EMPLOYEE BENEFITS AGREEMENT
BETWEEN
CINCINNATI XXXX INC.
AND
CONVERGYS CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II GENERAL PRINCIPLES. . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III DEFINED BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV DEFINED CONTRIBUTION PLANS. . . . . . . . . . . . . . . . . . . 6
ARTICLE V HEALTH AND WELFARE PLANS. . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI EXECUTIVE BENEFITS AND NON-EMPLOYEE
DIRECTOR BENEFITS . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE VII GENERAL AND ADMINISTRATIVE. . . . . . . . . . . . . . . . . . .14
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .16
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EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT, dated as of October 14, 1998, is by and
between Cincinnati Xxxx Inc. ("CBI") and Convergys Corporation ("Convergys").
WHEREAS, CBI has determined to distribute to its shareholders all of the
Convergys common shares owned by CBI (the "Distribution"); and
WHEREAS, in conjunction with the Distribution, the parties have agreed to
enter into an agreement allocating assets, liabilities and responsibilities with
respect to certain employee compensation and benefit programs;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement the following terms shall have the following
meanings:
1.1 AGREEMENT means this Employee Benefits Agreement.
1.2 CBI ENTITY means CBI and any corporation that is, at the relevant
time, a direct or indirect subsidiary of CBI, except that, for periods beginning
on and after the Distribution Date, the term "CBI Entity" shall not include a
Convergys Entity.
1.3 CODE means the Internal Revenue Code of 1986, as amended, or any
successor federal income tax law. Reference to a specific Code provision also
includes any proposed, temporary, or final regulation in force under that
provision.
1.4 CONVERGYS ENTITY means Convergys and any corporation that is, at the
relevant time, a direct or indirect subsidiary of Convergys, Cincinnati Xxxx
Information Systems Inc. and its direct and indirect subsidiaries and MATRIXX
Marketing Inc. and its direct and indirect subsidiaries.
1.5 CONVERGYS INDIVIDUAL means any individual (a) who is either actively
employed by or on leave of absence from a Convergys Entity on the Distribution
Date; (b) who is transferred from a CBI Entity to a Convergys Entity on the
Distribution Date or (c) who retired or separated from a Convergys Entity prior
to the Distribution Date and has not been reemployed by a CBI Entity or
Convergys Entity since retiring or separating. In addition, CBI and Convergys
may designate, by mutual agreement, any other individual or group of individuals
as Convergys Individuals.
1.6 DISTRIBUTION DATE means the date on which the Distribution occurs.
1.7 ERISA means the Employee Retirement Income Security Act of 1974, as
amended. Reference to a specific provision of ERISA also includes any proposed,
temporary, or final regulation in force under that provision.
1.8 IPO DATE means the date on which the initial public offering of
Convergy's common shares is closed.
1.9 NON-EMPLOYEE DIRECTOR, when immediately preceded by "CBI," means a
member of CBI's Board of Directors who is not an employee of a CBI Entity or a
Convergys Entity. When immediately preceded by "Convergys," Non-Employee
Director means a member of Convergys's Board of Directors who is not an employee
of a CBI Entity or a Convergys Entity.
1.10 PLAN, when immediately preceded by "CBI" or "Convergys," means any
plan, policy, program, payroll practice, on-going arrangement, contract, trust,
insurance policy or other agreement or funding vehicle providing benefits to
employees, former employees or Non-Employee Directors of a CBI Entity or a
Convergys Entity, as applicable.
ARTICLE II
GENERAL PRINCIPLES
2.1 ASSUMPTION OF LIABILITIES. Convergys hereby assumes and agrees to
pay, perform, fulfill and discharge, in accordance with their respective terms,
all of the following (regardless of when or where such liabilities arose or
arise or were or are incurred): (i) all liabilities, other than those arising
out of or relating to workers' compensation claims, arising out of or relating
to Convergys Individuals and their respective dependents and beneficiaries, in
each case relating to, arising out of or resulting from employment by a CBI
Entity before becoming Convergys Individuals (including liabilities under CBI
Plans and Convergys Plans); (ii) all other liabilities to or relating to
Convergys Individuals and other employees or former employees of Convergys
Entities, and their dependents and beneficiaries, to the extent relating to,
arising out of or resulting from future, present or former employment with a
Convergys Entity (including liabilities under CBI Plans and Convergys Plans) and
(iii) all other liabilities relating to, arising out of or resulting from
obligations, liabilities and responsibilities expressly assumed or retained by a
Convergys Entity or a Convergys Plan pursuant to this Agreement.
2.2 CONVERGYS PARTICIPATION IN CBI PLANS.
(a) CBI'S GENERAL OBLIGATIONS AS PLAN SPONSOR. CBI shall continue
through the Distribution Date to administer, or cause to be administered, in
accordance with their terms and applicable law, the CBI Plans, and shall have
the sole discretion and authority to interpret the CBI Plans as set forth
therein. Before the Distribution Date, CBI shall not, without the prior consent
of Convergys, amend any material feature of any CBI Plan in which a Convergys
Entity is a participating company, except to the extent such amendment
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would not affect any benefits of Convergys Individuals under such Plan or as may
be necessary or appropriate to comply with any collective bargaining agreement
or applicable law.
(b) CONVERGYS' GENERAL OBLIGATIONS AS PARTICIPATING COMPANY.
