Ohio | 31-1598292 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) | |
201 East Fourth Street, Cincinnati, OH | 45202 | |
(Address of Principal Executive Offices) | (Zip Code) |
Title of securities to be registered | Amount to be registered(1)(2) | Proposed maximum offering price per share(3) | Proposed maximum aggregate offering price | Amount of registration fee |
Common shares, no par value | 11,578,435 | $22.555 | $261,151,601 | $32,514 |
(1) | Includes (a) 3,000,000 common shares, no par value (“Common Shares”), that are reserved for issuance under the Convergys Corporation 2018 Long-Term Incentive Plan (the “Plan”), plus (b) 6,110,423 Common Shares previously available for grant under the Convergys Corporation Amended and Restated Long Term Incentive Plan (the “Existing Plan”), which will be reserved for issuance under the Plan, plus (c) 2,468,012 Common Shares subject to outstanding awards under the Existing Plan as of April 22, 2018, which, if such awards are forfeited, canceled or terminated without having become vested, will be reserved for issuance under the Plan. |
(2) | This Registration Statement also covers an indeterminable number of additional Common Shares as may hereinafter be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
(3) | Estimated solely for calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), based on the average of the high and low sales prices of the Common Shares as reported on the New York Stock Exchange on May 9, 2018. |
• | The Company’s Annual Report on Form 10-K for the year ended December 31, 2017; |
• | The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2018; |
• | The Company’s Current Reports on Form 8-K filed with the SEC on January 3, 2018, January 25, 2018 and April 30, 2018; and |
• | The description of the Common Shares contained in the Company’s Registration Statement on Form 8-A, filed with the SEC on August 6, 1998, as amended. |
3.1 | Amended Articles of Incorporation of the Company. (Incorporated by reference from Exhibit 3.1 to the Company’s Form 10-Q filed on May 5, 2010.) | |
3.2 | Amended and Restated Code of Regulations of the Company. (Incorporated by reference from Exhibit 3.1 to the Company’s Form 8-K filed on May 2, 2011.) | |
5.1* | Opinion of Thompson Hine LLP. | |
10.1 | Convergys Corporation 2018 Long-Term Incentive Plan. (Incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed on April 30, 2018.) | |
10.2* | Form of Time-Based Restricted Stock Unit Award Agreement (Employees) under the Convergys Corporation 2018 Long-Term Incentive Plan. | |
10.3* | Form of Performance-Based Restricted Stock Unit Award Agreement (Employees) under the Convergys Corporation 2018 Long-Term Incentive Plan. | |
10.4* | Form of Time-Based Restricted Stock Unit Award Agreement (Non-Employee Directors) under the Convergys Corporation 2018 Long-Term Incentive Plan. | |
23.1* | Consent of Thompson Hine LLP (included in Exhibit 5.1). | |
23.2* | Consent of Ernst & Young LLP. | |
24.1* | Powers of Attorney (included on the signature pages hereto). |
(a) | The undersigned Registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(b) | The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement, if any, shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 6 of this Registration Statement, or otherwise (other than insurance), the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a trustee, director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
Signature | Title | |
/s/ Andrea J. Ayers | ||
Andrea J. Ayers | Chief Executive Officer and Director (Principal Executive Officer) | |
/s/ Andre S. Valentine | ||
Andre S. Valentine | Chief Financial Officer (Principal Financial Officer) | |
/s/ Taylor C. Greenwald | ||
Taylor C. Greenwald | Senior Vice President and Controller (Chief Accounting Officer) | |
/s/ Cheryl K. Beebe | ||
Cheryl K. Beebe | Director | |
/s/ Richard R. Devenuti | ||
Richard R. Devenuti | Director | |
/s/ Jeffrey H. Fox | ||
Jeffrey H. Fox | Chairman | |
/s/ Joseph E. Gibbs | ||
Joseph E. Gibbs | Director | |
/s/ Joan E. Herman | ||
Joan E. Herman | Director |
/s/ Robert E. Knowling, Jr. | ||
Robert E. Knowling, Jr. | Director | |
/s/ Thomas L. Monahan III | ||
Thomas L. Monahan III | Director | |
/s/ Ronald L. Nelson | ||
Ronald L. Nelson | Director |
3.1 | ||
3.2 | ||
5.1* | ||
10.1 | ||
10.2* | ||
10.3* | ||
10.4* | ||
23.1* | ||
23.2* | ||
24.1* |
a. | Your right to receive any Shares that are the subject of this Award that have not yet been delivered (and any dividend equivalents that have not yet been paid) shall be forfeited automatically and without further notice if you cease to be an employee of the Company and its affiliates prior to a Vest Date for any reason other than death, Disability, or involuntary termination without Cause. For purposes of this Award Agreement: |
(i) | “Disability” has the same meaning as in the Company’s long-term disability plan; and |
(ii) | “Cause” means a determination by the Company that you have been involved in fraud, misappropriation, embezzlement, commission of a crime or an act of moral turpitude, or have violated the Code of Business Conduct, recklessly or willfully injured an employee, company property, business, or reputation, or have acted recklessly in the performance of your duties. |
