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Exhibit
10.10
LINCOLN NATIONAL
CORPORATION
SUPPLEMENTAL RETIREMENT
PLAN
(The “O&E
SERP”)
Amendment &
Restatement Effective December 31, 2007
(except as otherwise
indicated)
The Lincoln National
Corporation Supplemental Retirement Plan (the “Plan”)
is hereby adopted effective December 31, 2007 by Lincoln
National Corporation on behalf of itself and its affiliates (the
“Corporation”). The Plan is an amendment and
restatement of an assortment of pre-existing individual and group
plans, programs and arrangements that provide deferred compensation
for select Employees and Agents of Lincoln National Corporation and
its affiliates (the “Predecessor Plans”). This Plan
incorporates changes made to the Predecessor Plans in order to
comply with Code section 409A, added by the American Jobs Creation
Act of 2004. This Plan also provides for the cessation or
“freeze” of benefit accruals for certain benefits
effective December 31, 2007, as described in the attached
Appendix A.
The purpose of the Plan is to
provide supplemental retirement benefits to select Employees and
Agents of the Corporation. In general, Plan benefits are not
intended to make up or restore benefits that cannot be paid under
the Corporation’s qualified retirement plans due to Internal
Revenue Service limitations on the amount of annual benefits
payable under tax-qualified plans, and the amount of compensation
that can be considered under a tax-qualified plan
formula.
The Plan is intended
(1) to comply with Code section 409A and the official guidance
issued thereunder, except with respect to Grandfathered Benefits,
and (2) to be “a plan which is unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees” within the meaning of sections 201(2),
301(a)(3) and 401(a)(1) of ERISA. Notwithstanding any other
provision of this Plan, this Plan shall be interpreted, operated
and administered in a manner consistent with these
intentions.
ARTICLE I
DEFINITIONS
Wherever used herein the
terms below shall have the following meaning:
“ ABGA Agent
” means an agency building general agent for the legacy
Jefferson Pilot Life Insurance Company (merged with and into the
Lincoln National Life Insurance Company on April 2,
2007).
“ Affiliate
” means any corporation or other entity that is treated as a
single employer with the Corporation under section 414 of the
Code.
“ Agents ”
means, collectively, any ABGA Agents, DAN Agents, or LNL Agents who
are eligible to receive a benefit under the Plan as described in
Article III.
“ Benefit
Commencement Date ” means the date that Plan benefits are
scheduled to be paid in a cash lump sum, or scheduled to begin to
be paid if the benefits are expressed as periodic payments (an
annuity or installments), as set forth in Appendix A.
“ Benefit
Determination Date ” means the date that Plan benefits
are calculated.
“ Change of
Control ” means an event that qualifies as a change of
control of the Corporation under the Lincoln National Corporation
Executives’ Severance Benefit Plan (as in effect immediately
prior to such change of control).
“ Code ”
means the Internal Revenue Code of 1986, as amended from time to
time.
“ Committee
” means the Compensation Committee of the Corporation’s
Board of Directors or such other committee as may be appointed by
the Board of Directors from time to time.
“ Corporation
” means Lincoln National Corporation or any successor
corporation or other entity.
“ Disabled
” means, with respect to a Participant, that the Participant
has been determined to be disabled as defined in the applicable
Qualified Plan.
“ DAN Agent
” means a district agency network agent aligned with the
legacy Jefferson Pilot Life Insurance Company’s retail sales
organization (merged with and into the Lincoln National Life
Insurance Company on April 2, 2007).
“ Grandfathered
Benefit ” means, with respect to terminated vested
participants as of December 31, 2004, or active Participants
who have not accrued a benefit under this Plan since
December 31, 2004, the benefit amounts earned and vested under
this Plan pursuant to Article III as of December 31, 2004
within the meaning of Code section 409A and the official guidance
thereunder. Except as specified herein, Grandfathered Benefits are
subject to the distribution rules in effect as of December 31,
2004.
