EXHIBIT 10.11
March __, 2002
Witness Systems, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Re: Xxxxx X. Xxxxx Pledge Account No.:xxx
Dear Xx. Xxxxx and Xx. Xxxxxxxxxxx:
This letter will document the agreement reached between and among
Xxxxxxx, Sachs & Co. ("Goldman"), Xxxxx Xxxxx ("Pledgor"), and Witness Systems,
Inc. ("the Secured Party") with regard to the assets in the above-referenced
account ("Account") maintained with Goldman, which Account is owned by Pledgor.
Pledgor has pledged the assets in the Account, together with all additions
thereto and all substitutions and replacements thereof (the "Pledged Assets") to
the Secured Party in connection with a loan made by the Secured Party to
Pledgor.
Goldman agrees that it will comply with all notifications relating to
redemption and transfer of the Pledged Assets ("Entitlement Order") originated
by the Secured Party in the form of Exhibit 1 and delivered to Goldman without
further consent of Pledgor. Without limiting the foregoing, prior to the receipt
by Goldman of a Notice of Exclusive Control (defined below) from the Secured
Party, as described below, Goldman may act on Entitlement Orders and other
instructions from the Pledgor to transact any and all investment activity in the
Account and to make transfers of securities or cash in connection with: (i)
sales or purchases of securities in the Account; and (ii) the payment of
Xxxxxxx'x normal and customary commissions and fees in connection therewith.
Notwithstanding anything in this letter to the contrary, Pledgor shall not be
authorized to make "free transfers" (i.e., transfers of securities or cash other
than in connection with investment activity in the Account or in connection with
the payment of related commissions and fees) absent joint written instructions
from Pledgor and an authorized representative of the Secured Party; provided,
however, that Pledgor may withdraw and Goldman may release to Pledgor, all
interest and dividends paid or accrued on assets in the Account and such release
of interest and dividends shall not be regarded as a "free transfer". Goldman
makes no representations regarding the transferability of the Pledged Assets,
including, but not limited to, whether such assets are restricted in accordance
with Rule 144 or otherwise.
Pledgor hereby authorizes Goldman to provide, and Goldman undertakes to
provide, the Secured Party with copies of all monthly statements for the Account
and duplicate confirmations of all trading activity in the Account. In addition,
each of the parties hereby agrees that: i) upon receipt by Goldman of an
Entitlement Order substantially similar to Exhibit 1, and after it has had
reasonable opportunity to comply, such event shall be deemed to be an
instruction by Secured Party to liquidate securities in the Account and transfer
the proceeds to the Secured Party as described in such notice in the manner
stated in such notice; and ii) Goldman shall be authorized to act, and shall
act, in accordance with such instruction.
Upon receipt by Goldman of a "Notice of Exclusive Control" in the form
substantially similar to Exhibit 2, and after it has had reasonable opportunity
to comply, Goldman will cease complying with Entitlement Orders or other
instructions concerning the Account originated by Pledgor or its representatives
and cease distributing interest or dividends on property in the Account to
Pledgor. Each Entitlement Order and Notice of Exclusive Control originated by
the Secured Party shall be signed by the Secured Party, and such signature is to
have been duly acknowledged before a notary public. Goldman shall be entitled to
rely upon any Entitlement Order or Notice of Exclusive Control or other
instructions referred to herein that it reasonably believes to be from the
appropriate party. Notice to Goldman shall be provided by delivery of such
notice to General Counsel, Xxxxxxx, Sachs & Co., 0 Xxx Xxxx Xxxxx, Xxx Xxxx,
X.X., 00000, with a copy to the Director, Wealth Management Operations, Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, X.X., 00000.
The undertakings of Goldman as set forth herein are specifically
conditioned upon the Secured Party's agreement, as indicated by its signature
below, that the security interests maintained by Goldman are, and shall remain,
senior to and shall have priority over, the junior security interests asserted
by the Secured Party such that all of the obligations of Pledgor to Goldman and
its affiliates, whether arising out of the Account or out of any other account
or agreement, must be satisfied in full prior to the satisfaction of any
obligation of Pledgor to the Secured Party.
