RIGHTS AGENCY AGREEMENT
| Exhibit 4.2 |
RIGHTS AGENCY AGREEMENT dated as of ________, 2003 (this “Agreement”) between Genesys S.A., a société anonyme organized under the laws of France (the “Company”), The Bank of New York, a New York banking corporation (the “ADS Rights Agent).
WHEREAS, the Company is offering up to ______________ ordinary shares in the form of ordinary shares or American Depositary Shares (“ADSs”) in a rights offering (the “Rights Offer”) pursuant to statutory preferential rights under French law to existing holders of its ordinary shares (the “Share Rights Offer”) and ADSs (the “ADS Rights Offer”);
WHEREAS, in the ADS Rights Offer, the Company will
grant to existing holders of ADSs issued under the Deposit Agreement dated as
of February 12, 2001 (the “Deposit Agreement”), among the Company,
The Bank of New York, as Depositary (the “Depositary”), and all owners
and beneficial owners from time to time of ADSs issued thereunder, that are
registered on the books of the Depositary as of the record date (the “Holders”),
rights (the “ADS Rights”) to purchase additional ADSs (“New ADSs”).
Each ADS represents one-half of one share, nominal value €1 per share
(each, a “Share”), of the Company.
WHEREAS, the Company wishes to appoint the ADS Rights Agent as its agent for administration of the ADS Rights Offer and the ADS Rights Agent is willing to accept that appointment.
WHEREAS, the Company has registered the Shares to
which the ADS Rights relate under the Securities Act of 1933, as amended, and
will make the ADS Rights Offer to each of the Holders by means of a prospectus
prepared by the Company (the “Prospectus”), which will be accompanied
by a certificate evidencing the ADS Rights that includes a subscription form
and a notice to Holders in the form attached hereto as Exhibit A (the
“Subscription Form”) containing instructions with respect to the number
of New ADSs that may be purchased, the method for subscribing for New ADSs and
the delivery of payment for the New ADSs.
NOW, THEREFORE, in consideration of the premises and mutual agreements contained in this Agreement, the Company and the ADS Rights Agent hereby agree as follows:
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ARTICLE I.
APPOINTMENT OF THE ADS RIGHTS AGENT
The Company hereby appoints The Bank of New York as the ADS Rights Agent of the Company in connection with the ADS Rights Offer in accordance with the terms and conditions of this Agreement, and The Bank of New York hereby accepts such appointment upon the terms and subject to the conditions set forth in this Agreement.
ARTICLE II.
TERMS OF ADS RIGHTS OFFER
2.1. The subscription
period will commence on or about July 10, 2003 (the actual starting date is
called the “Commencement Date”) and will end at 5:00 p.m., New York
time on July 18, 2003 unless the Company extends it (the actual ending date
and time is referred to as the “Expiration Date”). The Commencement
Date through the Expiration Date will constitute the subscription period (the
“Subscription Period”). The Company shall notify the ADS Rights Agent
of the Commencement Date if different from the date set forth above (and in
the absence of such notice the Rights Agent may assume that the Commencement
Date is such date) and of any extension of the Expiration Date.
2.2. Holders holding
ADSs as of 5:00 p.m., New York time, on July 9, 2003 (the “Record Date”)
may purchase New ADSs pursuant to the ADS Rights Offer at a subscription price
that will be equal to the U.S. dollar equivalent of Euro 1.10 per New ADS (the
“Subscription Price”). The parties understand that the dollar equivalent
of the Subscription Price set forth in the Prospectus is an estimate and that
actual U.S. dollar equivalent will be determined when the ADS Rights Agent converts
the purchase money into Euro pursuant to Article VI hereof. The parties also
understand that Holders will be required to deposit with the ADS Rights Agent
$___ (the “Deposit Amount”) for each New ADS for which they are subscribing
in respect of their ADS Rights or as to which they are placing an order to purchase
in excess of their entitlement in respect of their ADS Rights. The Deposit Amount
is based on the estimated Subscription Price set forth in the Prospectus plus
five percent of that amount, which is an allowance intended to cover currency
exchange rate fluctuations and to pay the Depositary’s fee for issuance
of New ADSs and expenses of the Depositary and the ADS Rights Agent. In lieu
of delivering fractional ADS Rights, the ADS Rights Agent will aggregate the
share rights underlying such fractional entitlements and, to the extent practicable,
will arrange for the sale of such fractional share rights. The net proceeds
of such sale, if any, will be distributed to the Holders entitled thereto.