“ Employee
” means an individual who is a regular employee on the U.S.
payroll of the Corporation or an Employer. The term
“Employee” shall not include a person hired as an
independent contractor, leased employee, consultant, or a person
otherwise designated by the Corporation or an Employer as not
eligible to participate in the Plan, even if such person is
determined to be an “employee” of the Corporation or a
Participating Employer by any governmental or judicial
authority.
“ Employer
” means Lincoln National Corporation and any Affiliates who
has adopted this Plan as a Participating Employer.
“ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
“ Key Employee
” means an Employee treated as a “specified
employee” as of his Separation from Service under Code
section 409A(a)(2)(B)(i) of the Corporation or its Affiliates,
i.e. , a key employee (as defined in Code section 416(i)
without regard to paragraph (5) thereof) . Key Employees shall
be determined in accordance with Code section 409A for a specific
calendar year using the December 31 st of the previous calendar year as the
determination date. A listing of Key Employees as of an
identification date shall be effective for the 12-month period
beginning on the April 1 st following the identification date.
“ LNL Agent
” means a full-time life insurance salesman for Lincoln
National Life Insurance Company.
“ Participant
” means any Employee, LNL Agent, ABGA Agent, or DAN Agent who
has accrued a Plan benefit described in the attached Appendix
A.
“ Plan ”
means the Lincoln National Corporation Supplemental Retirement
Plan, as set forth herein and as amended from time to
time.
“ Plan
Administrator ” means the Senior Vice President of Human
Resources.
“ Present Value
” means, for a Participant whose Plan benefits are expressed
as an annuity, the lump sum present value of the accrued benefit
calculated using the actuarial assumptions for calculating lump sum
amounts under the qualified retirement plan under which the
Participant is eligible to receive a benefit, except as
specifically stated otherwise.
“ Separation from
Service ” or “ Separate from Service ”
means a “separation from service” within the meaning of
Code section 409A.
ARTICLE II
PARTICIPATION
Participation in the Plan by
an Employee, LNL Agent, ABGA Agent, or DAN Agent begins when the
individual is designated as a Participant in the Plan and begins to
accrue a Plan benefit as described in the attached Appendix
A.
ARTICLE III
PLAN
BENEFITS
Participants shall accrue
benefits under this Plan as described in the attached Appendix A.
Plan benefits are 100% vested at all times.
ARTICLE IV
DISTRIBUTION OF
BENEFITS
4.1. Benefit Commencement
Date . Except as specified in Section 4.6 below, a
Participant’s benefits shall be paid, or begin to be paid, as
soon as practicable after his or her Benefit Determination Date,
but in no event later than ninety (90) days after such date.
Each Participant’s Benefit Determination Date is set forth in
the applicable section of Appendix A.
4.2 Benefit Distribution
Form . Absent an effective alternative election pursuant to
Section 4.4 below, a Participant’s benefit will be paid,
or begin to be paid, in the form indicated in Appendix
A.
4.3 Distributions Upon
Death . To the extent that a pre-retirement death benefit is
payable with respect to a Participant’s benefit, as indicated
in Appendix A, in the event of the death of the Participant before
benefits have commenced, benefits will be paid, or begin to be
paid, to the Participant’s beneficiary as soon as practicable
after the Participant’s death, but in no event later than 90
days after the Participant’s death. In the event of the death
of the Participant after benefits have commenced, benefits under
the Plan will continue to be paid to the Participant’s
beneficiary in the distribution form already begun. In the event
that a Participant dies and has not properly designated a
beneficiary, or if no designated beneficiary is living on the date
of distribution, such amount shall be distributed to the
Participant’s estate.
4.4 Alternative
Elections . A Participant may, in the sole discretion of the
Plan Administrator, elect a different Benefit Commencement Date or
Benefit Distribution Form other than those set forth in Appendix A
by making an alternative election. Only one alternative election
may be made, and the election is irrevocable once made. Any
alternative election must be made in accordance with procedures
established by the Plan Administrator, and must be made at least
366 days prior to the Participant’s original Benefit
Commencement Date (elections shall not take effect for twelve
(12) months after the date on which the election is
made).
