Filed by Bowne Pure Compliance





Exhibit 10.36




AMENDED AND RESTATED

DELAWARE INVESTMENTS U.S., INC.

INCENTIVE COMPENSATION PLAN

Amended and Restated Effective December 26, 2008




1. Purpose. The purpose of this Amended and Restated Delaware Investments U.S., Inc.
Incentive Compensation Plan (the “Plan”), which was formerly known as the “Delaware Investments
U.S., Inc. Stock Option Plan,” is to assist Delaware Management Holdings, Inc., a Delaware
corporation (the “Corporation”), and its subsidiaries in attracting, retaining, and rewarding key
executives, investment professionals, employees, and other persons who provide services to the
Corporation and/or its subsidiaries, enabling such persons to acquire or increase a proprietary
interest in the Corporation in order to strengthen the mutuality of interests between such persons
and the Corporation’s stockholders, and providing such persons with annual and long-term
performance incentives to expend their maximum efforts in the creation of shareholder value. The
Plan was originally called the Delaware Investments U.S., Inc.Stock Option Plan, effective January
1, 2001. The Plan was amended and restated as the Delaware Investments U.S.,. Inc. Incentive
Compensation Plan, effective November 5, 2007, and subsequently amended and restated to preclude
future awards and new Participants under the Plan effective December 26, 2008.



2. Definitions. For purposes of the Plan, the following terms shall be defined as set forth
below, in addition to such terms defined in Section 1 hereof:




(a) “Award” means any Option, SAR (including Limited SAR), Restricted Stock or Restricted
Stock Unit, including Stock issuable pursuant to the foregoing, together with any other right
or interest granted to a Participant under the Plan.




(b) “Beneficiary” means the person, persons, trust or trusts who or which have been
designated by a Participant in his or her most recent written beneficiary designation filed
with the Corporation to receive the benefits specified under the Plan upon such Participant’s
death or to which Awards are transferred if and to the extent permitted under Section 8(b)
hereof. If, upon a Participant’s death, there is no designated Beneficiary or surviving
designated Beneficiary, then the term Beneficiary means the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such benefits.




(c) “Change of Control” means (i) with respect to Lincoln, a change of control of Lincoln
within the meaning of the Lincoln National Corporation Executive Severance Benefit Plan, and
(ii) with respect to DIUS or the Corporation (as the case may be), the consummation of (a) a
transaction after which neither Lincoln (or any successor corporation to Lincoln following a
merger of Lincoln with another corporation, which merger is not a Change of Control of
Lincoln) nor any of its subsidiaries continues to be the beneficial owner of more than 50% of
the combined voting power of the then outstanding securities of DIUS, or the Corporation (as
the case may be) or (b) the sale or transfer of all or substantially all of DIUS’s, or the
Corporation’s (as the case may be), business or assets to an entity other than Lincoln (or any
successor corporation to Lincoln following a merger of Lincoln with another corporation, which
merger is not a Change of Control of Lincoln) or one of its subsidiaries.




(d) “Change of Control Price” means an amount in cash equal to the higher of (i) the
amount of cash and fair market value of property that is the highest price per share paid
(including extraordinary dividends) in any transaction triggering the Change of Control or any
liquidation of shares following a sale of substantially all assets of the Corporation, or (ii)
the Fair Market Value per share (as determined pursuant to Section 2(k)(1) or 2(k)(2), as
applicable) as of the Valuation Date occurring at any time during the 60-day period preceding
and 60-day period following the Change of Control.




(e) “Code” means the Internal Revenue Code of 1986, as amended from time to time,
including regulations thereunder and successor provisions and regulations thereto.




(f) “Committee” means the Compensation Committee of the Board of Directors of Lincoln.


 


 









 






(g) “DIUS” means Delaware Investments U.S., Inc.




(h) “Eligible Person” means each Executive Officer and other officers and employees of
the Corporation or of any subsidiary, including employees, agents and brokers who may also be
directors of the Corporation. An employee on leave of absence may be considered as still in
the employ of the Corporation or a subsidiary for purposes of eligibility for participation in
the Plan.




(i) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, including rules thereunder and successor provisions and rules thereto.




(j) “Executive Officer” means an executive officer of the Corporation as defined under
the Exchange Act.




(k) “Fair Market Value” means (1) with respect to any transactions related to RSUs
outstanding prior to December 26, 2008, the fair market value of Stock as determined by the
outside appraiser(s), who is (are) selected by the President of the Corporation with the
approval of the Chief Financial Officer of Lincoln and who is (are) not the outside auditor
for the Corporation or for Lincoln, applying the principles set forth in Appendix A, and (2)
for all Awards made and with respect to any transactions related to those Awards on or after
December 26, 2008, the fair market value of Stock subject to the Award shall be determined by
an independent appraisal (without direction from management of DIUS or its affiliates and
without regard to the principles set forth in Appendix A) using a valuation methodology that
meets the requirements of Code section 401(a)(28)(C) and the regulations issued thereunder as
of a date that is no more than 12 months before the relevant transaction to which the
valuation is applied (e.g., the date of grant of an Option).




