Exhibit 10.31


 


STOCK PURCHASE
AGREEMENT


 


by and among


 


the
Shareholders of APP Group CEE B.V. listed herein


 


and


 


Ness
Technologies, Inc.


 


Dated as of


 


August 30,
2002


 


 

















 


Table of Contents


 


	
  ARTICLE I.

  	
   

  
	
  DEFINITIONS
  

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  
	
  THE EXCHANGE AND RELATED TRANSACTIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Exchange

  	
   

  
	
  2.2.

  	
  APP Options.

  	
   

  
	
  2.3.

  	
  Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF THE APP
  HOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Corporate Organization, Etc

  	
   

  
	
  3.2.

  	
  Capitalization of APP

  	
   

  
	
  3.3.

  	
  APP’s Subsidiaries

  	
   

  
	
  3.4.

  	
  Authority Relative to this Agreement

  	
   

  
	
  3.5.

  	
  Consents and Approvals; No Violations

  	
   

  
	
  3.6.

  	
  Financial Statements

  	
   

  
	
  3.7.

  	
  Absence of Certain Changes

  	
   

  
	
  3.8.

  	
  Compliance with Law

  	
   

  
	
  3.9.

  	
  Contracts and Commitments

  	
   

  
	
  3.10.

  	
  No Undisclosed Liabilities

  	
   

  
	
  3.11.

  	
  No Default

  	
   

  
	
  3.12.

  	
  Litigation

  	
   

  
	
  3.13.

  	
  Taxes

  	
   

  
	
  3.14.

  	
  Title to Properties

  	
   

  
	
  3.15.

  	
  Patents, Trademarks, Etc

  	
   

  
	
  3.16.

  	
  Insurance

  	
   

  
	
  3.17.

  	
  Environmental Matters

  	
   

  
	
  3.18.

  	
  Employee and Labor Matters

  	
   

  
	
  3.19.

  	
  Brokers and Finders

  	
   

  
	
  3.20.

  	
  Additional Representations

  	
   

  
	
  3.21.

  	
  Shareholdings

  	
   

  
	
  3.22.

  	
  Reliance

  	
   

  



 


i

















 


	
  ARTICLE IV.

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF NESS

  	
  14

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Corporate Organization; Etc

  	
  14

  
	
  4.2.

  	
  Capitalization of Ness

  	
  14

  
	
  4.3.

  	
  Ness’s Subsidiaries

  	
  15

  
	
  4.4.

  	
  Authority Relative to this Agreement

  	
  15

  
	
  4.5.

  	
  Consents and Approvals; No Violations

  	
  15

  
	
  4.6.

  	
  Financial Statements

  	
  16

  
	
  4.7.

  	
  Absence of Certain Changes

  	
  16

  
	
  4.8.

  	
  Compliance with Law

  	
  16

  
	
  4.9.

  	
  Contracts and Commitments

  	
  16

  
	
  4.10.

  	
  No Undisclosed Liabilities

  	
  17

  
	
  4.11.

  	
  No Default

  	
  17

  
	
  4.12.

  	
  Litigation

  	
  17

  
	
  4.13.

  	
  Taxes

  	
  17

  
	
  4.14.

  	
  Title to Properties

  	
  17

  
	
  4.15.

  	
  Patents, Trademarks, Etc

  	
  18

  
	
  4.16.

  	
  Insurance

  	
  18

  
	
  4.17.

  	
  Environmental Matters

  	
  18

  
	
  4.18.

  	
  Employee and Labor Matters

  	
  18

  
	
  4.19.

  	
  Brokers and Finders

  	
  19

  
	
  4.20.

  	
  Reliance

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  
	
  COVENANTS

  	
  19

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Conduct of the Business Pending the Closing

  	
  19

  
	
  5.2.

  	
  Access to Information

  	
  20

  
	
  5.3.

  	
  Disclosure Supplements

  	
  21

  
	
  5.4.

  	
  Consents and Approvals

  	
  21

  
	
  5.5.

  	
  Filings

  	
  21

  
	
  5.6.

  	
  Further Assurances

  	
  21

  
	
  5.7.

  	
  Employee Benefit Matters

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  
	
  CONDITIONS TO THE APP HOLDERS’ OBLIGATIONS

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Representations and Warranties

  	
  22

  



 


ii

















 


	
  6.2.

  	
  Performance

  	
   

  
	
  6.3.

  	
  Certificates

  	
   

  
	
  6.4.

  	
  No Injunction or Proceeding

  	
   

  
	
  6.5.

  	
  Ness Consents

  	
   

  
	
  6.6.

  	
  APP Shareholders’ Agreement

  	
   

  
	
  6.7.