b. | If the Company determines that you engaged in any Detrimental Activity during your employment with Convergys Corporation or during the two-year period following the termination of such employment for any reason, (i) to the extent all or some of the Shares (and dividend equivalents) subject to this Award have not yet been delivered or paid, your right to receive such Shares (and dividend equivalents) shall be forfeited and (ii) to the extent that Shares (and dividend equivalents) have been delivered or paid to you pursuant to this Award, the Company, in its sole discretion, may require you to pay back to it an amount equal to the income recognized for federal income tax purposes, as reflected on form W-2, by reason of the issuance of such Shares (and payment of dividend equivalents) to you, provided that such Shares (and dividend equivalents) were delivered or paid within the six-month period immediately preceding the termination of your employment or at any time following your termination of employment. For purposes of this Section 2b, “Detrimental Activity” shall include: (1) disclosing proprietary, confidential or trade |
c. | Without limitation of the foregoing and for the avoidance of doubt, this Award shall be subject to the terms and conditions of the Company’s Recoupment Policy, effective as of January 25, 2017, as well as any clawback or recoupment policy that is adopted, amended, modified or supplemented by the Company to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act and regulations promulgated thereunder by the Securities and Exchange Commission, other laws or the regulations of the New York Stock Exchange and that, by its terms, is applicable to you as an officer or employee of the Company. |
a. | “Good Cause” means your conviction of, or plea of nolo contendere to, a felony or misdemeanor involving moral turpitude; your willful misconduct resulting in material harm to the Company and its affiliates (or any successor thereto); your willful breach of your duties or responsibilities; or your fraud, embezzlement, theft or dishonesty against the Company or any of its affiliates (or any successor thereto), resulting in material harm to the Company and its affiliates (or any successors thereto); |
b. | “Good Reason” means actions taken by the Company resulting in a material negative change in the employment relationship. For these purposes, a “material negative change in the employment relationship” shall include: |
(i) | your assignment to any duties materially inconsistent with your position (including titles and reporting requirements), authority, duties or responsibilities as in effect immediately prior to a Change of Control or as subsequently enhanced, or any other material diminution in such position, authority, duties or responsibilities (whether or not occurring solely as a result of the Company’s ceasing to be a publicly traded entity); |
(ii) | any material reduction in your annual base salary, short-term incentive opportunities or long-term incentive opportunities from those in effect immediately prior to a Change of Control; |
(iii) | any material reduction in your aggregate employee benefits from those in effect immediately prior to a Change of Control; |
(iv) | the relocation of your principal location of employment by more than 50 miles; or |
(v) | any failure by the Company to cause a successor to assume this Award Agreement. |
1. | Earning of Award. |
a. | The Company shall credit to your account a number of common shares, without par value, of the Company (“Shares”) equal to a percentage of the target number of Shares indicated on your Notice of Performance Restricted Stock Unit Award form (“Notice of Award”) based on the factors set forth below, or such greater or lesser number of Shares as may be determined by the Compensation Committee, in its discretion, in accordance hereof. |
b. | During each calendar year during the period commencing January 1, 20[__] and ending December 31, 20[__] (the “Performance Period”), the Compensation Committee shall establish performance objectives for each such calendar year (at threshold, target, maximum and such intermediate levels as determined by the Compensation Committee) based on the Company’s achievement of specified levels of [______________] for each such calendar year, as determined by the Compensation Committee in its sole and absolute discretion. The performance objectives established by the Compensation Committee pursuant to this Section 1(b) shall be set forth in Attachment A hereto, as amended from time to time and as set forth on the website of the Company’s third party plan administrator (“Attachment A”). |
c. | It is the current intention of the Compensation Committee that it will determine the number of Shares, if any, to be credited to your account under this Award Agreement based upon the extent to which the Company achieves the cumulative [____________] objectives for the three years during the Performance Period, as determined in accordance with the performance matrix set forth in Attachment A. Notwithstanding the foregoing, the Compensation Committee reserves the right to deviate from such approach and may exercise its discretion to increase or reduce the number of Shares, if any, to be credited to your account under this Award Agreement based on such other factors as the Compensation Committee, in its sole and absolute discretion, determines to be appropriate. |