(l) “Incentive Stock Option” or “ISO” means any Option intended to be and designated as
an incentive stock option within the meaning of Code Section 422 or any successor provision
thereto.




(m) “Lincoln” means Lincoln National Corporation.




(n) “Option” means a right, granted to a Participant under Section 6(b) hereof, to
purchase Stock at a specified price during specified time periods.




(o) “Participant” means an Eligible Person who has been granted an Award under the Plan
that remains outstanding, including a person who is no longer an Eligible Person.




(p) “Restricted Stock” means Stock granted to a Participant under Section 6(d) hereof.




(q) “Restricted Stock Unit” or “RSU” means a right to receive Stock, cash or a
combination thereof, granted to a Participant under Section 6(e) hereof.




(r) “Stock” means the common stock of DIUS, and such other securities as may be
substituted (or resubstituted) for Stock pursuant to Section 8(c) hereof.




(s) “Stock Appreciation Right” or “SAR” means a right granted to a Participant pursuant
to Section 6(c) hereof.




(t) “Valuation Date” means any date as of which the Fair Market Value of Stock is
determined. Unless the Committee reasonably concludes that no purpose under the Plan would be
served by determining Fair Market Value as of such a date, (1) each March 31, June 30,
September 30 and each December 31, (2) any date on which a Change of Control occurs, and (3)
any other date as the Committee in its sole discretion may determine is appropriate for the
proper administration of the Plan will be a Valuation Date; however, in no event shall the
Fair Market Value of Stock be determined less often than once each calendar year.


 


 









 





3. Administration.




(a) Authority of the Committee. The Plan shall be administered by the Committee. The
Committee shall have full and final authority, in each case subject to and consistent with the
provisions of the Plan, to interpret the provisions of the Plan, select Eligible Persons to
become Participants, grant Awards, determine the type, number and other terms and conditions
(including, but not limited to, any Stock ownership requirements that may be a condition of an
Award), and all other matters relating to, Awards, prescribe Award agreements (which need not
be identical for each Participant), adopt, amend and rescind rules and regulations for the
administration of the Plan, construe and interpret the Plan and Award agreements and correct
defects and ambiguities, supply omissions or reconcile inconsistencies therein, and make all
other decisions and determinations as the Committee may deem necessary or advisable for the
administration of the Plan.




(b) Manner of Exercise of Committee Authority. Any action of the Committee shall be
final, conclusive and binding on all persons, including the Corporation, its subsidiaries,
Participants, Beneficiaries, transferees under Section 8(b) hereof or other persons claiming
rights from or through a Participant, and stockholders. The Committee shall exercise its
authority only by a majority vote of its members at a meeting or without a meeting by a
writing signed by a majority of its members. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed as limiting
any power or authority of the Committee. The Committee may delegate to officers or managers
of the Corporation or any subsidiary, or committees thereof, the authority, subject to such
terms as the Committee shall determine, to grant Awards under the Plan or perform
administrative functions to the extent permitted under applicable law. The Committee may
appoint agents to assist it in administering the Plan.




(c) Limitation of Liability. The Committee and each member thereof shall be entitled, in
good faith, to rely or act upon any report or other information furnished to it, him or her by
any Executive Officer, other officer or employee of the Corporation or a subsidiary, the
Corporation’s independent auditors and appraisers, consultants or any other agents assisting
in the administration of the Plan. Members of the Committee and any officer or employee of
the Corporation or a subsidiary acting at the direction or on behalf of the Committee shall
not be personally liable for any action or determination taken or made in good faith with
respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and
protected by the Corporation with respect to any such action or determination.



4. Stock Subject to Plan.




(a) Overall Number of Shares Available for Delivery. Subject to adjustment as provided
in Section 8(c) hereof, the total number of shares of Stock reserved and available for
delivery in connection with Awards under the Plan shall be 2,500,000; provided, however, that
the total number of shares of Stock with respect to which ISOs may be granted shall not exceed
1,000,000. Any shares of Stock delivered under the Plan shall consist of authorized shares.




(b) Application of Limitation to Grants of Awards. No Award may be granted if the number
of shares of Stock to be delivered in connection with such Award or, in the case of an Award
measured solely by the increase in value of shares of stock settleable only in cash (such as
cash-only SARs), the number of shares to which the Award relates, exceeds the number of shares
of Stock remaining available under the Plan minus the number of shares of Stock issuable in
settlement of or relating to then-outstanding Awards. The Committee may adopt reasonable
counting procedures to ensure appropriate counting, avoid double counting and make adjustments
if the number of shares of Stock actually delivered differs from the number of shares
previously counted in connection with an Award.




