**Exhibit 4.9**

 

EXECUTION VERSION

 

AMENDMENT NO. 1 TO

ASSET PURCHASE AND SALE AGREEMENT

 

THIS AMENDMENT NO. 1 TO ASSET PURCHASE AND SALEAGREEMENT (this “Amendment”) is made and entered into as of May 31,2005, by and between Dictaphone Corporation, a Delaware corporation (“Dictaphone”),and NICE Systems Inc., a Delaware corporation (“Buyer”), in connectionwith that certain Asset Purchase and Sale Agreement, dated as of April 11,2005, by and among Buyer and Dictaphone (the “Agreement”).

 

WITNESSETH:

 

WHEREAS, pursuant to Section 11.12 thereof, theAgreement may be amended only by a written agreement signed by Buyer andDictaphone; and

 

WHEREAS, Buyer and Dictaphone are desirous of amendingthe Agreement as set forth herein;

 

NOW, THEREFORE, in consideration of the premises, theparties hereto, intending to be legally bound, hereby agree as follows:

 

1.                                       DefinedTerms

 

All capitalized terms used in this Amendment and nototherwise defined herein shall have the respective meanings assigned thereto inthe Agreement.

 

2.                                       Amendmentsand Modifications to the Agreement

 

## (a)           Article 1is hereby amended by adding the following definitions of “Amendment”, “AuditEscrowed Funds”, “SEC Required Financial Statements”, “2002Audited Financial Statements”, “2003 Audited Financial Statements”and “2005 Audited Financial Statements” therein as follows:

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## “Amendment”means Amendment No. 1 to Asset Purchase Agreement, between the Buyer andDictaphone, dated as of May 31, 2005.

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## “Audit Escrowed Funds”has the meaning set forth in Section 2.5(a).

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## “SECRequired Financial Statements” has the meaning set forth in Section 6.7(c).

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## “2002Audited Financial Statements” means the audited balance sheet of theBusiness as of December 31, 2002 and the related audited statement ofoperations and statement of cash flows for the nine months ended December 31,2002, prepared on a “carved-out” basis in accordance with U.S. GAAP and asotherwise set forth in Section 6.7(c).

 

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## “2003Audited Financial Statements” means the audited balance sheet of theBusiness as of December 31, 2003 and the related audited statement ofoperations and statement of cash flows for the twelve months ended December 31,2003, prepared on a “carved-out” basis in accordance with U.S. GAAP and asotherwise set forth in Section 6.7(c).

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## “2005Audited Financial Statements” means the audited balance sheet of theBusiness as of May 31, 2005 and the related audited statement ofoperations and statement of cash flows for the five months ended May 31,2005, prepared on a “carved-out” basis in accordance with U.S. GAAP and asotherwise set forth in Section 6.7(c).

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## (b)           Article 1of the Agreement is hereby amended by amending and restating the definition of “Interim2005 Financial Statements” therein to read in its entirety as follows:

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## “Interim2005 Financial Statements” means the unaudited financial statementsrelating to the Business, prepared on a “carved-out” basis in accordance withU.S. GAAP and the applicable requirements of Rule 3-05 of Regulation S-X,consisting of the adjusted balance sheet of the Business as of the end of thefiscal quarter ending immediately prior to the Closing Date and the relatedadjusted statement of operations and statement of cash flows for each of thethree-month periods then ended.

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## (c)           Section 2.5(a) ofthe Agreement is hereby amended by amending and restating such section toread in its entirety as follows:

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## “PurchasePrice.  In consideration forDictaphone’s and the Selling Subsidiaries’ sale, assignment, transfer,conveyance and delivery of the Purchased Assets to the Buyer and the BuyerAffiliates, the Buyer shall pay to Dictaphone on behalf of Dictaphone and theSelling Subsidiaries a purchase price of U.S. Thirty-Eight Million Five HundredThousand Dollars (US$38,500,000.00) (the “Purchase Price”) (provided,however, that the Purchase Price is subject to adjustment pursuant to Section 2.5(b))and assume, duly perform and discharge, or cause the Buyer Affiliates toassume, duly perform and discharge, when due all of the outstanding obligationsof Dictaphone and its Affiliates under the Assumed Liabilities in accordancewith Section 2.3.  At the Closing,the Purchase Price shall be paid as follows: (x) U.S. Thirty-One Million SixHundred Fifty Thousand Dollars (US$31,650,000.00) shall be paid directly toDictaphone, (y) U.S. Three Million Dollars (US$3,000,000.00) shall be depositedin escrow (with any accrued interest earned thereon, the “IndemnificationEscrowed Funds”) in accordance with Section 2.7 and the terms andconditions of the Escrow Agreement, as security for the indemnificationobligations of Dictaphone set forth in Article 9 and (z) U.S. ThreeMillion Eight Hundred Fifty Thousand Dollars (US$3,850,000) shall be depositedin escrow (with any accrued interest earned thereon, the “Audit EscrowedFunds”) in accordance with Section 2.7 and the terms and conditions ofthe Escrow Agreement, as security for the obligations of