With the exception of Grandfathered
Benefits, no alternative election made pursuant to this
Section 4.4 may result in an impermissible acceleration of
payment, including accelerations of payment as defined under Code
section 409A.
4.5 Cash Out of Lump
Sums . Notwithstanding the Benefit Distribution Form indicated
in Appendix A, or any election pursuant to Section 4.4 above
by a Participant to the contrary, and subject to Section 4.6
below, if the Present Value of a Participant’s benefit is
$15,500 or less at the time the Participant Separates from Service,
the benefit shall be distributed to the Participant in a lump sum
payment as soon as administratively possible after Separation from
Service, but in no event later than 90 days.
4.6 Distributions to Key
Employees . Notwithstanding any other provision of this Plan to
the contrary, in the event a Participant is a Key Employee as of
the date of his or her Separation from Service, distributions to
such Participant shall not be paid earlier than six months after
the date on which such Key Employee Separates from Service.
However, this Section 4.6 shall not apply in the case of
benefits that were earned and vested prior to January 1, 2005.
Interest shall not accrue on such undistributed amounts during the
period of delay. Unless specified otherwise, the first payment of
an annuity Benefit Distribution Form shall include aggregated
payments in arrears for the previous six months.
This Section 4.6 shall not apply to
Grandfathered Benefits.
4.7 Effect of Early
Taxation . If a Participant’s benefits under the Plan are
includable in income pursuant to Code section 409A, such benefits
shall be distributed immediately to the Participant.
4.8 Permitted Delays .
Notwithstanding the foregoing, any payment to a Participant under
the Plan shall be delayed upon the Committee’s reasonable
anticipation of one or more of the following events:
(a) The Corporation’s
deduction with respect to such payment would be eliminated by
application of Code section 162(m); or
(b) The making of the payment
would violate Federal securities laws or other applicable
law;
provided, that any payment delayed
pursuant to this Section 4.8, other than a Grandfathered
Benefit, shall be paid in accordance with Code section
409A.
ARTICLE V
ADMINISTRATION
5.1 General
Administration . The Committee shall be responsible for the
operation and administration of the Plan and for carrying out the
provisions hereof. The Committee shall have the full authority and
discretion to make, amend, interpret, and enforce all appropriate
rules and regulations for the administration of this Plan and
decide
or resolve any and all questions,
including interpretations of this Plan, as may arise in connection
with this Plan. Any such action taken by the Committee shall be
final and conclusive on any party. To the extent the Committee has
been granted discretionary authority under the Plan, the
Committee’s prior exercise of such authority shall not
obligate it to exercise its authority in a like fashion thereafter.
The Committee shall be entitled to rely conclusively upon all
tables, valuations, certificates, opinions and reports furnished by
any actuary, accountant, controller, counsel or other person
employed or engaged by the Corporation with respect to the Plan.
The Committee may, from time to time, employ agents and delegate to
such agents, including employees of the Corporation, such
administrative duties as it sees fit. The Committee delegated the
review of claims and appeals for benefits under this Plan to the
Benefit Appeals Committee of the Corporations’ Benefits
Committee, effective September 15, 2004 (the “Appeals
Committee”). Effective November 5, 2007, the Committee
delegates to the Senior Vice President of Human Resources
responsibility for operating and administering the Plan.
5.2 Claims for
Benefits .
(a) Filing a Claim . A
Participant or his authorized representative may file a claim for
benefits under the Plan. Any claim must be in writing and submitted
to the Appeals Committee or its delegate at such address as may be
specified from time to time. Claimants will be notified in writing
of approved claims, which will be processed as claimed. A claim is
considered approved only if its approval is communicated in writing
to a claimant.
(b) Denial of Claim .