(c) Availability of Shares Not Delivered under Awards. Shares of Stock subject to an
Award under the Plan (i) which Award is canceled, expired, forfeited, settled in cash or
otherwise terminated without a delivery of shares to the Participant, including the number of
 shares surrendered in payment of any taxes relating to any Award, or (ii) which shares are
repurchased by the Corporation pursuant to Section 4(d), 4(e) or 7(b) hereof will again be
available for Awards under the Plan, except that if any such shares could not again be
available for Awards to a particular Participant under any applicable law or regulation, such
 shares shall be available exclusively for Awards to Participants who are not subject to such
limitation.


 


 









 






(d) Call Feature. Upon or after a Participant’s (or Stock holder’s) termination of
employment with the Corporation and all its affiliates, the Corporation or DIUS may call all
 shares of Stock held by the Participant (or Stock holder). In addition, the Committee may,
in its sole discretion, require the Corporation or DIUS to call shares of Stock. Subject to
the following sentence, called shares of Stock will be reacquired by the Corporation or DIUS
as soon as practicable after the call for an amount per share equal to (1) the Fair Market
Value of a share (determined pursuant to Section 2(k)(1) or 2(k)(2), as applicable) as of the
Valuation Date immediately preceding the date of the call if the call occurs before the
expiration of the period after the Valuation Date during which the shares may be put to the
Corporation or DIUS (in accordance with Section 4(e) below), or (2) the Fair Market Value of
a share (determined pursuant to Section 2(k)(1) or 2(k)(2), as applicable) as of the
Valuation Date following the date of the call if the call occurs after the expiration of the
period after the preceding Valuation Date during which the shares may be put to the
Corporation or DIUS (in accordance with Section 4(e) below).




Notwithstanding the foregoing, (1) shares that have been held for six months or less as
of the date of a call will not be called as of that date, but will be called on the date as
of which the Stock holder has held the shares for six months and one day for an amount equal
to the amount determined in accordance with the preceding paragraph, and (2) the Corporation
or DIUS may, in the sole discretion of the Committee, delay calling shares held by a Stock
holder for less than one year until the day after the first anniversary of the date on which
the Stock holder acquired such shares, in which case the shares will be reacquired by the
Corporation or DIUS for an amount determined in accordance with the preceding paragraph;
 shares called other than in connection with termination of employment will be called from
each holder of Stock in proportion to the holder’s total Stock holdings.




Notwithstanding the foregoing, the six month and one day holding period described in
this Section 4(d) shall not apply to outstanding RSUs that were unvested as of December 26,
2008.




(e) Put Option. An individual who has acquired shares upon the exercise of an Option or
otherwise pursuant to the grant or settlement of an Award and has held those shares for more
than six months may put the shares back to the Corporation (or, if directed by the
Corporation, to DIUS), Shares may be put to the Corporation (or, if directed by the
Corporation, to DIUS) only during the 15-day period beginning on the date on which valuation
results are communicated to Stock holders, and the Corporation (or, if directed by the
Corporation, DIUS) will pay to the Stock holder the Fair Market Value (determined pursuant to
Section 2(k)(1) or 2(k)(2), as applicable) determined as of the immediately preceding
Valuation Date. Notwithstanding the foregoing, the length of the put period beginning on the
date on which valuation results are communicated to Stock holders may be modified by the
Committee or the Corporation provided that the change in put period does not represent a
material and adverse change affecting the Stock holders. Further, the President of the
Corporation may, in his or her complete discretion, announce additional terms and conditions
(including, but not limited to Stock ownership requirements, which additional terms and
conditions may be outside of a Participant’s original Award documentation) that must be met
before a Participant can exercise the put option.




Notwithstanding the foregoing, the six month and one day holding period described in
this Section 4(e) shall not apply to outstanding RSUs that were unvested as of December 26,
2008.




At the Corporation’s sole discretion, the amount the Corporation is required to pay
pursuant to the preceding sentence may be paid in (i) cash, (ii) a promissory note (in
substantially the form of the note attached hereto as Appendix B) that requires payment over
a period not to exceed five years with interest each year at a rate equal to the rate paid on
Treasury notes of similar term and similar subordination plus the increment over that rate
paid on borrowings of similar term and similar subordination by Lincoln with such note to be
guaranteed by Lincoln (with a guaranty in substantially the form of the agreement attached
hereto as Appendix C), (iii) freely tradable shares of common stock of Lincoln having a
market value on the date of transfer to the employee equal to the amount payable to the
employee, or (iv) any combination of (i) and (ii) or (i) and (iii).


