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As filed with the Securities and Exchange Commission on December 29, 1999
Registration No. 333-86137
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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CONVERGYS CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 31-1598292
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 397-5364
(Address, including zip code, of registrant's principal executive office)
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CONVERGYS CORPORATION CANADIAN EMPLOYEE SHARE PURCHASE PLAN
(Full title of the plan)
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William D. Baskett III
Secretary & General Counsel
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 723-2444
(Name, address including zip code, and telephone number including area code,
of agent for service)
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Please send copies of all communications to:
Neil Ganulin, Esq.
Frost & Jacobs LLP
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
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CALCULATION OF REGISTRATION FEE
No additional shares are being registered under this Post-Effective Amendment
No. 1 to Form S-8. Consequently, the registration fee has been previously paid.
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The purpose of this Post-Effective Amendment No. 1 to Registration Statement No.
333-86137 on Form S-8 (the "Registration Statement") of Convergys Corporation
(the "Company" or "Convergys") is to file as an exhibit to the Registration
Statement the Amended Convergys Corporation Canadian Employee Share Purchase
Plan dated December, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in the Section
10(a) Prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I on
Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents have been filed by Convergys Corporation (the
"Company") with the Commission (File No. 1-14379) and are incorporated herein by
reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998
(2) The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1999, June 30, 1999 and September 30, 1999.
(3) The Company's Current Reports on Form 8-K filed on January 15, 1999
and November 18, 1999.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Subsequently Filed Documents"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the date of filing of such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any Subsequently Filed Document modifies
or supersedes such statement. Any such modified or superseded statement shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The Company will provide without charge, upon written or oral request,
to each person to whom a copy of this Registration Statement is delivered, a
copy of any or all of the documents incorporated by reference herein, not
including exhibits to such documents. Requests for such copies should be
directed to the Secretary, Convergys Corporation, 201 East Fourth Street,
Cincinnati, Ohio 45202, telephone number (513) 723-7000.
ITEM 4. DESCRIPTION OF CAPITAL STOCK.
The following is a summary description of the capital stock of the
Company, does not purport to be complete and is subject to, and is qualified in
its entirety by, the Company's Amended Articles of Incorporation (the
"Articles") as filed with the Securities and Exchange Commission on July 17,
1998 as Exhibit 3.1 to Pre-Effective Amendment No. 2 to the Company's
Registration Statement on Form S-1 (File No. 333-53619).
The Company's authorized capital stock consists of 500,000,000 common
shares, without par value (the "Common Shares"), and 5,000,000 preferred shares,
without par value (the "Preferred Shares"), of which 4,000,000 are voting
preferred shares.
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All Common Shares of the Company are entitled to participate equally in
such dividends as may be declared by the Board of Directors of the Company and
upon liquidation of the Company, subject to the prior rights of any Preferred
Shares. All Common Shares are fully paid and nonassessable.
Each shareholder has one vote for each Common Share registered in the
shareholder's name. The Board of Directors is divided into three classes as
nearly equal in size as the total number of directors constituting the Board
permits. The number of directors may be fixed or changed from time to time by
the shareholders or the directors.
The Board of Directors is authorized to issue the Preferred Shares from
time to time in series and to fix the dividend rate and dividend dates,
liquidation price, redemption rights and redemption prices, sinking fund
requirements, conversion rights, covenants, and certain other rights,
preferences and limitations. Each series of Preferred Shares would rank, with
respect to dividends and redemption and liquidation rights, senior to the Common
Shares. It is not possible to state the actual effect of the authorization of
any series of Preferred Shares upon the rights of holders of the Common Shares
until the Board of Directors determines the rights of the holders of one or more
series of Preferred Shares. However, such effects could include (a) restrictions
on dividends on the Common Shares, (b) dilution of the voting power of the
Common Shares to the extent that the voting Preferred Shares have voting rights
or (c) inability of the Common Shares to share in the Company's assets upon
liquidation until satisfaction of any liquidation preference granted to the
Preferred Shares.
