As filed with the Securities and Exchange Commission on July 2, 2003 | Registration No. 333-105304 |
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 |
Amendment No. 1 to
FORM F-3 |
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
Genesys S.A. |
(Exact name of registrant as specified in its charter)
Republic of France (State or Other Jurisdiction of Incorporation or Organization) | N/A (I.R.S. Employer Identification Number) |
954-980, avenue Jean Mermoz
34000 Montpellier
France
(Telephone: +33 4 99 13 27 67)
(Address and Telephone Number of Registrant’s Principal Executive Offices)
Margie Medalle
Genesys Conferencing Inc.
9139 South Ridgeline Blvd.
Highlands Ranch, CO 80129
(Telephone: +1 303 267-1272)
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Andrew A. Bernstein
Cleary, Gottlieb, Steen & Hamilton
41 Avenue de Friedland
Paris 75008 France
Approximate date of commencement of proposed sale to the public: as soon as practicable after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.
CALCULATION OF REGISTRATION FEE |
Title of each class of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per unit (2) (3) | Proposed maximum aggregate offering price (3) | Amount of registration fee (4) | |||
Ordinary Shares | 3,636,364 | $2.55 | $9,245,600 | $747.97 | |||
(1) | Includes up to 2,725,455 ordinary shares that are offered outside the United States but that may be resold from time to time in the United States under circumstances requiring the delivery of a prospectus. The ordinary shares are not being registered for the purpose of sales outside the United States. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. |
(3) | Based on an exchange rate of € 0.865 = U.S. $1.00. |
(4) | Previously paid. |
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
GENESYS S.A. |
We are offering 2,814,944 ordinary shares in the form of ordinary shares or American depositary shares. If certain of our stock options and other convertible securities are exercised or converted, the offer may be increased to 3,094,575 ordinary shares. Our new ordinary shares are being offered in a rights offering pursuant to statutory preferential rights under French law to existing holders of our ordinary shares and ADSs.
If you own ADSs: |
• | You will receive one ADS right to purchase new ADSs for each ADS you own on the ADS record date, July 9, 2003. |
• | You will need twenty-two ADS rights to purchase four new ADSs. Each ADS represents one-half of one share. |
• | You may only subscribe for whole new ADSs in multiples of four. |
• | You must deposit U.S.$1.35 for each new ADS you purchase (equivalent to the share subscription price in euros at the exchange rate on June 30, 2003, adjusted to reflect the ADS/share ratio, plus an additional amount to provide for possible exchange rate fluctuations and to pay the fees and expenses of the ADS depositary). Mandatory currency exchange adjustments may require you to pay more than U.S.$1.35 per new ADS before you receive your new ADSs. |
• | If you decide not to buy any new ADSs the ADS rights agent will attempt to sell the underlying share rights for you on or about July 21, 2003. |
• | You must exercise your ADS rights before 5:00 p.m., New York City time, on July 18, 2003. ADS rights not exercised at that time will lapse. |
If you own ordinary shares: |
• | You will receive one right to purchase new ordinary shares for each ordinary share you own on the share record date, July 9, 2003. |
• | You will be able to sell these rights on Euronext Paris if you decide not to buy any new ordinary shares. |
• | You will need eleven share rights to purchase two new ordinary shares. |
• | You may only subscribe for whole new ordinary shares in multiples of two. |
• | Each new ordinary share will cost you €2.20. |
• | You must exercise your share rights on or before 5:00 p.m., Paris time, on July 23, 2003. Rights not exercised at that time will lapse. |
Listings: |
• | Our ADSs are listed on the Nasdaq National Market under the symbol “GNSY”. On July 1, 2003, the closing price of our ADSs on the Nasdaq National Market was U.S.$2.33. |
• | ADS rights will not be listed on any securities exchange and are not transferable. We expect that the new ADSs will be listed on the Nasdaq National Market. |
• | Our ordinary shares are listed on the Nouveau Marché of Euronext Paris S.A. On July 1, 2003, the closing price of our ordinary shares on the Nouveau Marché was €4.17. |
• | Share rights will be listed on the Nouveau Marché of Euronext Paris S.A. from July 10, 2003 through July 23, 2003. We expect that the new ordinary shares will be listed on the Nouveau Marché. |
Dated July 2, 2003
TABLE OF CONTENTS
Page |
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WHERE YOU CAN FIND MORE INFORMATION
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
• | our annual report on Form 20-F for the fiscal year ended December 31, 2002, filed with the SEC on May 15, 2003. |
