EXHIBIT 5.1
[XXXXX XXXX LOGO OMITTED]
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-3300
Tel (000) 000-0000
Fax (000) 000-0000
xxx.xxxxxxxxx.xxx
Chicago
Hong Kong
Xxxxxx
Xxxxxxxxx City
Kansas City
Kuwait
Los Angeles
New York
Phoenix
Riyadh
Shanghai
St. Louis
United Arab Emirates (Dubai)
Washington, DC
And Xxxxx Xxxx,
A Multinational Partnership,
London
August 26, 2005
NICE-Systems Ltd.
0 Xxxxxxx Xxxxxx
P.O. Box 690
Ra'anana 43107, Israel
Ladies and Gentlemen:
We have acted as United States counsel to NICE-Systems Ltd., a company limited
by shares organized under the laws of the State of Israel (the "Company"), in
connection with the Registration Statement on Form F-3 (the "Registration
Statement"), to be filed by the Company on or about the date hereof with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to (i) American Depositary Shares
("ADS"), each representing one ordinary share, par value NIS 1.00 per share, of
the Company (the "Ordinary Shares") and evidenced by American Depositary
Receipts (the "ADRs"); (ii) unsecured debt securities, which may be senior
("Senior Debt Securities") or subordinated ("Subordinated Debt Securities" and,
collectively with the Senior Debt Securities, the "Debt Securities"); (iii)
purchase contracts obligating holders to purchase Securities (as hereinafter
defined) at a future date or dates ("Purchase Contracts"); (iv) warrants to
purchase ADSs, Debt Securities and Purchase Contracts of the Company (the
"Warrants"); and (v) units comprised of one or more of the ADSs, Debt
Securities, Purchase Contracts and Warrants in any combination (the "Units").
The ADSs, Debt Securities, Purchase Contracts, Warrants and Units (collectively,
the "Securities") may be issued and sold or delivered from time to time by the
Company as set forth in the Registration Statement, any amendment thereto, the
prospectus contained therein (the "Prospectus") and supplements to the
Prospectus (the "Prospectus Supplements") filed pursuant to Rule 415 under the
Act may not exceed an aggregate initial offering price of U.S.$220,000,000 or
the equivalent thereof in one or more foreign currencies or composite
currencies.
The ADSs will be issued under the Deposit Agreement, dated as of January 24,
1996, and as amended and restated as of July 22, 1997, among the Company, the
Bank of New York, as depositary (the "Depositary"), and the owners and holders
of ADRs issued thereunder (the "Deposit Agreement"). The Senior Debt Securities
will be issued under an Indenture, substantially in the form of the exhibit to
the Registration Statement (the "Senior Indenture") between the Company and a
trustee named in the applicable Prospectus Supplement (the "Senior Trustee").
The Subordinated Debt
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August 26, 2005
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Securities will be issued under an indenture, substantially in the form of the
exhibit to the Registration Statement (the "Subordinated Indenture") between the
Company and a trustee named in the applicable Prospectus Supplement (the
"Subordinated Trustee"). The Purchase Contracts will be issued pursuant to a
purchase contract agreement (the "Purchase Contract Agreement") between the
Company and a purchase contract agent (the "Purchase Contract Agent"). The
Warrants will be issued under a warrant agreement (the "Warrant Agreement")
between the Company and a warrant agent (the "Warrant Agent").The Units will be
issued under a unit agreement (the "Unit Agreement") between the Company and a
unit agent (the "Unit Agent").
In connection herewith, we have examined and relied without investigation as to
matters of fact upon the Registration Statement and the exhibits thereto,
including the forms of the Senior Indenture and the Subordinated Indenture, and
such certificates, statements and results of inquiries of public officials and
officers and representatives of the Company and originals or copies, certified
or otherwise identified to our satisfaction, of such other documents, corporate
records, certificates and instruments as we have deemed necessary or appropriate
to enable us to render the opinions expressed herein. We have assumed the
genuineness of all signatures on all documents examined by us, the legal
competence and capacity of natural persons, the authenticity of documents
submitted to us as originals, and the conformity with authentic original
documents of all documents submitted to us as copies.