Convergys shall perform with respect to its participation in the CBI Plans, and
shall cause each other Convergys Entity that is a participating company in any
CBI Plan to perform, the duties of a participating company as set forth in such
Plans or any procedures adopted pursuant thereto, including: (i) assisting in
the administration of claims, to the extent requested by the claims
administrator of the applicable CBI Plan; (ii) cooperating fully with CBI Plan
auditors, benefit personnel and benefit vendors; (iii) preserving the
confidentiality of all financial arrangements CBI has or may have with any
vendors, claims administrators, trustees or any other entity or individual with
whom CBI has entered into an agreement relating to the CBI Plans; and (iv)
preserving the confidentiality of participant health information (including
health information in relation to FMLA leaves).
(c) TERMINATION OF PARTICIPATING COMPANY STATUS. Effective as of the
Distribution Date, each Convergys Entity shall cease to be a participating
company in the CBI Plans.
2.4 CONVERGYS PLANS. The Convergys Plans shall be, with respect to
Convergys Individuals who are participating in CBI Plans, in all respects the
successors in interest to, and shall not provide benefits that duplicate
benefits provided by, the corresponding CBI Plans. CBI and Convergys shall
agree on methods and procedures, including amending the respective plan
documents, to prevent Convergys Individuals from receiving duplicative benefits
from the CBI Plans and the Convergys Plans. With respect to Convergys
Individuals, each Convergys Plan shall provide that all service, all
compensation and all other benefit-affecting determinations that, as of the
Distribution Date, were recognized under the corresponding CBI Plan shall, as of
immediately after the Distribution Date, receive full recognition, credit, and
validity and be taken into account under such Convergys Plan to the same extent
as if such items occurred under such Convergys Plan, except to the extent that
duplication of benefits would result. The provisions of this Agreement for the
transfer of assets from certain trusts relating to CBI Plans to the
corresponding trusts relating to Convergys Plans are based upon the
understanding of the parties that each such Convergys Plan will assume all
liabilities of the corresponding CBI Plan to or relating to Convergys
Individuals, as provided for herein. If any such liabilities are not
effectively assumed by the appropriate Convergys Plan, then the amount of assets
transferred to the trust relating to such Convergys Plan from the trust relating
to the corresponding CBI Plan shall be recomputed, ab initio, as set forth below
but taking into account the retention of such liabilities by such CBI Plan, and
assets shall be transferred by the trust relating to such Convergys Plan to the
trust relating to such CBI Plan so as to place each such trust in the position
it would have been in, had the initial asset transfer been made in accordance
with such recomputed amount of assets.
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2.5 PORTABILITY OF BENEFITS. On or before the Distribution Date, CBI and
Convergys may enter into an Interchange Agreement providing for (among other
things) the portability of benefits and mutual recognition of service with
respect to individuals who terminate employment with a CBI Entity and who become
employees of a Convergys Entity during the six month period commencing on the
Distribution Date or who terminate employment with a Convergys Entity and who
become employees of a CBI Entity during such six month period.
ARTICLE III
DEFINED BENEFIT PLANS
3.1 ESTABLISHMENT OF MIRROR PENSION PLAN. Effective immediately after the
Distribution Date, Convergys shall establish a qualified defined benefit pension
plan (the "Convergys Pension Plan") for its eligible employees the provisions of
which shall mirror the provisions of CBPP and CBMPP.
3.2 ASSUMPTION OF LIABILITIES BY CONVERGYS PENSION PLAN. Immediately
after the Distribution Date, all liabilities to or relating to Convergys
Individuals under CBPP and CBMPP (collectively, the "CBI Pension Plans"), shall
cease to be liabilities of the CBI Pension Plans and shall be assumed by the
Convergys Pension Plan.
3.3 CALCULATION OF CBMPP ASSET ALLOCATION.
(a) As soon as practicable after the Distribution Date, CBI shall
cause to be calculated, for CBMPP and the Convergys Pension Plan, as of the
Distribution Date:
(i) An "Initial Allocation Amount," which shall reflect a 75%
probability that CBMPP and the Convergys Pension Plan assets at the end of ten
years will each exceed the present value of all projected future benefit
payments for each plan, with any difference (positive or negative) between these
assets and the present value of projected future benefit payments at the end of
ten years for the combined plans allocated between the plans on a proportional
basis reflecting the present value of all projected future benefit payments at
the end of ten years for each plan.
(ii) The Initial Allocation Amount for CBMPP and the Convergys
Pension Plan shall be determined in a manner consistent with CBI's pension
funding policy in effect on January 1, 1998, a summary of which is attached
hereto.
(b) A "414(1)(1) Amount" for each of CBMPP and the Convergys Pension
Plan shall be determined, which shall equal the minimum amount necessary to
fully fund benefits under CBMPP and the Convergys Pension Plan on a "termination
basis" (as that term is defined in Treas. Reg. Section 1.414(1)-1(b)(5)). The
assumptions used in determining the 414(1)(1) Amounts shall be those used in the
determination of the minimum required contribution under ERISA for the Plan Year
beginning January 1, 1998, except that the discount rate and mortality
assumption shall be determined in accordance with Internal Revenue Code Section
414(1).
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(c) If the aggregate amount of the assets of CBMPP as of the
Distribution Date is not less than the sum of the 414(1)(1) Amounts for CBMPP
and the Convergys Pension Plan, then such assets shall be allocated between
CBMPP and the Convergys Pension Plan in accordance with the following:
(i) If the Initial Allocation Amount is greater than or equal to
the 414(1)(1) Amount for CBMPP, and the Initial Allocation Amount is greater
than or equal to the 414(1)(1) Amount for the Convergys Pension Plan, then the
amounts of assets allocated to CBMPP and the Convergys Pension Plan shall equal
their respective Initial Allocation Amounts.
