TRADENAME AGREEMENT
THIS AGREEMENT, made this 13th day of September, 1993, between Lincoln
National Corporation ("LNC") and Lincoln National Capital Appreciation Fund,
Inc. (the "Fund").
W I T N E S S E T H:
LNC, an Indiana corporation, holds diversified interests, primarily in
insurance and related financial service companies. Various subsidiary and
affiliated corporations organized or acquired by LNC use the words "Lincoln
National" in their names and business, and these words when used by a company
associated with LNC have a recognized business acceptance and identity
throughout the United States and in foreign countries. The right to use the
words "Lincoln National" as a part of the corporate name and business is an
asset of LNC, and it is entitled to protect its valuable property right against
improper use by others.
Lincoln National Investment Management Company, a subsidiary of LNC, has
agreed to act as investment adviser to the Fund. LNC believes that it is in its
best interests to agree to make the words "Lincoln National" available for use
by the Fund so long as the Fund has in effect an investment advisory contract
with Lincoln National Investment Management Company.
Accordingly, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. The use of the words "Lincoln National" as a part of the corporate name
and business of the Fund is subject to consent of LNC, which consent is
hereby granted upon the conditions and terms set forth herein.
2. The Fund is authorized to use the words "Lincoln National" in its
corporate name and business only while the Fund is a party to an
investment advisory contract with Lincoln National Investment Management
Company and for a period not exceeding ninety (90) days following the
termination of any such contract. In the event that the Fund ceases to be
a party to an investment advisory contract with Lincoln National
Investment Management Company, the Fund shall promptly take such steps as
may be necessary to change its corporate name and business practices so as
to eliminate the words "Lincoln National" or any name that, in the opinion
of LNC, is confusingly similar or indicates an affiliation with LNC or any
of its subsidiaries and affiliates.
3. The use of the words "Lincoln National" by the Fund shall not prevent LNC
or any of its subsidiaries or affiliates, or any of their respective
successors or assigns, from using or permitting the use of the words
"Lincoln National" alone or with any other word or words by or in
connection with any other entity or business, whether or not the same
directly or indirectly competes or conflicts with the Fund or its business
in any manner.
4. (a) The parties shall in good faith attempt to resolve any dispute arising
out of or relating to this agreement promptly by negotiations between
executives who have authority to settle the controversy. Either party may
give the other party written notice of any dispute not resolved in the
normal course of business. Within 20 days after delivery of that notice,
executives of both parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within
60 days of the disputing party's notice, or if the parties fail to meet
within 20 days, either party may initiate mediation of the controversy. If
a negotiator intends to be accompanied at a meeting by an attorney, the
other negotiator shall be given at least three working days' notice of
that intention and may also be accompanied by an attorney.
(b) If the dispute has not been resolved by negotiation as provided
herein, the parties shall endeavor to settle the dispute by mediation
under the then current Center for Public Resources ("CPR") Model Procedure
for Mediation of Business Disputes. The neutral third party will be
selected from the CPR Panels of Neutrals. If the parties encounter
difficulty in agreeing on a neutral, they will seek the assistance of CPR
in the selection process. All negotiations pursuant to sub-paragraphs (a)
and (b) of this paragraph 4 are confidential and shall be treated as
compromise and settlement negotiations for purposes of the Federal Rules
of Evidence and state rules of evidence.
(c) Any dispute arising out of or relating to this agreement or the
breach, termination or validity thereof, which has not been resolved by
non-binding procedures as provided in sub-paragraphs (a) or (b) herein
within 60 days of the initiation of those procedures shall be finally
settled by arbitration conducted expeditiously in accordance with the CPR
Rules for Non-Administered Arbitration of Business Disputes by a sole
arbitrator; provided, however, that if one party has requested the other
party to participate in a non-binding procedure and the other has failed
to participate, the requesting party may initiate arbitration before
expiration of the 60-day period set out just above. If within 45 days of
the commencement of the process to select an arbitrator the parties cannot
agree upon the arbitrator, then he or she will be selected from the CPR
Panels of Neutrals. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Sec. 1-16, and judgment upon the award rendered
by the Arbitrator may be entered by any court having jurisdiction thereof.
The place of arbitration shall be Fort Xxxxx, Indiana. The Arbitrator is
not empowered to award damages in excess of compensatory damages.
IN WITNESS WHEREOF, LNC and the Fund have caused this Agreement to be
executed by their duly authorized officers upon the day aforesaid.
Attest: LINCOLN NATIONAL CORPORATION
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxx
Secretary President
------------------------------ ------------------------------
(Title) (Title)
Attest: LINCOLN NATIONAL CAPITAL
APPRECIATION FUND, INC.
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxx
Secretary President
------------------------------ ------------------------------
(Title) (Title)
AMENDED AND RESTATED TRADENAME AGREEMENT
THIS amended and restated AGREEMENT is made this 13th day of September,
1993, between Lincoln National Corporation ("LNC") and Lincoln National Capital
Appreciation Fund, Inc. (the "Fund"). Its terms supersede those of any prior
agreement.
W I T N E S S E T H:
LNC, an Indiana corporation, holds diversified interests, primarily in
insurance and related financial service companies. Various subsidiary and
affiliated corporations organized or acquired by LNC use the words "Lincoln
National" in their names and business, and these words when used by a company
associated with LNC have a recognized business acceptance and identity
throughout the United States and in foreign countries. The right to use the
words "Lincoln National" as a part of the corporate name and business is an
asset of LNC, and it is entitled to protect its valuable property right against
improper use by others.
Lincoln National Investment Management Company, a subsidiary of LNC, has
agreed to act as investment adviser to the Fund. LNC believes that it is in its
best interests to agree to make the words "Lincoln National" available for use
by the Fund so long as the Fund has in effect an investment advisory contract
with Lincoln National Investment Management Company.
Accordingly, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. The use of the words "Lincoln National" as a part of the corporate name
and business of the Fund is subject to consent of LNC, which consent is
hereby granted upon the conditions and terms set forth herein.
2. The Fund is authorized to use the words "Lincoln National" in its
corporate name and business only while the Fund is a party to an
investment advisory contract with Lincoln National Investment Management
Company and for a period not exceeding ninety (90) days following the
termination of any such contract. In the event that the Fund ceases to be
a party to an investment advisory contract with Lincoln National
Investment Management Company, the Fund shall promptly take such steps as
may be necessary to change its corporate name and business practices so as
to eliminate the words "Lincoln National" or any name that, in the opinion
of LNC, is confusingly similar or indicates an affiliation with LNC or any
of its subsidiaries and affiliates.
3. The use of the words "Lincoln National" by the Fund shall not prevent LNC
or any of its subsidiaries or affiliates, or
any of their respective successors or assigns, from using or permitting
the use of the words "Lincoln National" alone or with any other word or
words by or in connection with any other entity or business, whether or
not the same directly or indirectly competes or conflicts with the Fund or
its business in any manner.
IN WITNESS WHEREOF, LNC and the Fund have caused this Agreement to be
executed by their duly authorized officers upon the day aforesaid.
Attest: LINCOLN NATIONAL CORPORATION
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
C. Xxxxxxx Xxxxxx Xxxxxx X. Xxxxx
Secretary President
------------------------------- -------------------------------
(Title) (Title)
Attest: LINCOLN NATIONAL CAPITAL
APPRECIATION FUND, INC.
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -------------------------------
C. Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
Secretary President
------------------------------- -------------------------------
(Title) (Title)
