-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NA/Xjo0XvDvXE8Di6HLza3/vfWMBIkcXDfvZH/AlSXZVCxShp5ArjGDPI+uC70mU 1ekOr2gDsnOii0+rqqzXzg== 0000903423-02-000453.txt : 20020711 0000903423-02-000453.hdr.sgml : 20020711 20020711115203 ACCESSION NUMBER: 0000903423-02-000453 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020711 EFFECTIVENESS DATE: 20020711 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESYS SA CENTRAL INDEX KEY: 0001125276 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-92226 FILM NUMBER: 02700819 BUSINESS ADDRESS: STREET 1: 4 RUE JULES FERRY BP 1145 CITY: MONTPELLIER CE STATE: X0 ZIP: 34008 BUSINESS PHONE: 0113346706 MAIL ADDRESS: STREET 1: LE REGENT STREET 2: 4 RUE JULES FERRY BP 1145 CITY: MONTPELLIER CE STATE: X0 ZIP: 34008 S-8 1 gens8_7-11.txt As filed with the Securities and Exchange Commission on July 11, 2002 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Genesys S.A. (Exact Name of Registrant as Specified in Its Charter) Republic of France Not Applicable (State or Other Jurisdiction of (I.R.S. Employer Identification Incorporation or Organization) Number) L'Acropole 954-980 Avenue Jean Mermoz 34000 Montpellier France (Address of Registrant's Principal Executive Offices) GENESYS STOCK INCENTIVE PLAN (Full Title of the Plans) Margie Medalle Genesys Conferencing, Inc. 400 South Ulster Street, 12th Floor Denver, Colorado 80237 Telephone: (303) 267-1272 with a copy to: Deborah E. Kurtzberg, Esq. Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 (Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE - --------------------------------------------------- ------------------ -------------- ---------------- -------------- Title of each class of securities Amount to be Proposed Proposed Amount of to be registered (1) registered (2) maximum maximum registration offering aggregate fee price per offering price share - --------------------------------------------------- ------------------ -------------- ---------------- -------------- Ordinary shares, nominal value (euro) 5 per share 293,500 $15.77(3) 4,628,495(3) $425.82(3) - --------------------------------------------------- ------------------ -------------- ---------------- -------------- Ordinary shares, nominal value (euro) 5 per share 31,000 $14.22(3) 440,820(3) $40.56 (3) - --------------------------------------------------- ------------------ -------------- ---------------- -------------- Ordinary shares, nominal value (euro) 5 per share 75,000 $12.89(3) 966,750(3) $88.95 (3) - --------------------------------------------------- ------------------ -------------- ---------------- -------------- Ordinary shares, nominal value (euro) 5 per share 150,500 $4.08(4) $614,040(4) $56.50 (4) - --------------------------------------------------- ------------------ -------------- ---------------- -------------- TOTAL $611.83 - --------------------------------------------------- ------------------ -------------- ---------------- --------------
(1) American Depositary Receipts (each an "ADR") evidencing American Depositary Shares (each an "ADS") issuable upon deposit of the ordinary shares registered hereby are registered pursuant to a separate Registration Statement on Form F-6 (Reg. No. 333-13164). Each ADS constitutes one half of one Share. (2) Together with an indeterminate number of shares that may be necessary in connection with any adjustment to the number of shares reserved for issuance pursuant to the Genesys Stock Incentive Plan as the result of a stock split, stock dividend or similar event affecting the outstanding ordinary shares of Genesys S.A. (the "Registrant" or the "Corporation"). (3) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"), with respect to ordinary shares of the Corporation (the "Shares") issuable pursuant to stock options granted pursuant to the Plan, based on the price at which such options may be exercised in Euros and converted into U.S. dollars based on the New York foreign exchange mid-range rate of 1(euro)= $.9945 as quoted at 4 p.m. Eastern time on June 9, 2002 by Reuters and other sources and as published in the Wall Street Journal on June 10, 2002. (4) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, with respect to Shares issuable pursuant to stock options not yet granted under the Plan and based on two times the average of the high and low reported prices of the ADRs representing the Corporation's Shares reported on the NASDAQ on July 9, 2002. The average of the high and low reported price for one ADR was $2.04 on July 9, 2002. Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which previously have been filed by the Corporation with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference and made a part hereof: (i) The Corporation's Registration Statement on Form 20-F (Registration No. 333-55392), filed under the Securities Act of 1933, as amended (the "Securities Act"), with the Commission on June 12, 2002; (ii) The description of the Shares and ADSs contained under the headings "Description of Genesys Share Capital Stock" and "Description of Genesys American Depositary Receipts" in the Corporation's Registration Statement on Form F-4 (Registration No. 333-55392), filed with the Commission on February 12, 2001 (the "Form F-4 Registration Statement"); and (iii) The reports on Form 6-K filed by the Corporation with the Commission on June 19, 2002 and June 25, 2002. (iv)All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by registration document referred to in (i) above. All reports and other documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment hereto, which indicates that all securities offered hereunder have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Registrant maintains insurance against liabilities which may be incurred by its directors and officers. In addition, under the Genesys Stock Incentive Plan, any member of the committee responsible for the administration of the plan is indemnified to the fullest extent permitted by law with respect to any action taken, or determination made, in good faith in connection with the plan. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. The following exhibits are filed with or incorporated by reference into this Registration Statement (numbering corresponds to Exhibit Table in Item 601 of Regulation S-K): 4.1 By-laws of Genesys S.A. 4.2 Genesys Stock Incentive Plan 4.3 Form of Deposit Agreement, by and among Genesys SA, The Bank of New York, as Depositary, and Owners and Beneficial Owners of American Depositary Receipts (incorporated herein by reference to Exhibit 4.1 to the Form F-4 Registration Statement) 5.1 Opinion of Marie Capela-Laborde, as to the validity of the securities being registered 23.1 Consent of Ernst & Young Audit, Independent Accountants with respect to Genesys S.A. financial statements 23.2 Consent of Marie Capela-Laborde (included in Exhibit 5.1) 24.1 Powers of Attorney (included on signature page) Item 9. Undertakings. (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 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of the prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference 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 therein, 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 purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of the employee benefit plans' annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, 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 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 by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf, thereunto duly authorized, in Montpellier, France on this 10th day of July, 2002. GENESYS S.A. By: /s/ Francois Legros ----------------------------------------- Name: Francois Legros Title: Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Francois Legros and Mike Savage as his or her true and lawful attorney with power of substitution and resubstitution to sign in his or her name, place and stead in any and all such capacities the Registration Statement and any and all amendments thereto (including post-effective amendments) and any documents in connection therewith, and to file the same with the Securities and Exchange Commission, said attorney to have full power and authority to do and perform, in the name and on behalf of each such officer and director of our company who shall have executed such a power of attorney, every act whatsoever which such attorney may deem necessary or desirable to be done in connection therewith as fully and to all intents and purposes as such officer or director of our company might or could do in person. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 10 day of July, 2002. Signature Title Date --------- ----- ---- /s/ Francois Legros Chairman and Chief Executive Officer ------------------------ Francois Legros /s/ Michael Savage Executive Vice President Finance ------------------------ Michael Savage /s/ Alan Senter Director ------------------------ Alan Senter /s/ Patrick Joness/ Director ------------------------- Patrick Jones /s/ Jean Jacques Bertrands Director ------------------------ Jean Jacques Bertrand /s/ Jean-Charles Bouillet Director ------------------------ Jean-Charles Bouillet /s/ Philippe Piriou Director ------------------------ Philippe Piriou /s/ Margie Medalle Executive Vice President - America ------------------------ and Authorized Representative in the Margie Medalle United States
EXHIBIT INDEX Exhibit Description Method of Filing Number 4.1 By-laws of Genesys S.A. Filed herewith 4.2 Genesys Stock Incentive Plan Filed herewith 4.3 Form of Deposit Agreement, by and among Genesys SA, The Bank Filed as Exhibit 4.1 of New York, as Depositary, and Owners and Beneficial Owners to the Form F-4 of American Depositary Receipts (incorporated herein by Registration reference to Exhibit 4.1 to the Form F-4 Registration Statement (Reg. No. Statement) 333-55392) and incorporated herein by reference 5.1 Opinion of Marie Capela-Laborde, as to the validity of the Filed herewith securities being registered 23.1 Consent of Ernst & Young Audit, Independent Accountants with Filed herewith respect to Genesys S.A. financial statements 23.2 Consent of Marie Capela-Laborde (included in Exhibit 5.1) Filed herewith 24.1 Powers of Attorney (included on signature page) Filed herewith
EX-4.1 3 gen_ex4-1.txt EXHIBIT 4.1 ----------- G E N E S Y S A French societe anonyme with a capital of 76.405.285 euros Registered office: L'Acropole 954/980 avenue Jean Mermoz 34000 Montpellier Registry of Commerce and Companies of Montpellier 339 697 021 ------------------ BY-LAWS ------------------ Up-dated on June 28, 2002. TITLE I - FORM - PURPOSE - CORPORATE NAME- REGISTERED OFFICE - TERM ARTICLE 1 - FORM The company shall be under form of a French societe anonyme. It shall be governed by the legal and regulatory provisions applicable to societes anonymes, as well as by these by-laws. ARTICLE 2 - PURPOSE The purpose of the company shall be, in France and abroad: - any transactions related to: research, exploitation, studies, design, development, tests, manufacturing, experimentation, production, distribution, applications, technology transfers concerning components, equipment, systems, services, implementing material and/or software related to micro-electronics and/or optoelectronics, and/or optics, and/or mechanics, and/or acoustics, and/or chemistry, and/or biochemistry, and/or communications, and/or computer science, and/or artificial intelligence, falling within the communication and leisure fields, - directly or indirectly, on its own behalf or on behalf of third parties, either alone or with third parties, through creation of new companies, contributions, support, subscription to purchase securities or corporate rights, merger, alliance, partnership or renting or letting out or management of any goods or rights or otherwise, - and more generally, all financial, commercial, industrial, civil, real or movable property transactions whatsoever that may be, indirectly or directly, connected with any of the specified purposes or with any components of corporate property, In particular, the company may organize a centralized cash management system with companies having with it, either directly and/or indirectly, share capital links, with a view to favor the optimal management both of resort to credit and investment of cash surplus through any means