Please be advised however, that, except as specifically provided in this
letter, Goldman does not, and will not, undertake, and hereby specifically
disavows, any obligation to the Secured Party, or any third party with respect
to the Account, or any related agreement or undertaking between Pledgor and the
Secured Party. Without in any way limiting the foregoing disclaimer: (i) Goldman
shall have no obligation to monitor the activity in the Account nor shall
Goldman have any responsibility whatsoever for the performance or observance by
Pledgor of any loan, guarantee or other agreement(s) with the Secured Party and;
(ii) except with regard to the transfer or redemption instructions contained in
an Entitlement Order
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originated by the Secured Party or the liquidation and transfer instructions
contained in the Notice of Exclusive Control referred to above, Goldman shall
accept instructions with regard to the Account only from Pledgor, regardless of
any notice, demand or other communication received from the Secured Party or any
third party with regard to the Account. Xxxxxxx'x records do not reflect any
pledge or security interest with respect to the Pledged Assets in favor of any
party other than as stated herein.
Pledgor agrees to indemnify and hold Goldman, its affiliates, and its
and their partners, employees, agents, officers and directors, harmless from any
claim, loss, liability or expense, including attorney's fees and the costs of
instituting or defending any proceedings relating thereto, arising out of or
relating to the Account, this agreement, and any actions Goldman may take or not
take pursuant to this agreement, provided that such actions or inactions are not
the result of the gross negligence or willful misconduct of Goldman, its agents
or its employees. The Secured Party agrees to indemnify and hold Goldman, its
affiliates, and its and their partners, employees, agents, officers and
directors, harmless from any claim, loss, liability or expense, including
attorney's fees and the costs of instituting or defending any proceedings
relating thereto, arising out of or relating to, actions taken by Goldman in
response to an Entitlement Order or Notice of Exclusive Control issued by the
Secured Party, provided that such actions or inactions are not the result of the
gross negligence or willful misconduct of Goldman, its agents or its employees.
The foregoing indemnification shall survive the termination of this agreement
and the Account.
The obligations of Goldman set forth above shall continue in effect
until the earlier of (a) the notification by the Secured Party to Goldman of
such termination in writing; (b) the unilateral termination of this agreement by
Goldman, such termination to be effective thirty (30) business days' after
written notice thereof is given to Pledgor and the Secured Party; or (c) the
transfer of the assets in the Account as directed by the Secured Party following
its origination of an Entitlement Order or its presentation of a Notice of
Exclusive Control. Upon the occurrence of any such event, the obligations of
Goldman set forth above with respect to the operation and maintenance of the
Account shall terminate.
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This agreement: (i) shall be binding on and shall inure to be benefit of
the successors and assigns of the parties hereto; (ii) may not be amended except
by a written instrument signed by all the parties hereto; (iii) the
establishment and maintenance of the Account, and all interests, duties and
obligations with respect to the Account, shall be governed by the law of the
State of New York; and (iv) supplements the account agreement executed by
Pledgor with regard to the Account.
This agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which shall together constitute one and
the same agreement.
Sincerely,
XXXXXXX, SACHS & CO.,
a New York limited partnership
By: _________________________
Name:
Title:
Acknowledged and Agreed:
Xxxxx Xxxxx
By: _________________________
Name: Xxxxx Xxxxx
Title:
-----------------------------
Witness Systems, Inc.
By: ___________________________
Name: Xxxxx Xxxxxxxxxxx
Title:
4
Exhibit 1
ENTITLEMENT ORDER
This Entitlement Order is being sent pursuant to the letter dated March
22, 2002 between and among Xxxxxxx, Sachs & Co. ("Goldman"), Xxxxx Xxxxx
("Pledgor"), and Witness Systems, Inc. ("the Secured Party") with regard to
Account No. 003-025665 (the "Account") maintained by Pledgor at Goldman.
Pursuant to the above-referenced agreement, Goldman is hereby
instructed as follows: [PICK ONE]
_____ Goldman shall [transfer all assets in the Account][redeem all assets in
the Account eligible for redemption and transfer the proceeds of such
redemption] to the account indicated below.
[OR:]
_____ Goldman shall transfer the following assets in the Account to the account
indicated below: [LIST ASSETS]
Any assets or proceeds transferred to the Secured Party are to be wired
by Goldman to the following account:
[wiring instructions]
For Secured Party
Name and Title
5
Exhibit 2
NOTICE OF EXCLUSIVE CONTROL
This Notice of Exclusive Control is being sent pursuant to the letter
dated March 22, 2002 between and among Xxxxxxx, Xxxxx & Co. ("Goldman"), Xxxxx
Xxxxx ("Pledgor"), and Witness Systems, Inc. ("the Secured Party") with regard
to Account No. xxx (the "Account") maintained by Pledgor at Goldman.