 

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## Dictaphone set forth in Section 6.7(c).  All amounts payable under this Section 2.5are stated exclusive of any value added or similar sales tax which shall bepayable in addition.”

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## (d)           Section 2.5(b)(iv) ofthe Agreement is hereby amended by replacing “sixty (60) days” in the firstsentence thereof with “September 15, 2005”.

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## (e)           Section 2.6of the Agreement is hereby amended by replacing “Section 2.5(a)(i)” in thelast sentence thereof with “Section 2.5(a)”.

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## (f)            Section 2.7(a) ofthe Agreement is hereby amended by amending and restating such section toread in its entirety as follows:

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## “Creationof Escrow.  On the Closing Date, theBuyer shall deposit or cause to be deposited the Indemnification EscrowedFunds, the Audit Escrowed Funds and, if applicable, the Balance Sheet EscrowedFunds with the Escrow Agent in a separate account, and such IndemnificationEscrowed Funds, Audit Escrowed Funds and Balance Sheet Escrowed Funds shall beheld by the Escrow Agent in accordance with the terms and conditions of theEscrow Agreement as security solely for the indemnification obligations ofDictaphone to the Buyer set forth in Article 9 (in the case of theIndemnification Escrowed Funds), as security solely for Dictaphone’sobligations to the Buyer set forth in Section 6.7(c) (in the case ofthe Audit Escrowed Funds) and pending determination of the final Net AdjustedWorking Capital Level as of the Closing pursuant to Section 2.5(b) (inthe case of the Balance Sheet Escrowed Funds), respectively.”

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## (g)           Section 2.7of the Agreement is hereby amended by adding the following clause (e) therein:

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## “(e) Release of Audit Escrowed Funds. The Audit Escrowed Funds shall be released to Dictaphone in accordancewith the terms and provisions of the Escrow Agreement upon delivery of (i) the2003 Audited Financial Statements and the Interim 2005 Financial Statements and(ii) either (A) the 2002 Audited Financial Statements or (B) the2005 Audited Financial Statements by Dictaphone to the Buyer in accordance withthe terms and provisions, including applicable delivery dates, of Section 6.7(c).  If Dictaphone has not delivered to the Buyer (i) the2003 Audited Financial Statements and the Interim 2005 Financial Statements and(ii) either (A) the 2002 Audited Financial Statements or (B) the2005 Audited Financial Statements in accordance with the terms and provisions,including applicable delivery dates, of Section 6.7(c), some or all of theAudit Escrowed Funds shall be released to the Buyer and the balance, if any,shall be released to Dictaphone, in each case in accordance with Section 6.7(c).”

##  

## (h)           Section 5.6(b) ofthe Agreement is hereby amended by amending and restating such section toread in its entirety as follows:

 

“CanadianEmployees.  Unless otherwisespecifically provided herein, the Canadian Employees will be subject to thesame terms and provisions as the U.S.

 

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Employees, except to theextent otherwise required to comply with Canadian law; provided, however,that the Buyer shall only be required to make or cause a Buyer Affiliate to makean offer of employment to ten (10) Canadian Employees at least three (3)Business Days prior to the Closing. Notwithstanding any statutory or other rights that any Canadian Employeemay have, to the extent that the payment of any claims with respect totermination of his or her employment or severance benefits or governmentrequired termination liabilities to any transferred Canadian Employee whoreceived and accepted an offer from the Buyer or a Buyer Affiliate is requiredas a result of (i) the consummation of the transactions contemplated by thisAgreement and any concurrent or deemed transfers of employment or (ii)termination of the employment of any Canadian Employee who is a TransferredEmployee by the Buyer after the Closing Date, such claims, severance benefitsand government-required termination liabilities shall be the soleresponsibility of the Buyer.  The Buyershall, and shall cause its Affiliates to, recognize all service of eachtransferred Canadian Employee with Dictaphone or any other Seller orpredecessor thereof for all purposes, including eligibility to participate,vesting credit, entitlement for benefits and benefit accrual, except to theextent such treatment would result in duplicative benefits.”