• | our current reports on Form 6-K submitted to the SEC on June 5, June 6, and June 24, 2003. |
• | certain of our current reports on Form 6-K, to the extent so identified therein, submitted to the SEC after the date of this prospectus and before this offering terminates. |
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• | projections of operating revenues, net income, net earnings per share, capital expenditures, dividends, capital structure or other financial items or ratios; |
• | statements about the future performance of the conferencing industry; |
• | statements about our future economic performance or that of France, the United States or any other countries in which we operate; and |
• | statements of assumptions underlying such statements. |
• | uncertainties regarding the market for data conferencing and Web conferencing, and the pricing for these services; |
• | the effects of technological change; |
• | fluctuations in the value of our ordinary shares and ADSs and in the value of the Internet and telecommunications sectors; and |
• | competition from telecommunications providers. |
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Our Company |
Our principal executive offices are located at “L’Acropole,” 954-980 Avenue Jean Mermoz, 34967 Montpellier Cedex 2, France and our telephone number is +33 4 99 13 27 67.
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SUMMARY OF THE RIGHTS OFFERING
Timetable for the Rights Offering |
Record date for determining holders of ADSs receiving ADS rights | July 9, 2003 |
Record date for determining holders of shares receiving share rights | July 9, 2003 |
Beginning of the period during which ADS rights holders and share rights holders can subscribe for new ADSs or new ordinary shares, as the case may be | July 10, 2003 |
Trading of share rights expected to begin on Euronext Paris | July 10, 2003 |
End of the period during which ADS rights holders can subscribe for new ADSs | July 18, 2003 |
Trading of share rights ends and end of the period during which share rights holders can subscribe for new ordinary shares | July 23, 2003 |
Any excess deposit amount will be refunded to ADS holders on or as soon as practicable after | July 23, 2003 |
New ordinary shares delivered (on or about) | August 5, 2003 |
Certificates for new ADSs mailed on or as soon as practicable after | August 5, 2003 |
General: |
Rights offering | We are offering 2,814,944 ordinary shares, in the form of ordinary shares or ADSs, in a rights offering to existing holders of our ordinary shares and ADSs. If certain of our Stock options or other convertible securities are exercised or converted, the offer may be increased up to a maximum of 3,094,575 ordinary shares. |
• | ADS holders on the ADS record date will receive one ADS right for each ADS they hold. Twenty-two ADS rights give their holders the right to purchase four ADSs, at a price of €1.10 (approximately U.S.$1.26 per American Depositary Share) subject to adjustment for currency exchange rates as described below. Each ADS represents one-half of an ordinary share. |
• | Each ordinary shareholder on the share record date will receive one right for each ordinary share they hold. Eleven rights give their holders the right to purchase two ordinary shares, at a price of €2.20 per share. |
Subscription by principal shareholders | Our principal shareholders are Universal Capital Partners (which held 11.63% of our share capital and 11.29% of our voting rights as of March 30, 2003) and Part’Com S.A. (which together with certain of its affiliates held 3.70% of our share capital and 5.38% of our voting rights as of March 30, 2003). They have agreed to subscribe to a number of shares sufficient to ensure that the gross proceeds from the rights offering will be at least €6 million. See “Reasons for Offer and Use of Proceeds.” |
Use of Proceeds | Assuming the sale of all of the ordinary shares and ADSs offered by this prospectus at a subscription price of €2.20 per ordinary share (or €1.10 (approximately U.S.$1.26) per American Depositary Share), we will receive €6,192,876.80 before paying the expenses of this offering, which are estimated to be €300,000. The net proceeds of this offering will be placed in an escrow account and used to repay principal on our outstanding 3% convertible bonds due September 2004. See “Reasons for Offer and Use of Proceeds” on page 18. |
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Holders of ADSs: |