(ii) If the Initial Allocation Amount is greater than or equal to
the 414(1)(1) Amount for CBMPP, but the Initial Allocation Amount is less than
the 414(1)(1) Amount for the Convergys Pension Plan, then the amount of assets
allocated to the Convergys Pension Plan shall equal the 414(1)(1) Amount for the
Convergys Pension Plan, and the amount of assets allocated to CBMPP shall equal
the excess of (x) the total amount of assets, as of the Distribution Date, of
CBMPP over (y) the 414(1)(1) Amount for the Convergys Pension Plan.
(iii) If the Initial Allocation Amount is less than the 414(1)(1)
Amount for the CBMPP, but the Initial Allocation Amount is greater than or equal
to the 414(1)(1) Amount for the Convergys Pension Plan, then the amount of
assets allocated to CBMPP shall equal the 414(1)(1) Amount for CBMPP, and the
amount of assets allocated to the Convergys Pension Plan shall equal the excess
of (x) the total amount of assets, as of the Distribution Date, of CBMPP over
(y) the 414(1)(1) Amount for CBMPP.
(d) If the aggregate amount of the assets of CBMPP as of the
Distribution Date is less than the sum of the 414(1)(1) Amounts for CBMPP and
the Convergys Pension Plan, then such assets shall be allocated between CBMPP
and the Convergys Pension Plan as follows:
(i) CBI and Convergys shall obtain a quote from a mutually
agreeable insurance company for the provision of immediate and deferred
annuities payable under CBMPP and the Convergys Pension Plan for all accrued
benefits under CBMPP as of the Distribution Date.
(ii) If the aggregate amount of assets of the Distribution Date
is not less than the amount of such quote, the amount of assets allocated to
CBMPP and the Convergys Pension Plan shall be determined in accordance with
Subsection (c) above, except that, in making that determination, the amount of
such quote for CBMPP and the Convergys Pension Plan shall be substituted for the
414(1)(1) Amount for each plan.
(iii) If the aggregate amount of assets as of the Distribution
Date is less than the amount of such quote, the amount of assets allocated to
CBMPP and the Convergys Pension Plan shall be determined on a plan termination
basis in accordance with ERISA Section 4044 using the same assumptions as those
used in computing the 414(1)(1) Amounts.
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(e) For purposes of this Section 3.3, references to the "Convergys
Pension Plan" shall mean that portion of the Convergys Pension Plan
corresponding to CBMPP.
3.4 CALCULATION OF CBPP ASSET ALLOCATION. The asset allocation of the
CBPP and the Convergys Pension Plan shall be determined by applying Section 3.3
but substituting "CBPP" for "CBMPP" wherever it appears in that Section.
3.5 TRANSFER OF CONVERGYS PENSION PLAN'S INTERESTS FROM THE CBI PENSION
TRUST TO THE CONVERGYS PENSION TRUST. The actual segregation of the interests
of the Convergys Pension Plan in Cincinnati Xxxx Pension Plans Trust (the "CBI
Pension Trust") into separate trust accounts, and the transfer of the Convergys
Pension Plan's allocable share of the assets from the CBI Pension Trust to the
trust established in conjunction with the Convergys Pension Plan (the "Convergys
Pension Trust"), shall occur as soon as practicable after the calculation of
such interests pursuant to Sections 3.3 and 3.4. The assets to be transferred
from the CBI Pension Trust to the Convergys Pension Trust share shall consist of
a pro rata share of each class of assets in the CBI Pension Trust, unless CBI
and Convergys agree otherwise.
ARTICLE IV
DEFINED CONTRIBUTION PLANS
4.1 RETIREMENT SAVINGS PLANS. Effective as of the Distribution Date, (a)
a Convergys Savings Plan designated by Convergys shall assume and be solely
responsible for all liabilities relating to each Convergys Individual under any
CBI Savings Plan and (b) CBI shall cause the accounts of such Convergys
Individual under each CBI Savings Plan to be transferred to the Convergys
Savings Plan designated by Convergys and Convergys shall cause such transferred
accounts to be accepted by the Convergys Savings Plan. CBI and Convergys shall
take such action as may be needed to cause the assets associated with each
transferred account to be transferred from the trust established in conjunction
with the CBI Savings Plan to the trust established in conjunction with the
Convergys Savings Plan. For purposes of this Section 4.1, "CBI Savings Plan"
means Cincinnati Xxxx Inc. Savings and Security Plan and "Convergys Plan" means
CBIS Retirement and Savings Plan and MATRIXX Marketing Inc. Profit
Sharing/401(k) Plan.
4.2 CBI ESOP. The Cincinnati Xxxx Inc. Employee Stock Ownership Plan (the
"CBI ESOP") shall be solely responsible for all liabilities relating to
Convergys Individuals under the CBI ESOP. The parties acknowledge that, as a
result of the Distribution, the CBI ESOP will, after the Distribution Date, hold
both CBI common shares and Convergys common shares and that, in order to
continue to qualify as an employee stock ownership plan, the CBI ESOP will be
required to dispose of the Convergys common shares and reinvest in CBI common
shares. The parties further acknowledge that applicable law generally prohibits
such plans from holding securities that are not "qualifying employer securities"
within the meaning of Code Section 409 for more than a reasonable time after the
Distribution Date unless the Internal Revenue Service ("IRS") grants an
extension of time. Accordingly, CBI shall request the IRS to grant an
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extension of such holding period as its financial advisors shall deem prudent to
allow the CBI ESOP to dispose of the Convergys common shares received by it as a
result of the Distribution and, to reinvest in CBI common shares, in a manner
consistent with the best interests of the ESOP participants. It also is
understood that, for purposes of the CBI ESOP, each Convergys Individual will be
deemed to have terminated employment on the Distribution Date.
