigation will not afford a practical
resolution of the issues within a reasonable period of time. Consequently,
each party agrees that all disputes, disagreements and questions of
interpretation concerning this Agreement, other than as described in
paragraph 29, are to be submitted for resolution to the American
Arbitration Association ("Association") in Philadelphia, Pennsylvania.
LFG, or Xx. XxXxxxxx, may initiate an arbitration proceeding at any time by
giving notice to the others in accordance with the rules of the
Association. The Association shall designate a single arbitrator to conduct
the proceeding, but LFG, and the Xx. XxXxxxxx, may, as a matter of right,
require the substitution of a different arbitrator chosen by the
Association. Each such right of substitution may be exercised only once.
The decision of the arbitrator shall be final and binding upon the parties
and shall be enforceable in courts of proper jurisdiction. Each party
shall bear their own costs in the arbitration, including attorneys fees and
the parties shall share equally the fees and expenses of the arbitrator.
29. Xx. XxXxxxxx acknowledges and agrees that the remedy at law of LFG for
a breach or threatened breach of any of the provisions of paragraphs 19, 20
or 21 hereof would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by Xx. XxXxxxxx of any of the
provisions of Section 19, 20 or 21 hereof, it is agreed that, in addition
to the remedy at law, LFG shall be entitled to, equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction, or any other equitable remedy which may then be
available. Nothing herein contained shall be construed as prohibiting LFG
from pursuing any other remedies available to them for such breach or
threatened breach.
30. Except as otherwise provided in this Agreement, any such notice shall
be deemed properly given if in writing and if mailed by registered or
certified mail, postage prepaid with return receipt requested, to the
residence of Xx. XxXxxxxx, in the case of notices to Xx. XxXxxxxx, with cc
to Xxxx Xxxxxxx Xxxx, Esquire, Xxxx & Xxxxx, 0000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxxxxx, XX 00000 and to the principal office of LFG, in the
case of notices to LFG.
31. This Agreement sets forth the entire agreement between the parties
hereto, and fully supersedes any and all prior negotiations, agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. This Agreement may not be modified or amended except by a written
agreement signed by the parties hereto.
PLEASE READ CAREFULLY. THIS AGREEMENT, WAIVER
AND GENERAL RELEASE INCLUDES A GENERAL
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
AFFIRMATION OF RELEASOR
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I warrant that this Agreement reflects the entire settlement between myself
and LFG. I have read this Agreement carefully, and I have been given the
opportunity to consult with private counsel concerning its terms and effect
and concerning my rights. I fully understand that this Agreement generally
releases all of my claims, both known and unknown, arising prior to the
execution hereof, against LFG, except as specifically otherwise provided
herein. I execute this Agreement voluntarily and of my own choice with
full and complete knowledge and understanding of its significance and
effect.
Dated: ----------------, 2000
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H. Xxxxxx XxXxxxxx
STATE OF ------------------ )
)SS:
COUNTY OF ---------------- )
Subscribed and sworn to before me, a Notary Public in and for said County and
State, this ---------------- day of -------------------, 2000.
----------------
Notary Public
My Commission Expires: ----------------
County of Residence: ----------------------------------------------------
ACCEPTANCE OF LFG
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The undersigned accepts the foregoing Agreement on behalf of LFG.
Dated: --------------------, 2000
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Authorized to execute this Agreement
on behalf of Lincoln National Corporation
STATE OF ------------------ )
)SS:
COUNTY OF ---------------- )
Subscribed and sworn to before me, a Notary Public in and for said County and
State, this ---------------- day of -------------------, 2000.
----------------
Notary Public
My Commission Expires: ----------------
County of Residence: ----------------------------------------------------
EXHIBIT A
TO: Xxxxx X. Xxx, Xxxxxxxx X. Maestro, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx,
C. Xxxxxxx Xxxxxx
Secretary
SUBJECT: Resignation
Effective June 30, 2000, I resign as director and/or officer of Lincoln
National Corporation and all its subsidiary companies in which I continue
to hold such a position, including, but not limited to the following:
President and Director
Lincoln Investment Management, Inc.
Executive Vice President and Chief Investment Officer
Lincoln National Corporation
Executive Vice President and Director
Delaware Management Holdings, Inc.
Director
Lincoln National Investment Companies, Inc.
Lincoln National Realty Corporation
The Lincoln National Life Insurance Company
Vantage Global Advisors, Inc.
Member of and Chairman of Benefits Investment Committee
Lincoln National Corporation
Member of and Chairman of Investment Committee
The Lincoln National Life Insurance Company
Effective June 30, 2000, I further resign as an officer of each fund in the
Delaware Investment Family of Funds in which I hold such a position.
I further understand that it may be desirable for me to resign as an
officer and/or director of certain of the entities described above at an
earlier date. I agree to offer my written resignation with respect to any
such entity, as and effective at such time as requested by LFG.
Dated ----------------, 2000 --------------------------
H. Xxxxxx XxXxxxxx