  	
  APP Indebtedness.

  	
   

  
	
  6.8.

  	
  Ness Registration Rights Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  
	
  CONDITIONS TO NESS’S OBLIGATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Representations and Warranties of the APP
  Holders

  	
   

  
	
  7.2.

  	
  Performance by the APP Holders

  	
   

  
	
  7.3.

  	
  Certificates

  	
   

  
	
  7.4.

  	
  No Injunction or Proceeding

  	
   

  
	
  7.5.

  	
  APP Consents

  	
   

  
	
  7.6.

  	
  APP Shareholders’ Agreement

  	
   

  
	
  7.7.

  	
  Materiality of Conditions

  	
   

  
	
  7.8.

  	
  Legal
  Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  
	
  TERMINATION AND ABANDONMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Termination

  	
   

  
	
  8.2.

  	
  Procedure and Effect of Termination

  	
   

  
	
  8.3.

  	
  Indemnification.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Amendment and Modifications

  	
   

  
	
  9.2.

  	
  Extension; Waiver

  	
   

  
	
  9.3.

  	
  Representations and Warranties; Etc

  	
   

  
	
  9.4.

  	
  Entire Agreement; Assignment

  	
   

  
	
  9.5.

  	
  Validity

  	
   

  
	
  9.6.

  	
  Notices

  	
   

  
	
  9.7.

  	
  Governing Law

  	
   

  
	
  9.8.

  	
  Specific Performance

  	
   

  
	
  9.9.

  	
  Publicity

  	
   

  



 


iii

















 


	
  9.10.

  	
  Jurisdiction; Forum

  	
   

  
	
  9.11.

  	
  Descriptive Headings

  	
   

  
	
  9.12.

  	
  Counterparts

  	
   

  
	
  9.13.

  	
  Expenses

  	
   

  
	
  9.14.

  	
  Parties in Interest

  	
   

  
	
  9.15.

  	
  Interpretation

  	
   

  
	
  9.16.

  	
  Fair Construction

  	
   

  
	
  9.17.

  	
  Survival of Sections 2.1 and 2.2

  	
   

  
	
  9.18.

  	
  Release of Claims

  	
   

  



 


iv

















 


STOCK PURCHASE AGREEMENT


 


This STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of
August 30, 2002, is by and among the APP Holders (as defined below) and
Ness Technologies, Inc., a Delaware corporation (“Ness”).


 


WHEREAS, the APP Holders own issued and outstanding shares of the share
capital, with a par value of 10 Dutch guilder cents per share of APP (as
defined below) (each, a “Share” and, collectively, the “Shares”);
and


 


WHEREAS, Ness desires to acquire the Shares in accordance with and
subject to the terms and conditions of this Agreement; and


 


WHEREAS, subject to the requirements of applicable law and the
organizational and governing documents of APP, Ness intends to change the name of
APP to Ness CEE B.V. after consummation of the acquisition of the Shares.


 


NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained,
the Parties hereby agree as follows:


 


ARTICLE I.


DEFINITIONS


 


1.1.         Definitions.  The terms defined in this Article I,
whenever used herein, shall have the following meanings for all purposes of
this Agreement.


 


“Affiliate” shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.


 


“Agreement” shall have the meaning set forth in the preamble
hereto.


 


“Amended Loan Documents” shall have the meaning set forth in
Section 6.7(a).


 


“APP” shall mean APP Group CEE B.V., a Netherlands limited
liability company.


 


“APP Audited Financial Statements” shall have the meaning set
forth in Section 3.6 hereof.


 


“APP Consents” shall have the meaning set forth in
Section 3.5 hereof.


 


“APP Financial Statements” shall have the meaning set forth in
Section 3.6 hereof.


 


“APP Holders” shall initially mean the Warburg APP Holders and
any other shareholder of APP listed on Annex A attached hereto, as
amended from time to time, who executes a counterpart signature page in the
form attached hereto at Annex B.


 

















 


“APP Holders Losses” shall have the meaning set forth in
Section 8.3(b)(i).


 


“APP Holders Threshold” shall have the meaning set forth in
Section 8.3(a)(ii)(2).


 


“APP Material Adverse Effect” shall have the meaning set forth
in Section 3.1 hereof.


 


“APP Non-Convertible Shares” shall mean those classes of APP
shares that by their terms, are not convertible into APP common stock, par
value 10 Dutch guilder cents per share.


 


“APP Options” shall have the meaning set forth in
Section 2.2(a).


 


“APP Option Holders” shall have the meaning set forth in
Section 2.2(a).