complying with the applicable law on the day of application of such system. ARTICLE 3 - CORPORATE NAME The company's corporate name shall be: "GENESYS". ARTICLE 4 - REGISTERED OFFICE The registered office shall be located at: "L'Acropole", 954/980 Avenue Jean Mermoz, 34000 Montpellier. The Board of Directors shall be empowered to transfer the registered office under the conditions provided for by applicable law and regulations. ARTICLE 5 - TERM The term of the company shall be 99 years beginning on the date of its registration with the Registry of Commerce and Companies, except early dissolution or extension. TITLE II - SHARE CAPITAL - SHARES ARTICLE 6 - SHARE CAPITAL The share capital shall be seventy six million four hundred and five thousand two hundred and eighty five (76.405.285) euros. It shall be formed of fifteen million two hundred eighty one thousand fifty seven (15,281,057) shares of par value five (5) euros each, fully paid up and all of same class. ARTICLE 7 - MODIFICATIONS OF THE SHARE CAPITAL The share capital may be increased, reduced or amortized under the conditions provided for by applicable law and regulations. ARTICLE 8 - PAYING-UP OF THE SHARES Any subscription of shares in cash at the time of a capital increase must come with the payment of one quarter at least of the par value of the subscribed shares and the aggregate issue premium, if any. The paying-up of the remainder may occur in one or several times upon call of the Board of Directors, within a five-year period as from the day when such capital increase has become final. Calls for such funds shall be notified to the subscribers at least fifteen days before the date set for each payment, either by registered mail with return receipt requested, or by notice published in a legal notice journal in the venue of the registered office. Any delay in the payment of the sums due on the unpaid-up amount of the shares bears, automatically and without need to carry out any formality, interest at the legal rate, from the date of payability of such sums, without prejudice to the personal action that the company may exercise against the defaulting shareholder and the measures for immediate enforcement provided for by the law. ARTICLE 9 - FORM OF THE SHARES 1. Identification of shareholders The shares shall be held in registered or bearer form, at the shareholder's election. The shares and all other securities issued by the company must be recorded on an account in the name of their owner pursuant to the applicable legal and regulatory provisions. When the owner of the securities has not his domicile on the French territory, any intermediary may be registered on behalf of such owner. Such registration may be carried out under form of collective account or in several individual accounts, each corresponding to one owner. The registered intermediary shall, when opening his account with either the issuing company or the authorized bookkeeping financial intermediary, declare his capacity as intermediary holding securities on behalf of another person. With a view to the identification of holders of bearer securities, the company may ask at any time the body in charge of clearing the securities, if any, the name or corporate name, nationality, year of birth or incorporation and address of the holders of securities that carry, immediately or in the future, rights to vote at its own meetings, as well as the quantity of securities held by each of them and the restrictions burdening such securities, if any. Considering the list provided by the body in charge of clearing the securities, the company may ask either such body either directly the persons appearing on such list and who the company assumes that they may be registered on behalf of third parties, the information regarding the owners of the securities. In case of registered securities, the company may ask at any time the intermediary registered on behalf of third party owners of securities to reveal the identity of the owners of such securities. As long as the company assumes that some holders of securities, under bearer or registered form, and whose identity has been communicated to it are holders on behalf of third party owners of securities, it shall be entitled to ask such holders, under the conditions provided for below, to reveal the identity of the owners of such securities. At the end of the information requests referred to above, the company may ask any legal entity holding its shares and owning interests in excess of 1/40th of the capital or voting rights to notify to it the identity of persons directly or indirectly holding more than one third of its capital or voting rights. When the person being the purpose of an information request pursuant to the provisions of this Article does not answer within the prescribed periods or sends erroneous or incomplete information, the securities for which such person has been registered in account will be deprived of right to vote at all Shareholders' Meetings until the date of regularization of the identification and the payment of dividends is postponed until such date. 2. Threshold crossing Any individual or legal entity, acting alone or in concert with others, who will hold or cease to hold, directly or indirectly, a portion equal to, or greater than, 1% of the share capital or a multiple of such portion up to the threshold of 34% of the share capital, shall be bound to notify the company, by registered mail with return receipt requested within a period of five trading days from the day any of such thresholds is crossed, the total number of shares and voting rights it owns directly and in concert, as well as the number of securities granting access in the future to the capital of the company and the voting rights potentially attached thereto. The intermediary registered as holder of securities shall be bound, without prejudice to the obligations of the owners of such securities, to carry out the declarations provided for in this Article for all the shares of the company for which it is registered in account. Non-compliance with the foregoing provisions shall be sanctioned by the deprivation of the voting rights attached to the securities exceeding the undeclared portion at all Shareholders' Meetings being held within two years following the date of regularization of the notification provided for above, if the application of such penalty is required by one or more shareholders holding at least 5% of the share capital, such request being recorded in the minutes of the Shareholders' Meeting. ARTICLE 10 - ASSIGNMENT AND TRANSFER OF THE SHARES The shares shall be freely negotiable. Assignments or transfers of shares shall be carried out vis-a-vis the company and third parties by book entry from account to account under the conditions provided for by the applicable regulations. The provisions of this Article shall also apply to the other securities of all nature issued by the company. ARTICLE 11 - RIGHTS AND OBLIGATIONS ATTACHED TO THE SHARES Each share shall entitle the holder to a part in the profits and the corporate assets, in proportion to the portion of the capital it represents. The shareholders may be held responsible for up to the par value of the shares they own. The rights and obligations attached to the share shall follow the title when it is transferred to another person. The ownership of a share shall automatically include the approval of the company's by-laws and the decisions of the Shareholders' Meeting. Heirs, creditors, assignees or other representatives of a shareholder may not require opposition to seals on the properties and values of the company, or request the distribution or public sale thereof, or interfere with the instruments of its management. They must, to exercise their rights, refer to the corporate inventories and decisions of the Shareholders' Meeting. Each time it is necessary to own several shares to exercise any right, the owners of isolated securities, or in a number lower than required, may exercise such rights only provided that they take responsibility for the grouping and possibly the purchase or sale of necessary securities. All share entitles, during the existence of the company or upon liquidation, to the payment of the same net amount for any allocation or reimbursement; consequently, all the shares will be grouped as regards tax credits or imputations, and for all taxes likely to be borne by the company, considering their respective par value and right to exercise. Each shareholder shall have a number of votes equal to the number of shares which he or she owns or represent subject to the following provisions. A double voting right shall be attributed to all shares held in registered form and fully paid-up that are registered in the name of the same shareholder for at least [two] years. Double voting rights shall cease automatically upon conversion of the holding of the shares from registered form to bearer form or transfer of their ownership, subject to the limitations provided by law. New shares allocated to shareholders pursuant to a capitalization of reserves, profits or issue premiums shall benefit from the double voting right upon their issuance to the extent they relate to shares which themselves benefit from such right. ARTICLE 12 - INDIVISIBILITY OF SHARES - OWNERSHIP WITHOUT USUFRUCT - USUFRUCT - PLEDGE The shares shall be indivisible vis-a-vis the company. Joint owners of shares must be represented with the company by only one of them or by a sole agent, who will be appointed by a court in case of disagreement. Except otherwise agreed and notified to the company, owners with usufruct in respect of shares validly represent the owners without usufruct vis-a-vis the company. However, the voting right shall belong to the owner without usufruct at the Extraordinary Shareholders' Meetings. The voting right shall be exercised by the owners of securities given as pledge. TITLE III - ADMINISTRATION OF THE COMPANY - SUPERVISION ARTICLE 13 - BOARD OF DIRECTORS - FORMATION - CHAIRMAN 1. Formation The company shall be managed by a Board of Directors whose members are elected by the Ordinary Shareholders' Meeting. Such Board is formed of at least three members and at most eighteen (18), subject to the exemptions provided for by law. Their term of office shall be a maximum of six years. The term of office as director shall end upon adjournment of the Ordinary Shareholders' Meeting approving the financial statements for the past fiscal year, held in the year during which the term of office of said director expires. Any outgoing directors may be re-elected. The directors may be revoked at any time by the Ordinary Shareholders' Meeting. The directors may be individuals or legal entities. The number of directors being more than 70 years old may not be greater than one third of the directors in office. The directors who are individuals may belong to boards of directors or supervisory boards of other companies only under the conditions provided for by law. One or more employees may be appointed as directors pursuant to the legal and regulatory provisions in force. An employee of the company may be appointed as director only under the conditions provided for by law. The number of directors bound with the company by an employment contract may not exceed one third of the directors in office. The directors elected by the employees are not taken into account in determining the maximum number of directors referred to in the first paragraph of this Article. The directors must each be the owner of at least one share. Such provision does not apply to appointed employee shareholders, if any, who are members of the Board of Directors pursuant to legal provisions. The directors appointed during the existence of the company do not have to be shareholders at the time of their appointment, but must become so within a three-month period, failing which they are automatically deemed to resign. 