 


 









 





5. Eligibility. Awards may be granted under the Plan only to Eligible Persons.



6. Terms of Awards.




(a) General. Awards may be granted on the terms and conditions set forth in this Section
6. In addition, the Committee may impose on any Award or the exercise thereof, at the date of
grant or thereafter (subject to Section 8(e) and the provisos therein), such additional terms
and conditions, not inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms requiring forfeiture of Awards in the event of termination of
employment by the Participant, terms permitting a Participant to make elections relating to
his or her Award and such other terms (including, but not limited to, Stock ownership
requirements) that are a condition of an Award. The Committee shall (subject to Section 8(e)
and the provisos therein) retain full power and discretion to accelerate, waive or modify, at
any time, any term or condition of an Award that is not mandatory under the Plan. Except in
cases in which the Committee is authorized to require other forms of consideration under the
Plan, or to the extent other forms of consideration must be paid to satisfy the requirements
of Delaware law, no consideration other than services may be required for the grant (but not
the exercise) of any Award.




(b) Options. The Committee is authorized to grant Options to Participants on the
following terms and conditions:




(i) Exercise Price. The exercise price per share of Stock purchasable under an
Option shall be determined by the Committee, provided that such exercise price shall be
not less than the Fair Market Value of a share of Stock (as determined under Section
2(k)(2)) on the date of grant of such Option.




(ii) Time and Method of Exercise. The Committee shall determine, at the date of
grant or thereafter, the time or times at which or the circumstances under which an
Option may be exercised in whole or in part (including based on completion of future
service requirements), the methods by which such exercise price may be paid or deemed to
be paid, the form of such payment, including, without limitation, cash, Stock (including
Stock acquired in connection with the exercise of an Option) or through a cashless
exercise procedure, and the methods by or forms in which Stock will be delivered or
deemed to be delivered to Participants.




(iii) ISOs. The terms of any ISO granted under the Plan shall comply in all
respects with the provisions of Code Section 422. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to ISOs shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be exercised, so
as to disqualify either the Plan or any ISO under Code Section 422, unless the
Participant has first requested the change that will result in such disqualification.




(iv) Term of Options. The term of each Option shall be for such period as may be
determined by the Committee; provided that in no event shall the term of any Option
exceed a period of ten years (or such shorter term as may be required in respect of an
ISO under Code Section 422).




(c) Stock Appreciation Rights. The Committee is authorized to grant SARs to Participants
on the following terms and conditions:




(i) Right to Payment. A SAR shall confer on the Participant to whom it is granted
a right to receive, upon exercise thereof, the excess of (A) the Fair Market Value
of one share of Stock on the date of exercise over (B) the grant price of the SAR
as determined by the Committee. The grant price of a SAR shall not be less than
the Fair Market Value of a share of Stock on the date of grant of such SAR. The
Fair Market Value of a share shall determined under Section 2(k)(1) or 2(k)(2), as
applicable.




(ii) Other Terms. The Committee shall determine, at the date of grant or
thereafter, the time or times at which and the circumstances under which a SAR may be
exercised in whole or in part (including, without limitation, based on achievement of performance goals and/or
future service requirements), the method of exercise, method of settlement, form of
consideration payable in settlement, method by or forms in which any Stock payable will
be delivered or deemed to be delivered to Participants, whether or not a SAR shall be in
tandem or in combination with any other Award, and any other terms and conditions of any
SAR. Limited SARs that may only be exercised in connection with a Change of Control or
other events as specified by the Committee may be granted on such terms, not
inconsistent with this Section 6(c), as the Committee may determine. SARs and Limited
SARs may be either freestanding or in tandem with other Awards.


 


 









 






(d) Restricted Stock. The Committee is authorized to grant Restricted Stock to Participants
on the following terms and conditions:




(i) Grant and Restrictions. Restricted Stock shall be subject to such restrictions on
transferability, risk of forfeiture and other restrictions, if any, as the Committee may
impose, which restrictions may lapse separately or in combination at such times, under such
circumstances (including, without limitation, based on achievement of performance goals and/or
future service requirements), in such installments or otherwise, as the Committee may
determine at the date of grant or thereafter. Except to the extent restricted under any Award
agreement relating to the Restricted Stock, a Participant granted Restricted Stock shall have
the rights of a shareholder, including the right to vote the Restricted Stock and the right to
receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed
by the Committee or President as provided herein). During the restricted period applicable to
the Restricted Stock, subject to Section 8(b) below, the Restricted Stock may not be sold,
transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant.




(ii) Forfeiture. Except as otherwise determined by the Committee, upon termination of
employment during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited; provided that the Committee may, in its
discretion, in any individual case provide for waiver in whole or in part of restrictions or
forfeiture conditions relating to Restricted Stock.




(iii) Certificates for Stock. Restricted Stock granted under the Plan may be
uncertificated and shall be evidenced in such manner as the Committee or the Corporation shall
determine. If certificates representing Restricted Stock are registered in the name of the
Participant, the Committee may require that such certificates bear an appropriate legend
referring to the terms, conditions and restrictions applicable to such Restricted Stock, that
DIUS retain physical possession of the certificates, and that the Participant deliver a stock
power to DIUS, endorsed in blank, relating to the Restricted Stock.