d. | The Compensation Committee may, in its sole and absolute discretion, modify the performance objectives established pursuant to this Section 1, or the related threshold, target and maximum achievement levels, in whole or in part, as the Compensation Committee deems appropriate and equitable to reflect a change in the business, operations, corporate structure or capital structure of the Company or its affiliates, the manner in which the Company or its affiliates conduct business, or as the Compensation Committee otherwise deems appropriate. |
e. | Following the end of the Performance Period, the Compensation Committee shall determine in writing the number of Shares, if any, earned pursuant to this Section 1 and the final number of |
3. | Forfeiture of Award. |
a. | Your right to receive any Shares that are the subject of this Award that have not yet been delivered (and any dividend equivalents that have not yet been paid), shall be forfeited automatically and without further notice if you cease to be an employee of the Company and its affiliates prior to the Vest Date for any reason other than death, Disability, Retirement or involuntary termination without Cause. For purposes of this Award Agreement: |
b. | If the Company determines that you engaged in any Detrimental Activity during your employment with Convergys Corporation or during the two-year period following the termination of such employment for any reason, (i) to the extent the Shares (and dividend equivalents) subject to this Award have not yet been delivered or paid, your right to receive such Shares (and dividend equivalents) shall be forfeited and (ii) to the extent that Shares (and dividend equivalents) have been delivered or paid to you pursuant to this Award, the Company, in its sole discretion, may require you to pay back to it an amount equal to the income recognized for federal income tax purposes, as reflected on form W-2, by reason of the issuance of such Shares (and payment of dividend equivalents) to you, provided that such Shares (and dividend equivalents) were delivered or paid within the six-month period immediately preceding the termination of your employment or at any time following your termination of employment. For purposes of this Section 3(b), “Detrimental Activity” shall include: (1) disclosing proprietary, confidential or trade secret information; (2) becoming involved in any business activity in competition with Convergys Corporation in the geographical area where Convergys Corporation is engaged in such business activity; (3) interfering with Convergys Corporation’s relationships with any person or entity or attempting to divert or change any such relationship to the detriment of Convergys Corporation or the benefit of any other person or entity; (4) failing to disclose and assign to Convergys Corporation any ideas, inventions, discoveries and other developments conceived by you during your employment, whether or not during working hours, which are within the scope of or related |
c. | Without limitation of the foregoing and for the avoidance of doubt, this Award shall be subject to the terms and conditions of the Company’s Recoupment Policy, effective as of January 25, 2017, as well as any clawback or recoupment policy that is adopted, amended, modified or supplemented by the Company to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act and regulations promulgated thereunder by the Securities and Exchange Commission, other laws or the regulations of the New York Stock Exchange and that, by its terms, is applicable to you as an officer or employee of the Company. |
4. | Certain Events During the Performance Period. |
a. | If you cease to be an employee of the Company and its affiliates prior to the end of the Performance Period and prior to a Change of Control due to death or Disability, then (i) the number of Shares that are covered by this Award shall be automatically reduced to a number of Shares (the “Adjusted Shares”) that bears the same ratio to the target number of Shares indicated on your Notice of Award as (A) the number of full calendar months from the first day of the Performance Period through the date your employment terminates bears to (B) 36, and (ii) notwithstanding Section 1 hereof, the Adjusted Shares will be delivered within 30 days following the date your employment terminates (together with dividend equivalents as provided pursuant to Section 6 of this Award Agreement), except as otherwise provided pursuant to Section 10 below. The remaining Shares shall be forfeited automatically and without further notice as of the date of your termination. |
b. | If you cease to be an employee of the Company and its affiliates prior to the end of the Performance Period and prior to a Change of Control due to Retirement or involuntary termination without Cause, then (i) the number of Shares that are covered by this Award shall be automatically reduced to the Adjusted Shares, and (ii) you shall be credited with a number of Shares equal to such percentage (up to [___]%) of the Adjusted Shares as may be determined by the Compensation Committee, in its discretion, in accordance with Section 1 of this Award Agreement, which percentage the Compensation Committee intends to determine based upon the Company’s achievement of the cumulative [____________] objectives for the three years during the Performance Period. Any Shares determined not to be payable to you by the Compensation Committee after the exercise of its discretion pursuant to Section 1 hereof shall be forfeited automatically and without further notice. Shares earned, if any, pursuant to the provisions of this section 4(b) will be delivered following the end of the Performance Period and on or prior to March 15, 20[__] (together with dividend equivalents as provided pursuant to Section 6 of this Award Agreement), except as otherwise provided pursuant to Section 10 below. |