2. Chairman of the Board of Directors The Board of Directors shall elect, among its members, a Chairman and, if necessary, several vice-chairmen. The term of office as Chairman may not exceed that of his position as director. He may be re-elected. The Board of Directors may revoke him at any time. The Chairman represents the Board of Directors. He organizes and conducts the works thereof, which he reports to the shareholders' meeting. He sees to the good running of the company's bodies and makes sure, in particular, that the directors are able to fulfill their assignment. The age limit to exercise the position as Chairman is 65 years old. 3. Committees The Board of Directors may decide the creation of committees in charge of studying the issues that itself or its Chairman submits, for opinion only, to their examination. It sets the composition and attributions of the committees. They shall exercise their activity under its responsibility. ARTICLE 14 - DELIBERATIONS OF THE BOARD OF DIRECTORS 1. Notice of meeting The Board of Directors shall meet as often as the interest of the company requires, upon notice given by the Chairman. The Managing Director and, in the event that the Board of Directors was not held less than two months ago, directors representing at least one third of the members of the Board, may also request the Chairman to convene the Board of Directors. Outside such cases, where the Chairman is bound by the requests sent to him, the agenda shall be determined by the Chairman. The meeting shall take place either at the registered office, or in any other place indicated in the notice of meeting. In principle, the notice of meeting shall be made three days before by letter or telex. However, in case of urgency, the convocation may be made without prior notice and by all means, even orally. Any notice of meeting must mention the main issues appearing in the agenda. The meetings of the Board of Directors may, in compliance with the applicable legal and regulatory provisions, take place by videoconference. The Board's meeting shall be chaired by the Chairman or, failing any, by the oldest vice-chairman or by the most senior directors. The Board shall appoint the person who will act as secretary, who needs not be a members. 2. Quorum - Majority For the deliberations to be valid, the effective presence of at least half of the directors is necessary. However, the directors taking part in the deliberations of the Board of Directors through videoconference shall be deemed to be present for the calculation of the quorum and majority. Such provision however does not apply to adopt resolutions relating to the preparation of the annual financial statements, consolidated financial statements, the management report, as well as the report on the management of the group if not included in the annual report, appointment or revocation of the chairman of the Board of Directors, as well as the determination of his compensation, the determination of the compensation and revocation of the Managing Director, the appointment and revocation, as well as the determination of the compensation of the vice managing directors. The decisions shall be made by a majority of the votes of the members present or represented, each director having one vote. Each director may not represent more than one of his/her colleagues. In case of a tie, the chairman of the meeting has casting vote. 3. Registers and minutes The deliberations of the Board of Directors shall be recorded in minutes drawn up pursuant to the applicable legal and regulatory provisions and signed by the chairman of the meeting and by one director or, in case of disability of the chairman, by two directors. An attendance register is held and signed by the directors attending the meeting. The justification of the number of directors in office and their appointment validly results, vis-a-vis third parties, from the sole statements in the minutes of each meeting. Copies or extracts from these minutes shall be certified by the chairman of the Board of Directors, one managing director, the director temporarily delegated in the office as chairman or an agent empowered in this respect. ARTICLE 15 - POWERS OF THE BOARD OF DIRECTORS The Board of Directors determines the orientations of the company's activity and sees to their implementation. Subject to the powers expressly granted to the shareholders' meetings and within the limit of the corporate purpose, it shall deal with all issues regarding the good running of the company and settles by its deliberations the matters related thereto. In the relations with third parties, the company shall be held responsible even by acts of the Board of Directors that do not fall within the corporate purpose, unless it brings evidence that the third party knew that the act was exceeding this purpose or that it could not ignore it given the circumstances, the sole publication of the by-laws being not sufficient to bring evidence. The Board of Directors proceeds to all such supervisions and controls as it may deem appropriate. Each director receives all information necessary to fulfill his assignment and may be communicated all such documents as he may deem useful. ARTICLE 16 -GENERAL MANAGEMENT - Either the chairman of the Board of Directors, or any individual chosen among its members and appointed as Managing Director shall assume, under his responsibility, the general management of the company. The choice between the two conditions of exercise of the general management is made by the Board of Directors at the time of appointment of its Chairman. The option retained by the Board of Directors may be challenged only at the time of renewal or replacement of the chairman of the Board of Directors or upon expiration of the term of office of the Managing Director. The shareholders and third parties are informed thereof pursuant to the applicable legal and regulatory provisions. In the event that the Chairman exercises the office as Managing Director, the provisions of these by-laws relating to the latter apply to him. The Managing Director may be revoked at any time by the Board of Directors. If the revocation is decided without fair ground, it may result in damages, unless he assumes the position as chairman of the Board of Directors. The Managing Director shall have the most extended powers to act under all circumstances in the name of the company. He exercises such powers within the limit of the corporate purpose and subject to the powers expressly granted by the law to the shareholders' meetings and to the Board of Directors. The Managing Director represents the company in its relations with third parties. The company shall be held responsible even by acts of the Managing Director that do not fall within the corporate purpose, unless the company brings evidence that the third party knew that the act was exceeding this purpose or could not ignore it given the circumstances. The provisions of the by-laws or the decisions of the Board of Directors limiting the powers of the Managing Director are not enforceable vis-a-vis third parties. The Managing Director may be authorized by the Board of Directors to grant security, endorsement and guarantees given by the company under conditions and within limits set by the applicable regulations. A Managing Director who is an individual may exercise another position as managing director only under the conditions provided for by law. Upon proposal of the Managing Director, the Board of Directors may appoint one or several vice-managing directors, within the limit of five. The vice-managing director(s) may be chosen among the members of the board or outside them. They may be revoked at any time by the board upon proposal of the Managing Director. If the revocation is decided without fair ground, it may result in damages. When the Managing Director ceases to exercise or cannot exercise such position, the vice-managing director(s) shall remain in office and shall keep their attributions until the appointment of the new Managing Director, unless otherwise decided by the board. In agreement with the Managing Director, the Board of Directors determines the scope and term of the powers entrusted to the vice-managing directors. The vice-managing directors shall have vis-a-vis third parties the same powers as the Managing Director. ARTICLE 17 - CORPORATE OFFICERS AND MANAGERS The Ordinary Shareholders' Meeting may grant to the directors, as attendance fees, a sum set each year and which amount is charged to operating expenses of the company. The Board of Directors shall divide this compensation among its members as it wishes. The Board of Directors sets the amount and conditions of the compensation of the Chairman and of the Managing Director or vice-managing director(s), if any. The Board of Directors may grant exceptional compensation for assignments or agencies entrusted to directors; in such case, such compensation shall be charged to operating expenses and submitted to the approval of the Ordinary Shareholders' Meeting. No other compensation may be granted to the directors unless they are bound with the company by an employment contract under the conditions authorized by law. ARTICLE 18 - AGREEMENTS BETWEEN THE COMPANY AND A DIRECTOR, A MANAGING DIRECTOR OR A SHAREHOLDER Any agreement entered into, either directly or through an intermediary, between the company and a member of the Board of Directors, a managing director or a vice-managing director shall be submitted to the prior authorization of the Board of Directors. Any agreement entered into, either directly or through an intermediary, between a shareholder having a portion of voting rights greater than 5% or, in case of a company shareholder, the company controlling it, shall be submitted to the prior authorization of the Board of Directors. The same applies for agreements in which any of the persons referred to in the previous paragraphs is indirectly interested or in which it deals with the company through an intermediary. The same applies for agreements between the company and another undertaking, in the event that any of the directors or managing directors or vice-managing directors of the company is the owner, unlimited partner, manager, director, managing director, member of the supervisory board or managing board of the undertaking, or generally senior managers of such undertaking. The foregoing provisions do not apply to agreements relating to usual transactions of the company and entered into under normal conditions. However, the interested person shall communicate such agreements to the chairman of the Board of Directors. The president shall communicate the list and purpose of said agreements to the members of the Board of Directors and the statutory auditors. Any shareholder company having more than 5% of the voting rights of the company shall undertake to request to any company by which it is controlled or which it controls to inform of such situation the company prior to entering into with the latter an agreement submitted to the provisions of this Article. The interested director, managing director, vice-managing director or shareholder shall be bound to inform the Board of Directors as soon as he has knowledge of an agreement submitted to authorization. He may not take part in the vote on the requested authorization. Such agreements shall be authorized under the conditions provided for by law. ARTICLE 19 - STATUTORY AUDITORS Audit of the company's financial statements shall be carried out by two statutory auditors and two alternate auditors who shall be appointed and shall exercise their assignment pursuant to the law. TITLE IV - SHAREHOLDERS' MEETINGS ARTICLE 20 - SHAREHOLDERS' MEETINGS Collective decisions of shareholders shall be taken in Shareholders' Meetings, which are qualified as Ordinary, Extraordinary or Special according to the nature of the decisions they are called to make. Special Meetings gather the holders of shares of a determined class to rule on any modification to the rights of the shares of this class. These Meetings shall be convened and shall rule under the same conditions as the Extraordinary Shareholders' Meetings. Any Shareholders' Meeting duly constituted represents all of the shareholders. The deliberations of the Shareholders' Meeting shall be binding upon all shareholders, even absent, dissidents or incapable. ARTICLE 21 - NOTICE - AGENDA Shareholders' Meeting shall be convened and shall rule under the conditions provided for by law. The meetings shall take place either at the registered office, or in any other place specified in the notice of meeting. The agenda of the Meetings shall be decided by the author of the notice of meeting. One or more shareholders, representing at least the portion of share capital set by law and acting under the legal