(iv) Dividends and Splits. As a condition to the grant of an Award of Restricted Stock,
the Committee may require that any cash dividends paid on a share of Restricted Stock be
automatically reinvested in additional shares of Restricted Stock or applied to the purchase
of additional Awards under the Plan. Unless otherwise determined by the Committee, Stock
distributed in connection with a Stock split or Stock dividend, and other property distributed
as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as
the Restricted Stock with respect to which such Stock or other property has been distributed.




(e) Restricted Stock Units (“RSUs”). The Committee is authorized to grant RSUs to
Participants on the following terms and conditions:




(i) Grant and Restrictions. The Committee shall determine the number of RSUs to be
awarded to a Participant pursuant to an Award. RSUs shall be settled in Stock only.
RSUs shall be subject to such restrictions on transferability, risk of forfeiture and
other restrictions, if any, as the Committee may impose, which restrictions may lapse
separately or in combination at such times and under such circumstances (including based
on achievement of performance goals and/or future service requirements), in installments
or otherwise, as the Committee may determine at the date of grant or thereafter. A
Participant who is granted RSUs shall not have any of the rights of a shareholder,
including the right to vote Stock or the right to receive dividends thereon prior to any
actual issuance of Stock in settlement of the RSUs. During the restricted period applicable to the
RSUs, subject to Section 8(b) below, RSUs may not be sold, transferred, pledged,
hypothecated, margined or otherwise encumbered by the Participant.


 


 









 






(ii) Forfeiture. Except as otherwise determined by the Committee, upon termination
of employment during the applicable restriction period, RSUs that are at that time
subject to restrictions shall be forfeited; provided that the Committee may, in its
discretion, in any individual case provide for waiver in whole or in part of
restrictions or forfeiture conditions relating to RSU.




(iii) Certificates for Stock. RSUs shall always be settled in Stock. Shares of
such Stock may be uncertificated and shall be evidenced in such manner as the Committee
or the Corporation shall determine.




(f) Cancellation and Rescission of Awards. Unless the Award agreement specifies
otherwise, the Committee may cancel any outstanding Award at any time, and the Corporation
shall have the additional rights set forth in Section 6(f)(iv) below, if the Participant is
not in compliance with all applicable provisions of the Award agreement and the Plan including
the following conditions:




(i) A Participant shall not render services for any organization or engage
directly or indirectly in any business which, in the judgment of the President of the
Corporation or other senior officer designated by the Committee, is or becomes
competitive with the Corporation. For Participants whose employment has terminated, the
judgment of the President or other senior officer designated by the Committee shall be
based on the Participant’s position and responsibilities while employed by the
Corporation, the Participant’s post-employment responsibilities and position with the
other organization or business, the extent of past, current and potential competition or
conflict between the Corporation and the other organization or business, the effect on
the Corporation’s shareholders, customers, suppliers and competitors of the Participant
assuming the post-employment position and such other considerations as are deemed
relevant given the applicable facts and circumstances. A Participant 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.




(ii) A Participant shall not, without prior written authorization from the
Corporation, disclose to anyone outside the Corporation, or use in other than the
Corporation’s business, any confidential information or material relating to the
business of the Corporation that is acquired by the Participant either during or after
employment with the Corporation.




(iii) A Participant shall disclose promptly and assign to the Corporation all
right, title, and interest in any invention or idea, patentable or not, made or
conceived by the Participant during employment by the Corporation, relating in any
manner to the actual or anticipated business, research or development work of the
Corporation and shall do anything reasonably necessary to enable the Corporation to
secure a patent where appropriate in the United States and in foreign countries.




(iv) Upon exercise, settlement, payment or delivery pursuant to an Award, the
Participant shall certify on a form acceptable to the Committee that he or she is in
compliance with the terms and conditions of the Plan. Failure to comply with the
provisions of this Section 6(f) prior to, or during the six months after, any exercise,
payment or delivery pursuant to an Award shall cause such exercise, payment or delivery
to be rescinded. The Corporation shall notify the Participant in writing of any such
rescission within two years after such exercise, payment or delivery; provided, however,
that the Corporation may, in its discretion, in any individual case provide for waiver
in whole or in part of compliance with the provisions of this Section 6(f). Within ten
days after receiving such a notice from the Corporation, the Participant shall pay to
the Corporation the amount of any gain realized or payment received as a result of the
rescinded exercise, payment or delivery pursuant to an Award. Such payment shall be
made either in cash or by returning to the Corporation the number of shares of
Stock that the Participant received in connection with the rescinded exercise,
payment or delivery. In the case of any Participant whose employment is terminated by
the Corporation and its subsidiaries without “cause” (as defined in the Award
agreement), however, a failure of the Participant to comply with the provisions of
Section 6(f)(i) after such termination of employment shall not in itself cause
rescission or require repayment with respect to any Award exercised, paid or delivered
before such termination.