ADS rights offering | Each ADS you hold of record on the ADS record date will entitle you to receive one ADS right. Twenty-two ADS rights will entitle you to purchase four new ADSs (each ADS represents one-half of one ordinary share). The Bank of New York, as ADS rights agent, will send to record holders of ADSs a non-transferable ADS rights certificate indicating how many ADS rights they own. We will only issue a whole number of new ordinary shares, so new ADSs can be subscribed only in multiples of four ADSs. The Bank of New York, as ADS rights agent, will endeavor to sell the share rights representing any fractional entitlements to new ordinary shares and distribute the net proceeds, if any, of such sales pro rata to the holders of the ADS rights entitled to them. |
ADS record date | July 9, 2003. |
ADS subscription price | The U.S. dollar equivalent of €1.10. In addition, subscribing ADS holders must pay the depositary’s issuance fee of up to $.05 per new ADS and the depositary’s expenses. Subscribing ADS holders must deposit $1.35 per new ADS subscribed for, which respresents the subscription price for one-half of one new ordinary share based on an exchange rate of $1.15 per euro, plus an additional amount to cover possible currency exchange rate fluctuation, the depositary’s issuance fee and expenses. If this amount deposited with the ADS rights agent is insufficient to pay the share subscription price in euros on or about July 21, 2003 and the fees and expenses referred to above, the ADS rights agent will pay the shortfall, which you will need to reimburse prior to your receiving any new ADSs. If the amount deposited with the ADS rights agent is more than the final amount required to cover the subscription price and the fees and expenses referred to above, the ADS rights agent will pay you the excess without interest. If you subscribe for new ADSs, you will bear the risk of all exchange rate fluctuations relating to the exercise of ADS rights. See “The Rights Offering — Offering to ADS Holders — ADS Subscription Price.” |
ADS rights exercise period | From July 10, 2003 through 5:00 p.m., New York City time, on July 18, 2003. |
Procedure for exercising ADS rights | If you hold ADSs directly, you may exercise your ADS rights by delivering a properly completed subscription form and full payment of the deposit amount for the new ADSs being purchased to the ADS rights agent prior to 5:00 p.m., New York City time, on July 18, 2003. If you hold ADSs through The Depository Trust Company, you may exercise your ADS rights by timely delivering to the ADS rights agent completed subscription instructions through The Depository Trust Company’s PSOP Function using the “agent subscriptions over PTS” procedure accompanied by payment in full of the deposit amount. We have provided more detailed instructions on how to exercise the ADS Rights under “The Rights Offering” beginning with the section “Exercise of ADS Rights.” |
Exercise of ADS rights irrevocable | You may not revoke, cancel or otherwise modify the exercise of your ADS rights once you have exercised them. |
Unexercised ADS rights | If you do not exercise your ADS rights, following the expiration of the exercise period for the ADS rights, the ADS rights agent will attempt to sell any share rights underlying such ADS rights at the prevailing market price at which the share rights are then trading on the Nouveau Marché of Euronext Paris. Net proceeds, if any, of such sale will be remitted to you after the expiration of the share rights exercise period. Neither we nor the ADS rights agent guarantees that any such sale will be consummated or the amount of any net proceeds. |
New ADSs | Your specific rights in the new ADSs and in the ordinary shares underlying the new ADSs are set out in a deposit agreement among us, The Bank of New York, as |
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depositary, and the holders of ADSs. To understand the terms of the new ADSs, you should carefully read Item 12 “Description of Securities Other Than Equity Securities — American Depositary Shares” in our annual report on Form 20-F for the year ended December 31, 2002. | |
Listing | Our ADSs are listed on the Nasdaq National Market under the symbol “GNSY.” ADS rights will not be listed or quoted on any stock exchange or quotation system. |
ADS rights agent | The Bank of New York. |
Delivery of ADRs | The Bank of New York will make ADRs evidencing new ADSs available to each holder who subscribes for new ADSs after it receives the new ordinary shares, which we expect to occur on or about August 5, 2003. The Bank of New York must receive any shortfall arising from the conversion of the deposit amount in U.S. dollars into euros before it will deliver the ADRs evidencing the new ADSs. |
Holders of Shares: |
Share rights offering | Each ordinary share you hold of record on the record date will entitle you to receive one ordinary share right. Eleven ordinary share rights will entitle you to purchase two new ordinary shares. We will only issue a whole number of new ordinary shares that is a multiple of two ordinary shares. |
Share record date | July 9, 2003 |
Share ex-rights date | July 10, 2003. |
Share subscription price | €2.20 per share |