conditions and time periods, shall have the possibility to require, by registered mail with return receipt requested, that draft resolutions be mentioned in the agenda of the Meeting. The Shareholders' Meeting may not decide on any issue that is not mentioned in the agenda, which may not be modified upon second notice of meeting. However, it may, under all circumstances, revoke one or more directors and carry out their replacement. ARTICLE 22 - ACCESS - POWERS - QUORUM Any shareholder shall be entitled, upon justification of his/her identity, to take part in the Shareholders' Meetings either by attending them personally, under the conditions set by the laws and regulations, by sending back their proxy and paper mail votes or upon decision of the Board of Directors published in the notice of meeting or in the notice of publication, by remote transmission under the conditions set by said notice. Such right to attend the Shareholders' Meetings shall be exercised, subject to: - - for the holders of registered shares, a nominal registration in the company's registers; - - for the holders of bearer shares, the filing, in the places mentioned in the notice of meeting, of a certificate delivered by a bookkeeping authorized intermediary certifying that their shares are registered in a blocked account until the date of the meeting. These formalities shall be carried out two days at least before the meeting. However, the Board of Directors may reduce or suppress this period. The owners of shares registered in account in the name of their intermediary may be represented to the shareholders' meetings by such intermediary. In case of a vote by mail, for purpose of calculating the quorum, only the forms received by the company before the Meeting, under the conditions set by regulations, shall be taken into account. Shall be deemed present for the calculation of the quorum and the majority the shareholders who, upon decision of the Board of Directors to resort to such telecommunication means, take part in the meeting through videoconference or through other telecommunication means enabling their identification under the conditions provided for by law and regulations. ARTICLE 23 - ATTENDANCE SHEET - OFFICERS OF THE MEETING - MINUTES In each Meeting an attendance sheet shall be kept including the indications required by law. This attendance sheet, duly initialed by the shareholders present and the agents and to which is attached the powers granted to each agent and any votes by mail, shall be certified true by the officers of the meeting. The Meetings shall be chaired by the chairman of the Board of Directors or, if he is absent, by a vice-chairman or by a director specifically delegated for this purpose by the Board. If the Meeting is convened by the statutory auditor(s), the meeting shall be chaired by one of them. In all events, failing any person empowered or appointed to chair the Meeting, the latter shall elect its chairman. The position as tellers shall be exercised by the two shareholders, who are present and who accept it, having both by themselves and as agents, the largest number of votes. The officers of the meeting so gathered shall appoint a secretary who needs not be a shareholder. The assignment of the officers of the meeting shall be to supervise, certify and sign the attendance sheet, to ensure the good holding of the discussions, to rule on disputes during the meeting, to verify the expressed votes and to ensure the regularity thereof and to see to the drawing up of minutes. Minutes shall be drawn up and copies or extracts from the discussions shall be delivered and certified pursuant to the law. ARTICLE 24 - ORDINARY SHAREHOLDERS' MEETING The Ordinary Shareholders' Meeting is the meeting called to make all decisions that do not amend the by-laws. It must be held at least once a year within the applicable legal and regulatory time-periods, to approve the financial statements for the previous fiscal year and the consolidated financial statements, if any. Its powers shall include, in particular, the following: - - To approve, modify or reject the financial statements submitted to it; - - To rule on the consolidated financial statements; - - To rule on the distribution and allocation of the profits by complying with the statutory provisions; - - To appoint and revoke the directors and statutory auditors; - - To approve or reject the appointment of directors provisionally carried out by the Board of Directors; - - To rule on the special report of the statutory auditors concerning the agreements submitted to the prior authorization of the Board of Directors; - - To authorize the issuance of bonds which are non convertible or non exchangeable against shares, as well as the constitution of real security interests that might be granted to them. The Ordinary Shareholders' Meeting validly rules, upon first notice of meeting, only if the shareholders, present, represented or having voted by mail own at least one fourth of the shares having voting rights. Upon second notice of meeting, no quorum is required. It shall rule upon majority of the votes held by the shareholders present or represented, including the shareholders having sent votes by mail. ARTICLE 25 -EXTRAORDINARY SHAREHOLDERS' MEETINGS The Extraordinary Shareholders' Meeting is the only one empowered to modify any provision of the by-laws. However, it may not increase the commitments of the shareholders, subject to the transactions resulting from an exchange or regrouping of shares duly approved and carried out. The Extraordinary Shareholders' Meeting acts validly only if the shareholders present, represented or having sent a vote by mail, own at least, upon first notice of meeting, one third and, upon second notice of meeting, one fourth of the shares having voting rights. Failing this latter, the second meeting may be postponed to a subsequent date no later than two months after the meeting for which it had been convened. The Extraordinary Shareholders Meeting shall adopt resolutions upon a two thirds majority of the votes held by the shareholders present or represented, including the shareholders having sent votes by mail. ARTICLE 26 -COMMUNICATION RIGHT OF THE SHAREHOLDERS Each shareholder shall be entitled to receive the documents necessary for him/her to decide with full knowledge and to pass an informed judgment on the management and conduct of the company. The nature of these documents and the conditions of sending or availability shall be determined by applicable law. TITLE V - ANNUAL FINANCIAL STATEMENTS - DISTRIBUTION OF PROFITS ARTICLE 27 - FISCAL YEAR The fiscal year shall last twelve months. It shall begin on January 1 and end on December 31. ARTICLE 28 - INVENTORY - ANNUAL FINANCIAL STATEMENTS A regular accounting of the corporate transactions shall be kept in accordance with law. Upon closing of each fiscal year, the Board of Directors shall draw up the inventory of the various assets and liabilities existing on such date. It shall also draw up the balance sheet describing the assets and liabilities and distinctly showing the equity capital, the profit and loss accounts summarizing the proceeds and expenses of the fiscal year, as well as notes completing and commenting the information given by the balance sheet and the profit and loss account, as well as the consolidated financial statements. The necessary amortization and reserves shall be carried out, even in case of absence or insufficiency of the profit. The amount of the commitments secured, endorsed or guaranteed by the company shall be mentioned after the balance sheet. The Board of Directors shall prepare a management report on the business of the company during the past fiscal year, its foreseeable evolution, the material events that have occurred between the date of closing of the fiscal year and the date on which it is drawn up, and its research and development activities. The report of the Board of Directors shall give an account of the aggregate compensation and benefits in kind paid during the fiscal year to each corporate officer by the company, as well as the companies controlled by it. If necessary, the consolidated financial statements and a management report of the Group shall also be drawn up at the Board of Directors' diligence and presented to the Ordinary Shareholders' Meeting. ARTICLE 29 - DETERMINATION - ALLOCATION AND DISTRIBUTION OF PROFITS The profit and loss account summarizing the proceeds and expenses of the fiscal year shall show the amount, after deducing the amortization and reserves, of the profit for the fiscal year. From the profit of the fiscal year reduced by prior losses, if any, at least 5 % shall be withdrawn to create a legal reserve fund. This withdrawal is no longer required when the reserve fund reaches one-tenth of the share capital; it is required once again when, for any reason whatsoever, the legal reserve has decreased below this one-tenth. The distributable profits shall be the profits reduced by any prior losses and the amounts allocated to the reserve, pursuant to the law and the by-laws, and increased by any profits carried forward. These profits shall be distributed among all shareholders in proportion to the number of shares belonging to each of them. The Shareholders' Meeting may decide the distribution of amounts withdrawn on the reserves that are available to it, by expressly indicating the items of the reserve on which the withdrawals are carried out. However, dividends shall be in priority withdrawn from the profits of the fiscal year. Other than in case of capital reduction, no distribution may be made to shareholders when the equity capital is or would become further to it, lower than the minimum amount of the capital increased by reserves which, according to the law or the by-laws, may not be distributed. The difference of reassessment may not be distributed. It may be fully or partially incorporated in the capital. However, after deducting the reserved amounts, pursuant to the law, the Shareholders' Meeting may withdraw any such amount as it may deem appropriate to allocate to any facultative, ordinary or extraordinary reserve funds, or may carry amounts forward. ARTICLE 30 - TERMS AND CONDITIONS OF PAYMENT OF THE DIVIDENDS - INTERIM DIVIDENDS The Shareholders' Meeting shall have the power to grant to each shareholder, for all or part of the distributed dividend, an option to receive the payment of the dividend in shares, under the legal conditions, or in cash. The terms and conditions of payment of the dividends in cash shall be determined by the Shareholders' Meeting or, failing any, by the Board of Directors. The payment of the dividends in cash shall take place within a maximum of nine months after the end of the fiscal year, unless extension of this period by court authorization. However, when a balance sheet, drawn up during or at the end of the fiscal year and certified by a statutory auditor, shows that the company, since the closing of the previous fiscal year, after constitution of the necessary amortization and reserves and deduction of the prior losses, if any, as well as the reserved amounts, pursuant to the law or the by-laws, has realized a profit, interim dividends may be distributed before the approval of the financial statements for the fiscal year. The amount of these interim dividends may not exceed the amount of the profit so defined. No recovery of dividend may be made from the shareholders except when the distribution has been made in breach of the legal provisions and that the company brings evidence that the beneficiaries knew the irregular nature of this distribution at the time it was made or could not ignore it. If necessary, the proceedings for recovery are forfeited unless brought three years after the payment of these dividends. Dividends not claimed within five years after their payment shall be forfeited. TITRE VI - DISSOLUTION - LIQUIDATION - DISPUTES ARTICLE 31 - DISSOLUTION - LIQUIDATION Other than pursuant to dissolution by a court in accordance with law, the company shall be dissolved upon expiration of the term set by the by-laws or by decision of the Extraordinary Shareholders' Meeting. One or more liquidators shall be then appointed by this Extraordinary Shareholders' Meeting under the quorum and majority conditions provided for the Ordinary Shareholders' Meetings. The liquidator