 


 









 





7. Change of Control. Unless otherwise provided in the Award agreement:




(a) In the event of a Change of Control of Lincoln, (i) any Award of an Option or SAR
carrying a right to exercise that was not previously exercisable and vested shall become fully
exercisable and vested as of the time of the Change of Control of Lincoln and shall remain
exercisable and vested for the balance of the stated term of such Award without regard to any
termination of employment by the Participant, subject only to applicable restrictions set
forth in Section 8(a) hereof and (ii) any restrictions and forfeiture conditions applicable to
any RSU or Restricted Stock granted under the Plan shall lapse and such Award shall be deemed
fully vested as of the time of the Change in Control, except to the extent of any waiver by
the Participant and subject to applicable restrictions set forth in Section 8(a) hereof,
provided that a Change of Control shall not accelerate payment of any such fully vested Award
that is subject to Code Section 409A unless such Change of Control also qualifies as a “change
in control event” as described under Code Section 409A(a)(2)(A)(v).




(b) In the event of a Change of Control of the Corporation or DIUS that occurs within
one year after shares are called in accordance with the provisions of Section 4(d) from an
individual other than an individual from whom the shares are called as a result of the
individual’s termination of employment, the individual will receive a payment equal to the
excess, if any, of the Change of Control Price over the amount paid for a share of Stock
pursuant to the call, multiplied by the number of shares called from the individual. In the
event that a Change of Control of DIUS occurs in connection with a Change of Control of the
Corporation in which the Change of Control Price is set in a manner that does not indicate a
specific Change of Control Price for DIUS, such an individual will receive a payment equal to
the excess, if any, of the Fair Market Value of a share (pursuant to Section 2(k)(1) or
2(k)(2), as applicable) as determined on the most recent Valuation Date on or before the
Change in Control of DIUS over the amount paid for a share of stock pursuant to the call,
multiplied by the number of shares called from the individual. Any such payment under this
Section shall be paid in a lump sum as soon as practicable after the Change of Control, but in
no event later than thirty (30) days after the Change of Control.



8. General Provisions.




(a) Compliance with Legal and Other Requirements. The Corporation may, to the extent
deemed necessary or advisable by the Committee, postpone the issuance or delivery of Stock or
payment of other benefits under any Award until completion of such registration or
qualification of such Stock or other required action under any federal or state law, rule or
regulation, listing or other required action with respect to any stock exchange or automated
quotation system upon which the Stock or other securities of the Corporation may in the future
be listed or quoted, or compliance with any other obligation of the Corporation, as the
Committee may consider appropriate, and may require any Participant to make such
representations, furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance or delivery of Stock
or payment of other benefits in compliance with applicable laws, rules, and regulations,
listing requirements, or other obligations. The foregoing notwithstanding, in connection with
a Change of Control, the Corporation shall take or cause to be taken no action, and shall
undertake or permit to arise no legal or contractual obligation, that results or would result
in any postponement of the issuance or delivery of Stock or payment of benefits under any
Award or the imposition of any other conditions on such issuance, delivery or payment, to the
extent that such postponement or other condition would represent a greater burden on a
Participant than existed on the 90th day preceding the Change of Control.


 


 









 






(b) Limits on Transferability; Beneficiaries. No Award or other right or interest of a
Participant under the Plan shall be pledged, hypothecated or otherwise encumbered or subject
to any lien, obligation or liability of such Participant to any party (other than the Corporation or a subsidiary),
or assigned or transferred by such Participant otherwise than by will or the laws of descent
and distribution or to a Beneficiary upon the death of a Participant, and such Awards or
rights that may be exercisable shall be exercised during the lifetime of the Participant only
by the Participant or his or her guardian or legal representative, except that Awards and
other rights (other than ISOs and SARs in tandem therewith) may be transferred to one or more
Beneficiaries or other transferees during the lifetime of the Participant, and may be
exercised by such transferees in accordance with the terms of such Option, but only if and to
the extent such transfers are permitted by the Committee pursuant to the express terms of an
Award agreement (subject to any terms and conditions which the Committee may impose thereon).
A Beneficiary, transferee, or other person claiming any rights under the Plan from or through
any Participant shall be subject to all terms and conditions of the Plan and any Award
agreement applicable to such Participant, except as otherwise determined by the Committee, and
to any additional terms and conditions deemed necessary or appropriate by the Committee.




