(10)(iii)(A)(21)
MATRIXX MARKETING INC.
EXECUTIVE
DEFERRED COMPENSATION PLAN
(As adopted effective May 1, 1994)
TABLE OF CONTENTS
SECTION 1 NAME AND PURPOSE OF PLAN ...................................... 1
1.1 Name........................................................... 1
1.2 Purpose........................................................ 1
SECTION 2 GENERAL DEFINITIONS; GENDER AND NUMBER......................... 1
2.1 General Definitions............................................ 1
2.2 Gender and Number.............................................. 2
SECTION 3 DEFERRALS; COMPANY MATCH....................................... 2
3.1 Election of Deferrals.......................................... 2
3.2 Changing Deferrals............................................. 2
3.3 Suspending Deferrals........................................... 3
3.4 Company Match.................................................. 3
SECTION 4 MAINTENANCE AND VALUATION OF ACCOUNTS.......................... 3
4.1 Cash Deferral Accounts......................................... 3
4.2 Company Matching Accounts...................................... 3
4.3 Valuation...................................................... 4
4.4 CBI Shares..................................................... 4
SECTION 5 DISTRIBUTION................................................... 5
5.1 General........................................................ 5
5.2 Termination of Employment...................................... 5
5.3 Death.......................................................... 6
5.4 Form of Payment................................................ 6
5.5 Change in Control.............................................. 6
SECTION 6 ADMINISTRATION OF THE PLAN..................................... 7
6.1 General........................................................ 7
6.2 Expenses....................................................... 7
6.3 Compensation of Committee...................................... 7
6.4 Rules of Plan.................................................. 7
6.5 Agents and Employees........................................... 7
6.6 Indemnification................................................ 7
SECTION 7 FUNDING OBLIGATION............................................. 7
SECTION 8 AMENDMENT AND TERMINATION...................................... 8
SECTION 9 NON-ALIENATION OF BENEFITS..................................... 8
SECTION 10 MISCELLANEOUS.................................................. 8
10.1 Delegation..................................................... 8
10.2 Applicable Law................................................. 8
10.3 Separability of Provisions..................................... 8
10.4 Headings....................................................... 9
10.5 Counterparts................................................... 9
MATRIXX MARKETING INC.
EXECUTIVE
DEFERRED COMPENSATION PLAN
(As adopted effective May 1, 1994)
SECTION 1
NAME AND PURPOSE OF PLAN
1.1 NAME. The plan set forth herein shall be known as the Matrixx
Marketing Inc. Executive Deferred Compensation Plan (the "Plan").
1.2 PURPOSE. The purpose of the Plan is to provide deferred
compensation for a select group of officers and highly compensated employees
of MATRIXX Marketing Inc. and its Affiliates.
SECTION 2
GENERAL DEFINITIONS: GENDER AND NUMBER
2.1 GENERAL DEFINITIONS. For purposes of the Plan, the following terms
shall have the meanings hereinafter set forth unless the context otherwise
requires:
2.1.1 "Accounts" means, collectively, all outstanding Cash
Deferral Accounts and Company Matching Accounts maintained for a Key Employee.
2.1.2 "Beneficiary" means the person or entity designated by a Key
Employee, on forms furnished and in the manner prescribed by the Committee,
to receive any benefit payable under the Plan after the Key Employee's death.
If a Key Employee fails to designate a beneficiary or if, for any reason,
such designation is not effective, his "Beneficiary" shall be his surviving
spouse or, if none, his estate.
2.1.3 "CBI" means Cincinnati Bell Inc.
2.1.4 "CBI Shares" means common shares of CBI.
2.1.5 "Company" means MATRIXX, WATS Marketing of America, Inc. and
such direct and indirect subsidiaries of MATRIXX as may be designated by the
Committee.
2.1.6 "Committee" means the Committee appointed by the Board of
Directors of MATRIXX to administer the Plan.
2.1.7 "Employee" means any person who is an employee of a Company.
2.1.8 "Key Employee" means, with respect to any calendar year, an
Employee who has been designated as a Key Employee by the Committee.