shall represent the company. He shall have full powers to sell off the assets, even amicably. He is empowered to pay the creditors and distribute the available remainder. The Shareholders' Meeting may authorize him to carry on the current business or to enter into new business for the purposes of the liquidation. The distribution of the net assets remaining after reimbursement of the par value of the shares shall be made between the shareholders in the same proportions as their equity capital. ARTICLE 32 - DISPUTES Any and all disputes that may arise out during the term of the company or its liquidation, either between shareholders, directors and the company, or among the shareholders themselves, relating to corporate business, shall be settled pursuant to the law and submitted to the courts having jurisdiction in the venue of the registered office. EX-4.2 4 gen_ex4-2.txt EXHIBIT 4.2 ----------- GENESYS STOCK INCENTIVE PLAN I. ESTABLISHMENT OF THE PLAN. Genesys S.A. hereby establishes the Genesys Stock Incentive Plan (hereinafter called the "Plan"), subject to the terms and conditions hereinafter stated. II. PURPOSES OF THE PLAN. The purposes of the Plan are: To encourage stock ownership by Employees of the Corporation so that they will have a proprietary interest in Genesys; To provide an incentive for such Employees to expand and improve the growth and prosperity of the Corporation; and To assist the Corporation in attracting and retaining Employees. III. DEFINITIONS. Unless the context clearly indicates otherwise, the following terms, when used in the Plan, shall have the meanings set forth in this Article III. Wherever used in the Plan, words in the masculine gender shall be deemed to refer to females as well as to males; words in the singular number shall be deemed to refer also to the plural number; and references to a statute or statutory provision shall be construed as if they referred also to that provision (or to a successor provision of similar import) as currently in effect, as amended or as reenacted. (a) "ADR" means a Genesys American Depositary Receipt, representing one ADS. (b) "ADS" means a Genesys American Depositary Share, representing one half of one share of Common Stock, subject to adjustment pursuant to Article X. (c) "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the first Person. (d) "Board" means the Board of Directors of Genesys. (e) "Cause" means, unless otherwise defined in the applicable Option Agreement, the Grantee's Termination by reason of (i) his continued or willful failure substantially to perform his duties for the Corporation (other than any such failure due to the Grantee's physical or mental illness), (ii) his willful and serious misconduct in connection with the performance of his duties for the Corporation that has caused or is reasonably expected to result in material injury to the Corporation, (iii) the Grantee's conviction of, or entering a plea of guilty or nolo contendere to, a crime that constitutes a felony or a crime involving moral turpitude, (iv) his fraudulent or dishonest conduct or (v) his material breach of any of his obligations or covenants under any written policies of the Corporation or any written agreement between such Grantee and the Corporation; provided that if the Grantee is a party to an effective employment agreement on the date of determination and such employment agreement contains a different definition of Cause, the definition of Cause contained in such employment agreement shall be substituted for the definition set forth above for all purposes hereunder. (f) "Change in Control" means the first to occur after the Effective Date of any of the following events: (i) the acquisition by any person, entity or "group" (as defined in section 13(d) of the Exchange Act) (other than (x) Genesys, any of its Affiliates or any of their respective Affiliates or (y) any employee benefit plan of Genesys, any of its Affiliates or any of their respective Affiliates) through one transaction or a series of related transactions of beneficial ownership of equity securities of Genesys representing 50% or more of the combined voting power of all then outstanding equity securities of Genesys that may be cast for the election of directors of Genesys; (ii) the approval by Genesys's stockholders of a merger or consolidation of Genesys with or into another entity as a result of which Persons who were stockholders of Genesys immediately prior to such merger or consolidation, do not, immediately thereafter, own, directly or indirectly, securities representing more than 50% of the combined voting power of all then outstanding securities entitled to vote generally in the election of directors of the merged or consolidated company; (iii) the approval by Genesys' stockholders of a liquidation or dissolution of Genesys, other than a dissolution occurring upon a merger or consolidation of Genesys or a liquidation of Genesys into any of its Affiliates or any of their respective Affiliates; or (iv) the sale, transfer or other disposition of all or substantially all of the assets of Genesys through one transaction or a series of related transactions to one or more Persons that are not, immediately prior to such sale, transfer or other disposition, Affiliates of Genesys or any of their respective Affiliates. (g) "Code" means the Internal Revenue Code of 1986, as amended. (h) "Committee" means the committee of the Board designated by the Board to administer the Plan or, if there is no such committee, the Board; provided, that from and after such time as Genesys ceases to qualify as a "foreign private issuer" within the meaning of Rule 3b-4 of the Exchange Act, the Committee shall consist of two or more persons, at least two of whom qualify as (i) a "non-employee director" within the meaning of Rule 16b-3 of the Exchange Act; and (ii) an "outside director" within the meaning of United States Treasury Regulation Section 1.162-27(e)(3) under the Code, unless otherwise determined by the Board. (i) "Common Stock" means shares of Genesys' common stock, no par value, subject to adjustment pursuant to Article X. (j) "Corporation" means Genesys and, at the time of reference, its Affiliates. (k) "Director" means a member of the Board. (l) "Disability" means, unless otherwise defined in the applicable Option Agreement, a condition entitling a Grantee to benefits under the long-term disability plan maintained by the Corporation in which he is a participant and, in the absence of any such plan, shall mean a mental or physical condition of the Grantee rendering him unable to perform his duties for the Corporation for a period of six (6) consecutive months or for 180 days within any consecutive 365-day period and which is reasonably expected to continue indefinitely; provided that if, as of the date of determination, the Grantee is a party to an effective employment agreement with a different definition of "Disability" or any derivation of such term, the definition of "Disability" (or its derivation) contained in such employment agreement shall be substituted for the definition set forth above for all purposes hereunder. A Grantee's employment or services shall be deemed to have Terminated as a result of Disability on the date as of which he is first entitled to receive disability benefits under such policy or, in the absence of a policy, the date of the determination that the Grantee has such a condition. (m) "Effective Date" means _________, 2001, the date of adoption of the Plan by the Board. (n) "Employee" means any employee of the Corporation, including an employee who is also an officer or Director of the Corporation, but excluding any employees of the Corporation primarily employed in, or residents of, France. (o) "Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended. (p) "Fair Market Value" of an ADS shall mean, as of any date of determination, (i) with respect to Options that are not Incentive Stock Options, the average of the closing price or the closing bid and ask price, as the case may be, of an ADS over the 20 trading days immediately preceding such date of determination or (ii) with respect to Incentive Stock Options, the greater of (x) 95% of the average of the closing price or the closing bid and ask price, as the case may be, of an ADS over the 20 trading days immediately preceding such date of determination and (y) the closing price or closing bid and ask price, as the case may be, on such date of determination, in any case, (A) as reported on the principal securities exchange on which ADSs are then listed or admitted to trading, (B) if the ADSs are not then listed or admitted to trading upon an established stock exchange, as reported on the National Association of Securities Dealers Automated Quotation System, or (C) if not so reported, as furnished by any member of the National Association of Securities Dealers, Inc. selected by the Committee. The closing price or closing bid and ask price, as the case may be, of an ADS as of any such date on which the applicable exchange or inter-dealer quotation system through which trading in ADSs is traded is closed shall be the closing price or closing bid and ask price, as the case may be, determined pursuant to the preceding sentence as of the immediately preceding date on which such exchange or system is open for trading. (q) "Family Members" means a Grantee's spouse, children or grandchildren. (r) "Genesys" means Genesys S.A., or any successor thereto, including any entity that the Board determines has succeeded Genesys. (s) "Grant Date" shall mean, with respect to an Option Award, the effective date of the grant of such Option Award. (t) "Grantee" means an Employee to whom an Option is granted under the Plan. (u) "Incentive Stock Option" means an Option that is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and which is identified as an Incentive Stock Option in the Option Agreement by which it is evidenced. (v) "Normal Expiration Date" means, with respect to an Option Award, the eighth anniversary of the Grant Date of such award or such other date as may be specified in the Option Agreement evidencing such award. (w) "Option" means a right granted to a Grantee to purchase two (2) ADSs under the Plan, provided, however, that, if on the effective date of the exercise of a Vested Option the Grantee is a Restricted Participant, such Grantee shall receive one (1) share of Common Stock in lieu of two (2) ADSs, in accordance with paragraph (e) of Article VIII herein. (x) "Option Award" means, collectively, the Options granted to a Grantee as of a particular Grant Date as evidenced by an Option Agreement. (y) "Option Agreement" means the written agreement entered into by Genesys and a Grantee evidencing an Option Award hereunder and setting forth the terms and conditions applicable thereto. (z) "Plan" means the Genesys Stock Incentive Plan, as set forth herein and as amended from time to time, together with all Schedules hereto. (aa) "Person" means any natural person, firm, partnership, limited liability company, association, corporation, company, trust, business trust, governmental authority or other entity. (bb) "Restricted Participant" means any Grantee, who on the effective date of the exercise of a Vested Option is, or at any time within the three-month period immediately preceding such effective date was, an officer, director or other affiliate of, or a person performing similar functions for, the Corporation who is not permitted to deposit any securities with The Bank of New York (as depositary) under the Deposit Agreement with Genesys, dated February 12, 2001. (cc) "Retirement" means, unless otherwise defined in the applicable Option Agreement, the Termination of a Grantee, other than by reason of Disability or death or by the Corporation for Cause, at or after his attainment of age 65; provided that if, as of the date of determination, the Grantee is a party to an effective employment agreement with a different definition of "Retirement", the definition of "Retirement" contained in such employment agreement shall be substituted for the definition set forth above for all purposes hereunder. (dd) "Securities Act" means the U.S. Securities Act of 1933, as amended. (ee) "Schedule" shall mean each schedule attached to, and forming a part of, the Plan that will be governed by the laws of any jurisdiction other than the United States or any state thereof and that sets forth certain additional or alternative terms and conditions that will apply to Options granted hereunder. (ff) "Subsidiary" means a subsidiary of the Corporation that meets the definition of a "subsidiary corporation" in Section 424(f) of the Code. (gg) "Termination" shall mean, with respect to a Grantee, the occurrence of any event following which such Grantee is not an Employee. (hh) "Vested Option" means, collectively and with respect to an Option Award, the Options covered by such award that have vested in accordance with Paragraph (b) of Article VIII hereof. IV. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the Committee. Members of the Committee shall be appointed by and shall serve at the discretion of the Board. Except as otherwise provided in this paragraph, the Committee shall have discretionary authority to exercise all of the powers granted to it by the provisions of the Plan and to interpret and construe any provision of the Plan and the terms of any Option issued under it and any Option Agreement. Subject to the express provisions and limitations of the Plan, the Committee may adopt such rules, regulations, and procedures as it deems advisable for the conduct of its affairs, and may appoint one of its members to be its chairman and any person, whether or not a member, to be its secretary or agent. Decisions of the Committee shall be final and binding on all parties and all decisions, determinations, selections and other actions permitted or required to be taken or made by the Committee with respect to the Plan or any Option granted hereunder or Option Agreement shall be subject to the absolute discretion of the Committee. No member of the Committee or the Board shall be liable to any Grantee for any action, omission, or determination relating to the Plan and each member of the Committee and the Board shall be indemnified by Genesys to the fullest extent permitted by law with respect to any action taken or determination made in good faith in connection with the Plan. The Board shall act by vote or written consent of a majority of its members. V. CAPITAL STOCK SUBJECT TO AWARDS. (a) Shares Available Under the Plan. The aggregate number of shares of Common Stock issued, including shares issued in the form of ADSs (represented by ADRs) pursuant to Option Awards granted under the Plan shall not exceed 550,000 shares of Common Stock, which number is subject to adjustment pursuant to Article X. Shares of Common Stock issued, including shares issued in the form of ADSs (represented by ADRs) pursuant to Options granted hereunder shall be provided from shares in Genesys' treasury or from shares authorized but unissued. In the event that any outstanding Option Award expires, terminates or is cancelled for any reason without the issuance of all shares of Common Stock (whether or not represented by ADRs) covered by such Option Award, such unissued shares of Common Stock subject to such Option Award shall again be available for grant under the Plan. (b) Limitations On Awards. During the term of the Plan, no Employee may be granted Options to purchase more than an aggregate of 550,000 shares of Common Stock (whether or not represented by ADRs), which number is subject to adjustment pursuant to Article X. VI. ELIGIBILITY. Those Employees of the Corporation selected by the Committee shall be eligible to receive Option Awards pursuant to the Plan from time to time, as determined by the Committee. VII. DESIGNATION OF GRANTEES. Subject to the provisions of the Plan, the Committee may determine from time to time which of those eligible Employees will be granted an Option Award under the Plan, and how many Options will be covered by any Option Award granted to such Employee. Subject to paragraph (e) of Article VIII herein, each Option shall represent a right to purchase two (2) ADS. In making such determinations, the Committee shall take into account the duties and responsibilities of each Employee, his or her present and potential contributions to the growth and success of the Corporation, and such other factors as the Committee shall deem consistent with the purposes of the Plan. The Committee shall not be precluded from granting Option Awards to any eligible Employee solely because such Employee has previously received a grant of an Option Award under the Plan. VIII. TERMS OF OPTIONS. Option Awards granted under the Plan shall be evidenced by an Option Agreement substantially in the form attached hereto as Exhibit A or, subject to Article IV hereof, in such other form as the Committee shall approve. Each Option shall be clearly identified in the Option Agreement evidencing its grant as a non-qualified stock option that is not intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Code or as an Incentive Stock Option and shall be subject to the following terms and conditions, any applicable terms and conditions set forth in a Schedule and such other terms and conditions set forth in the Option Agreement that are not inconsistent with the terms of the Plan, as the Committee shall determine: (a) Number of Shares and Option Exercise Price. The purchase price for each ADS subject to an Option shall be determined by the Committee and set forth in the applicable Option Agreement, provided that, with respect to an Incentive Stock Option, the purchase price for an ADS shall not be less than the Fair Market Value of an ADS on the Grant Date of such Option and, with respect to Options that are not Incentive Stock Options, the purchase price for an ADS shall not be less than 95% of the Fair Market Value of an ADS on the Grant Date. (b) Limitations on Exercise of Options. Unless otherwise provided in the applicable Option Agreement, Options covered by an Option Award shall become vested and exercisable in installments as follows: (x) with respect to 10% of the Options covered thereby on the first anniversary of the Grant Date, (y) with respect to an additional 7.5% of the Options covered thereby on the last day of each of the eleven calendar quarters immediately following the first anniversary of the Grant Date and (z) with respect to the remaining 7.5% of the Options covered thereby on the fourth anniversary of the Grant Date; provided in the case of each such installment, that (I) the Grantee remains in the continuous employment of the Corporation from the Grant Date through the applicable vesting date, (II) no Option shall be exercisable after the Normal Expiration Date and (III) each Option shall be subject to earlier termination, expiration or cancellation as provided in the Plan or in the applicable Option Agreement. At the time an Option is granted, the Committee may provide in the applicable Option Agreement or, at any time thereafter the Committee may stipulate that, if a Change in Control occurs, the limitations set forth above in this paragraph (b) shall lapse with respect to such Option and that such Option shall become immediately vested and exercisable in full. (c) Duration of Option. (i) Upon a Grantee's Termination for any reason, (A) all of the Options covered by Option Awards then held by such Grantee that are not Vested Options as of the date of Termination shall expire immediately upon such Termination and (B) all of the Options covered by Option Awards then held by such Grantee that are Vested Options shall remain exercisable following such Termination until the earliest of the dates specified in the applicable clauses (1) through (5) below and any such Vested Options that are not exercised prior to such earliest date shall expire immediately upon such earliest date: 1. if such Termination is for Cause, the commencement of business on the date notice of Termination is communicated to the Grantee; 2. if such Termination is for any reason other than Cause, Retirement, death or Disability, the 90th day after the effective date of Termination; 3. if such Termination is due to the Grantee's Disability or Retirement, the Normal Expiration Date, provided, however, that, with respect to Incentive Stock Options, (x) if such Termination is due to the Grantee's Disability, such Vested Options shall remain exercisable until the first anniversary of such Disability and (y) if such Termination is due to the Grantee's Retirement, such Vested Options shall remain exercisable until the 90th day after the effective date of such Termination; 4. if such Termination is due to the Grantee's death, the six-month anniversary of such death; and 5. in all cases, the Normal Expiration Date for each such Vested Option. Notwithstanding the foregoing provisions, the Committee may specify in the Option Agreement on or after the Grant Date a different expiration date or period of exercise for any Option granted hereunder and may provide for the continued vesting of any Options following a Grantee's Termination, and such expiration date or period and provision for continued vesting shall supersede the foregoing. (d) Nonassignability of Options. No Options granted under the Plan may be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, except that Options may be transferred (i) by will or by the laws of descent and distribution or (ii) with the prior written consent of the Committee, to (A) a trust or trusts for the exclusive benefit of the Grantee's Family Members or (B) a partnership or limited liability company for the exclusive benefit of such Family Members or of which such Family Members and/or trusts are the sole partners or members, as the case may be, provided that the deceased Grantee's beneficiary or the representative of the Grantee's estate or the Grantee's permitted transferee shall acknowledge and agree in writing, in a form reasonably acceptable to Genesys, to be bound by the provisions of the Plan and any applicable Option Agreement as if such beneficiary or the estate were the Grantee. During a Grantee's lifetime, Options shall be exercisable only by such Grantee or his permitted transferees as described above in this paragraph (c). Notwithstanding the foregoing, an Incentive Stock Option shall not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated otherwise than by will or by the laws of descent and distribution. (e) Manner of Exercise. Notwithstanding any other provision in the Plan or any applicable Option Agreement, if on the effective date of the exercise of a Vested Option the Grantee is a Restricted Participant, such Grantee shall receive one (1) share of Common Stock in lieu of two (2) ADSs in respect of each such exercised Vested Option. Subject to the terms and conditions set forth in the Plan and the applicable Option Agreement, Vested Options under an Option Award may be exercised at one time or from time to time, except that each partial exercise of an Option Award shall be for at least 200 ADSs or 100 shares of Common Stock, as the case may be, or, if fewer than 200 ADSs or 100 shares remain outstanding under the Option Award, for all the remaining shares of ADSs or shares of Common Stock. Vested Options shall be exercised by delivering written notice to Genesys' principal office, to the attention of Genesys' Chief Human Resources Officer, no less than three business days in advance of the effective date of the proposed exercise. Such notice shall specify the number of Vested Options that are being exercised, the effective date of the proposed exercise, the aggregate exercise price due in connection with such proposed exercise, the proposed form of payment and shall be signed by the Grantee. The Grantee may withdraw such notice at any time prior to the close of business on the business day immediately preceding the effective date of the proposed exercise. (f) Payment for ADSs or Shares of Common Stock. Payment for ADSs or shares of Common Stock, as the case may be, purchased upon the exercise of a Vested Option shall be made in cash or by check or wire transfer on or prior to the effective date of such exercise. Subject to the Grantee's payment of withholding taxes pursuant to the following Paragraph (g), an ADR (representing the ADS or ADSs) or a share of Common Stock, as the case may be, purchased upon the exercise of one or more Vested Options shall be issued in the name of such Grantee (or, if applicable, the estate or permitted transferee, etc.) and delivered to the Grantee (or, if applicable, the estate or permitted