Exhibit d(4)
INCENTIVE STOCK OPTION AGREEMENT- U.S.
STOCK OPTION AGREEMENT, dated as of ______________, 2002, 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 incentive stock
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 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 until the earlier of the Normal Expiration Date and 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 the first anniversary of
such Disability(ii) upon a Termination as a result of death, the six-month
anniversary of the date of the Grantee's death, and (iii) upon a Termination for
any reason other than (A) the Grantee's death or Disability or (B) a Termination
for Cause, the ninetieth (90th) day after the Grantee's Termination.
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.
(i) Acknowledgements and Consent. The Grantee hereby acknowledges and
agrees that: (i) the Plan is discretionary and may be suspended or terminated by
the Corporation at any time; (ii) the grant of Options does not create any right
to receive future Options, or benefits in lieu of Options; (iii) the value of
the Options is outside the scope of the Grantee's employment contract, if any,
and the grant of Options is not for labour performed; (iv) participation in the
Plan is voluntary; (v) the future values of the Common Stock and ADSs are
unknown and cannot be predicted with certainty; (vi) the Options are not part of
remuneration for purposes of any compensation on termination of employment,
severance payments, indemnities or end of service payments or benefits of any
nature; (vii) the vesting of the Options ceases upon termination of employment,
whether wrongful or for any other reason, except as provided in the Plan or this
Agreement, and neither Genesys nor any of its affiliates is required to
compensate the Grantee for any financial loss (including taxes, social security
premiums and lost capital gain) as a result of the expiration of Options or the
early exercise thereof on any such termination of employment; and (viii) the
grant of any Options does not give rise to additional obligations for any
Genesys affiliate which employs the Grantee. If, notwithstanding the foregoing,
any contractual (employment or otherwise) claim is found to have arisen, then
the Grantee, by accepting this Agreement or the Options, shall be deemed
irrevocably to have waived his or her entitlement to pursue such claim.
In addition, Genesys, its affiliates and any third party service
providers may need to collect and use information about employees for the
purpose of the grant and exercise of Options, of administering the Plan, and to
comply with tax, reporting and disclosure obligations under applicable laws and
regulations. Such information is from time to time transferred between
affiliates of Genesys (including Genesys) and to such third party service
providers to achieve these objectives. By accepting this Agreement or the
Options, the Grantee is affirming the Grantee's consent to the collection,
processing, disclosure and transfer of the Grantee's personal information for
these purposes.
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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