In the case of the denial of a claim respecting benefits paid or
payable with respect to a Participant, a written notice will be
furnished to the claimant within 90 days of the date on which the
claim is received by the Appeals Committee. If special
circumstances (such as for a hearing) require a longer period, the
claimant will be notified in writing, prior to the expiration of
the 90-day period, of the reasons for an extension of time;
provided, however, that no extensions will be permitted beyond 90
days after the expiration of the initial 90-day period.
(c) Reasons for Denial
. A denial or partial denial of a claim will be dated and signed by
the Appeals Committee and will clearly set forth:
(i) the specific reason or
reasons for the denial;
(ii) specific reference to
pertinent Plan provisions on which the denial is based;
(iii) a description of any
additional material or information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and
(iv) an explanation of the
procedure for review of the denied or partially denied claim set
forth below, including the claimant’s right to bring a civil
action under ERISA section 502(a) following an adverse benefit
determination on review.
(d) Review of Denial .
Upon denial of a claim, in whole or in part, a claimant or his duly
authorized representative will have the right to submit a written
request to the Appeals Committee for a full and fair review of the
denied claim by filing a written notice of appeal with the Appeals
Committee within 60 days of the receipt by the claimant of written
notice of the denial of the claim. A claimant or the
claimant’s authorized representative will have, upon request
and free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the
claimant’s claim for benefits and may submit issues and
comments in writing. The review will take into account all
comments, documents, records, and other information submitted by
the claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
If the claimant fails to file
a request for review within 60 days of the denial notification, the
claim will be deemed abandoned and the claimant precluded from
reasserting it. If the claimant does file a request for review, his
request must include a description of the issues and evidence he
deems relevant. Failure to raise issues or present evidence on
review will preclude those issues or evidence from being presented
in any subsequent proceeding or judicial review of the
claim.
(e) Decision Upon
Review . The Appeals Committee will provide a prompt written
decision on review. If the claim is denied on review, the decision
shall set forth:
(i) the specific reason or
reasons for the adverse determination;
(ii) specific reference to
pertinent Plan provisions on which the adverse determination is
based;
(iii) a statement that the
claimant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and
other information relevant to the claimant’s claim for
benefits; and
(iv) a statement describing
any voluntary appeal procedures offered by the Plan and the
claimant’s right to obtain the information about such
procedures, as well as a statement of the claimant’s right to
bring an action under ERISA section 502(a).
A decision will be rendered no more than
60 days after the Appeals Committee’s receipt of the request
for review, except that such period may be extended for an
additional 60 days if the Appeals Committee determines that special
circumstances (such as for a hearing) require such extension. If an
extension of time is required, written notice of the extension will
be furnished to the claimant before the end of the initial 60-day
period.
(f) Finality of
Determinations; Exhaustion of Remedies; Limitations Period . To
the extent permitted by law, decisions reached under the claims
procedures set forth in this Section shall be final and binding on
all parties. No legal action for benefits under the Plan shall be
brought unless and until the claimant has exhausted his remedies
under this Section. In any such legal action, the claimant may only
present evidence and theories which the claimant presented during
the claims procedure. Any claims which the claimant does not in
good faith pursue through the review stage of the procedure shall
be treated as having been irrevocably waived. Judicial review of a
claimant’s denied claim shall be limited to a determination
of whether the denial was an abuse of discretion based on the
evidence and theories the claimant presented during the claims
procedure. Any suit or legal action initiated by a claimant under
the Plan must be brought by the claimant no later than one year
following a final decision on the claim for benefits by the Appeals
Committee. The one-year limitation on suits for benefits will apply
in any forum where a claimant initiates such suit or legal
action.
5.3 Indemnification .
To the extent not covered by insurance, the Corporation shall
indemnify the Appeals Committee, each employee, officer, director,
and agent of the Corporation, and all persons formerly serving in
such capacities, against any and all liabilities or expenses,
including all legal fees relating thereto, arising in connection
with the exercise of their duties and responsibilities with respect
to the Plan, provided however that the Corporation shall not
indemnify any person for liabilities or expenses due to that
person’s own gross negligence or willful
misconduct.