Share rights exercise period | From July 10, 2003 through July 23, 2003 |
Procedure for exercising share rights | You may exercise your share rights by delivering a properly completed subscription form and full payment of the share subscription price for the new ordinary shares being purchased to the broker or custodian through which you hold your ordinary shares. Deposit in the mail does not constitute delivery. We have provided more detailed instructions on how to exercise the rights under “The Rights Offering” beginning with the section “— Exercise of Share Rights.” |
Exercise of share rights irrevocable | You may not revoke, cancel or otherwise modify the exercise of your rights once you have exercised them. |
Listing | Our ordinary shares are listed on the Nouveau Marché of Euronext Paris. Share rights will be listed on the Nouveau Marché of Euronext Paris during the share rights trading period. Share rights will not be listed or quoted on any stock exchange or quotation system in the United States. |
Clearing systems identification numbers | The identification numbers for our ordinary shares are as follows: ISIN: FR0000039554 Euroclear France: 3955 |
Transferability | You may transfer all or any portion of your share rights on Euronext Paris. If you transfer or sell your share rights, you will have no further right to purchase new ordinary shares in the share rights offering with respect to the share rights transferred or sold. |
Share rights trading period | From July 10, 2003 through July 23, 2003. |
Delivery of new shares | New ordinary shares purchased by exercising share rights will be delivered by book-entry credit to participants’ accounts with Euroclear France on or about August 5, 2003. |
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Risks Relating to Our Company |
Our high level of debt may limit our operating flexibility. |
We are highly leveraged. As of December 31, 2002, we had €121.6 million of financial debt, the bulk of which was incurred under a $125 million credit facility agreement that we entered into in April 2001 and thereafter amended. This credit facility requires us to comply with certain covenants, including the maintenance of financial ratios relating to leverage, interest cover and cash coverage, and limits on our capital expenditures. This credit facility is described in more detail in Item 5 “Operating and Financial Review and Prospects — Liquidity and Capital Resources” of our annual report on Form 20-F for the year ended December 31, 2002 and is included as an exhibit under Item 19 to that annual report. If we fail to comply with our covenants, our lenders could require us to repay the entire amount outstanding under our credit facility immediately.
Our high degree of leverage can have important consequences for our business, such as:
• | limiting our ability to make capital investments in order to expand our business; |
• | limiting our ability to borrow additional amounts for working capital, capital expenditures, debt service requirements or other purposes; |
• | limiting our ability to invest operating cash flow in our business, because we use a substantial portion of these funds to pay debt service and because our covenants restrict the amount of our investments; |
• | limiting our ability to withstand business and economic downturns, because of the high percentage of our operating cash flow that is dedicated to servicing our debt; and |
• | limiting our ability to pay dividends. |
If we cannot pay our debt service or if we fail to meet our covenants, we could have substantial liquidity problems. In those circumstances, we might have to sell assets, delay planned investments, obtain additional equity capital or restructure our debt. Depending on the circumstances at the time, we may not be able to accomplish any of these actions on favorable terms or at all.
On April 30, 2003, we signed an amendment to our $125 million credit facility agreement with our lenders to extend the principal repayment schedule under our credit facility. The amendment is described in Item 5 “Operating and Financial Review and Prospects — Recent Developments” of our annual report on Form 20-F for the year ended December 31, 2002. It requires us to satisfy a number of conditions, including completing this rights offering by August 31, 2003 and obtaining the approval of our 3% convertible bond holders to a partial extension of the maturity of those bonds (the approval of the convertible bondholders has been obtained). If any of those conditions is not satisfied, the extension of the principal repayment schedule under our credit facility in years subsequent to 2003 will become void, we will be required to make significant principal payments beginning in January 2004, and we will need to negotiate with our lenders or obtain alternative financing (which might not be available) in order to avoid significant liquidity problems.