ARTICLE V
HEALTH AND WELFARE PLANS
5.1 TRANSFER OF RETIREMENT FUNDING ACCOUNT ASSETS. This Section 5.1 shall
apply to the CBI group life insurance contract that has a retirement funding
account (the "CBI RFA") maintained for the purpose of accumulating, through
employer contributions in advance of employee retirements, a fund to be used to
pay all or a portion of the costs for continuing life insurance protection for
employees after their retirement. As soon as practicable after the Distribution
Date, there shall be transferred to the retirement funding account of a
Convergys Entity group life insurance contract an amount of assets having a
fair market value as of the Distribution Date equal to the product obtained by
multiplying (a) the present value, as of the Distribution Date, of the future
benefit obligation with respect to Convergys Individuals to be discharged from
the CBI RFA, divided by the present value of the future benefit obligations with
respect to all individuals whose benefits are to be discharged from the CBI RFA
assets as of the Distribution Date times (b) the fair market value of all CBI
RFA assets as of the Distribution Date. CBI and Convergys shall adopt, and
shall use their reasonable best efforts to cause their insurers to adopt,
procedures to implement such asset transfers in a reasonable and expeditious
manner that is consistent with the underlying group life insurance contracts and
applicable legal requirements. Nothing in this Agreement shall be interpreted
to provide that any assets so transferred have reverted to CBI or Convergys.
5.2 VENDOR CONTRACTS.
(a) GROUP INSURANCE POLICIES.
(i) This Section 5.2(a) applies to group insurance policies
other than the group life insurance contract referred to in Section 5.1 ("Group
Insurance Policies").
(ii) To the extent that Convergys Individuals are covered under a
CBI Group Insurance Policy in existence as of the date of this Agreement, at the
request of Convergys, CBI shall use its reasonable best efforts to amend such
Group Insurance Policy to permit Convergys to participate in the terms and
conditions of such policy from immediately after the Distribution Date until the
expiration of the financial fee and rate guarantees in effect under such Group
Insurance Policy as of the Distribution Date.
(iii) Convergys' participation in the terms and conditions of
each such Group Insurance Policy shall be effectuated by obligating the
insurance company that issued such insurance policy to CBI to issue one or more
separate policies to Convergys. Such terms
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and conditions shall include the financial and termination provisions,
performance standards and target claims.
(iv) If CBI is not successful in negotiating policy provisions
that will permit compliance with Sections 5.2(a)(ii) and (iii) prior to the
Distribution Date, at the request of Convergys, CBI shall use its reasonable
best efforts to either continue to cover Convergys under its Group Insurance
Policies or procure a separate policy for Convergys until Convergys has procured
such separate insurance policy or made other arrangements for replacement
coverage, and Convergys shall bear all costs incurred by CBI to continue such
coverage.
(b) EFFECT OF CHANGE IN RATES. CBI and Convergys shall use their
reasonable best efforts to cause each of the insurance companies, HMOs,
point-of-service vendors and third-party administrators providing services and
benefits under the CBI Health and Welfare Plans and the Convergys Health and
Welfare Plans to maintain the premium and/or administrative rates based on the
aggregate number of participants in both the CBI Health and Welfare Plans and
the Convergys Health and Welfare Plans through the expiration of the financial
fee or rate guarantees in effect as of the Distribution Date under the
respective ASO Contracts, Group Insurance Policies, and HMO Agreements. To the
extent they are not successful in such efforts, CBI and Convergys shall each
bear the revised premium or administrative rates attributable to the individuals
covered by their respective Health and Welfare Plans.
5.3 CBI WORKERS' COMPENSATION PROGRAM.
(a) ADMINISTRATION.
(i) Through the Distribution Date or such earlier date as may be
agreed by CBI and Convergys, CBI shall continue to be responsible for the
administration of all claims and associated premiums, fees and other costs that
(1) are, or have been, incurred under the various arrangements established by
any CBI Entity to comply with the workers' compensation regulations of the
states where CBI and its affiliates conduct business (the "CBI WCP") before the
Distribution Date by Convergys Individuals and other employees and former
employees of the Convergys Entities through the Distribution Date ("Convergys
WCP Claims") and (2) have been historically administered by CBI or its insurance
company.
(ii) Effective immediately after the Distribution Date or such
earlier date as may be agreed by CBI and Convergys, (A) Convergys shall, to the
extent Legally Permissible (as defined below), be responsible for the
administration of all Convergys WCP Claims and associated premiums, fees and
other costs, whether those claims were previously administered by CBI or
Convergys, and (B) CBI shall be responsible for the administration of all
Convergys WCP Claims not administered by Convergys pursuant to clause (A),
whether previously administered by CBI or Convergys and whether under the
self-insured or insured portion of the CBI WCP. Any determination made, or
settlement entered into, by either party or its insurance company with respect
to Convergys WCP Claims for which it is administratively responsible shall be
final and binding upon the other party.
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(iii) Each party shall fully cooperate with the other with respect
to the administration and reporting of Convergys WCP Claims, the payment of
Convergys WCP Claims determined to be payable, and the transfer of the
administration of any Convergys WCP Claims to the other party as determined
under Section 5.3(a)(ii).