transferee, etc.) as soon as practicable following the effective date on which such Vested Option or Options are exercised. The shares of Common Stock issued, including shares issued in the form of an ADS, pursuant to the Plan pursuant to the exercise of a Vested Option shall be fully paid and nonassessable. (g) Payment of Withholding Taxes. Payment in full of any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to the exercise of a Vested Option shall be made to the Corporation in cash or by check or wire transfer on or prior to the effective date of the exercise of such Vested Option. (h) Voting and Dividend Rights. No Person shall have any voting or dividend rights or any other rights of a stockholder with respect to an ADS or a share of Common Stock (including any share of Common Stock underlying an ADS) covered by an Option before such Person exercises the Option with respect to such ADS or Common Stock and the ADR representing such ADS or the Common Stock is issued to such person. (i) Certain Terms Applicable to Incentive Stock Options. The aggregate Fair Market Value of ADSs with respect to which Incentive Stock Options granted under the Plan (together with any such options granted under any other stock option plan of the Corporation or any Subsidiary thereof) are exercisable for the first time by a Grantee during any calendar year shall not exceed $100,000. Such Fair Market Value shall be determined as of the date on which each such Incentive Stock Option is granted. In the event that such aggregate Fair Market Value exceeds $100,000, then Incentive Stock Options granted hereunder to such Grantee shall, to the extent of such excess and in the order in which they were granted, automatically be deemed not to be Incentive Stock Options, but all other terms and provisions of such Incentive Stock Options shall remain unchanged. No Incentive Stock Option may be granted to an individual if, at the time of the proposed grant, such individual owns stock possessing more than ten percent of the total combined voting power of all classes of stock of Genesys or any of its Subsidiaries, unless (i) the exercise price per ADS covered by such Incentive Stock Option is at least one hundred and ten percent of the Fair Market Value of an ADS at the time such Incentive Stock Option is granted and (ii) such Incentive Stock Option is not exercisable after the expiration of five years after the date such Incentive Stock Option is granted. IX. COMPLIANCE WITH LAW AND OTHER CONDITIONS. (a) Restrictions on Exercise of Options. Genesys shall not be obligated to effect the registration pursuant to the Securities Act of any Common Stock or ADSs to be issued hereunder or to effect similar compliance under any state laws. Notwithstanding anything herein to the contrary, Genesys shall not be obligated to cause to be issued or delivered any ADRs representing ADSs or shares of Common Stock pursuant to the Plan unless and until Genesys is advised by its legal counsel that the issuance and delivery of such ADRs or shares is in compliance with all applicable laws, regulations of governmental authority and the requirements of any securities exchange on which shares of Common Stock or ADSs are traded. The Committee may require, as a condition to the issuance and delivery of ADRs representing ADSs or shares of Common Stock pursuant to the terms hereof, that the recipient of such ADRs or shares make such covenants, agreements and representations, and that such ADRs or shares bear such legends, as the Committee deems necessary or desirable. The exercise of any Option granted hereunder shall only be effective at such time as counsel to Genesys shall have determined that the issuance and delivery of ADRs or shares of Common Stock pursuant to such exercise is in compliance with all applicable laws, regulations of governmental authority and the requirements of any securities exchange on which shares of Common Stock or ADSs are traded. Genesys may, in its sole discretion, defer the effectiveness of any exercise of an Option granted hereunder to allow the issuance of ADRs or Common Stock pursuant thereto to be made pursuant to registration or an exemption from registration or other methods for compliance available under federal or state securities laws. Genesys shall inform the Grantee in writing of its decision to defer the effectiveness of the exercise of an Option granted hereunder. During the period that the effectiveness of the exercise of an Option has been deferred, the Grantee may, by written notice, withdraw such exercise and obtain the refund of any amount paid with respect thereto. (b) Restrictions on Resale of Unregistered Shares. If the shares of Common Stock or ADSs that have been sold to a Grantee pursuant to the terms of the Plan are not registered under the Securities Act of 1933, as amended, pursuant to an effective registration statement, such Grantee may be required, if the Committee shall deem it advisable, to agree in writing (i) that any shares of Common Stock or ADSs acquired by such Grantee pursuant to the Plan will not be sold except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act, and (ii) that such Grantee is acquiring such ADSs or shares for his own account and not with a view to the distribution thereof. X. ADJUSTMENTS. (a) Adjustments in Capitalization. In the event of any change in the number, class or type of shares of Common Stock outstanding, the number, class or type of securities represented by an ADS or other change in the capitalization of Genesys by reason of any stock dividend or split, recapitalization, merger, consolidation, reorganization, combination or exchange of shares or similar event or transaction (each, an "Adjustment Event"), the Committee may make such adjustments as it determines are appropriate to (i) the maximum aggregate number of shares of Common Stock and/or the class or type of securities with respect to which Options may be granted under the Plan, (ii) the maximum number of Options and/or the class or type of securities covered by such Options that may be granted under the Plan to any individual during any twelve month period, (iii) the number of ADSs and/or the number, class or type of securities covered by then outstanding Option Awards and the per share exercise price for such securities under such Option Awards, (iv) the number of ADSs represented by one ADR and (v) the number of shares of Common Stock represented by on ADS. In addition, in connection with an Adjustment Event, the Committee may provide for the conversion of each Option outstanding immediately prior to such event (whether or not then vested or exercisable) into an equivalent option, on the same terms and conditions, with respect to some or all of the property for which the outstanding shares of the class of stock underlying such Option is exchanged in connection with such event and, incident thereto, make such adjustments in the exercise price and/or the number of securities or amount or type of property subject to such converted option as it determines. Except as expressly provided in the Plan or an Option Agreement, no Grantee shall have any rights by reason of any Adjustment Event or by reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend or any increase or decrease in the number of shares of stock of any class or (iii) any dissolution, liquidation, merger or consolidation of Genesys or any other corporation. (b) Change in Control. In the event of a Change in Control, the Committee may provide that each outstanding Option shall become immediately vested and exercisable, unless such Option is converted into or otherwise exchanged for an equivalent option, on the same terms and conditions, with respect to some or all of the securities or other property for which the outstanding shares of the class of stock underlying such Option is exchanged in connection with the Change in Control and, incident thereto, adjusted with respect to the exercise price and/or the number of shares or amount or type of securities or other property subject to such converted option as the Committee determines. XI. MISCELLANEOUS PROVISIONS. (a) No Right to Receive Award. Nothing in the Plan shall be construed to give any Employee any right to receive an Option Award under the Plan or any Grantee to receive additional Option Awards under the Plan. (b) Expenses of Plan. The expenses of the Plan shall be borne by Genesys. (c) Conversion. For Genesys accounting purposes, the purchase price for an Option will be converted at the U.S. dollar/Euro exchange rate existing on the day immediately preceding the Grant Date of such Option. XII. AMENDMENT, SUSPENSION, OR TERMINATION. (a) Amendment. The Plan may be amended at any time and from time to time by the Board, but no amendment that increases the aggregate number of shares of Common Stock that may be granted pursuant to the Plan or the aggregate number of Options permitted to be granted to any Grantee during the term of the Plan as set forth in Section V(b) hereof, that enlarges the class of individuals entitled to receive Option Awards under the Plan or that extends the period during which Option Awards may be granted under the Plan shall be effective unless and until the same is approved, at a meeting held to take such action at which a quorum is present, by the affirmative vote of the holders of a majority of the shares of Common Stock of Genesys present in person or by proxy and entitled to vote. Without the written consent of a Grantee, no amendment of the Plan shall adversely affect any right of such Grantee with respect to any then outstanding Option Award theretofore granted to him or to her. (b) Right of Board to Suspend or Terminate Plan. The Board may at any time suspend or terminate the Plan. No Option Awards may be granted during any suspension of the Plan or after the Plan has been terminated. (c) Termination of Plan. The Plan shall terminate upon the earlier of the following dates: (i) On the date of termination specified in a resolution of the Board, or (ii) On a date three years from the date on which the Plan is approved by the Board. Except as otherwise provided herein, the termination of the Plan shall not affect any then outstanding Option Awards previously granted. After the Plan terminates, the function of the Committee will be limited to supervising the administration of Option Awards previously granted. XIII. GOVERNING LAW. The Plan and all Option Awards made thereunder shall be governed by the laws of the State of New York without reference to principles of conflict of laws which would require application of the law of another jurisdiction. XIV. ADOPTION BY BOARD. The Plan shall become effective upon its adoption by the Board. Exhibit A NON-QUALIFIED STOCK OPTION AGREEMENT- U.S. STOCK OPTION AGREEMENT, dated as of ______________, 2001, by and between Genesys, S.A. ("Genesys"), and the grantee, an Employee of the Corporation, whose name appears on the signature page hereof (the "Grantee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, Genesys has adopted the Genesys Stock Incentive Plan (the "Plan") to encourage stock ownership by certain Employees of the Corporation and to provide incentives for such Employees to improve the growth and profitability of the Corporation; WHEREAS, subject to the terms of the Plan, the Plan provides for the grant to participants in the Plan of stock options to purchase ADSs and the Board has approved the grant to the Grantee of the number of non-qualified options to purchase ADSs set forth on the signature page hereof on the terms and conditions stated herein; WHEREAS, the Grantee and Genesys desire to enter into an agreement to evidence and confirm the grant of such stock options on the terms and conditions set forth herein and; WHEREAS, all capitalized terms used herein and not defined herein shall have the meanings assigned to them in the Plan. NOW, THEREFORE, to evidence the stock options so granted, and to set forth the terms and conditions governing such stock options, Genesys and the Grantee hereby agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms shall have the following meanings: (a) "Covered Options" shall have the meaning set forth in Section 4(b) hereof. (b) "Exercise Date" shall have the meaning set forth in Section 5 hereof. (c) "Exercise Price" shall have the meaning set forth in Section 5 