We may not grow as quickly as we hope because the markets for data conferencing and Web conferencing, which we target for a substantial part of our future growth, are in very early stages of development and may not develop as expected. |
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Web conferencing services will compete with our traditional audio and video services, which may cause us to lose market share and to experience lower margins. |
If we are unable to keep up with rapid changes in technology, our products and services could become obsolete. |
Our services may be interrupted by technological problems or affected by human error, which may cause us to lose customers. |
We depend on the continued services of a few key executives, and only a limited number of those key executives have service contracts. |
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Because we have made several significant acquisitions in recent years, our consolidated financial statements are not comparable from period to period, which may make it more difficult for you to evaluate our business. |
Merger and acquisition related accounting charges may delay and reduce our profitability. |
We have historically incurred and may continue to incur net losses, which may adversely affect the trading price of our ordinary shares and ADSs. |
Fluctuations in currency exchange rates could adversely affect our revenues and results of operations. |
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rate exposure, see Item 11 “Quantitative and Qualitative Disclosures About Market Risk” of our annual report on Form 20-F for the year ended December 31, 2002.
Challenges to our intellectual property rights could cause us to incur costly litigation and, if we are not successful, could result in the loss of a valuable asset and market share. |
If third parties using or claiming prior rights to the name “Genesys” were to successfully prevent us from using the name “Genesys” or “Genesys Conferencing” in some markets, we might be required to establish new or alternative brand names in those markets. |
We use third-party technology in providing our products and services, and our business would be harmed if we were not able to continue using this third-party technology. |
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Risks Relating to Our Industry |
We may not be able to compete effectively with our competitors, which include some of the largest telecommunications companies in each country in which we operate. |
The telecommunications and Internet sectors are experiencing low valuations compared to recent years, and raising capital in these sectors has become difficult. |
Risks Relating to Our ADSs and Our Ordinary Shares |
The market prices of our ordinary shares and ADSs have been volatile, and may continue to be volatile in the future. |
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• | quarterly variations in operating results or growth rates; |
• | the announcement of technological innovations; |
• | the introduction of new products by us and our competitors; |
• | changes in estimates by securities analysts; |
• | market conditions in the industry; |
• | announcements and actions by competitors; |
• | regulatory and judicial actions; and |
• | general economic conditions. |
Our stock option plan includes provisions that could have anti-takeover effects. |
Exchange rate fluctuations may adversely affect the U.S. dollar value of our ADSs and our dividends (if any). |
We have not yet distributed any dividends to our shareholders, and do not anticipate doing so in the near future. |
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Euronext Paris* | Nasdaq* | ||||||||||||
Period | High | Low | High | Low | |||||||||
(ordinary share price in €) | (ADS price in $) | ||||||||||||
1998 | |||||||||||||
beginning (October 1, 1998) | 12.04 | 8.54 | — | — | |||||||||
1999 | 37.00 | 9.90 | — | — | |||||||||
2000 | 79.50 | 30.00 | — | — | |||||||||
2001 (Nasdaq beginning April 26, 2001) | 53.80 | 9.76 | 15.29 | 4.55 | |||||||||