(iv) For purposes of this Section 5.3(a), "Legally Permissible"
shall be determined on a state-by-state basis, and shall mean that
administration of Convergys WCP Claims by Convergys both (A) is permissible
under the applicable state's workers' compensation laws (taking into account all
relevant facts, including that Convergys may have a self-insurance certificate
in that state) and (B) would not have a material adverse effect on CBI's
self-insurance certificate within that state. If it is determined that, in a
particular state, it is Legally Permissible for Convergys to administer
Convergys WCP Claims, then Convergys shall be responsible for the administration
of all Convergys WCP Claims incurred in that state, whether previously
administered by CBI, Convergys, or an insurance company. If it is determined
that, in a particular state, it is not Legally Permissible for Convergys to
administer Convergys WCP Claims, then CBI shall be responsible for the
administration of all Convergys WCP Claims incurred in that state, whether
previously administered by CBI, Convergys, or an insurance company.
(b) SELF-INSURANCE STATUS.
(i) CBI shall amend its certificates of self-insurance with
respect to workers' compensation and any applicable group insurance policies to
include Convergys until the Distribution Date, and Convergys shall fully
cooperate with CBI in obtaining such amendments. All costs incurred by CBI in
amending such certificates or group insurance policies, including filing fees,
adjustments of security and excess loss policies and amendment of safety
programs, shall be shared equally by CBI and Convergys. CBI shall use its
reasonable best efforts to obtain self-insurance status for workers'
compensation for Convergys effective immediately after the Distribution Date in
each jurisdiction in which Convergys conducts business and in which CBI is
self-insured, if CBI determines that such status is beneficial to Convergys.
Convergys hereby authorizes CBI to take all actions necessary and appropriate on
its behalf in order to obtain such self-insurance status.
(ii) CBI shall also arrange a contingent insured or other
arrangement for payment of workers' compensation claims, into which Convergys
shall enter if and to the extent that CBI fails to obtain self-insured status
for Convergys as provided in Section 5.3(b)(i), unless Convergys obtains another
such arrangement that is effective immediately after the Distribution Date, in
which event Convergys shall reimburse CBI for any expenses incurred by CBI in
procuring such contingent arrangement.
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(c) INSURANCE POLICY.
(i) In the event the workers' compensation insurance policy that
CBI maintains under the CBI WCP expires before the Distribution Date, CBI shall
use its reasonable best efforts to renew such policy and to cause the issuing
insurance company to issue a separate policy to Convergys. If CBI is not able
to cause such insurance company to issue such separate insurance policy,
Convergys shall use its reasonable best efforts to procure a separate policy
from another insurance company or to obtain self-insurance status, and CBI shall
use its reasonable best efforts to continue to cover Convergys under its renewed
policy until the earlier of (A) the date on which Convergys' application for
such self-insurance status is approved or (B) the date on which a separate
insurance policy is procured. Convergys shall compensate CBI for all costs
incurred by CBI to continue such coverage. Any claims incurred by Convergys
Individuals after the Distribution Date that will be covered under and during
any such continuation of coverage shall be treated as being incurred before the
Distribution Date for purposes of determining the party responsible for the
administration of benefits.
(ii) CBI shall use its reasonable best efforts to maintain the
premium rates for all workers' compensation insurance policies for both CBI and
Convergys in effect for periods through the Distribution Date to be based on the
aggregate number of employees covered under the workers' compensation insurance
policies of both CBI and Convergys. Any premiums due under the separate
workers' compensation insurance issued to Convergys shall be payable by
Convergys.
5.4 CONTINUANCE OF ELECTIONS, CO-PAYMENTS AND MAXIMUM BENEFITS.
(a) The transfer or other movement of employment from CBI to
Convergys at any time before the Distribution Date shall constitute a "status
change" under the CBI Health and Welfare Plans or the Convergys Health and
Welfare Plans.
(b) Convergys shall cause the Convergys Health and Welfare Plans to
recognize and give credit for (i) all amounts applied to deductibles,
out-of-pocket maximums, and other applicable benefit coverage limits with
respect to which such expenses have been incurred by Convergys Individuals under
the CBI Health and Welfare Plans for the remainder of the year in which the
Distribution occurs, and (ii) all benefits paid to Convergys Individuals under
the CBI Health and Welfare Plans for purposes of determining when such persons
have reached their lifetime maximum benefits under the Convergys Health and
Welfare Plans.
(c) Convergys shall provide coverage to Convergys Individuals under
the Convergys Group Life Program without the need to undergo a physical
examination or otherwise provide evidence of insurability.
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ARTICLE VI
EXECUTIVE BENEFITS AND NON-EMPLOYEE DIRECTOR BENEFITS
6.1 LONG TERM INCENTIVE PLANS. For purposes of this Agreement, "CBI LTIP"
means any of the CBI 1988 Long Term Incentive Plan, the CBI 1989 Stock Option
Plan, the CBI 1997 Long Term Incentive Plan, the CBI 1988 Stock Option Plan for
Non-Employee Directors and the CBI 1997 Stock Option Plan for Non-Employee
Directors and "Convergys LTIP" means the Convergys Corporation 1998 Long Term
Incentive Plan.