ARTICLE VI
AMENDMENT AND
TERMINATION
6.1 Amendment or
Termination . The Corporation reserves the right to amend or
terminate the Plan when, in the sole discretion of the Corporation,
such amendment or termination is advisable, pursuant to a
resolution or other action taken by the Committee. The Plan may
also be amended pursuant to a written instrument executed by the
Corporation’s senior most human resources officer to the
extent such amendment is required under applicable law or is
required to avoid having amounts deferred under the Plan included
in the income of Participants or beneficiaries for federal income
tax purposes prior to distribution.
6.2 Effect of Amendment or
Termination . Except as provided in the next sentences, no
amendment or termination of the Plan shall adversely affect the
rights of any Participant or beneficiary receiving benefits under
the Plan as of the effective date of such amendment or termination.
Upon termination of the Plan, distribution of Plan benefits shall
be made to Participants and beneficiaries in the manner and at the
time described in Article IV, unless the Corporation determines in
its sole discretion that all such amounts (other than Grandfathered
Benefits) shall be distributed immediately upon termination and
such distributions are permissible under Code section 409A. Upon
termination of the Plan, no further accruals shall occur with
respect to any of the benefits described in Appendix A.
In the event of a Change of
Control, no amendment or termination of this Plan shall adversely
affect the right of any Participant to the benefits accrued by the
Participant or to payment of such benefits under the terms of this
Plan as in effect immediately prior to such Change of
Control.
ARTICLE VII
GENERAL
PROVISIONS
7.1 Source of Payments;
Rights Unsecured . The amount of any benefit payable under the
Plan with respect to any Participant shall be paid from the general
assets of the Employer that last employed that Participant. The
right of a Participant or his beneficiary to receive a distribution
hereunder shall be an unsecured (but legally enforceable) claim
against the general assets of an Employer, and neither the
Participant nor his beneficiary shall have any rights in or against
any assets of an Employer. The Plan at all times shall be
considered entirely unfunded for tax purposes. Any funds set aside
by an Employer for the purpose of meeting its obligations under the
Plan, including any amounts held by a trustee, shall continue for
all purposes to be part of the general assets of the Employer and
shall be available to its general creditors in the event of the
Employer’s bankruptcy or insolvency. An Employer’s
obligation under this Plan shall be that of an unfunded and
unsecured promise to pay money in the future.
7.2 No Guarantee of
Benefits . Nothing contained in the Plan shall constitute a
guarantee by an Employer or any other person or entity that the
assets of an Employer will be sufficient to pay any benefits
hereunder.
7.3 No Enlargement of
Rights . No Participant or beneficiary shall have any right to
receive a distribution under the Plan except in accordance with the
terms of the Plan. Establishment of the Plan shall not be construed
to give any Participant the right to continue to be employed by or
provide services to an Employer.
7.4 Spendthrift
Provision . No interest of any person in, or right to receive a
distribution under, the Plan shall be subject in any manner to
sale, transfer, assignment, pledge, attachment, garnishment, or
other alienation or encumbrance of any kind; nor may such interest
or right to receive a distribution be taken, either voluntarily or
involuntarily for the satisfaction of the debts of, or other
obligations or claims against, such person.
7.5 Applicable Law .
To the extent not preempted by federal law, the Plan shall be
governed by the laws of the State of Indiana.
7.6 Incapacity of
Recipient . If any person entitled to a distribution under the
Plan is deemed by the Committee to be incapable of personally
receiving and giving a valid receipt for such payment, then, unless
and until a claim for such payment shall have been made by a duly
appointed guardian or other legal representative of such person,
the Committee may provide for such payment or any part thereof to
be made to any other person or institution then contributing toward
or providing for the care and maintenance of such person. Any such
payment shall be a payment for the account of such person and a
complete discharge of any liability of the Employers and the Plan
with respect to the payment.