First Quarter | 53.80 | 20.12 | — | — | |||||||||
Second Quarter (Nasdaq beginning April 26, 2001) | 35.82 | 26.02 | 15.29 | 9.90 | |||||||||
Third Quarter | 25.60 | 9.76 | 11.00 | 4.55 | |||||||||
Fourth Quarter | 16.94 | 11.03 | 8.35 | 5.10 | |||||||||
2002 | 14.45 | 1.81 | 6.80 | 0.95 | |||||||||
First Quarter | 14.45 | 7.57 | 6.80 | 3.35 | |||||||||
Second Quarter | 14.33 | 7.50 | 6.54 | 2.70 | |||||||||
Third Quarter | 5.32 | 2.00 | 2.70 | 0.96 | |||||||||
Fourth Quarter | 3.45 | 1.81 | 1.61 | 0.95 | |||||||||
2003 (through June 30, 2003) | 5.59 | 1.10 | 3.09 | 0.59 | |||||||||
First Quarter | 3.06 | 1.10 | 1.59 | 0.59 | |||||||||
Second Quarter | 5.59 | 2.14 | 3.09 | 1.19 | |||||||||
2003 | |||||||||||||
January | 2.25 | 1.28 | 1.07 | 0.78 | |||||||||
February | 1.59 | 1.10 | 1.10 | 0.59 | |||||||||
March | 3.10 | 1.10 | 1.59 | 0.64 | |||||||||
April | 2.77 | 2.14 | 1.50 | 1.19 | |||||||||
May | 5.59 | 2.28 | 3.09 | 1.29 | |||||||||
June | 5.15 | 4.11 | 2.85 | 2.35 | |||||||||
* | Source: Euronext Paris and The Bank of New York. Two ADSs represent one ordinary share. Trading of our ADSs on the Nasdaq National Market began on April 26, 2001. |
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EXCHANGE RATE INFORMATION
AND THE EUROPEAN MONETARY SYSTEM
The European Monetary System |
Exchange Rates |
Period-end Rate | Average Rate(1) | High | Low | ||||||||||
French francs per U.S. dollar | |||||||||||||
1998 | 5.59 | 5.90 | 6.21 | 5.39 | |||||||||
(1) | The average of the Noon Buying Rates on the last business day of each month (or portion thereof) during the relevant period. |
Period-end Rate | Average Rate(1) | High | Low | ||||||||||
U.S. dollar per euro | |||||||||||||
1999 | 1.01 | 1.06 | 1.18 | 1.00 | |||||||||
2000 | 0.94 | 0.92 | 1.03 | 0.83 | |||||||||
2001 | 0.89 | 0.89 | 0.95 | 0.84 | |||||||||
2002 | 1.05 | 0.95 | 1.05 | 0.86 | |||||||||
2003 (through June 30, 2003) | 1.15 | 1.09 | 1.16 | 1.04 | |||||||||
2003 | |||||||||||||
January | 1.07 | 1.06 | 1.09 | 1.04 | |||||||||
February | 1.08 | 1.08 | 1.09 | 1.07 | |||||||||
March | 1.09 | 1.08 | 1.10 | 1.05 | |||||||||
April | 1.12 | 1.09 | 1.12 | 1.06 | |||||||||
May | 1.18 | 1.15 | 1.18 | 1.12 | |||||||||
June | 1.15 | 1.17 | 1.19 | 1.14 | |||||||||
(1) | The average of the Noon Buying Rates on the last business day of each month (or portion thereof) during the relevant period for year average; on each business day of the month (or portion thereof) for monthly average. On June 30, 2003 the Noon Buying Rate was $1 = €0.87 ($1.15 per €1). |
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CAPITALIZATION AND INDEBTEDNESS
As at March 31, 2003 | |||||||
Actual | As adjusted | ||||||
(In thousands of €, except number of shares) (unaudited) | |||||||
Current portion of long-term debt | 4,796 | 4,796 | |||||
Long-term portion of long-term financial debt | 116,050 | 116,050 | |||||
Shareholders’ equity | |||||||
Ordinary shares | 15,547 | 18,362 | |||||
Additional paid-in capital | 194,217 | 197,595 | |||||
Accumulated other comprehensive income | 8,881 | 8,881 | |||||
Deferred compensation | (158 | ) | (158 | ) | |||
Accumulated deficit | (156,144 | ) | (156,144 | ) | |||
Treasury shares | (751 | ) | (751 | ) | |||
Total shareholders’ equity | 61,592 | 67,785 | |||||
Total capitalization | 182,438 | 188,631 | |||||
Number of shares issued and outstanding | 15,547,280 | 18,362,224 | |||||
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REASONS FOR OFFER AND USE OF PROCEEDS
• | various amendments to our April 2001 $125 million credit facility that would extend the maturity of the remaining principal through October 2008; |
• | deferral of the maturity date for 50% of the principal of our outstanding 3% convertible bonds; and |
• | a €6 to 8 million offering of rights to subscribe for our ordinary shares. |
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General information for ADS holders and holders of shares |
Offering to ADS holders |
Summary timetable. The summary timetable set forth below lists certain important dates relating to the ADS rights offering: |
