Exhibit d(3)
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:
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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:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(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:
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Name:
Title:
THE GRANTEE:
By:
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Address of the Grantee:
Number of Options granted to
the Grantee pursuant to this
Agreement:
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