2.3. The ADS Rights are not transferable by Holders.
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ARTICLE III.
DELIVERY OF RIGHTS OFFER MATERIAL
3.1. On or before the Commencement Date, (a) the Company will deliver to the ADS Rights Agent sufficient copies of the Prospectus, and (b) the ADS Rights Agent shall have printed for its use sufficient copies of (i) the Subscription Form, (ii) Substitute Form W-9 and (iii) Guidelines for Certification of Taxpayer Identification Number of Substitute Form W-9 (the “Guidelines”).
3.2. Unless otherwise instructed in writing by the Company, on or as soon as practicable after the Record Date, the ADS Rights Agent shall send by first class mail or, if so instructed by the Company, by overnight courier, to each Holder as of the Record Date: (i) a Prospectus, (ii) a Subscription Form, (iii) a Substitute Form W-9, (iv) the Guidelines and (v) a return envelope addressed to the ADS Rights Agent for use by such Holder (such material, collectively, the “Rights Offer Material”).
3.3. In the event that the Rights Offer Material is returned to the ADS Rights Agent for any reason and a proper delivery thereof cannot be effected to a Holder, the ADS Rights Agent shall hold such Rights Offer Material and the related Holder’s right to purchase New ADSs under the ADS Rights Offer will be treated as unexercised. The ADS Rights Agent shall supply the Company with such information as the Company may request with respect to any Rights Offer Material that cannot be delivered to a Holder.
3.4. In the event that, prior to the Expiration Date, any Holder notifies the ADS Rights Agent that the Rights Offer Material to which such Holder is entitled has not been delivered, or has been lost, stolen or destroyed, the ADS Rights Agent will furnish to such Holder a copy of the Rights Offer Material. The Company agrees to supply the ADS Rights Agent with sufficient copies of the Prospectus for such purposes.
ARTICLE IV.
ACCEPTANCE OF SUBSCRIPTIONS
4.1. The ADS Rights Agent
is hereby authorized and directed to receive subscriptions for New ADSs on behalf
of the Company throughout the Subscription Period. Holders shall make payment
to the ADS Rights Agent of the Deposit Amount in U.S. dollars. Such payment
must be received by the ADS Rights Agent no later than 5:00 p.m., New York time,
on the Expiration Date. Any funds that the ADS Rights Agent receives during
the Subscription Period from Holders in respect of payments for New ADSs shall
be deposited in an account at the ADS Rights Agent that the ADS Rights Agent
designates solely for such purpose (the “Deposit Account”) and such
funds shall remain in the Deposit Account until they are distributed in accordance
with Section 6.2.
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As promptly as practicable after the ADS Rights Agent receives each Subscription Form, the ADS Rights Agent shall determine whether the Holder sending such Subscription Form has properly completed and executed such form and has submitted the correct Deposit Amount for the New ADSs. If such form is not properly completed, is unexecuted or if such Holder did not send the correct Deposit Amount, then the ADS Rights Agent will send a notice to such Holder requesting such Holder to correct its Subscription Form or submit the proper Deposit Amount, as the case may be. If such Holder does not correct its Subscription Form or submit the proper Deposit Amount, as the case may be, by the Expiration Date, such Holder’s right to purchase New ADSs in the ADS Rights Offer shall be deemed to be unexercised and the ADS Rights Agent shall promptly refund the amount deposited to such Holder. The ADS Rights Agent will require that payment of the Deposit Amount be in the form of a certified or official bank check, money order or wire transfer.
Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Forms shall be deemed to be properly completed:
(a) any subscription with respect to which a Holder has failed to execute a Subscription Form in the manner provided by the terms thereof, provided that (1) the Holder has indicated on such Subscription Form or by written communication, the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the Subscription Form submitted therewith has been duly executed by the Holder, (2) the Holder is the Holder to which such Subscription Form relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the ADS Rights Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4.2. The ADS Rights Agent is hereby authorized to accept subscriptions for New ADSs on behalf of the Company (i) on the Expiration Date, (ii) after determining the total number of New ADSs that an Holder is entitled to purchase in the ADS Rights Offer, pursuant to Article VI hereof, and (iii) upon the proper completion and execution of the Subscription Form, in accordance with the terms thereof and hereof.
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4.3. The ADS Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the New ADSs to which the Subscription Form relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Holder provided that the New ADSs purchased are to be issued in the name of such Holder;
(b) the New ADSs to which the Subscription Form relates are registered in the name of a corporation and the Subscription Form has been executed by an officer of such corporation, provided that the New ADSs purchased are to be issued in the name of such corporation;
(c) the Subscription Form has been executed by a bank, trust company or broker as agent for the Holder to which such Subscription Form relates, provided that the New ADSs purchased are to be issued in the name of such Holder; or
(d) the New ADSs to which such Subscription Form relates are registered in the name of a decedent and the Subscription Form has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (i) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (ii) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York and is otherwise in order, and (iii) there is no evidence actually known to the ADS Rights Agent indicating that such person is not the duly authorized representative which such person purports to be.
4.4. In all cases other
than those described in Sections 4.3(a) through (d) above, the ADS Rights Agent
will be required to obtain all necessary proof of authority to sign in connection
with subscriptions for New ADSs; provided, however, that in the
event that such proof of authority has not been received on or prior to the
Expiration Date, the ADS Rights Agent may obtain advice from the Company as
to whether any such subscriptions may be accepted and the ADS Rights Agent shall
have no liability whatsoever in the event it acts in good faith in accordance
with such advice nor shall the ADS Rights Agent be required to accept subscriptions
for New ADSs in the absence of such proof in the event it does not receive such
advice from the Company prior to the Expiration Date and shall have no liability
whatsoever for any such action.
ARTICLE V.
REPORTS BY THE ADS RIGHTS AGENT
5.1. The ADS Rights Agent will advise the Company by facsimile transmission (a) on the Commencement Date as to the total number of Holders and the total number of ADSs outstanding as of the Record Date; and (b) on each business day during the Subscription Period as to:
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(i) the total number of subscriptions for New ADSs pursuant to the ADS Rights Offer that the ADS Rights Agent has received (which have been properly completed and executed and for which the correct payment amount was received) and the aggregate number of New ADSs subscribed for; |
(ii) the aggregate amount of funds received by the ADS Rights Agent in payment of such subscriptions; and |
(iii) the total number of Holders which the ADS Rights Agent has notified pursuant to Section 4.1 that their Subscription Form was not properly completed or that the correct Deposit Amount for the New ADSs was not received. |
5.2. Not later than 10:00 a.m. (New York City time) on the first New York banking day following the Expiration Date, the ADS Rights Agent will advise the Company and the Depositary by e-mail or facsimile transmission (the “Subscription Report”) as to:
(i) the total number of New ADSs subscribed for in the ADS Rights Offer pursuant to the exercise of ADS Rights and the total number of Shares represented thereby; |
(ii) the total number of unsubscribed ADS rights and the number of share rights represented thereby; and |
(iii) the aggregate amount of funds received by the ADS Rights Agent in payment of such subscriptions. |
ARTICLE VI.