(a) STOCK OPTIONS. For purposes of this Agreement, "CBI Option"
means an option to purchase CBI common shares pursuant to a CBI LTIP and
"Convergys Option" means an option to purchase Convergys common shares pursuant
to the Convergys LTIP. At the time of the Distribution, each holder of a CBI
Option shall receive a Convergys Option to purchase a number of Convergys common
shares equal to the number of CBI common shares subject to the CBI Option. Each
Convergys Option shall have the same terms and conditions (including vesting) as
the CBI Option with respect to which it is granted, except that termination of
employment shall mean (i) in the case of a CBI employee or director, termination
of employment with CBI and (ii) in the case of a Convergys employee or director,
termination of employment with Convergys. Each CBI Option shall be amended to
provide that, in the case of a Convergys employee or director, termination of
employment shall mean termination of employment with Convergys. The exercise
price per share of each CBI Option (the "CBI Exercise Price") shall be reduced,
and the exercise price per share of the associated Convergys Option (the
"Convergys Exercise Price") shall be set so that (i) the sum of the CBI Exercise
Price (after the reduction provided herein) and the Convergys Exercise Price is
equal to the CBI Exercise Price (before the reduction provided herein) and (ii)
the ratio of the CBI Exercise Price (after the reduction provided herein) to the
Convergys Exercise Price is equal to the ratio of the average of the daily high
and low per-share prices of CBI common shares on the New York Stock Exchange
("NYSE") during each of the five trading days starting on the ex-dividend date
for the Distribution to the average of the daily high and low per-share prices
of Convergys common shares on the NYSE during each of the five trading days
starting on the ex-dividend date for the Distribution. Notwithstanding the
foregoing, in the event that the number of Convergys common shares to be
distributed to each CBI shareholder at the time of the Distribution with respect
to each CBI common share owned by the shareholder on the record date for the
Distribution is greater or less than one, the number of Convergys common shares
represented by each Convergys Option and the Convergys Exercise Price shall be
adjusted to reflect such difference.
(b) RESTRICTED STOCK. For purposes of this Agreement, "CBI
Restricted Stock" means CBI common shares issued subject to restrictions
pursuant to a CBI LTIP and "Convergys Restricted Stock" means Convergys common
shares issued subject to restrictions pursuant to the Convergys LTIP. At the
time of the Distribution, the Convergys common shares distributable to each
holder of CBI Restricted Stock shall be issued pursuant to the Convergys LTIP
and shall be subject to the same restrictions, terms and conditions (including
vesting) as the CBI Restricted Stock with respect to which they are distributed,
except that termination of employment shall mean (i) in the case of a CBI
employee, termination of employment with CBI
11
and (ii) in the case of a Convergys employee, termination of employment with
Convergys. Each CBI Restricted Stock grant shall be amended to provide that, in
the case of a Convergys employee or director, termination of employment shall
mean termination of employment with Convergys.
6.5 CBI EXECUTIVE DEFERRED COMPENSATION PLAN. Immediately after the
Distribution Date, the accrued benefit of any Convergys Individual in the CBI
Executive Deferred Compensation Plan shall be transferred to and assumed by the
Convergys Executive Deferred Compensation Plan.
6.6 DEFERRED COMPENSATION PLAN FOR OUTSIDE DIRECTORS. Immediately after
the Distribution Date, the accrued benefit of any Convergys Non-Employee
Director in the CBI Deferred Compensation Plan for Outside Directors (the "CBI
Directors Plan") shall be transferred to and assumed by the Convergys Deferred
Compensation Plan for Non-Employee Directors (the "Convergys Directors Plan").
The Convergys Directors Plan shall be, with respect to the Convergys
Non-Employee Directors who participated in the CBI Director Plan, in all
respects the successor in interest to, and shall not provide benefits that
duplicate benefits provided by, the CBI Directors Plan.
6.7 CONSENTS AND NOTIFICATIONS. CBI and Convergys shall use their
reasonable best efforts to obtain, or cause to be obtained, to the extent
necessary, the written consent of each Convergys Individual and Convergys
Director who is a party to an individual agreement and/or a participant in the
CBI Executive Deferred Compensation Plan, the CBI Long Term Plan, or the CBI
Deferred Compensation Plan for Outside Directors, to the treatment of such
individual agreement or plan, as applicable, in accordance with this Article VI,
including the assumption by Convergys and the Convergys Entities, of sole
responsibility for, and the release of the CBI Entities from, all liabilities
thereunder; provided, that no failure to seek or to obtain any such consent
shall have any effect upon the obligations of the Convergys Entities with
respect to such liabilities.
6.8 NON-COMPETITION AND CONFIDENTIALITY.
(a) NON-COMPETITION AGREEMENTS AND POLICIES. Prior to the
Distribution Date, CBI and Convergys shall take such action as may be necessary
to ensure that, during the 18-month period commencing on the Distribution Date,
(i) employment with a Convergys Entity shall not be deemed to be in violation of
any CBI Entity non-competition policy or agreement and (ii) employment with any
CBI Entity shall not be deemed to be in violation of any Convergys Entity
non-competition policy or agreement.
(b) CONFIDENTIALITY AND PROPRIETARY INFORMATION. No provision of
this Agreement shall be deemed to release any individual for any violation of
any agreement or policy of a CBI Entity or Convergys Entity pertaining to
confidential or proprietary
12
information of a CBI Entity or Convergys, or otherwise relieve any individual of
his or her obligations under such agreement or policy.
6.9 CORPORATE-OWNED LIFE INSURANCE. CBI shall retain all corporate-owned
life insurance policies that were purchased by CBI in 1986, including those
policies insuring Convergys Individuals. CBI shall continue, liquidate and/or
administer such corporate-owned life insurance policies on terms and conditions
agreed to by CBI and Convergys. Convergys and CBI shall share all information
that may be necessary to identify the individuals insured by the corporate-owned
life insurance policies owned by CBI and to determine when and whether such
individuals are deceased.