2.1.9 "MATRIXX" means MATRIXX Marketing Inc.
2.2 GENDER AND NUMBER. For purposes of the Plan, words used in any
gender shall include all other genders, words used in the singular form shall
include the plural form, and words used in the plural form shall include the
singular form, as the context may require.
SECTION 3
DEFERRALS: COMPANY MATCH
3.1 ELECTION OF DEFERRALS.
3.1.1 Subject to such rules as the Committee may prescribe, a Key
Employee may elect to defer up to 75% of his Basic Salary for any calendar
year (or such lesser percentage of his Basic Salary as may be prescribed by
the Committee) by completing a deferral form and filing such form with the
Committee prior to January 1 of such calendar year (or such earlier date as
may be prescribed by the Committee). Notwithstanding the foregoing, if an
Employee first becomes a Key Employee on or after May 1, 1994, such Key
Employee may elect to defer a permissible percentage of his Basic Salary for
the remainder of the calendar year by completing and signing a deferral form
provided by the Committee and filing such form with the Committee within 30
days of the date on which he first becomes a Key Employee. Any election under
the preceding sentence shall be effective as of the first payroll period
beginning after the date the election is filed. For purposes of the Plan,
"Basic Salary" means the basic salary payable to a Key Employee by a Company.
3.1.2 Subject to such rules as the Committee may prescribe, a Key
Employee may elect to defer up to 100% (not less than $1,000) or a specific
dollar amount (not less than $1,000) of any Cash Award payable during a
calendar year by completing a deferral form and filing such form with the
Committee prior to January 1 of such calendar year (or such earlier date as
may be prescribed by the Committee). For purposes of the Plan, "Cash Award"
means an award or bonus payable in cash to a Key Employee by a Company.
3.2 CHANGING DEFERRALS. Subject to such rules as the Committee may
prescribe, a Key Employee who has elected to defer a portion of his Basic
Salary or Cash Award may change the amount of his deferral from one
permissible amount to another, effective as of any January 1, by completing
and signing a new deferral form and filing such form with the Committee prior
to such January 1 (or such earlier date as may be prescribed by the
Committee).
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3.3 SUSPENDING DEFERRALS.
3.3.1 Subject to such rules as the Committee may prescribe, a Key
Employee who has elected to defer a portion of his Basic Salary may suspend
such election, as of the first day of any payroll period, by completing and
signing a form provided by the Committee and filing such form with the
Committee prior to the first day of such payroll period. A Key Employee who
has suspended his election for deferrals in accordance with this Section 3.3.1
may again elect to defer a portion of his Basic Salary, effective as of any
January 1 following the six month period beginning on the effective date of
the suspension, by completing and signing a new deferral form and filing such
form with the Committee prior to such January 1 (or such earlier date as may
be prescribed by the Committee).
3.3.2 A Key Employee's election to defer a portion of a Cash Award
for a calendar year may not be revoked during the calendar year.
3.4 COMPANY MATCH. As of each day on which Basic Salary or Cash Award
deferrals are credited, under Section 4.1, to the Cash Deferral Account of a
Key Employee, there shall also be credited to such Key Employee's Company
Matching Account under Section 4.3, an amount equal to the lesser of (a) 50%
of the Basic Salary and Cash Award deferred on the Deferral Date or (b) for
deferrals credited prior to January 1, 1995, 4.5% of that portion of the Key
Employee's Basic Salary and Cash Award paid or deferred on the Deferral Date,
and for deferrals credited after December 31, 1994, 3% of that portion of the
Key Employee's Basic Salary and Cash Award paid or deferred on the Deferral
Date.
SECTION 4
MAINTENANCE AND VALUATION OF ACCOUNTS
4.1 CASH DEFERRAL ACCOUNTS. There shall be established for each Key
Employee who has elected to defer a portion of his Basic Salary or Cash Award
under Section 3.1.1 or 3.1.2 a separate Account, called a Cash Deferral
Account, which shall reflect the amounts deferred by the Key Employee and the
assumed investment thereof. Subject to such rules as the Committee may
prescribe, any amount deferred by a Key Employee under Section 3.1.1 or 3.1.2
shall be credited to the Key Employee's Cash Deferral Account as of the day
on which such deferred amount would have otherwise been paid to the Key
Employee and shall be assumed to have been invested in the investments
designated by the Key Employee on a form provided by and filed with the
Committee.