Record date for determining holders of ADSs receiving ADS rights | July 9, 2003 |
Beginning of the period during which ADS rights holders can subscribe for new ADSs | July 10, 2003 |
End of the period during which ADS rights holders can subscribe for new ADSs | July 18, 2003 |
Any excess subscription price will be refunded to ADS holders on or as soon as practicable after | July 23, 2003 |
Certificates for new ADSs mailed on or as soon as practicable after | August 5, 2003 |
We are offering to holders of ADSs rights to purchase new ADSs on the terms set forth below. |
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• | deliver to the ADS rights agent completed subscription instructions through DTC’s PSOP Function using the “agent subscriptions over PTS” procedure, and |
• | pay in full the ADS deposit amount for the new ADS being purchased. |
• | deliver to the ADS rights agent the properly completed subscription form for the ADS rights being exercised, and |
• | pay in full the ADS deposit amount for the new ADSs being purchased. |
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The properly completed subscription form and payment should be delivered to:
By Hand or Overnight Courier: | By Mail: |
The Bank of New York | The Bank of New York |
Tender and Exchange Department | Tender and Exchange Department |
101 Barclay Street | P.O. Box 11248 |
Receive and Deliver Window | Church Street Station |
New York, NY 10286 | New York, NY 10286-1248 |
For additional information, contact: The Bank of New York by telephone (+1 800-507-9357) |
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Offering to holders of shares |
Record date for determining holders of ordinary shares receiving share rights | July 9, 2003 |
Beginning of the period during which share rights holders can subscribe for new ordinary shares | July 10, 2003 |
Ex-rights date for shares and trading of share rights expected to begin on Euronext Paris | July 10, 2003 |
Trading of share rights ends and end of the period during which share rights holders can subscribe for new ordinary shares | July 23, 2003 |
New ordinary shares delivered (on or about) | August 5, 2003 |
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We are offering to holders of shares rights to purchase new ordinary shares, on the terms set forth below. |
• | a properly completed subscription form and |
• | full payment of the share subscription price for the new ordinary shares being purchased. |
We have the discretion to refuse to accept any incomplete or unexecuted subscription forms.
Exercises of share rights are irrevocable and may not be canceled or modified.
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French Taxation |
Taxation of Dividends on Shares |
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Taxation on Sale or Disposition of Shares |
Estate and Gift Tax |
Taxation of U.S. Investors |
• | the beneficial owner of the shares or ADSs (and the dividends paid with respect thereto); |
• | an individual resident of the United States, a U.S. corporation, or a partnership, estate or trust to the extent its income is subject to taxation in the United States in its hands or in the hands of its partners or beneficiaries; |
• | not also a resident of France for French tax purposes; and |
• | not subject to an anti-treaty shopping article that applies in limited circumstances. |
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Dividends |
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generally applicable limitations under U.S. law, is eligible for credit against your U.S. federal income tax liability or, at your election, may be deducted in computing taxable income. Foreign tax credits will not be allowed for withholding taxes imposed in respect of certain short-term or hedged positions in securities or in respect of arrangements in which a U.S. holder’s expected economic profit is insubstantial. You should consult your own tax advisers concerning the implications of these rules in the light of your particular circumstances.