6.10 MANAGEMENT INCENTIVE COMPENSATION PAYMENTS. Effective as of the
Distribution Date, Convergys shall assume all liabilities to Convergys
Individuals for bonuses under CBI's 1998 bonus program and all liabilities to
Convergys Individuals for performance awards under CBI's Senior Management Long
Term Incentive Plan for the three-year performance periods commencing in 1996,
1997 and 1998. CBI and Convergys shall determine (a) the extent to which
established performance criteria (after taking into account the effects of the
initial public offering of Convergys common shares and the Distribution) have
been met and (b) the payment level for each Convergys Individual.
ARTICLE VII
GENERAL AND ADMINISTRATIVE
7.1 PAYMENT OF LIABILITIES, PLAN EXPENSES AND RELATED MATTERS.
(a) ACTUARIAL AND ACCOUNTING METHODOLOGIES AND ASSUMPTIONS. For
purposes of this Agreement, unless specifically indicated otherwise: (i) all
actuarial methodologies and assumptions used for a particular Plan shall (except
to the extent otherwise determined by CBI and Convergys to be reasonable or
necessary) be substantially the same as those used in the actuarial valuation of
that Plan used to determine minimum funding requirements under ERISA Section 302
and Code Section 412 for 1998, or, if such Plan is not subject to such minimum
funding requirements, used to determine CBI's deductible contributions under
Code Section 419A or, if such Plan is not subject to Code Section 419A, the
assumptions used to prepare CBI's audited financial statements for 1997, as the
case may be; and (ii) the value of plan assets shall be the value established
for purposes of audited financial statements of the relevant plan or trust for
the period ending on the date as of which the valuation is to be made.
Convergys liabilities relating to, arising out of or resulting from the status
of the Convergys Entities as participating companies in CBI and all accruals
relating thereto shall be determined using actuarial assumptions and
methodologies (including with respect to demographics, medical trends and other
relevant factors) in a manner consistent with CBI's practice as in effect on the
effective date of this Agreement and in conformance with the generally accepted
actuarial principles promulgated by the American Academy of Actuaries, the Code,
ERISA, and/or generally accepted accounting principles, as applicable, in each
case consistent with past CBI
13
practice. Except as otherwise contemplated by this Agreement or as required by
law, all determinations as to the amount or valuation of any assets of or
relating to any CBI Plan (whether or not such assets are being transferred to a
Convergys Plan) shall be made pursuant to procedures to be established by the
parties before the Distribution Date.
(b) PAYMENT OF LIABILITIES; DETERMINATION OF EMPLOYEE STATUS.
Convergys shall pay directly, or reimburse CBI promptly for, all liabilities
assumed by it pursuant to this Agreement, including all compensation payable to
Convergys Individuals for services rendered to a Convergys Entity (i) after the
date of this Agreement, (ii) while in the employ of a CBI Entity and (iii)
before becoming a Convergys Individual. Determinations of what entity employs or
employed a particular individual shall be made by reference to the applicable
legal entity and/or other appropriate accounting code, to the extent possible.
7.2 NON-TERMINATION OF EMPLOYMENT; NO THIRD-PARTY BENEFICIARIES. No
provision of this Agreement shall be construed to create any right, or
accelerate entitlement, to any compensation or benefit whatsoever on the part of
any Convergys Individual or other future, present or former employee of any CBI
Entity or Convergys Entity under any CBI Plan or Convergys Plan or otherwise.
Without limiting the generality of the foregoing: (i) neither the Distribution
nor the termination of the participating company status of a Convergys Entity
shall cause any employee to be deemed to have incurred a termination of
employment which entitles such individual to the commencement of benefits under
any of the CBI Plans (other than the CBI ESOP), any of the Convergys Plans, or
any of the Individual Agreements; and (ii) except as expressly provided in this
Agreement, nothing in this Agreement shall preclude Convergys, at any time after
the Distribution Date, from amending, merging, modifying, terminating,
eliminating, reducing, or otherwise altering in any respect any Convergys Plan,
any benefit under any Convergys Plan or any trust, insurance policy or funding
vehicle related to any Convergys Plan.
7.3 BENEFICIARY DESIGNATIONS. All beneficiary designations made by
Convergys Individuals for CBI Plans shall be transferred to and be in full force
and effect under the corresponding Convergys Plans until such beneficiary
designations are replaced or revoked by the Convergys Individual who made the
beneficiary designation.
7.4 REQUESTS FOR IRS RULINGS AND DOL OPINIONS. The parties shall
cooperate fully with each other on any issue relating to the transactions
contemplated by this Agreement for which either party elects to seek a
determination letter or private letter ruling from the IRS or an advisory
opinion from the Department of Labor.
7.5 FIDUCIARY STATUS. CBI and Convergys each acknowledges that actions
required to be taken pursuant to this Agreement may be subject to fiduciary
duties or standards of conduct under ERISA or other applicable law, and no party
shall be deemed to be in violation of this Agreement if it fails to comply with
any provisions hereof based upon its good faith determination that to do so
would violate such a fiduciary duty or standard.
14
7.6 CONSENT OF THIRD PARTIES. If any provision of this Agreement is
dependent on the consent of any third party and such consent is withheld, CBI
and Convergys shall use their reasonable best efforts to implement the
applicable provisions of this Agreement to the full extent practicable. If any
provision of this Agreement cannot be implemented due to the failure of such
third party to consent, CBI and Convergys shall negotiate in good faith to
implement the provision in a mutually satisfactory manner. The phrase
"reasonable best efforts" as used herein shall not be construed to require the
incurrence of any non-routine or unreasonable expense or liability or the waiver
of any right.
