EXHIBIT 4.1
EXECUTION VERSION
AMENDMENT
TO
RIGHTS AGREEMENT
This AMENDMENT TO RIGHTS AGREEMENT
(this “Amendment”) is entered into as of February 11,
2007, between Witness Systems, Inc., a Delaware corporation (the
“Company”), and Computershare Trust Company, N.A.
(successor in interest to SunTrust Bank), a Delaware corporation
(the “Rights Agent”). Capitalized terms not
otherwise defined herein shall have the meanings given them in the
Rights Agreement dated as of October 25, 2002, between the parties
hereto (the “Rights Agreement”).
RECITALS
WHEREAS, the Company proposes to
enter into an Agreement and Plan of Merger immediately following
the execution and delivery hereof (as it may be amended from time
to time, the “Merger Agreement”) among Verint Systems
Inc., a Delaware corporation (“Buyer”), White
Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Buyer (“Merger Sub”), and the Company,
providing for the merger of the Merger Sub with and into the
Company, with the Company continuing as the surviving corporation
(the “Merger”);
WHEREAS, the Board of Directors of
the Company has approved, authorized and adopted the Merger
Agreement and the transactions contemplated thereby;
WHEREAS, the Board of Directors of
the Company has determined, in connection with the execution of the
Merger Agreement, that it is desirable to amend the Rights
Agreement to exempt the Merger Agreement, the execution thereof and
the transactions contemplated thereby, including, without
limitation, the Merger, from the application of the Rights
Agreement as set forth in this Amendment;
WHEREAS, as of the time immediately
prior to the execution of this Amendment, no Person has become an
Acquiring Person and no Distribution Date has occurred;
WHEREAS, Section 27 of the Rights
Agreement provides that, prior to the Distribution Date, the
Company may supplement or amend the Rights Agreement in any
respect, without the approval of any holders of Rights, by action
of its board of directors, so long as the duties, liabilities, and
indemnification of the Rights Agent are not affected;
WHEREAS, pursuant to the terms of
the Rights Agreement and in accordance with Section 27 and Section
29 thereof, the Board of Directors of the Company has directed that
the Rights Agreement should be amended and supplemented as set
forth in this Amendment effective prior to the execution of the
Merger Agreement.
NOW THEREFORE, in consideration of
the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
1.
Section 1 of the Rights Agreement is hereby amended to add the
following paragraph at the end of Section 1:
“In addition, notwithstanding
anything in this Agreement to the contrary, none of Verint Systems
Inc., a Delaware corporation (“Buyer”), White
Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Buyer (“Merger Sub”) or any of their
Affiliates or Associates shall be an “Acquiring Person”
solely by reason of: (1) the approval, adoption, execution or
delivery of the Agreement and Plan of Merger (as it may be amended
and supplemented, the “Merger Agreement”) among
the