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## (i)            Theheading of Section 6.7 of the Agreement is hereby amended by amending andrestating such heading to read in its entirety as follows:

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## “Deliveryof Audited Financial Statements, Closing Date Balance Sheet, Interim 2005Financial Statements and Other Audited Financial Statements.”

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## (j)            Section 6.7of the Agreement is hereby amended by deleting clauses (c) and (d) thereofand replacing such clauses with the following clause (c):

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### “(c) (i) The Parties agree that audited financial statements of the Business covering athirty-three (33) month period and, to the extent not included in such period,the Interim 2005 Financial Statements, are required by the Buyer to enable theBuyer’s parent to be able to file with the Securities and Exchange Commission,as part of such periodic or other reports and registration statements as it maydesire to file under the U.S. federal securities laws, consolidated financialstatements of the Business in accordance with Rule 3-05 of Regulation S-X(collectively, the “SEC Required Financial Statements”).  The Parties also agree that such thirty-three(33) month period may consist of the 2003 and 2004 calendar years together witheither the nine months ended December 31, 2002 or the nine months ended September 30,2005 (of which the first five months ended May 31, 2005 would be addressedby the 2005 Audited Financial Statements). The Parties hereby acknowledge that neither Party could have known oranticipated prior to receipt of the Audited Financial Statements that the Buyerrequires the 2003 Audited Financial Statements and either (i) the 2002Audited Financial Statements or (ii) the 2005 Audited Financial Statementsas part of the SEC Required Financial Statements.

 

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### (ii)           Dictaphone, at its own expense, shallhave prepared and delivered to the Buyer, on or prior to August 16, 2005, the2002 Audited Financial Statements and the 2003 Audited Financial Statements, ineach case together with the Auditor’s Reports thereon, and the Interim 2005Financial Statements, and in each case except to the extent Buyer’s parent hasreceived waivers (or similar actions) in writing from the Securities andExchange Commission (or its staff) or other appropriate governmental authorityprior to August 16, 2005 with respect to requirements otherwise applicable tothe SEC Required Financial Statements. If Dictaphone fails to deliver the 2002 Audited Financial Statements tothe Buyer by September 20, 2005, Dictaphone shall deliver, instead of the 2002Audited Financial Statements, the 2005 Audited Financial Statements, togetherwith the Auditor’s Report thereon and except to the extent Buyer’s parent hasreceived waivers (or similar actions) in writing from the Securities andExchange Commission (or its staff) or other appropriate governmental authorityprior to August 16, 2005 with respect to requirements otherwise applicable tothe SEC Required Financial Statements. Except as otherwise specifically permitted by such waivers (or otheractions), (a) the 2003 Audited Financial Statements, the 2002 Audited FinancialStatements, the Interim 2005 Financial Statements and the 2005 AuditedFinancial Statements, as applicable, (i) will be derived from the books andrecords of the Business, (ii) will fairly present, in all material respects, thefinancial position and results of operations of the Business at the dates andfor the periods indicated in accordance with U.S. GAAP and the applicablerequirements of Rule 3 05 of Regulation S-X, and (iii) will (other than theInterim 2005 Financial Statements) be accompanied by Auditor’s Reports, (b) thestatements of profit and loss included in the 2002 Audited FinancialStatements, the 2003 Audited Financial Statements, the Interim 2005 FinancialStatements and the 2005 Audited Financial Statements, as applicable, will notreflect any material operations of any Person or business that did notconstitute a part of the Business as then conducted by Dictaphone and itssubsidiaries (but will include allocations of corporate overhead and otherexpenses based on estimates prepared in good faith by Dictaphone to the extentpermitted by U.S. GAAP and the applicable requirements of Rule 3 05 ofRegulation S-X with respect to “carve-out” financial statements) and (c) thebalance sheets included in the 2002 Audited Financial Statements, the 2003Audited Financial Statements, the Interim 2005 Financial Statements and the2005 Audited Financial Statements, as applicable, will not include any materialassets or liabilities that did not constitute a part of the Business as thenconducted by Dictaphone and its subsidiaries.