We also have assumed that: (1) at the time of execution, authentication,
issuance and delivery of the ADSs, the Deposit Agreement will be the valid and
legally binding obligation of the Depositary, enforceable against such party in
accordance with its terms; (2) at the time of execution, authentication,
issuance and delivery of the Senior Debt Securities, the Senior Indenture will
be the valid and legally binding obligation of the Senior Trustee, enforceable
against such party in accordance with its terms; (3) at the time of execution,
authentication, issuance and delivery of the Subordinated Debt Securities, the
Subordinated Indenture will be the valid and legally binding obligation of the
Subordinated Trustee, enforceable against such party in accordance with its
terms; (4) at the time of execution, issuance and delivery of the Purchase
Contracts, the Purchase Contract Agreement will be the valid and legally binding
obligation of the Purchase Contract Agent, enforceable against such party in
accordance with its terms; (5) at the time of execution, issuance and delivery
of any Warrants, the related Warrant Agreement will be the valid and legally
binding obligation of the Warrant Agent, enforceable against such party in
accordance with its terms; and (6) at the time of the execution, issuance and
delivery of the Units, the related Unit Agreement will be the valid and legally
binding obligation of the Unit Agent, enforceable against such party in
accordance with its terms.
We have assumed further that: (1) at the time of execution, authentication,
issuance and delivery of the ADSs, the Deposit Agreement will continue to be in
full force and effect and will not have been terminated or rescinded by the
Company or the Depositary; (2) at the time of execution, authentication,
issuance and delivery of the Senior Debt Securities, the Senior Indenture will
have been duly authorized, executed and delivered by the Company and the Senior
Trustee; (3) at the time of execution, authentication, issuance and delivery of
the Subordinated Debt Securities, the
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August 26, 2005
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Subordinated Indenture will have been duly authorized, executed and delivered by
the Company and the Subordinated Trustee; (4) at the time of execution, issuance
and delivery of the Purchase Contracts, the Purchase Contract Agreement will
have been duly authorized, executed and delivered by the Company and the
Purchase Contract Agent; (5) at the time of execution, issuance and delivery of
any Warrants, the related Warrant Agreement will have been duly authorized,
executed and delivered by the Company and the Warrant Agent; (6) at the time of
execution, issuance and delivery of the Units, the Unit Agreement will have been
duly authorized, executed and delivered by the Company and the Unit Agent; and
(7) at the time of the issuance and sale of any of the Securities, the terms of
the Securities, and their issuance and sale, will have been established so as
not to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company.
Based upon the foregoing, in reliance thereon and subject to the assumptions,
comments, qualifications, limitations and exceptions stated herein and the
effectiveness of the Registration Statement under the Act, we are of the opinion
that:
1. Assuming the Deposit Agreement has been duly authorized, executed and
delivered by the parties thereto, when ADSs are issued in accordance with the
Deposit Agreement against the deposit of duly authorized, validly issued, fully
paid and non-assessable Ordinary Shares, such ADSs will be validly issued and
will entitle the holders thereof to the rights specified therein.
2. With respect to the Debt Securities, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
any Debt Securities, the terms of the offering thereof and related matters and
(b) due execution, authentication, issuance and delivery of such Debt Securities
upon payment of the consideration therefor provided for in the applicable
definitive purchase, underwriting or similar agreement approved by the board of
directors and otherwise in accordance with the provisions of the applicable
indenture, such Debt Securities will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
3. With respect to the Purchase Contracts, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
any Purchase Contracts, the terms of the offering thereof and related matters
and (b) due execution, authentication, issuance and delivery of such Purchase
Contracts upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the board of directors and otherwise in accordance with the provisions of the
applicable Purchase Contract Agreement, such Purchase Contracts will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms.
4. With respect to the Warrants, assuming the (a) taking of all necessary
corporate action to authorize and approve the issuance and terms of any
Warrants, the terms of the offering thereof
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August 26, 2005
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and related matters and (b) due execution, authentication, issuance and delivery
of such Warrants upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the board of directors and otherwise in accordance with the provisions of the
applicable Warrant Agreement, such Warrants will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
5. With respect to the Units, assuming the (a) taking of all necessary
corporate action to authorize and approve the issuance and the terms of the
Units, the related Unit Agreement and any Securities which are components of the
Units, the terms of the offering thereof and related matters and (b) due
execution, countersignature (where applicable), authentication, issuance and
delivery of the Units and the Securities that are components of such Units in
each case upon the payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the board of directors, and otherwise in accordance with the provisions of the
applicable (i) Deposit Agreement, in the case of ADSs, (ii) Senior Indenture, in
the case of Senior Debt Securities, (iii) Subordinated Indenture, in the case of
Subordinated Debt Securities, (iv) Purchase Contract Agreement, in the case of
Purchase Contracts, and (v) Warrant Agreement, in the case of Warrants, such
Units will be validly issued and will entitle the holders thereof to the rights
specified in the Unit Agreements.