4.2 COMPANY MATCHING ACCOUNTS. There shall be established for each Key
Employee who is entitled to a Company match under Section 3.4 a separate
Account, called a Company Matching Account, which shall reflect the Company
match to be credited on behalf of the Key Employee under Section 3.4 and the
assumed investment thereof. The amount of the Company's match shall be credited
to the Key Employee's Company Matching Account as of the day on
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which the deferred Basic Salary or Cash Award to which the Company match
relates would have otherwise been paid to the Key Employee. Amounts credited
to a Key Employee's Company Matching Account shall be assumed to have been
invested in the investments designated by the Key Employee on a form provided
by and filed with the Committee.
4.3 VALUATION. As soon as practical following the end of each calendar
year, each Key Employee or, in the event of his death, his Beneficiary, shall
be furnished a statement as of December 31 showing the then balance of the
Key Employee's Accounts, the total credits to such Accounts during the
preceding calendar year, and, if amounts credited to any such Accounts are
assumed to have been invested in securities, a description of such securities
including the number of shares assumed to have been purchased by the amounts
credited to such Accounts.
4.4 CBI SHARES. To the extent Key Employee's Accounts are assumed to
have been invested in CBI Shares:
4.4.1 Whenever any cash dividends are paid with respect to CBI
Shares, additional amounts shall be credited to the Key Employee's Accounts
as of the dividend payment date. The additional amount to be credited to each
account shall be determined by multiplying the per share cash dividend paid
with respect to the CBI Shares on the dividend payment date by the number of
assumed CBI Shares credited to the Key Employee's Accounts on the day
preceding the dividend payment date. Such additional amount credited to the
Key Employee's Accounts shall be assumed to have been invested in additional
CBI Shares on the day on which such dividends are paid.
4.4.2 If there is any change in CBI Shares through the declaration
of a stock dividend or a stock split or through a recapitalization resulting
in a stock split, or a combination or a change of shares, the number of shares
assumed to have been purchased for each Account shall be appropriately
adjusted.
4.4.3 Whenever CBI Shares are to be valued for purposes of the
Plan, the value of each such share shall be the average of the high and low
price per share as reported on the composite tape on the last business day
preceding the date as of which the distribution is made or, if no sales were
made on that date, on the next preceding day on which sales were made.
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SECTION 5
DISTRIBUTION
5.1 GENERAL. Except as otherwise provided in Section 5.5, no amount
shall be paid with respect to a Key Employee's Accounts while he remains an
Employee. Unless the Committee otherwise provides, all payments with respect
to a Key Employee's Accounts shall be made by the Company which otherwise
would have paid the Basic Salary Cash Award deferred by the Key Employee.
5.2 TERMINATION OF EMPLOYMENT. A Key Employee may elect to receive the
amounts credited to his Accounts in up to ten annual installment payments,
commencing on the first business day of March of the calendar year following
the calendar year in which he ceases to be an Employee. If a Key Employee
fails to make such election, the amounts credited to the Key Employee's
Accounts shall be paid to the Key Employee in two annual installments with
the first installment being made on the first business day of March of the
calendar year following the calendar year in which the Key Employee ceases to
be an Employee.
5.2.1 The amount of each annual installment payable under this
Section 5.2 shall be, at the election of the Key Employee, either (1) a
specific dollar amount specified by the Key Employee (not less than $25,000
or more than $1,000,000), or (2) a fraction of the amounts credited to the
Key Employee's Accounts as of the installment payment date, the numerator of
which is 1 and the denominator of which is equal to the total number of
installments remaining to be paid (including the installment to be paid on
the subject installment payment date). If a Key Employee elects (2) above and
the amount of any annual installment is less than $25,000 or more than
$1,000,000, it shall be increased to $25,000 or reduced to $1,000,000, as the
case may be; provided that if the remaining amount credited to the Accounts
on any annual installment date is less than $25,000, the payment shall be the
amount necessary to reduce the amount credited to the Account to $0.