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### (iii)          After the delivery of the 2002 AuditedFinancial Statements, the 2003 Audited Financial Statements, the Interim 2005Financial Statements and the 2005 Audited Financial Statements, as applicable,Dictaphone shall, upon request, cooperate with the Buyer in obtaining, at anytime or from time to time (with respect to no more than six (6) separatefilings with the Securities and Exchange Commission) until December 31,2006, from the independent auditor that prepared the Audited Reports an Auditor’sConsent.  The Buyer shall be responsiblefor all fees and disbursements billed by the auditor for its services inproviding any Auditor’s Consent, including any costs incurred with respect to

 

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### responding to any inquiriesfrom the Securities and Exchange Commission (or its staff) or any othergovernmental authority (excluding any costs incurred in connection with seekingor obtaining any waiver referred to above).

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### (iv)          In connection with the obligationsunder this Section 6.7(c), each Party agrees to cooperate and collaborateat its own expense with the other Party in (A) preparing the 2002 AuditedFinancial Statements, 2003 Audited Financial Statements, the Interim 2005Financial Statements and 2005 Audited Financial Statements, as applicable, (B) preparingand filing any submission to be made to the Securities and Exchange Commission(or its staff) or any other governmental authority, including any requests forwaivers or extensions made by Buyer’s parent with respect to the 2003 AuditedFinancial Statements (and the Buyer shall cause Buyer’s parent to pursuewaivers and extensions with respect to the 2003 Audited Financial Statementswhen and as requested by Dictaphone unless pursuing such waivers or extensionwould be unreasonable), and (C) responding to any comments, requests forinformation or inquires therefrom.  Inaddition, each Party shall (i) notify promptly the other Party of anycomments, requests or inquiries made by the Securities and Exchange Commission(or its staff) or other governmental authority relating thereto, (ii) providecopies of all written submissions to and communications with or from theSecurities and Exchange Commission (or its staff) or any other governmentalauthority to the other Party relating thereto and (iii) permit the otherParty and its advisors to participate in discussions, and attend meetings, withany the Securities and Exchange Commission (or its staff) or any other governmentalauthority relating thereto.

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### (v)           If Dictaphone fails to deliver the2002 Audited Financial Statements to the Buyer on or prior to August 16,2005, U.S. One Hundred Thousand Dollars (US$100,000) per week shall be releasedfrom the Audit Escrowed Funds to the Buyer for each full week that Dictaphonehas not delivered the 2002 Audited Financial Statements to the Buyer through September 6,2005 and U.S. Two Hundred Thousand Dollars (US$200,000) per week shall bereleased from the Audit Escrowed Funds to the Buyer for each full weekthereafter through September 20, 2005 that Dictaphone has not deliveredthe 2002 Audited Financial Statements to the Buyer.  If Dictaphone fails to deliver the 2003Audited Financial Statements and the Interim 2005 Financial Statements to theBuyer on or prior to August 16, 2005, U.S. One Hundred Thousand Dollars(US$100,000) per week shall be released from the Audit Escrowed Funds to theBuyer for each full week that Dictaphone has not delivered the 2003 AuditedFinancial Statements and the Interim 2005 Financial Statements to the Buyerthrough September 6, 2005 and U.S. Two Hundred Thousand Dollars(US$200,000) per week shall be released from the Audit Escrowed Funds to theBuyer for each full week thereafter that Dictaphone has not delivered the 2003Audited Financial Statements and the Interim 2005 Financial Statements to theBuyer.  If Dictaphone has failed todeliver the 2002 Audited Financial Statements and fails to deliver the 2005Audited Financial Statements to the Buyer on or prior to September 20,2005, U.S. One Hundred Thousand Dollars (US$100,000) per week shall be releasedfrom the Audit Escrowed Funds to the Buyer for each full

 