Pursuant to the above-referenced agreement, Goldman is hereby
instructed as follows:
_____ (a) Goldman shall freeze all assets and activity in the Account pending
further written instructions from the Secured Party.
_____ (b) Goldman shall liquidate assets in the Account which are needed to
yield $_________ in proceeds, and transfer such proceeds to the Secured Party.
If the assets contained in the Account have a liquidation value exceeding
$__________, Goldman shall have the sole discretion to determine which assets
are liquidated. If the liquidation of all assets in the Account shall yield less
than $___________, Goldman shall liquidate all assets and transfer all proceeds
to the Secured Party.
Any proceeds transferred to the Secured Party are to be wired by Goldman
to the following account:
[wiring instructions]
For Secured Party
------------------------
Name and Title
6
ADDENDUM TO THE PLEDGE AGREEMENT AMONG XXXXXXX XXXXX & CO., WITNESS SYSTEM AND
XXXXX XXXXX.
The parties hereto agree that the Pledge Agreement dated March __, 2002 to which
this Addendum is annexed, is hereby modified as follows:
1. Paragraph 2, lines 3-9 the words "Without limiting the
foregoing, prior to the receipt by Goldman of a Notice of
Exclusive Control (defined below) from the Bank, as described
below, Goldman may act on Entitlement Orders and other
instructions from the Pledgor to transact any and all
investment activity in the Account and to make transfers of
securities or cash in connection with: (i) sales or purchases
of securities in the Account; and (ii) the payment of
Xxxxxxx'x normal and customary commissions and fees in
connection therewith." should be deleted and replaced with
"Without limiting the foregoing, prior to the receipt by
Goldman of a Notice of Exclusive Control (defined below) from
the Secured Party, as described below, Goldman may not act on
Entitlement Orders and other instructions from the Pledgor to
transact any and all investment activity in the Account and to
make transfers of securities or cash in connection with: (i)
sales or purchases of securities in the Account; and (ii) the
payment of Xxxxxxx'x normal and customary commissions and fees
in connection therewith, absent joint written instructions
from Pledgor and an authorized representative at Witness
Systems."
2. The words "provided, however, that Pledgor may withdraw and
Goldman may release to Pledgor, all interest and dividends
paid or accrued on assets in the Account and such release of
interest and dividends shall not be regarded as a "free
transfer"." should be deleted from paragraph 2, line 13,14 &
15.
3. Paragraph 5, beginning with the words "The undertakings"
should be deleted and replace with ""The undertakings of
Goldman as set forth herein are specifically conditioned upon
the Secured Party's agreement, as indicated by its signature
below, that the security interests with regard to the Account
maintained by Goldman are, and shall remain, senior to and
shall have priority over, the junior security interests
asserted by the Secured Party and the Account solely with
respect to payment of (i) customary fees and commissions
related to the Assets, and (ii) financial assets duly
purchased for the Account in accordance with the provisions
hereof ("Reserved Rights"). Except for the Reserved Rights,
the Secured Party's security interests in the Account shall
have a priority over those of Goldman. Goldman shall not
advance margin or other credit against the Account nor
hypothecate the assets in the Account without the Secured
Party's prior written consent."
4. The words "The Secured Party acknowledges that if it is the
issuer of a class of securities registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended, it may
have public disclosure requirements under U.S. federal
securities laws with respect to the pledge agreement and
transactions relating thereto, and agrees and covenants that
it will comply with all such disclosure requirements. The
Secured Party also represents and warrants that the pledge
agreement and any transactions relating thereto do not violate
or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any
contractual restriction binding on it or affecting it or any
of its assets." should be after the word "herein", paragraph
6, line 13.
Except as modified hereby, all of the provisions of the Pledge
Agreement are ratified and confirmed Witness Systems, Xxxxx Xxxxx and
Xxxxxxx Xxxxx.
On behalf of:
XXXXXXX SACHS & CO.
By: ___________________
On behalf of Witness Systems:
WITNESS SYSTEMS
By: ___________________
Acknowledged and agreed to by:
-----------------------
XXXXX XXXXX
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