c. | The provisions of this Section 4(c) shall control, notwithstanding any provision of Section 14 of the Plan to the contrary. If, prior to the Vest Date and while you are employed by the Company and its affiliates, a Change of Control of the Company occurs, then, notwithstanding Section 1 hereof, the number of Shares that are covered by this Award shall be adjusted by the Compensation Committee to equal a number of Shares (the “COC Adjusted Shares”) determined as follows: (x) if the Change of Control occurs on or prior to December 31, 20[__], the COC Adjusted Shares shall equal the target number of Shares indicated on your Notice of Award; or (y) if the Change of Control occurs after December 31, 20[__], the COC Adjusted Shares shall equal the number of Shares that would have been earned pursuant to this Award, determined based upon the Company’s actual cumulative [____________] performance for the calendar year(s) that ended on or prior to the date of the Change of Control, as compared to the cumulative [____________] performance objectives set forth in Attachment A for such year(s). In the event that this Section 4(c) applies, you will not be entitled to receive any Shares pursuant to this Award (and such Shares will be cancelled) and, subject to your continued employment as provided herein and in lieu of such Shares, you will be entitled to cash in an amount equal to the product of the number of COC Adjusted Shares, multiplied by the average of the opening and closing prices per Share on the New York Stock Exchange on the trading day immediately preceding the date of the Change of Control (the “Dollar Amount”). The Dollar Amount shall be paid to you without interest or earnings (but together with dividend equivalents as provided in Section 6 of this Award Agreement) on the Vest Date, provided that you remain an employee of the Company and its affiliates (or any successor thereto) on the Vest Date. Except as otherwise provided in this Section 4(c), the Dollar Amount (and any related dividend equivalents) shall be forfeited automatically and without further notice if you cease to be an employee of the Company and its affiliates (or any successor thereto) prior to the Vest Date. |
i. | “Good Cause” means your conviction of, or plea of nolo contendere to, a felony or misdemeanor involving moral turpitude; your willful misconduct resulting in material harm to the Company and its affiliates (or any successor thereto); your willful breach of your duties or responsibilities; or your fraud, embezzlement, theft or dishonesty against the Company or any of its affiliates (or any successor thereto), resulting in material harm to the Company and its affiliates (or any successors thereto). |
ii. | “Good Reason” means actions taken by the Company resulting in a material negative change in the employment relationship. For these purposes, a “material negative change in the employment relationship” shall include: |
(B) | any material reduction in your annual base salary, short-term incentive opportunities or long-term incentive opportunities from those in effect immediately prior to a Change of Control; |
(C) | any material reduction in your aggregate employee benefits from those in effect immediately prior to a Change of Control; |
(D) | the relocation of your principal location of employment by more than 50 miles; or |
(E) | any failure by the Company to cause a successor to assume this Award Agreement. |
[________] Performance Objectives | 20[__] [________] Objectives | 20[__] [________] Objectives | 20[__] [________] Objectives | Cumulative [________] Objectives (20[__] - 20[__]) | Percentage of Shares Earned Based on [________] Performance |
Threshold | $[___] | $TBD | $TBD | $TBD | [__]% |
Target | $[___] | $TBD* | $TBD* | $TBD* | [__]% |
Maximum | $[___] | $TBD* | $TBD* | $TBD* | [__]% |
a. | you will be considered to “separate from service” with the Company and its affiliates on the date you have ceased to be a member of the Board and any contract or contracts under which all of your services for the Company and its affiliates are performed have expired (provided that the expiration of such contract or contracts constitutes a good faith and complete termination of your contractual relationship with the Company and its affiliates and the Company and its affiliates do not anticipate a renewal of the contractual relationship or your becoming an employee of the Company or any of its affiliates); and |
b. | an “affiliate” of the Company means any entity that is considered a single employer with the Company under Section 414(b) or (c) of the Internal Revenue Code (the “Code”), but with such Code sections determined in accordance with the modifications described in the first sentence of Treasury Regulation 1.409A-1(h)(3). |
a. | “disability” means an illness or injury of yours which the Board determines prevents you from continuing to perform your duties as a member of the Board; and |
b. | “retirement” means retirement after your having (I) attained the age specified in the retirement policy applicable to Board members, as amended from time to time, or (II) completed five years of service on the Board. |