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### week that Dictaphone has notdelivered the 2005 Audited Financial Statements to the Buyer through October 6,2005 and U.S. Two Hundred Thousand Dollars (US$200,000) per week shall bereleased from the Audit Escrowed Funds to the Buyer for each full weekthereafter that Dictaphone has not delivered the 2005 Audited FinancialStatements to the Buyer.  Any amounts tobe released from the Audit Escrowed Funds for failure to deliver the 2005Audited Financial Statements shall be in addition to and not in substitutionfor any amounts to be released from the Audit Escrowed Funds for failure todeliver the 2003 Audited Financial Statements or the Interim 2005 FinancialStatements.  Notwithstanding anythingcontained herein to the contrary, upon delivery of (a) the 2003 AuditedFinancial Statements and the Interim 2005 Financial Statements and (b) either(i) the 2002 Audited Financial Statements or (ii) the 2005 AuditedFinancial Statements, the Audit Escrowed Funds or remaining balance shall bereleased to Dictaphone.

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### (vii)         To the extent that Dictaphone is unableto prepare and have audited any of the 2002 Audited Financial Statements, the2003 Audited Financial Statements, the Interim 2005 Financial Statements or the2005 Audited Financial Statements due to a failure by the Buyer to provide accessto information regarding the Business or to former Dictaphone personnel, andDictaphone has promptly after the occurrence of any alleged lack of cooperationgiven the Buyer written notice specifically identifying the alleged lack ofcooperation, the dates set forth above shall be extended to reflect any delayreasonably and directly arising therefrom.

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### (viii)        Notwithstanding anything containedherein to the contrary, the aggregate amounts payable to the Buyer with respectto Dictaphone’s failure to deliver the 2002 Audited Financial Statements, the2003 Audited Financial Statements, the Interim 2005 Financial Statements andthe 2005 Audited Financial Statements, as applicable, pursuant to this Section 6.7(c) shallnot exceed the Audit Escrowed Funds, any failure of Dictaphone to perform itsobligations under this Section 6.7(c) shall not be subject to anyindemnity obligations under Article 9 of this Agreement and Dictaphone’sliabilities under this Section 6.7(c) shall in no event exceed theAudit Escrowed Funds.”

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## (k)           Section 11.5of the Agreement is hereby amended by amending and restating such section toread in its entirety as follows:

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“Assignment; Binding Agreement.  This Agreement and various rights andobligations arising hereunder shall inure to the benefit of and be binding uponthe Parties and their successors and permitted assigns.  Neither this Agreement nor any of the rightsor obligations hereunder shall be transferred, delegated or assigned by eitherof the Parties without the prior written consent of the other Party (whichconsent shall not be unreasonably withheld), except that (a) prior to orafter Closing, Buyer shall have the right to transfer and assign its rights(and delegate its obligations and liabilities) hereunder to any of Buyer’sAffiliates and (b) commencing ninety (90) days after Closing, Dictaphoneshall have the right to

 