PAYMENTS; SHARE SUBSCRIPTION; REFUNDS
6.1. As promptly as practicable
after delivery of the Subscription Report in accordance with Section 5.2, the
ADS Rights Agent, as agent for the subscribing Holders, (i) shall transfer from
the Deposit Account to the Depositary the fee required under the Deposit Agreement
for execution and delivery of American Depositary Receipts evidencing all the
New ADSs and any applicable expenses of the Depositary, and (ii) shall purchase,
for settlement on or before the expiration date of the Share Rights Offer (which
is expected to be 5:00pm, Paris time, on July 23, 2003), an amount of euros
equal to the subscription price for Shares times the number of Shares to be
represented by New ADSs for which Holders subscribed (the “Euro Subscription
Amount”). If the Deposit Amount paid by any subscribing Holder to the ADS
Rights Agent exceeds the amount required to pay the Holder’s share of the
Euro Subscription Amount, the
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Depositary’s fees and expenses and the expenses of the currency conversion, the ADS Rights Agent shall, at the time the ADS Rights Agent delivers the New ADSs, remit the excess in U.S. dollars (without interest) to the subscribing Holder. If the Deposit Amount paid by any subscribing Holder to the ADS Rights Agent is less than the amount required to pay Holder’s share of the Euro Subscription Amount, the Depositary’s fees and expenses and the expenses of the currency conversion, the ADS Rights Agent shall pay the amount of such deficiency on behalf of such Holder. The Holder will then be required to pay, upon notice by the ADS Rights Agent to such Holder, the amount of such deficiency promptly (including interest and expenses) to the ADS Rights Agent, and the ADS Rights Agent need not deliver any New ADSs subscribed for by such Holder prior to the receipt by the ADS Rights Agent of such payment. If payment of the amount of any deficiency is not received from such Holder by the ADS Rights Agent by the later of (i) the fifth business day after receipt of the ordinary shares underlying the New ADSs by the Depositary’s custodian, as described in Section 7.1 below, and (ii) the fifth business day after the ADS Rights Agent gives notice of such deficiency, the ADS Rights Agent may sell the New ADSs subscribed for by such Holder at a public or private sale, at such place or places and upon such terms as it may deem proper, and the ADS Rights Agent may allocate the proceeds of such sales in an amount sufficient to cover such deficiency (including interest and expenses). In such event, the ADS Rights Agent will then send promptly any remaining New ADSs to such Holder together with a check in the amount of excess proceeds, if any, from such sale; provided, however, that, if the amount of such excess proceeds realized upon the sale of such subscribing Holder’s ADSs is less than $5.00, such excess proceeds need not be distributed. The Company shall indemnify the ADS Rights Agent, with interest, for any unreimbursed deficiency in subscription money, including fees and expenses.
6.2. The ADS Rights Agent
shall pay to the Company the Euro Subscription Amount and shall instruct the
Depositary to subscribe for the total number of Shares to be represented by
New ADSs for which Holders have subscribed prior to the expiration date of the
Share Rights Offer. The payment shall be made in same day funds by wire transfer
in euro to the bank account specified by the Company on Exhibit B hereto.
6.3. The parties understand that, pursuant to the Deposit Agreement and in accordance with the Subscription Report delivered pursuant to Section 5.2, the Depositary will use reasonable efforts to sell rights to purchase Shares to which it is entitled as the holder of Deposited Securities (as defined in the Deposit Agreement) but which the ADS Rights Agent does not request it to exercise on behalf of subscribing Holders, and the ADS Rights Agent shall request that the Depositary do so as promptly as practicable after the Expiration Date and remit the proceeds of such sale to the Holders with respect to which such share rights were sold as promptly as practicable.
ARTICLE VII.
ISSUANCE OF ADRs
7.1. On or about August
4, 2003, the Company will deposit the new Shares underlying the New ADSs (the
“New Shares”) with Société Générale, as
Custodian under the Deposit Agreement, and will request that the Depositary
confirm such deposit to the ADS Rights Agent.
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7.2. When the New Shares to be represented by the New ADSs have been deposited, the ADS Rights Agent shall forward to the Depositary the registration instructions contained in the Subscription Forms delivered by subscribing Holders and shall instruct the Depositary to send New ADSs issuable in respect of those Shares registered in accordance with those instructions to the ADS Rights Agent and the ADS Rights Agent shall deliver those New ADSs in accordance with those instructions, subject to the provisions of Section 6.1.
ARTICLE VIII.
LIMITATIONS OF DUTIES
8.1. The ADS Rights Agent shall have no duties or obligations nor shall it be subject to any liability under this Agreement or the transactions contemplated by this Agreement, except that it shall perform its duties specifically set forth in this Agreement without gross negligence or willful misconduct, and no implied duties or obligations shall be read into this Agreement against the ADS Rights Agent.
