Exhibit 4.2 |
RIGHTS AGENCY AGREEMENT
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ARTICLE I.
APPOINTMENT OF THE ADS RIGHTS AGENT
ARTICLE II.
TERMS OF ADS RIGHTS OFFER
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ARTICLE III.
DELIVERY OF RIGHTS OFFER MATERIAL
ARTICLE IV.
ACCEPTANCE OF SUBSCRIPTIONS
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ARTICLE V.
REPORTS BY THE ADS RIGHTS AGENT
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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. |
(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
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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.
ARTICLE VII.
ISSUANCE OF ADRs
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ARTICLE VIII.
LIMITATIONS OF DUTIES
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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.
(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.
ARTICLE IX.
COMPENSATION; PAYMENT OF EXPENSES; INDEMNIFICATION
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ARTICLE X.
TERMINATION OF AGENCY
ARTICLE XI.
MISCELLANEOUS
Genesys S.A. 954-980, avenue Jean Mermoz 34000 Montpellier, France Attn: Marie Capela Fax: +33 4 99 13 25 31 E-mail: marie.capela-laborde@genesys.com |
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The Bank of New York Reorganization Administration 101 Barclay Street - 12W New York, NY 10286 Attn: Dorothy Huttner E-mail: dhuttner@bankofny.com |
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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.
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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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