Procedures for Claiming Treaty Benefits |
• | the simplified certificate described below; or |
• | an application for refund on French Treasury Form RF 1A EU-No. 5052. |
A simplified certificate must state that:
• | you are a U.S. resident within the meaning of the Treaty; |
• | you do not maintain a permanent establishment or fixed base in France with which the holding giving rise to the dividend is effectively connected; |
• | you own all the rights attached to the full ownership of the shares (including dividend rights); and |
• | you meet all the requirements of the Treaty for obtaining the benefit of the reduced rate of withholding tax and the refund of the avoir fiscal. |
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Capital Gains |
French Estate and Gift Tax |
U.S. Information Reporting and Backup Withholding Rules |
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ENFORCEABILITY OF CIVIL LIABILITIES
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS |
Item 8. Indemnification of Directors and Officers. |
Item 9. Exhibits. |
(a) | Exhibits. Attached hereto are the following exhibits: |
3.1 | Bylaws (statuts) of Genesys (English translation) (as adopted by the General Meeting on June 28, 2002) (incorporated herein by reference to Exhibit 1.1. to our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003). |
4.1 | Form of Deposit Agreement (incorporated herein by reference to Exhibit A to the Registration Statement on Form F-6 relating to our American Depositary Shares). |
4.2 | Form of Rights Agency Agreement between us and The Bank of New York, as rights agent with respect to the ADS rights. |
5.1 | Opinion of Cleary, Gottlieb, Steen & Hamilton regarding the legality of the securities being registered. |
10.1 | U.S. $125 million Credit Facility among Vialog Corporation, Genesys S.A., BNP Paribas and Others dated April 20, 2001, as amended November 27 2001, as amended June 11, 2002 (incorporated herein by reference to Exhibit 4.1 of our annual report on Form 20-F for the year ended December 31, 2001 as filed with the SEC on June 12, 2002). |
10.2 | Excerpt from the Information Document (Note d’Information) of our company relating to the terms and conditions of our 3% convertible bonds due September 2004 (incorporated herein by reference to Exhibit 10.2 to our Registration Statement on Form F-4, File No. 333- 55392). |
10.3 | Amendment to our U.S. $125 million Credit Facility dated April 30, 2003 (incorporated herein by reference to Exhibit 1.1. to our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003). |
21.1 | For a list of our significant subsidiaries, see Item 4 “Information on the Company — Organizational Structure” of our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003, which is incorporated herein by reference. |
23.1 | Consent of Ernst & Young Audit. |
99.1 | Form of certificate evidencing ADS rights, subscription form and letter of instruction for U.S. Holders of American Depositary Receipts. |
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Item 10. Undertakings. |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Genesys S.A. | ||||
By /s/ François Legros François Legros Chairman of the Board and Chief Executive Officer |
By: /s/ François Legros François Legros Chairman and Chief Executive Officer | By: Jean-Jacques Bertrand Member of the Board of Directors | ||
By: /s/ Michael Savage Michael Savage Chief Financial Officer | By: /s/ Patrick S. Jones Patrick S. JonesMember of the Board of Directors | ||
By: /s/ Margie Medalle Margie Medalle Authorized U.S. Representative | By: /s/ David Detert David Detert Member of the Board of Directors | ||
By: /s/ Thomas Abbott Thomas Abbott Member of the Board of Directors | |||
By: /s/ Paul Sfez Paul Sfez Member of the Board of Directors | |||
By: /s/ Pierre Besnainou Pierre Besnainou Member of the Board of Directors (as representative of Universal Capital Partners) |
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INDEX TO EXHIBITS
Exhibit | Description |
3.1 | Bylaws (statuts) of Genesys (English translation) (as adopted by the General Meeting on June 28, 2002) (incorporated herein by reference to Exhibit1.1. to our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003). |
4.1 | Form of Deposit Agreement (incorporated herein by reference to Exhibit A to the Registration Statement on Form F-6 relating to our American Depositary Shares). |
4.2 |
5.1 |
10.1 | U.S. $125 million Credit Facility among Vialog Corporation, Genesys S.A., BNP Paribas and Others dated April 20, 2001, as amended November 27 2001, as amended June 11, 2002 (incorporated herein by reference to Exhibit 4.1 of our annual report on Form 20-F for the year ended December 31, 2001 as filed with the SEC on June 12, 2002). |
10.2 | Excerpt from the Information Document (Note d’Information) of our company relating to the terms and conditions of our 3% convertible bonds due September 2004 (incorporated herein by reference to Exhibit 10.2 to our Registration Statement on Form F-4, File No. 333- 55392). |
10.3 | Amendment to our U.S. $125 million Credit Facility dated April 30, 2003 (incorporated herein by reference to Exhibit 1.1. to our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003). |
21.1 | For a list of our significant subsidiaries, see Item 4 “Information on the Company—Organizational Structure” of our annual report on Form 20-F for the year ended December 31, 2002 as filed with the SEC on May 15, 2003, which is incorporated herein by reference. |
23.1 |
99.1 |
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