hereof. (d) "Exercise Shares" shall have the meaning set forth in Section 5 hereof. (e) "Grant Date" shall mean the date hereof, which is the date on which the Options are granted to the Grantee. (f) "Grantee" shall have the meaning set forth in the introductory paragraph hereto. (g) "Option Award" shall mean, collectively, the Options granted to the Grantee pursuant to this Agreement. (h) "Option" shall mean the right granted to the Grantee pursuant to this Agreement to purchase ADSs, subject to the terms and conditions hereof. The number of Options granted to the Grantee pursuant to this Agreement is set forth on the signature page hereof. An Option can only be exercised in full and, accordingly, an Option cannot be exercised for less than two (2) ADSs, provided, however, that if on the Exercise Date of an Option the Grantee is a Restricted Participant, the Grantee shall receive one (1) share of Common Stock in respect of such Option, in lieu of two (2) ADSs, in accordance with paragraph (e) of Article VIII herein and Section 5(c) herein. (i) "Option Price" shall mean, with respect to each Option, the exercise price specified in Section 2(b) hereof at which the Grantee may purchase two (2) ADSs. (j) "Rule 144" shall mean Rule 144 promulgated under the Securities Act. 2. Grant of Options. (a) Confirmation of Grant. Genesys hereby evidences and confirms its grant to the Grantee, effective as of the date hereof, of the Option Award. The Options are not intended to be incentive stock options under the U.S. Internal Revenue Code of 1986, as amended. This Agreement is subordinate to, and the terms and conditions of the Options granted hereunder are subject to, the terms and conditions of the Plan. If there is any inconsistency between the terms hereof and the terms of the Plan, the terms of the Plan shall govern. (b) Option Price. With respect to each Option, the Option Price shall be $ _______. 3. Exercisability. The Option Award shall become exercisable in installments as follows: (x) with respect to 10% of the Options covered thereby on the first anniversary of the Grant Date and (y) with respect to an additional 7.5% of the Options covered thereby on the last day of each of the eleven calendar quarters immediately following the first anniversary of the Grant Date and (z) with respect to the remaining 7.5% of the Options covered thereby on the fourth anniversary of the Grant Date; provided in the case of each such installment, that (I) the Grantee remains in the continuous employment of the Corporation from the Grant Date through the applicable vesting date, (II) no Option shall be exercisable after the Normal Expiration Date and (III) each Option shall be subject to earlier termination, expiration or cancellation as provided in the Plan or in the applicable Option Agreement. 4. Termination of Options. (a) Normal Expiration Date. Subject to the terms of the Plan and Section 4(b) herein, the Options shall terminate and be canceled on the Normal Expiration Date. (b) Early Termination. In the event of a Termination of the Grantee for any reason prior to the Normal Expiration Date, any Options held by the Grantee as of the effective date of such Termination that have not become exercisable in accordance with Section 3 hereof or the terms of the Plan on or prior to such effective date shall automatically terminate and be canceled immediately upon such Termination, unless otherwise provided below. All Options held by the Grantee as of the effective date of such Termination that have become exercisable in accordance with Section 3 hereof or the terms of the Plan on or prior to such effective date (such Options, the "Covered Options") shall remain exercisable for whichever of the following periods is applicable, and if not exercised within such period, shall automatically terminate and be canceled upon the expiration of such period: (i) upon a Termination by reason of Grantee's Disability or Retirement, the Covered Options shall remain exercisable until the Normal Expiration Date, (ii) upon a Termination as a result of death, if the Grantee has not fully exercised his Covered Options, his personal representative or those persons who receive any Covered Options by bequest or inheritance, shall have the right, during the period ending on the earlier of the six-month anniversary of the date of the Grantee's death and the Normal Expiration Date to exercise such Covered Options, and (iii) upon a Termination for any reason other than (A) the Grantee's death, Disability or Retirement or (B) a Termination for Cause, the Covered Options shall remain exercisable until the earliest to occur of (x) the ninetieth (90th) day after the Grantee's Termination, and (y) the Normal Expiration Date. Notwithstanding anything else contained in this Agreement, in the event of a Grantee's Termination for Cause, all Options (whether or not then vested or exercisable) shall automatically terminate and be canceled immediately upon such Termination. Nothing in this Agreement shall be deemed to confer on the Grantee any right to continue in the employ of the Corporation or to interfere with or limit in any way the right of the Corporation or any Affiliate to Terminate the Grantee at any time. 5. Manner of Exercise. (a) To the extent that any outstanding Options shall have become and remain vested and exercisable as provided in Sections 3 and 4 and subject to such reasonable administrative regulations as the Board may have adopted, such Options may be exercised by notice to Genesys' Chief Human Resources Officer, in writing no less than 3 business days prior to the date as of which the Grantee will so exercise the Options (the "Exercise Date"), specifying the number of Options being exercised (the "Exercise Options"), the effective date of the proposed exercise, the proposed form of payment and the aggregate Option Price for such Exercise Options. On or before the Exercise Date, the Grantee shall deliver to Genesys full payment for the Exercise Options by check or wire transfer, or in immediately available funds in an amount equal to the product of the number of Exercise Options, multiplied by the Option Price (collectively, the "Exercise Price") and (ii) subject to Section 5(b) and Section 5(c), Genesys shall issue the ADR representing the ADS or ADSs purchased upon exercise in the name of the Grantee as soon as practicable following the Exercise Date. Genesys may require the Grantee to furnish or execute such other documents as Genesys, shall reasonably deem necessary (i) to evidence such exercise, (ii) to determine whether registration is then required under the Securities Act and (iii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities law or any other applicable law. (b) Notwithstanding anything herein to the contrary, Genesys may, in lieu of delivering ADRs representing the ADSs covered by the Exercise Options to the Grantee, return to the Grantee the Exercise Price tendered for the Exercise Options and pay to the Grantee an additional amount equal to the excess of (i) the Fair Market Value, as of the determination date, of such ADSs over (ii) the Exercise Price. (c) Notwithstanding anything herein to the contrary, if on the Exercise Date of an Option the Grantee is a Restricted Participant, the Grantee shall receive one (1) share of Common Stock in lieu of two (2) ADSs in respect of each exercised Option. 6. No Rights as Stockholder. The Grantee shall have no voting or other rights as a holder of ADSs or shares of Common Stock of Genesys covered by the Options until the exercise of the Options and the issuance of a certificate or certificates to the Grantee for the ADR representing such ADSs or for shares of Common Stock. No adjustment shall be made for dividends or other rights for which the record date is prior to the issuance of such certificate or certificates. 7. Miscellaneous. (a) Notices. All Notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to Genesys or the Grantee, as the case may be, at the following addresses or to such other address as the Corporation or the Grantee, as the case may be, shall specify by notice to the others: (i) if to Genesys, to it at: 954 Avenue Jean-Mermoz 34000 Montpellier, France Attn: Chief of Human Resources (ii) if to the Grantee, to the Grantee at the address set forth on the signature page hereof. All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof, provided that the party giving such notice or communication shall have attempted to telephone the party or parties to which notice is being given during regular business hours on or before the day such notice or communication is being sent, to advise such party or parties that such notice is being sent. Copies if any notice or other communication given under this Agreement shall also be given to: Cleary, Gottlieb, Steen & Hamilton 1 Liberty Plaza New York, NY 10006 Attn: Deborah E. Kurtzberg (b) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein. (c) Waiver; Amendment. (i) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party's or beneficiary's rights or privileges hereunder or shall be deemed a waiver or such party's or beneficiary's rights to exercise the same at any subsequent time or times hereunder. (ii) Amendment. This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Grantee and Genesys. (d) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by Genesys or the Grantee without the prior written consent of the other parties. (e) Incorporation of Plan. All terms and provisions of the Plan are incorporated herein and made part hereof as if state herein. If an provision hereof and of the Plan shall be in conflict, the terms of the Plan shall govern. (f) Applicable Law. The Plan and all awards made thereunder shall be governed by the laws of the State of New York without reference to principles of conflict of laws which would require application of the law of another jurisdiction. (g) Section and Other Headings, etc. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. (h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, Genesys and the Grantee have executed this Agreement as of the date first above written. GENESYS S.A. By: ----------------------------------- Name: Title: THE GRANTEE: By: ----------------------------------- Address of the Grantee: Number of Options granted to the Grantee pursuant to this Agreement: - ------------ EX-5.1 5 gen_ex5-1.txt EXHIBIT 5.1 ----------- [Genesys Letterhead] July 10, 2001 Genesys S.A. Le Regent - 4 rue Jules Ferry 34008 Montpellier, France Dear Sirs: I am the General Counsel of Genesys S.A., a French corporation (the "Company") and in that capacity am familiar with the Company's Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, by the Company of an aggregate of 550,000 shares of its common stock (the "Shares") issuable upon exercise of stock options granted under the Stock Option Plan (the "Plan"), In connection with this opinion letter, I have examined the originals or copies certified or otherwise identified to my satisfaction of the Registration Statement and such other records, documents, certificates, agreements, or other instruments and have made such other inquiries, all as I deemed necessary to enable me to render the opinions expressed below. Based on the foregoing, I am of the opinion that the Shares have been duly and validly authorized for issuance and, when issued will be validly issued, fully paid and non-assessable. I consent to the inclusion of this opinion as part of the Registration Statement and to the reference to me contained therein. In giving this consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rule promulgated thereunder. Very truly yours, /s/ Marie Capela-Laborde ------------------------ Marie Capela-Laborde General Counsel EX-23.1 6 gen_ex23-1.txt Exhibit 23.1 ------------ Consent of Independent Auditors We consent to the reference to our firm in the Registration Statement of Genesys S.A. on Form S-8 pertaining to the Genesys Stock Incentive Plan and to the incorporation by reference therein of our report dated June 2, 2002 relating to the consolidated financial statements of Genesys S.A., which appears in the Registration Statement on Form 20-F filed with the Securities and Exchange Commission on June 12, 2002. Montpellier, July 10, 2002 ERNST & YOUNG AUDIT /s/ Antoine Peskine Represented by Antoine Peskine -----END PRIVACY-ENHANCED MESSAGE-----