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transfer and assign itsrights (and delegate its obligations and liabilities) hereunder (i) to anyPerson who is the acquiror in a sale or other disposition of a majority ofDictaphone’s businesses or assets, (ii) as security for any financing ofDictaphone or its Affiliates or of an acquiror of a majority of Dictaphone’sbusinesses or assets, and (iii) to any of Dictaphone’s Affiliates.  No such assignment, transfer or delegationshall relieve the Buyer or Dictaphone, as applicable, of any of theirrespective liabilities or obligations hereunder.  Notwithstanding the foregoing, no assignmentor transfer shall be made of such rights unless the assignee also expresslyassumes all obligations and liabilities of the assigning Party under thisAgreement and the Related Agreements (other than the Manufacturing Agreementand any Related Agreement that has expired or been terminated and the TrademarkLicense Agreement to the extent that it has otherwise been assigned); provided,however, that the Technology License Agreement (or the appropriate partsthereof) may be separately assigned or transferred to no more than one Personas part of a sale or other disposition of a majority of the domestic businessesor assets of Integrated Voice Systems, to no more than one Person as part of asale or other disposition of a majority of the international businesses orassets of Integrated Voice Systems, to no more than one Person as part of asale or other disposition of a majority of the domestic businesses or assets ofHealthcare Solutions Group and to no more than one Person as part of a sale orother disposition of a majority of the international businesses or assets ofHealthcare Solutions Group and, for the avoidance of doubt, a DictaphoneSuccessor shall assume the obligations under Sections 5.7 and 6.5 as aDictaphone Successor.  Notwithstandinganything contained in this Agreement or any Related Agreement to the contrary,Dictaphone and its Affiliates shall have the right to sell, transfer orotherwise dispose of the international business of Integrated Voice Systemsseparate from the domestic business of Integrated Voice Systems and theinternational business of Healthcare Solutions Group separate from the domesticbusiness of Healthcare Solutions Group, through an asset sale, stock sale,merger or other form of business divestiture or combination, without Buyer’sconsent and without any assignment or delegation to or assumption by thepurchaser, transferee or recipient of the international business of (andwithout the purchaser, transferee or recipient of the international businessbecoming or continuing to be subject to) any of the liabilities or obligationsof Dictaphone or its Affiliates under this Agreement or any Related Agreement,provided that the total revenue of such international business being sold orotherwise transferred does not exceed twenty percent (20%) of total Dictaphonerevenue, excluding EMS, based on Dictaphone’s most recent regularly preparedquarterly financial statements available at such time and that the purchaser,transferee or recipient of such international business assumes or continues tobe subject to Sections 5.7 and 6.5 of this Agreement as a DictaphoneSuccessor.  For the purpose of this Section 11.5,the words “purchaser, transferee or recipient” include any Affiliate orsubsidiary of Dictaphone engaged in the international business which is sold,transferred or otherwise disposed of in connection with, or is the successorof, any such transaction. Notwithstanding anything contained in this Agreement to the contrary,the Parties agree that such purchaser, transferee or recipient of such

 

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international businessthat is an assignee of the Technology License Agreement will assume therespective obligations pertaining to Integrated Voice Systems or HealthcareSolutions Group, as applicable, thereunder. Any assignment in violation of the foregoing shall be null and void.”

 

## (l)            TheEscrow Agreement attached to the Agreement as Exhibit E is herebyamended by amending and restating the Escrow Agreement to read in its entiretyas attached hereto as Exhibit A.

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3.             Insurance. Pursuant to Section 6.14 of the Agreement, the Buyer will pay toDictaphone fifty percent (50%) of the Seventy-Seven Thousand Nine HundredNinety-Five Dollar (U.S.$77,995.00) tail insurance policy premium concurrentlywith its payment by Dictaphone, upon submission of the invoice for suchpremium.

 

4.             Delivery of Audited Financial Statements.  Buyer acknowledges that the Audited FinancialStatements have been timely delivered to Buyer by Dictaphone pursuant to theAgreement.  

 

5.             Effective Time. The Parties acknowledge that, if the Closing occurs from May 31, 2005through June 1, 2005, the Effective Time of the Closing shall be deemed to be11:59 eastern time at the end of the day on May 31, 2005.  The Parties acknowledge that Dictaphone shallown the Business through May 31, 2005 and that the Buyer shall own the Businessas of June 1, 2005.

 

6.                                       Miscellaneous

 

This Amendment may not be modified or amended, or anyof its terms or provisions (or the breach thereof) waived, except by an agreementin writing executed by the parties to this Amendment.  This Amendment shall be governed by, andconstrued in accordance with, the law of the State of New York applicable tocontracts to be carried out wholly within such State.  The headings of the paragraphs of thisAmendment are inserted for convenience of reference only and shall not bedeemed to constitute a part nor to affect the meaning or interpretation of anyprovisions of this Amendment.  ThisAmendment 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 shallbe as effective as delivery of an original counterpart.

 

*   *   *

 

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IN WITNESS WHEREOF, Buyer and Dictaphone have causedthis Amendment to be duly executed and delivered, all as of the day and yearfirst above written.

 
|   | BUYER:                  |
|--------|-------------------------|
|   |                    |
|   | NICE  SYSTEMS INC.      |
|   |                    |
|   |                    |
|   | By:                     |   |
|   | Name:                   |   |
|   | Title:                  |
|   |                    |
|   | DICTAPHONE:             |
|   |                    |
|   | DICTAPHONE  CORPORATION |
|   |                    |
|   |                    |
|   | By:                     |   |
|   | Name:                   |   |
|   | Title:                  |
|        |                         |  |  |

 

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Exhibit A

 

Escrow Agreement

 

See attached.

 

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