5.2.2 Any election under this Section 5.2 must be made prior to the
effective date of the Key Employee's termination and within the time
prescribed by the Key Employee's Company but in no event later than four
months prior to the effective date of the Key Employee's termination. When
the consent of the Committee, and subject to such rules as the Committee may
prescribe, a Key Employee may elect (a) to receive the amounts credited to
his Accounts in up to 120 monthly installments and (b) to accelerate the time
at which any payment may be made (to a date not earlier than the date on which
he ceases to be an Employee).
5.2.3 The right to receive payments with respect to a portion or
all of a Key Employee's Company Matching Account under this Section 5.2 shall
be conditional on the Key Employee's completing at least five years of
Vesting Service (within the meaning of that term as defined in the MATRIXX
Marketing Inc. Profit Sharing/401(k) Plan) prior to the date on which he
ceases to be an Employee. To the extent that a Key Employee has not satisfied
any applicable service requirement prior to the date on which he ceases to be
an Employee (other
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than by reason of his death), he shall not be entitled to receive any payment
with respect to his Company Matching Account.
5.3 DEATH. If a Key Employee ceases to be an Employee by reason of his
death, or if a Key Employee dies after ceasing to be an Employee but before
the amounts credited to his Accounts have been paid, the amounts credited to
the Key Employee's Accounts shall be paid to the Key Employee's Beneficiary
in one lump sum as of the first business day of the third quarter following
the date of the Key Employee's death; provided, however, that if the Key
Employee has elected to have his Accounts distributed in installments and if
he dies after distribution has commenced, the remaining installments shall be
paid to the Beneficiary as they become due.
5.4 FORM OF PAYMENT. Payments with respect to assumed investments other
than CBI Shares shall be made in cash. Payments with respect to assumed
investments in CBI Shares shall be made in CBI Shares or cash, in the
discretion of the Committee.
5.5 CHANGE IN CONTROL. If a Change in Control of CBI occurs, each Key
Employee's Plan Accounts shall be paid to him in one lump sum as of the day
next following the date on which such Change in Control occurred. A "Change
in Control of CBI" shall be deemed to have occurred if (i) a tender offer
shall be made and consummated for the ownership of 30% or more of the
outstanding voting securities of CBI; (ii) CBI shall be merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 75% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the
former shareholders of CBI, other than affiliates (within the meaning of the
Securities Exchange Act of 1934) of any party to such merger or
consolidation, as the same shall have existed immediately prior to such
merger or consolidation; (iii) CBI shall sell substantially all of its assets
to another corporation which is not a wholly owned subsidiary; (iv) a person
within the meaning of Section 3(a)(9) or of Section 13(d)(3) (as in effect on
January 1, 1994) of the Securities Exchange Act of 1934, shall acquire 20% or
more of the outstanding voting securities of CBI (whether directly,
indirectly, beneficially or of record), or a person, within the meaning of
Section 3(a)(9) or Section 13(d)(3) (as in effect on January 1, 1994) of the
Securities Exchange Act of 1934 controls in any manner the election of a
majority of the directors of CBI; or (v) within any period of two consecutive
years after January 1, 1994, individuals who at the beginning of such period
constitute CBI's Board of Directors cease for any reason to constitute at
least a majority thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then in office
who were directors at the beginning of the period. For purposes hereof,
ownership of voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) (as
in effect on January 1, 1994) pursuant to the Securities Exchange Act of 1934.
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SECTION 6
ADMINISTRATION OF THE PLAN
6.1 GENERAL. The general administration of the Plan and the
responsibility for carrying out its provisions shall be placed in the
Committee.
6.2 EXPENSES. Expenses of administering the Plan shall be shared by
each Company participating in this Plan in such proportions as may be
determined by the Committee.