ARTICLE VIII
MISCELLANEOUS
8.1 EFFECT IF DISTRIBUTION DOES NOT OCCUR. If the Distribution does not
occur, then all actions and events that are, under this Agreement, to be taken
or occur effective as of the Distribution Date, immediately after the
Distribution Date, or otherwise in connection with the Distribution, shall not
be taken or occur except to the extent specifically agreed by Convergys and CBI.
8.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship set forth herein.
8.3 AFFILIATES. Each of CBI and Convergys shall cause to be performed,
and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Agreement to be performed by a CBI Entity or a
Convergys Entity, respectively.
8.4 GOVERNING LAW. To the extent not preempted by applicable federal law,
this Agreement shall be governed by, construed and interpreted in accordance
with the laws of the State of Ohio, irrespective of the choice of law
principles of the State of Ohio, as to all matters, including matters of
validity, construction, effect, performance and remedies.
8.5 ARBITRATION. Any dispute, controversy or claim arising out of or in
connection with this Agreement (including any questions of fraud or questions
concerning the validity and enforceability of this Agreement or any of the
rights herein) shall be determined and settled in accordance with Article 11 of
the Plan of Reorganization.
15
IN WITNESS WHEREOF, the parties have caused this Employee Benefits
Agreement to be duly executed as of the day and year first above written.
CINCINNATI XXXX INC.
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------------
Xxxx X. XxXxxxxxx, President
and Chief Executive Officer
CONVERGYS CORPORATION
By: /s/ Xxxxx X. Xxx
------------------------------------------
Xxxxx X. Xxx, President
and Chief Executive Officer
16
SUMMARY OF CBI FUNDING POLICY
METHODOLOGY FOR PENSION BENEFITS
Establishment and periodical evaluation of the CBI funding policy require
the determination of current asset and liability values, as well as simulating
the financial operation of the pension plans in future years. A financial
modeling system described below is used to develop a distribution of outcomes
for the financial status of the pension plans in future periods.
Accrued benefit and total projected benefit payment liabilities are
actuarially calculated on the basis of existing plan obligations, and future
liabilities are calculated by projecting future plan operation and experience,
in accordance with reasonable actuarial methods and assumptions, over specified
time periods. The determination of the current market value of plan assets is
based upon market quotations of such values and upon professionally determined
appraisal values. The determination of the distribution of potential future
asset values for the plans is based upon assumed rates of return for each such
asset class, as well as the variability of those returns (standard deviation)
and the relative relationships across each asset class (correlation
coefficient). Once a distribution of possible future asset values has been
determined, the funding policy can be evaluated by determining the probability
of there being adequate assets to meet pension liabilities in the future periods
(e.g., 75% of the possible asset return scenarios in ten years will provide
adequate assets to meet the actuarially determined pension liabilities). The
expected rate of return for each principal asset class, as well as the
mathematical factors used in adjusting each rate of return, are specified below.
The computations based on this Schedule are made using the following
assumptions:
- All actuarial assumptions, including assumptions related to accrued
liability, are identical to the assumptions to be used in the
determination of required minimum contributions under ERISA for the
plan year beginning on January 1, 1998.
- Level future eligible employee populations are assumed.
- No future employer contributions are assumed.
- No transfers in or out of the Plan of liabilities or assets are
assumed.
- Only employees of companies participating in the plan before
January 1, 1998 are taken into account.
- All demographic experience is assumed to occur in accordance with the
actuarial assumptions used to determine the minimum required
contributions under ERISA for the plan year beginning January 1, 1998.
17
- The Wilshire PENSIM model, incorporating ASA system enhancements, with
benefits and present values determined by ASA in accordance with the
assumptions and methods specified in this Schedule are used in the
application of the CBI funding policy requirements.
ASSET CLASS EXPECTED RETURN STAND. DEVIATION
Large Cap Equities 9.50% 14.86%
Small Cap Equities 11.50% 23.01%
CBI Shares 10.50% 26.81%
International Equities 11.00% 18.87%
Renaissance 8.00% 12.00%
Domestic Bonds 6.00% 8.23%
Convertible Bonds 7.50% 12.82%
High-Yield Bonds 7.00% 8.39%
International Bonds 6.00% 12.42%
Real Estate 6.00% 6.93%
Venture Capital 12.00% 24.54%
Cash 5.00% 2.55%
18
CORRELATION COEFFICIENTS
LRG SML HIGH
ASSET CLASS CAP CAP CBI INTL DMST CONV YIELD INTL REAL VENT
EQUITY EQUITY SHRS EQUIT XXX XXXX BOND BOND BOND ESTAT CAP CASH
Large Cap
Equities 1.00
Small Cap
Equities 0.82 1.00
CBI Shares 0.40 0.34 1.00
International
Equities 0.46 0.40 0.20 1.00
Renaissance 0.66 0.56 0.35 0.35 1.00
Domestic
Bonds 0.37 0.24 0.30 0.25 0.59 1.00
Convertible
Bonds 0.88 0.79 0.39 0.44 0.64 0.37 1.00
High-Yield
Bonds 0.50 0.42 0.25 0.28 0.45 0.42 0.48 1.00
International
Bonds -0.04 -0.08 0.04 0.01 0.11 0.31 -0.04 0.07 1.00
Real Estate -0.06 -0.03 0.01 -0.12 -0.09 -0.21 -0.05 -0.14 -0.09 1.00
Venture
Capital 0.75 0.68 0.31 0.37 0.51 0.24 0.72 0.39 -0.06 -0.04 1.00
Cash -0.04 -0.03 0.07 -0.11 0.02 -0.03 -0.02 -0.09 -0.02 0.68 -0.04 1.00