No holders of shares of any class of the Company's capital stock have
pre-emptive rights nor the right to exercise cumulative voting in the election
of directors.
LIMITATIONS ON CHANGE IN CONTROL
The following provisions of the Articles and Ohio law might have the
effect of delaying, deferring or preventing a change in control of the Company
and would operate only with respect to an extraordinary corporate transaction,
such as a merger, reorganization, tender offer, sale or transfer of assets or
liquidation involving the Company and certain persons described below.
Ohio law provides that the approval of two-thirds of the voting power
of a corporation is required to effect mergers and similar transactions, to
adopt amendments to the articles of incorporation of a corporation and to take
certain other significant actions. Although under Ohio law the articles of
incorporation of a corporation may permit such actions to be taken by a vote
that is less than two-thirds (but not less than a majority), the Articles do not
contain such a provision. The two-thirds voting requirement tends to make
approval of such matters, including further amendments to the Articles,
relatively difficult, and a vote of the holders of in excess of one-third of the
outstanding Common Shares of the Company would be sufficient to prevent
implementation of any of the corporate actions mentioned above. In addition,
Article Fifth classifies the Board of Directors into three classes of directors
with staggered terms of office and the Regulations of the Company (the
"Regulations") provide certain limitations on the removal from and filling of
vacancies in the office of director.
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Article Sixth of the Articles requires that certain minimum price
requirements and procedural safeguards be observed by a person or entity after
he or it becomes the holder of 10% or more of the voting shares of the Company
if such person or entity seeks to effect mergers or certain other business
combinations ("Business Combinations") that could fundamentally change or
eliminate the interests of the remaining shareholders. If such requirements and
procedures are not complied with, or if the proposed Business Combination is not
approved by at least a majority of the members of the Board of Directors who are
unaffiliated with the new controlling person or entity (taking into account
certain special quorum requirements), the proposed Business Combination must be
approved by the holders of 80% of the outstanding Common Shares and outstanding
voting Preferred Shares of the Company (collectively, "Voting Shares"), voting
together as a class, notwithstanding any other class vote required by law or by
the Articles. In the event the price criteria and procedural requirements are
met or the requisite approval by such unaffiliated directors (taking into
account certain special quorum requirements) is given with respect to a
particular Business Combination, the normal voting requirements of Ohio law
would apply.
In addition, Article Sixth of the Articles provides that the
affirmative vote of the holders of 80% of the Voting Shares, voting as a single
class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, Article Sixth. An 80% vote is not required to amend or
repeal, or adopt a provision inconsistent with, Article Sixth if the Board of
Directors has recommended such amendment or other change and if, as of the
record date for the determination of shareholders entitled to vote thereon, no
person is known by the Board of Directors to be the beneficial owner of 10% or
more of the Voting Shares, in which event the affirmative vote of the holders of
two-thirds of the Voting Shares, voting as a single class, shall be required to
amend or repeal, or adopt a provision inconsistent with, Article Sixth.
Ohio, the state of the Company's incorporation, has enacted Ohio
Revised Code Section 1701.831, a "control share acquisition" statute, and
Chapter 1704, a "merger moratorium" statute. The control share acquisition
statute basically provides that any person acquiring shares of an "issuing
public corporation" (which definition the Company meets) in any of the following
three ownership ranges must seek and obtain shareholder approval of the
acquisition transaction that first puts such ownership within each such range:
(i) more than 20% but less than 33 1/3%; (ii) 33 1/3% but not more than 50%; and
(iii) more than 50%.