6.3 COMPENSATION OF COMMITTEE. The members of the Committee shall not
receive compensation for their services as such, and, except as required by
law, no bond or other security need be required of them in such capacity in
any jurisdiction.
6.4 RULES OF PLAN. Subject to the limitations of the Plan, the
Committee may, from time to time, establish rules for the administration of
the Plan and the transaction of its business. The Committee may correct
errors, however arising, and, as far as possible, adjust any benefit payments
accordingly. The determination of the Committee as to the interpretation of
the provisions of the Plan or any disputed question shall be conclusive upon
all interested parties.
6.5 AGENTS AND EMPLOYEES. The Committee may authorize one or more
agents to execute or deliver any instrument. The Committee may appoint or
employ such agents, counsel (including counsel of any Company), auditors
(including auditors of any Company), physicians, clerical help and actuaries
as in the Committee's judgment may seem reasonable or necessary for the
proper administration of the Plan.
6.6 INDEMNIFICATION. Each Company participating in the Plan shall
indemnify each member of the Committee for all expenses and liabilities
(including reasonable attorney's fees) arising out of the administration of
the Plan, other than any expenses or liabilities resulting from the
Committee's own gross negligence or willful misconduct. The foregoing right
of indemnification shall be in addition to any other rights to which the
members of the Committee may be entitled as a matter of law.
SECTION 7
FUNDING OBLIGATION
No Company shall have any obligation to fund, either by the purchase of
CBI Shares or the investment in any account or by any other means, its
obligation to Key Employees hereunder. If, however, a Company does elect to
allocate assets to provide for any such obligation, the assets allocated for
such purpose shall be assets of the Company subject to claims against the
Company, including claims of the Company's creditors, to the same extent as are
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other corporate assets, and the Key Employees shall have no right or claim
against the assets so allocated, other than as general creditors of the
Company.
SECTION 8
AMENDMENT AND TERMINATION
The Committee or MATRIXX may, without the consent of any Key Employee or
Beneficiary, amend or terminate the Plan at any time; provided that no
amendment shall be made or act of termination taken which divests any Key
Employee of the right to receive payments under the Plan with respect to
amounts theretofore credited to the Key Employee's Accounts.
SECTION 9
NON-ALIENATION OF BENEFITS
No Key Employee or Beneficiary shall alienate, commute, anticipate,
assign, pledge, encumber or dispose of the right to receive the payments
required to be made by any Company hereunder, which payments and the right to
receive them are expressly declared to be nonassignable and nontransferable.
In the event of any attempt to assign or transfer any such payments or the
right to receive them, no Company shall have any further obligation to make
any payments otherwise required of it hereunder.
SECTION 10
MISCELLANEOUS
10.1 DELEGATION. The Committee may delegate to any Company, person or
committee certain of its rights and duties hereunder. Any such delegation
shall be valid and binding on all persons and the person or committee to whom
or which authority is delegated shall have full power to act in all matters
so delegated until the authority expires by its terms or is revoked by the
Committee, as the case may be. Unless the Committee otherwise provides, each
Company shall have and may exercise, with respect to its Key Employees, the
powers reserved to the Committee in Sections 3, 4, 5.1 and 5.2.
10.2 APPLICABLE LAW. The Plan shall be governed by applicable federal
law and, to the extent not preempted by applicable federal law, the laws of
the State of Ohio.
10.3 SEPARABILITY OF PROVISIONS. If any provision of the Plan is held
invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision hereof, and the Plan shall be construed and
enforced as if such provision had not been included.
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10.4 HEADINGS. Headings used throughout the Plan are for convenience
only and shall not be given legal significance.
10.5 COUNTERPARTS. The Plan may be executed in any number of
counterparts, each of which shall be deemed an original. All counterparts
shall constitute one and the same instrument, which shall be sufficiently
evidenced by any one thereof.
IN WITNESS WHEREOF, MATRIXX Marketing Inc. has caused its name to be
subscribed on the 28 day of April, 1994.
MATRIXX MARKETING INC.
By /s/ John T. LaMacchia
--------------------------
John T. LaMacchia
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