(c) Adjustments. In the event that any dividend or other distribution (whether in the
form of cash, Stock, or other property), recapitalization, forward or reverse split,
reorganization, merger, acquisition, consolidation, spin-off, combination, repurchase, share
exchange, liquidation, non-reciprocal inter-company transaction, dissolution or other similar
corporate transaction or event (including a material change in intercompany pricing
methodologies) affects the Stock such that an adjustment to outstanding Awards or the number
of shares of Stock held by a Participant or Stock holder is required to preserve (or prevent
enlargement of) the benefits or potential benefits intended at the time of grant, then in such
manner as the Committee deems equitable, an appropriate adjustment must be made to any or all
of (i) the number and kind of shares of Stock (or other securities substituted for Stock as
the Committee determines) held by a Participant or Stock holder, (ii) the number and kind of
 shares of Stock (or other securities substituted for Stock as the Committee determines) which
may be delivered in connection with Awards granted thereafter, (iii) the number and kind of
 shares of Stock (or other securities substituted for Stock as the Committee determines)
subject to or deliverable in respect of outstanding Awards and (iv) the exercise price, grant
price or purchase price relating to any Award and/or the Committee shall make provision for
payment of cash or other property in respect of any outstanding Award. In determining the
appropriate adjustment to be made, the Committee may take into account such factors as it
deems appropriate, including (x) the restrictions of applicable law, (y) the potential tax
consequences of an adjustment and (z) the possibility that some Participants might receive an
adjustment or a distribution of some other benefit that is unintended, and in light of certain
factors or circumstances may make adjustments that are not uniform or proportionate among
outstanding Awards, modify vesting dates, defer the delivery shares of Stock or make other
equitable adjustments. Any such adjustments shall also apply to Stock held by a Participant
or Stock holder that was acquired pursuant to the exercise, payment, settlement or vesting of
an Award. Any such adjustments to outstanding Awards or the number of shares of Stock held by
a Participant or Stock holder will be effected in a manner that precludes enlargement of
rights and benefits under such Awards and will be made in a manner that will not be treated
under Code Section 409A as the grant of a new Option or SAR. Adjustments, if any, and any
determinations or interpretations, including any determination of whether a distribution is
other than a normal cash dividend, made by the Committee shall be conclusive and binding. In
addition, the Committee is authorized (subject to Section 8(e) and the provisos therein) to
make adjustments in the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without limitation, events described
in the preceding sentence, as well as acquisitions and dispositions of businesses and assets)
affecting the Corporation, any subsidiary or any business unit, or the financial statements of
the Corporation or any subsidiary, or in response to changes in applicable laws, regulations,
accounting principles, tax rates and regulations or business conditions or in view of the
Committee’s assessment of the business strategy of the Corporation, any subsidiary or business
unit thereof, performance of comparable organizations, economic and business conditions,
personal performance of a Participant, and any other circumstances deemed relevant.




(d) Taxes. The Corporation and any affiliate is authorized to withhold from any payment
to a Participant amounts of withholding and other taxes due or potentially payable in
connection with any transaction involving an Award, and to take such other action as the
Committee may deem advisable to enable the Corporation and Participants to satisfy obligations
for the payment of withholding taxes and other
tax obligations relating to any Award. This authority shall include authority to
withhold or receive Stock held more or less than six months, or other property and to make
cash payments in respect thereof in satisfaction of a Participant’s tax obligations (not to
exceed the minimum statutorily required tax withholding), either on a mandatory or elective
basis in the discretion of the Committee.


 


 









 






(e) Changes to the Plan and Awards. The Board, or the Committee acting pursuant to such
authority as may be delegated to it by the Board, may amend, alter, suspend, discontinue or
terminate the Plan or the Committee’s authority to grant Awards under the Plan, provided that,
without the consent of an affected Participant, no such Board action may materially and
adversely affect the rights of a Participant under any previously granted and outstanding
Award. Any adjustment pursuant to Section 8(c) hereof shall not be treated as materially and
adversely affecting the rights of a Participant or a Stock holder. The Committee may waive
any conditions or rights under, or amend, alter, suspend, discontinue or terminate any Award
theretofore granted and any Award agreement relating thereto, except as otherwise provided in
the Plan; provided that, without the consent of an affected Participant, no Committee action
may materially and adversely affect the rights of such Participant under such Award.
Notwithstanding anything in the Plan to the contrary, if any right under this Plan would cause
a transaction to be ineligible for pooling of interest accounting that would, but for the
right hereunder, be eligible for such accounting treatment, the Committee may modify or adjust
the right so that pooling of interest accounting shall be available, including the
substitution of Stock having a Fair Market Value (determined pursuant to Section 2(k)(1) or
2(k)(2), as applicable) equal to the cash otherwise payable hereunder for the right which
caused the transaction to be ineligible for pooling of interest accounting.




(f) Limitation on Rights Conferred under Plan. Neither the Plan nor any action taken
hereunder shall be construed as (i) giving any Eligible Person or Participant the right to
continue as an Eligible Person or Participant or in the employ or service of the Corporation
or a subsidiary, (ii) interfering in any way with the right of the Corporation or a subsidiary
to terminate any Eligible Person’s or Participant’s employment or service at any time, (iii)
giving an Eligible Person or Participant any claim to be granted any Award under the Plan or
to be treated uniformly with other Participants and employees, or (iv) conferring on a
Participant any of the rights of a shareholder of the Corporation (including the right to vote
 shares of Stock or receive dividends) unless and until the Participant is duly issued or
transferred shares of Stock in accordance with the terms of an Award.