8.2. The ADS Rights Agent makes no, and will not be deemed to have made, any representations with respect to, and shall have no duties, responsibilities or obligations with respect to determining, the validity, sufficiency, value or genuineness of any New Shares, Subscription Form or other documents deposited with or delivered to it or any signature or endorsement set forth on or in connection with such documents.
8.3. The ADS Rights Agent shall not be obligated to take any legal action hereunder on behalf of any Holder or any other person.
8.4. The ADS Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement, the Subscription Form or any other Rights Offer Materials or be required to verify the same; and may rely upon and comply with, and shall not have any liability for relying upon and complying with, any Subscription Form or other Rights Offer Material, certificate, instrument, opinion of counsel, notice, letter, telegram, records, or other document or security delivered to it in connection with this Agreement.
8.5. The ADS Rights Agent may consult with legal counsel for the Company or its own counsel (which may be in-house counsel) and rely upon any opinion of such counsel, and shall have no liability in respect of any action taken, omitted or suffered by the ADS Rights Agent hereunder in reliance upon, and in accordance with, any such opinion.
8.6. The ADS Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Company, and to apply to the Company for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of the Company or for any delay in acting while waiting for those instructions. Any application by the ADS Rights Agent for written instructions from the Company may, at the option of the ADS Rights
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Agent, set forth in writing any action proposed to be taken or omitted by the ADS Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The ADS Rights Agent shall not be liable for any action taken by, or omission of, the ADS Rights Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three business days after the date the executive officer of the Company actually receives such application, unless the Company shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the ADS Rights Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
8.7. The ADS Rights Agent shall escheat any property held by the ADS Rights Agent in accordance with applicable law.
8.8. In no event will the ADS Rights Agent be liable to any person (a) for any special, consequential or punitive damages; or (b) if, by reason of:
(i) any law or regulation of any state or country or of any governmental or regulatory authority or stock exchange; or |
(ii) any circumstances beyond its control, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (hardware and software) services; |
it is delayed or prevented from, or would be subject to any civil or criminal liability if it did and therefore does not do, any thing that this Agreement otherwise requires it to do.
8.9. The ADS Rights Agent may perform any duties hereunder either directly or by or through its nominees, correspondents, designees, agents, subagents or subcustodians and the ADS Rights Agent shall not be responsible for any misconduct or negligence on the part of any nominee, correspondent, designee, agent, subagent or subcustodian appointed with due care by it hereunder.
ARTICLE IX.
COMPENSATION; PAYMENT OF EXPENSES; INDEMNIFICATION
9.1. In consideration for the services rendered under this Agreement, the Company agrees to pay to the ADS Rights Agent the fees agreed upon in writing by the Company and the ADS Rights Agent from time to time, and the Company agrees to pay to the ADS Rights Agent, on demand of the ADS Rights Agent, its actual out of pocket expenses, including, without limitation, fees and expenses of counsel, incurred in the preparation and execution of this Agreement and performance of the ADS Rights Agent’s duties under this Agreement.
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9.2. The Company shall
be liable for and shall indemnify and hold harmless the ADS Rights Agent, its
directors, employees, agents and affiliates from and against any and all claims,
losses, liabilities, damages, expenses or judgments (including attorneys’
fees and expenses) (collectively referred to herein as “Losses”) howsoever
arising from or in connection with this Agreement or the performance of the
ADS Rights Agent’s duties hereunder, the enforcement of this Agreement
and disputes between the parties hereto; provided, however, that
nothing contained herein shall require that the ADS Rights Agent be indemnified
for Losses arising from the gross negligence or willful misconduct of the ADS
Rights Agent.
9.3. No provision of this Agreement, other than Section 6.1, shall require the ADS Rights Agent to expend or risk the ADS Rights Agent’s own funds or otherwise incur any financial liability in the performance of any of the ADS Rights Agent’s duties hereunder or in the exercise of the ADS Rights Agent’s rights.
ARTICLE X.
