EXHIBIT 4.11
AMENDMENT NO. 2 TO
ASSET PURCHASE AND SALE AGREEMENT
THIS AMENDMENT NO. 2 TO ASSET PURCHASE AND SALE AGREEMENT (this "AMENDMENT
NO. 2") is made and entered into as of March 27, 2006, by and between Dictaphone
Corporation, a Delaware corporation ("Dictaphone"), and NICE Systems Inc., a
Delaware corporation ("BUYER"), in connection with that certain Asset Purchase
and Sale Agreement, dated as of April 11, 2005, by and among Buyer and
Dictaphone, as amended by Amendment No. 1 to the Asset Purchase and Sale
Agreement dated as of May 31, 2005 between Dictaphone and Buyer (as so amended,
the "Agreement").
WITNESSETH:
WHEREAS, pursuant to Section 11.12 thereof, the Agreement may be amended
only by a written agreement signed by Buyer and Dictaphone; and
WHEREAS, Buyer and Dictaphone are desirous of further amending the
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. DEFINED TERMS
All capitalized terms used in this Amendment No. 2 and not otherwise
defined herein shall have the respective meanings assigned thereto in the
Agreement.
2. FINAL ADJUSTMENT TO PURCHASE PRICE; CLOSING BALANCE SHEET
(a) Pursuant to Section 2.5(b) of the Agreement, and without limiting the
Buyer's rights under Article 9 of the Agreement, Dictaphone will pay to Buyer
the sum of Two-Million Dollars (US$2,000,000.00) (such sum being the "FINAL
ADJUSTMENT AMOUNT") as a final adjustment (decrease) to the Purchase Price under
the Agreement, to be considered as such for accounting and all Tax purposes.
Such Final Adjustment Amount shall be paid by deduction from the Indemnification
Escrowed Funds in accordance with Section 4 of this Amendment No. 2. In
addition, the parties agree that Buyer shall be entitled to all previously
undistributed interest and other investment income earned with respect to the
Indemnification Escrowed Funds.
(b) Dictaphone will deliver to Buyer as promptly as practicable following
the date hereof (and in any event, no later than April 15, 2006), an audited
Closing Balance Sheet that reflects a Net Adjusted Working Capital Level that is
less than $0.00 by an amount which is equal to the Final Adjustment Amount.
Buyer and Dictaphone hereby acknowledge and agree that upon payment of the Final
Adjustment Amount, all obligations and rights of either party under Section
2.5(b)(iv) and (v) of the Agreement are terminated, PROVIDED THAT Buyer shall
retain all rights under Article 9 except as modified by this Amendment No. 2.
3. INDEMNIFICATION MODIFICATIONS.
(a) Buyer hereby waives any rights to indemnification by Dictaphone or any
successor or assign of Dictaphone arising from Section 9.1(b). The parties agree
that this waiver shall not reduce or impair Buyer's ability to pursue remedies
or implement any procedure contemplated in Article 9 with respect to
indemnification claims arising from Section 9.1(a) or Section 9.1(c).
(b) Dictaphone hereby waives any rights to indemnification by Buyer or any
successor or assign of Buyer arising from Section 9.2(b). The parties agree that
this waiver shall not reduce or impair Dictaphone's or any successor or assign
of Dictaphone's ability to pursue remedies or implement any procedure
contemplated in Article 9 with respect to indemnification claims arising from
Section 9.2(a) or Section 9.2(c).
4. RELEASE OF ESCROW. Notwithstanding anything to the contrary in Section
2.7(a) of the Agreement or Section 4(b) of the Escrow Agreement, the parties
hereto agree that the Final Adjustment Amount shall be paid out from the
Indemnification Escrowed Funds to the Buyer or its designee, and the remaining
$1,000,000 of the Indemnification Escrowed Funds shall be paid to Dictaphone or
its designee. The parties further agree that all previously undistributed
interest and other investment income earned with respect to the Indemnification
Escrowed Funds shall be paid to the Buyer or its designee. Within five (5)
Business Days following the delivery to Buyer by Dictaphone of the Closing
Balance Sheet contemplated by Section 2(b) of this Amendment No. 2, the parties
hereto shall execute and deliver to the Escrow Agent a Joint Written Direction
in the form attached hereto as Exhibit A to effectuate the agreed payments. Any
fees and expenses of the Escrow Agent shall be borne equally by the parties as
provided in Section 10 of the Escrow Agreement.
5. MISCELLANEOUS
This Amendment No. 2 may not be modified or amended, or any of its terms or
provisions (or the breach thereof) waived, except by an agreement in writing
executed by the parties to this Amendment No. 2. This Amendment No. 2 shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to contracts to be carried out wholly within such State. The headings
of the paragraphs of this Amendment No. 2 are inserted for convenience of
reference only and shall not be deemed to constitute a part nor to affect the
meaning or interpretation of any provisions of this Amendment No. 2. This
Amendment No. 2 may be executed in counterparts, each of which shall be an
original, and all of which together shall be one and the same instrument.
Delivery of a counterpart by facsimile shall be as effective as delivery of an
original counterpart.
IN WITNESS WHEREOF, Buyer and Dictaphone have caused this Amendment No. 2
to be duly executed and delivered, all as of the day and year first above
written.
BUYER:
NICE SYSTEMS INC.
By: /s/ Ran Oz
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Name: Ran Oz
Title: CFO
DICTAPHONE:
DICTAPHONE CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: EVP