The merger moratorium statute provides that, unless a corporation's
articles of incorporation or regulations otherwise provide, an "issuing public
corporation" (which definition the Company meets) may not engage in a "Chapter
1704 transaction" for three years following the date on which a person acquires
more than 10% of the voting power in the election of directors of the issuing
corporation, unless the "Chapter 1704 transaction" is approved by the
corporation's board of directors prior to such voting power acquisition. A
person who acquires such voting power is an "interested shareholder", and
"Chapter 1704 transactions" involve a broad range of transactions, including
mergers, consolidations, combinations, liquidations, recapitalizations and other
transactions between an "issuing public corporation" and an "interested
shareholder" if such transactions involve 5% of the assets or shares of the
"issuing public corporation" or 10% of its earning power. After the initial
three year moratorium, Chapter 1704 prohibits such transactions absent approval
by disinterested shareholders or the transaction meeting certain statutorily
defined fair price provisions.
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Ohio has also enacted a "greenmailer disgorgement" statute which
provides that a person who announces a control bid must disgorge profits
realized by that person upon the sale of any equity securities within 18 months
of the announcement.
The following is a summary description of the terms of the rights
described below, does not purport to be complete and is subject to, and is
qualified in its entirety by, the Company's Rights Agreement, filed with the
Securities and Exchange Commission as Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (File No. 333-69633) filed December 23, 1998.
On November 19, 1998, the Board of Directors of the Company declared a
dividend distribution of one right ("Right") on each of the Company's
outstanding Common Shares to holders of record of the Common Shares at the close
of business on December 1, 1998 (the "Record Date"). One Right also will be
distributed for each Common Share issued after December 1, 1998, until the
Distribution Date (which is described in the next paragraph). Each Right
entitles the registered holder to purchase from the Company a unit ("Unit")
consisting of one one-hundredth of a Series A Preferred Share of the Company
(the "Preferred Shares") at a purchase price of $70.00 per Unit, subject to
adjustment (the "Purchase Price").
Initially, the Rights will be attached to all Common Share certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Shares and the
"Distribution Date" will occur upon the earlier of (a) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding Common Shares
or (b) 10 business days following the commencement of a tender offer or exchange
offer that would if consummated result in a person or group beneficially owning
15% or more of the outstanding Common Shares.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 1, 2008, unless earlier redeemed by
the Company as described below.
After the Distribution Date, the separate Rights Certificates alone
will represent the Rights. Except for certain issuances in connection with
outstanding options and convertible securities and as otherwise determined by
the Board of Directors, only Common Shares issued prior to the Distribution Date
will be issued with Rights.
If a person becomes the beneficial owner of 15% or more of the Common
Shares ("Flip-In Event"), each holder of a Right will have the right to receive,
upon exercise, Common Shares having a value equal to two times the Purchase
Price of the Right. Moreover, the Rights will not be exercisable until the
Rights are no longer redeemable as described below. The Acquiring Person would
not be permitted to exercise any Rights and any Rights held by such person (or
certain transferees of such person) will be null and void and non-transferable.
If, following the Distribution Date, the Company is acquired in certain
specified mergers or other business combinations (I.E., the Company does not
survive or its Common Shares are changed or exchanged), or 50% or more of its
assets or earning power (on a consolidated basis) is sold or transferred in one
transaction or a series of related transactions ("Flip-Over Events"), each Right
becomes a Right to acquire common stock of the other party to the transaction
(or its ultimate parent in certain circumstances) having a value equal to two
times the Purchase Price. As an enforcement
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mechanism, the Rights Agreement prohibits the Company from entering into any
such transaction unless the other party agrees to comply with the provisions of
the Rights.
In general, the Company may redeem the Rights in whole, but not in
part, at a price of $0.001 per Right, at any time prior to a Flip-In Event.
