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