TERMINATION OF AGENCY
Unless terminated earlier by the parties hereto, this Agreement shall terminate upon the later of the date the ADS Rights Agent has fully performed its obligations under this Agreement and sixty (60) days after delivery of the New ADSs by the Depositary (the “Termination Date”). On the business day following the Termination Date, the ADS Rights Agent shall deliver to the Company any Rights Offer entitlements, if any, held by the ADS Rights Agent under this Agreement. The ADS Rights Agent’s rights under Sections 9.1 and 9.2 shall survive the termination of this Agreement.
ARTICLE XI.
MISCELLANEOUS
11.1. Notices.
All reports, notices and other communications required or permitted to be given
hereunder to the parties hereto shall be addressed to the following on behalf
of the respective parties hereto and delivered by overnight courier or by facsimile
as follows or to such other address as may be specified in writing form time
to time:
To the Company:
Genesys S.A. 000-000, xxxxxx Xxxx Xxxxxx 00000 Xxxxxxxxxxx, Xxxxxx Attn: Xxxxx Xxxxxx Fax: x00 0 00 00 00 00 E-mail: xxxxx.xxxxxx-xxxxxxx@xxxxxxx.xxx |
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To the ADS Rights Agent:
The Bank of New York Reorganization Administration 000 Xxxxxxx Xxxxxx - 00X Xxx Xxxx, XX 00000 Attn: Xxxxxxx Xxxxxxx E-mail: xxxxxxxx@xxxxxxxx.xxx |
11.2. Assignment.
Neither the ADS Rights Agent nor the Company shall assign this Agreement
without first obtaining the written consent of the other party hereto.
11.3. Headings.
The Article and Section headings contained herein are for convenience and
reference only and are not intended to define or limit the scope of any provision
of this Agreement.
11.4. Entire Agreement;
Amendment. This Agreement shall constitute the entire agreement of the
parties with respect to the subject matter and supersedes all prior oral or
written agreements in regard thereto. References to any other document or agreement
shall not incorporate by reference such other document or agreement into this
Agreement and shall not impose any duties or responsibilities, obligations or
liabilities on the ADS Rights Agent under such other document or agreement.
Except as otherwise specifically provided herein, this Agreement may be amended
only by an instrument in writing duly executed by both parties hereto.
11.5. Governing
Law; Jurisdiction; Certain Waivers.
(a) This Agreement shall be interpreted and construed in accordance with the internal substantive laws (and not the choice of law rules) of the State of New York. All actions and proceedings brought by the ADS Rights Agent relating to or arising from, directly or indirectly, this Agreement may be litigated in courts located within the State of New York. The Company hereby submits to the personal jurisdiction of such courts; hereby waives personal service of process and consents that any such service of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified for notices hereunder; and hereby waives the right to a trial by jury in any action or proceeding with the ADS Rights Agent. All actions and proceedings brought by the Company against the ADS Rights Agent relating to or arising from, directly or indirectly, this Agreement shall be litigated only in courts located within the State of New York.
(b) The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision; and if any
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provision is held to be unenforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect.
11.6. Rights and
Remedies. The rights and remedies conferred upon the parties hereto
shall be cumulative, and the exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude or inhibit the
subsequent exercise of such right or remedy.
11.7. Representations
and Warranties of the Company. The Company hereby represents, warrants
and covenants that:
(a) The Company is a corporation duly organized and validly existing under the laws of the Republic of France.
(b) This Agreement has been duly authorized, executed and delivered on its behalf and constitutes the legal, valid and binding obligation of the Company.
(c) The execution, delivery and performance of this Agreement by the Company does not and will not violate any applicable law or regulation and does not require the consent of any governmental or other regulatory body except for such consents and approvals as have been obtained and are in full force and effect. For the avoidance of doubt, all New Shares and New ADSs to be issued and delivered hereunder have been registered with the Securities and Exchange Commission and all transactions contemplated by this Agreement are in compliance with, and not in violation of, the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended.
11.8. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, GENESYS S.A. and THE BANK OF NEW YORK have executed this Agreement as of the date first set forth above.
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GENESYS S.A. By: ____________________ THE BANK OF NEW YORK, as ADS Rights Agent By: ____________________ |
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Exhibit A
Subscription Form
See attached.
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Exhibit B
Wire Transfer Instructions
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