Immediately upon the action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of the holders of Rights
will be to receive the $0.001 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The issuance of the Rights may have certain anti-takeover effects and
possible disadvantages. The Rights will cause substantial dilution to a person
or group who attempts to acquire the Company or a significant Common Share
ownership interest without conditioning the offer on the Rights being redeemed
or a substantial number of Rights being acquired. Accordingly, an Acquiring
Person might decide not to acquire the Company or such an interest, although
individual shareholders may view such an acquisition favorably. In addition, to
the extent that issuance of the Rights discourages takeovers that would result
in a change in the Company's management or Board of Directors, such a change
will be less likely to occur. The Board of Directors believes, however, that the
advantages of discouraging potentially discriminatory and abusive takeover
practices outweigh any potential disadvantages of the Rights. The Rights should
not interfere with any merger or other Business Combination approved by the
Board of Directors. The Rights are designed to protect shareholders against
unsolicited attempts to acquire control of the Company, whether through
accumulation of Common Shares in the open market or partial or two-tier tender
offers, that do not offer a fair price to all shareholders.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Articles by which an officer or director
may be indemnified against any liability which he or she may incur in his or her
capacity as such. However, the Company has indemnification provisions in its
Regulations which provide the Company will, to the full extent permitted by Ohio
law, indemnify all persons whom it may indemnify under such law.
Reference is made to Section 1701.13(E) of the Ohio Revised Code, which
provides for indemnification of directors and officers in certain circumstances.
The Company provides liability insurance for its directors and officers
for certain losses arising from certain claims and charges, including claims and
charges under the Securities Act of 1933, which may be made against such persons
while acting in their capacities as directors and officers of the Company.
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The above discussion of the Articles, Regulations and Section
1701.13(E) of the Ohio Revised Code is not intended to be exhaustive and is
respectively qualified in its entirety by the Articles, Regulations and such
statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits filed as part of this Registration Statement are described
in the Exhibit Index included in this filing.
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales of the
securities registered hereunder 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 the
registration statement;
(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 the registration statement;
provided; however, that the undertakings in clauses (i) - (ii)
hereof will not apply if the information required to be
included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions of Rule 512(h) of
Regulation S-K, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 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 director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
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 is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issues.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati and State of Ohio, on the 23RD day of
December, 1999.
CONVERGYS CORPORATION
By: /s/ William D. Baskett III
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William D. Baskett III
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 23RD day of December, 1999 by the
following persons in the capacities indicated.
Signature
* Principal Executive Officer;
- --------------------------------- President, Chief Executive Officer
James F. Orr and Director
/s/ Andre S. Valentine Controller and Vice President
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Andre S. Valentine
* Chairman of the Board
- --------------------------------- and Director
Charles S. Mechem, Jr.
* Director
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John F. Barrett
* Director
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Judith G. Boynton
* Director
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Gary C. Butler
* Director
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Roger L. Howe
* Director
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Steven C. Mason
* Director
- ---------------------------------
Brian H. Rowe
* /s/ William D. Baskett III
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William D. Baskett III,
as attorney-in-fact
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EXHIBIT INDEX
Exhibit Description Page
3.1 Amended Articles of Incorporation of the Company are hereby
incorporated by reference to Exhibit 3.1 to Pre-Effective
Amendment No. 2 to the Company's Registration Statement on
Form S-1 (File No. 333-53619) filed on July 17, 1998.
3.2 Regulations of the Company are hereby incorporated by
reference to Exhibit 3.2 to Pre-Effective Amendment No. 2 to
the Company's Registration Statement on Form S-1 (File No.
333-53619) filed on July 17, 1998.
4.1 Convergys Corporation Rights Agreement is hereby incorporated
by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (File No. 333-69633) filed December 23,
1998.
4.2.1 Amended Convergys Corporation Canadian Employee Share
Purchase Plan dated January 1, 2000.
4.2.2 Supplement to Convergys Corporation Canadian Employee Share
Purchase Plan is hereby incorporated by reference to Exhibit
4.2.2 to the Company's Registration Statement on Form S-8
(File No. 333-86137) filed August 30, 1999.
23 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney are hereby incorporated by reference to
Exhibit 24 to the Company's Registration Statement on Form
S-8 (File No. 333-86137) filed August 30, 1999.