7.7 Taxes . The
Corporation or other payor may withhold from a benefit payment
under the Plan or a Participant’s wages, or the Corporation
may reduce a Participant’s accrued benefit under the Plan, in
order to meet any federal, state, or local tax withholding
obligations with respect to Plan benefits. The Corporation or other
payor shall report Plan payments and other Plan-related information
to the appropriate governmental agencies as required under
applicable laws.
7.8 Corporate
Successors . The Plan and the obligations of an Employer under
the Plan shall become the responsibility of any successor to the
Employer by reason of a transfer or sale of substantially all of
the assets of the Employer or by the merger or consolidation of the
Employer into or with any other corporation or other
entity.
7.9 Unclaimed Benefits
. Each Participant shall keep the Committee informed of his current
address and the current address of his designated beneficiary. The
Committee shall not be obligated to search for the whereabouts of
any person if the location of a person is not made known to the
Committee.
7.10 Severability . In
the event any provision of the Plan shall be held invalid or
illegal for any reason, any illegality or invalidity shall not
affect the remaining parts of the Plan, but the Plan shall be
construed and enforced as if the illegal or invalid provision had
never been inserted.
7.11 Words and
Headings . Words in the masculine gender shall include the
feminine and the singular shall include the plural, and vice versa,
unless qualified by the context. Any headings used herein are
included for ease of reference only, and are not to be construed so
as to alter the terms hereof.
IN WITNESS WHEREOF, the President and
Chief Executive Office of the Corporation has executed this
amendment and restatement of the Plan as of this
day of December, 2007.
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| LINCOLN NATIONAL CORPORATION |
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| By: |
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Dennis R.
Glass |
| Its: |
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President
and Chief Executive Officer |
APPENDIX A
O&E SERPs –
Lincoln National Corporation
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Name
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Sex
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Date of
Birth
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Benefit
Determination
Date
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Periodic
Benefit
($/month)
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|
Benefit
Distribution
Form
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| 1 |
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Abbott,
J. |
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F |
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10/09/1951 |
|
In Pay Status |
|
403.67 |
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Joint & 50% |
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Abbott, J.
(C) 1 |
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M |
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05/25/1949 |
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| 2 |
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Acheson,
J. |
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M |
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04/12/1922 |
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In Pay Status |
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1063.82 |
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Joint & 50% |
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Acheson, J.
(C) |
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F |
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08/15/1923 |
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| 3 |
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Altic,
Pamela M. |
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F |
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06/03/1954 |
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345.22 |
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Life Only after age 55 |
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Altic,
Pamela M. |
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F |
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06/03/1954 |
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In Pay Status |
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944.67 |
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Temp Life to age 55 |
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| 4 |
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Baker,
Roland |
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M |
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08/12/1938 |
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In Pay Status |
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1530.29 |
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Joint & 50% |
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Baker,
Roland (C) |
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F |
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10/21/1940 |
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| 5 |
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Bogardus,
W. |
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M |
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11/05/1942 |
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In Pay Status |
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1871.72 |
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Joint & 50% |
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Bogardus, W.
(C) |
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F |
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03/07/1952 |
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| 6 |
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Bojrab,
Imen |
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M |
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08/28/1953 |
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457.36 |
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Life Only after 55 |
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Bojrab,
Imen |
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M |
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08/28/1953 |
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In Pay Status |
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1289.90 |
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Temp Life to age 55 |
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| 7 |
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Brazys, Mary
Elizabeth |
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F |
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11/18/1952 |
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313.25 |
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Life Only after 55 |
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| 8 |
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Butler,
J. |
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M |
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03/16/1947 |
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In Pay Status |
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185.25 |
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Joint & 66 2 / 3 % |
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Butler, J.
(C) |
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F |
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11/04/1947 |
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| 9 |
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Camp,
Sheryn |
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F |
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10/16/1951 |
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In Pay Status |
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235.86 |
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Life Only after age 55 |
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| 10 |
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Campbell,
Robert W. |
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M |
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01/18/1944 |
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In Pay Status |
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367.30 |
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Joint & 50% |
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Campbell,
Robert W. (C) |
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F |
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10/18/1944 |
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