1
Exhibit 10.2
EMPLOYEE BENEFITS AGREEMENT
BETWEEN
CINCINNATI XXXX INC.
AND
CONVERGYS CORPORATION
2
TABLE OF CONTENTS
Page
----
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
i
3
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT, dated as of _____________, 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.
4
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
2
5
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.
3
6
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. [To Be Determined]
4
7
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
5
8
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 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
6
9
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's 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 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
7
10
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.
(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
8
11
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.
(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's 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 effort 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
9
12
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.
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
10
13
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 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.
11
14
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 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. 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.
12
15
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 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.
(c) STOCK AWARD CHARGEBACKS. Convergys shall pay CBI the
following amounts: (i) with respect to each CBI Option that is exercised by a
Convergys Individual at any time after the Distribution Date, the Spread on such
Option; (ii) with respect to the vesting at any time after the Distribution Date
of CBI Restricted Stock held by a Convergys Individual, the Value of such CBI
Restricted Stock on the date of such vesting. CBI shall pay Convergys the
following amounts: (i) with respect to each Convergys Option that is exercised
by a CBI Individual at any time after the Distribution Date, the Spread on such
Option; (ii) with respect to the vesting at any time after the Distribution Date
of Convergys Restricted Stock, the
13
16
Value of such Convergys Restricted Stock on the date of such vesting. For
purposes of this Agreement, "CBI Individual" means an individual who is employed
by a CBI Entity immediately after the Distribution Date, the "Spread" on an
option means the excess, if any, of the Value of the purchased shares on the
date of exercise of such option or the date of such purchase, as applicable,
over the price paid for such shares. The "Value" of a CBI or Convergys common
share on a given date means the average of the high and the low per-share prices
of such Common Shares on the NYSE on such date, or if there is no trading of
such common shares on the NYSE on such date, on the most recent previous date on
which such trading takes place.
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.
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
14
17
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
laws 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
18
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:
---------------------------------
Xxxx X. XxXxxxxxx, President
and Chief Executive Officer
CONVERGYS CORPORATION
By:
---------------------------------
Xxxxx X. Xxx, President
and Chief Executive Officer
16