(g) Nonexclusivity of the Plan. The adoption of the Plan by the Board shall not be
construed as creating any limitations on the power of the Board or a committee thereof to
adopt such other compensation and incentive arrangements for employees, agents and brokers of
the Corporation and its subsidiaries as it may deem desirable.




(h) Payments in the Event of Forfeitures; Fractional Shares. Unless otherwise determined
by the Committee, in the event of a forfeiture of an Award with respect to which a Participant
paid cash or other consideration, the Participant shall be repaid the amount of such cash or
other consideration.




(i) Governing Law. The validity, construction and effect of the Plan, any rules and
regulations under the Plan, and any Award agreement shall be determined in accordance with
Delaware law, without giving effect to principles of conflicts of laws, and applicable federal
law.




(j) Plan Effective Date. The Plan was originally adopted by the Board effective as of
January 1, 2001, and was amended and restated by the Board effective as of November 5, 2007.




(k) Code Section 409A. The Plan shall be operated and administered in such a way that
no Participants are subject to adverse tax consequences under Code Section 409A.
Accordingly, no action shall be taken under the Plan that would result in such adverse tax
consequences.


 


 









 





APPENDIX A




Market Transaction Approach to Valuation




General




The Market Transaction Approach is a “top down” approach to business valuation which involves
valuing a company based on the market valuation of entire companies that have been sold or the
prices at which significant interests in companies have been transacted. Although each business
entity may be regarded as a unique income producing enterprise, the fair market values of DIUS can
be estimated by computing the multiples of various performance measures using actual transaction
prices paid for similar investment management companies.



Application




To estimate the respective fair market values of DIUS, an independent valuation firm will
consider three commonly applied valuation benchmarks in the asset management industry: price to
assets under management (“AUM”); price to revenues; and, price to earnings before taxes,
amortization and depreciation (“EBITDA”). The sub-advised assets will be valued separately from
the advised assets, and the independent valuation firm may, in its judgment, apply different median
multiples to the sub-advised assets than used for the advised assets. In addition, the independent
valuation firm may, in its judgment, apply certain non-operating assets and liabilities to adjust
the valuation.



For the purposes of the Plan, the independent valuation firm will consistently apply the
following weightings to median multiples to arrive at estimates of fair market value for DIUS:



	 	 	 	 	 
	Benchmark	 	Weighting	 
	Price to AUM
	 	 	40.0	%
	Price to Revenue
	 	 	20.0	%
	Price to EBITDA
	 	 	40.0	%






	 
	Advantages








	•	 	Over time, semiannual updates of the Market Transaction Database will reflect changes in the valuation multiples paid
for investment management companies

	 
	•	 	Most weight given to valuation benchmarks displaying least variability, mitigating potential of unreasonable estimates
of value

	 
	•	 	Consideration given to all commonly used valuation benchmarks used to price asset management businesses

	 
	•	 	Use of more than one benchmark multiple reduces volatility from market trends and dilutes impact of pricing anomalies
(e.g. recent premia paid by foreign buyers)

	 
	•	 	No required adjustments for discounts/premia as all information impounded into market data

	 
	•	 	Adds a degree of certainty and stability to valuation updates





 


 









 





Fair Market Value Determinations in the Event of Certain Business Transactions





	A.	 	In the event of a sale transaction in which any material source of revenues within the
business of DIUS is not included in the sale, an appropriate adjustment should be made by the
appraiser using a methodology consistent with those used in prior valuations.

	 
	B.	 	In the event of a “Change of Control” of Lincoln, the Fair Market Value of DIUS shall be
calculated in a manner that will take into account an allocable portion of any control premium
associated with the Change of Control of Lincoln. The control premium percentage to be used
for this purpose will be calculated by comparing the average of the closing price of LNC stock
for the 90 day period preceding the announcement of such Change of Control with the actual
Change of Control purchase price. The announcement date to be used will be the date of the
initial announcement which precipitates the change of control. The Change of Control premium
percentage so computed will be applied to the Fair Market Value of DIUS for the valuation
applicable to the Lincoln Change of Control date.






Committee/Appraiser Coordination




In the event of any corporate transaction or any other event which the appraiser reasonably
believes should, in order to provide consistency and fairness, result in an adjustment to the Fair
Market Value or in an adjustment to the exercise price, grant price, number of options or shares or
other feature of the plan, the appraiser shall consult with and coordinate with the Committee (see
Section 8(c) of the Plan) to determine what adjustments are appropriate and that those adjustments
are correctly and consistently applied. Changes to the valuation methodology shall be approved by
the Committee.