In addition to the assumptions, comments, qualifications, limitations and
exceptions set forth above, the opinions set forth herein are further limited
by, subject to and based upon the following assumptions, comments,
qualifications, limitations and exceptions:
(a) Our opinions herein reflect only the application of applicable laws
of the State of New York and the federal laws of the United States of America.
The opinions set forth herein are made as of the date hereof and are subject to,
and may be limited by, future changes in the factual matters set forth herein,
and we undertake no duty to advise you of the same. The opinions expressed
herein are based upon the law in effect (and published or otherwise generally
available) on the date hereof, and we assume no obligation to revise or
supplement these opinions should such law be changed by legislative action,
judicial decision or otherwise. In rendering our opinions, we have not
considered, and hereby disclaim any opinion as to, the application or impact of
any laws, cases, decisions, rules or regulations of any other jurisdiction,
court or administrative agency.
(b) Our opinions herein are subject to and may be limited by (i)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting or relating to the rights and remedies of creditors
generally including, without limitation, laws relative to fraudulent
conveyances, preference and equitable subordination, (ii) general principles or
equity (regardless of whether considered in a proceeding in equity or at law),
(iii) an implied covenant of good faith and fair dealing, (iv) requirements that
a claim with respect to any Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars with
respect to such a claim) be converted into United States dollars at a rate of
exchange prevailing
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on a date determined pursuant to applicable law, and (v) governmental authority
to limit, delay or prohibit the making of payments outside the United States or
in foreign currency or composite currency.
(c) Our opinions are further subject to the effect of generally
applicable rules of law arising from statutes, judicial and administrative
decisions, and the rules and regulations of governmental authorities that: (i)
limit or affect the enforcement of provisions of a contract that purport to
require waiver of the obligations of good faith, fair dealing, diligence and
reasonableness; (ii) limit the availability of a remedy under certain
circumstances where another remedy has been elected; (iii) limit the
enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves negligence,
recklessness, willful misconduct or unlawful conduct; (iv) may, where less than
all of the contract may be unenforceable, limit the enforceability of the
balance of the contract to circumstances in which the unenforceable portion is
not an essential part of the agreed exchange and (v) govern and afford judicial
discretion regarding the determination of damages and entitlement to attorneys'
fees.
(d) We express no opinion as to the enforceability of any provision in
any Senior Indenture, Subordinated Indenture, Purchase Contract Agreement,
Warrant Agreement, Unit Agreement or other agreement purporting or attempting to
(A) confer exclusive jurisdiction and/or venue upon certain courts or otherwise
waive the defenses of forum non conveniens or improper venue, (B) confer subject
matter jurisdiction on a court not having independent grounds therefor, (C)
modify or waive the requirements for effective service of process for any action
that may be brought, (D) waive the right of the Company or any other person to a
trial by jury, (E) provide that remedies are cumulative or that decisions by a
party are conclusive, or (F) modify or waive the rights to notice, legal
defenses, statutes of limitations or other benefits that cannot be waived under
applicable law.
(e) We express no opinion as to the enforceability of any rights to
indemnification or contribution provided for in any Senior Indenture,
Subordinated Indenture, Purchase Contract Agreement, Warrant Agreement, Unit
Agreement or other agreement which are violative of public policy underlying any
law, rule or regulation (including any federal or state securities law, rule or
regulation) or the legality of such rights.
(f) You have informed us that you intend to issue the Securities from
time to time on a delayed or continuous basis, and this opinion is limited to
the laws, including the rules and regulations, as in effect on the date hereof.
We understand that prior to issuing any Securities you will afford us an
opportunity to review the operative documents pursuant to which such Securities
are to be issued (including the applicable prospectus supplement) and will file
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Securities.
NICE-Systems Ltd. Xxxxx Xxxx LLP
August 26, 2005
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We hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus. We also consent to your filing copies of this opinion as an exhibit
to the Registration Statement with agencies of such states as you deem necessary
in the course of complying with the laws of such states regarding the offering
and sale of the Securities. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Xxxxx Xxxx LLP