 


“APP Reviewed Financial Statements” shall have the meaning set
forth in Section 3.6 hereof.


 


“APP Shareholders’ Agreement” shall mean the Shareholders’
Agreement with respect to APP, dated as of November 20, 1997, to which the
APP Holders are, among others, a party.


 


“Closing” shall have the meaning set forth in
Section 2.3(a) hereof.


 


“Closing Date” shall have the meaning set forth in
Section 2.3(a) hereof.


 


“Confidentiality Agreement” shall have the meaning set forth in
Section 5.2 hereof.


 


“De Minimis APP Holders Losses” shall have the meaning set forth
in Section 8.3(b)(ii)(2).


 


“De Minimis Ness Losses” shall have the meaning set forth in
Section 8.3(a)(ii)(2).


 


“Disclosure Schedule” means the Disclosure
Schedule attached hereto at Annex I, dated as of the date
hereof, delivered in connection with this Agreement.


 


“Encumbrance” means any lien, encumbrance, security interest,
charge, surety, mortgage, option, pledge or restriction on Transfer of any
nature whatsoever (except, in the case of the Shares, for restrictions relating
to applicable securities laws) other than liens for Taxes not yet due or
payable.


 


“Environmental Claim” means any claim, action, demand, order, or
written notice by or on behalf of, any Governmental Entity or Person alleging
potential liability arising out of, based on or resulting from the violation of
any Environmental Law or permit.


 


2

















 


“Environmental Laws” means all foreign, Federal, state, and
local laws and regulations relating to Releases or threatened Releases of
Hazardous Materials or otherwise relating to the generation, treatment,
storage, transport or handling of Hazardous Materials.


 


“Exchange” shall have the meaning set forth in Section 2.1
hereof.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“Exchange Consideration” shall have the meaning set forth in
Section 2.1 hereof.


 


“GAAP” means United States generally accepted accounting
principles as in effect on the date or for the period with respect to which
such principles are applied.


 


“Governmental Entity” shall have the meaning set forth in
Section 3.5 hereof.


 


“Hazardous Materials” means all substances defined or listed as
“hazardous” or “toxic” under Environmental Laws.


 


“Insurance Policies” shall have the meaning set forth in
Section 3.16 hereof.


 


“Intellectual Property Rights” shall have the meaning set forth
in Section 3.15(b) hereof.


 


“Ness” shall have the meaning set forth in the preamble.


 


“Ness Audited Financial Statements” shall have the meaning set
forth in Section 4.6 hereof.


 


“Ness Common Stock” means common stock, par value $.01 per
share, of Ness.


 


“Ness Consents” shall have the meaning set forth in
Section 4.5 hereof.


 


“Ness Financial Statements” shall have the meaning set forth in
Section 4.6 hereof.


 


“Ness Insurance Policies” shall have the meaning set forth in
Section 4.16 hereof.


 


“Ness Intellectual Property Rights” shall have the meaning set
forth in Section  4.15 hereof.


 


“Ness Losses” shall have the meaning set forth in
Section 8.3(a)(i).


 


“Ness Material Adverse Effect” shall have the meaning set forth
in Section 4.1 hereof.


 


“Ness Options” shall have the meaning set forth in
Section 2.2(a).


 


“Ness Permits” shall have the meaning set forth in
Section 4.11 hereof.


 


3

















 


“Ness Reviewed Financial Statements” shall have the meaning set
forth in Section 4.6 hereof.


 


“Ness Shares” shall have the meaning set forth in
Section 2.1 hereof.


 


“Ness Threshold” shall have the meaning set forth in
Section 8.3(b)(iii).


 


“Parties” shall mean the APP Holders and Ness.


 


“Permits” shall have the meaning set forth in Section 3.11
hereof.


 


“Person” means any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, joint
venture, association, trust, Governmental Entity or other entity.


 


“Release” shall have the meaning set forth in the Environmental
Laws.


 


“Representative” means, with respect to any Person, each of such
Person’s Affiliates, directors, officers, employees, partners, members,
representatives and agents, and each of the heirs, executors and assigns of any
of the foregoing.


 


“Rule 144” shall have the meaning set forth in
Section 3.20(d) hereof.


 


“Securities Act” means the Securities Act of 1933, as amended.


 


“Selling Group” shall have the meaning set forth in
Section 9.3(b) hereof.


 


“Shares” shall have the meaning set forth in the preamble
hereto.


 


“Stichting” shall have the meaning set forth in
Section 2.2(b) hereof.


 


“Subsidiary” of a Person means a Person of which such Person
owns, directly or indirectly, more than 50% of the outstanding voting stock or
other ownership interest.


 


“Taxes” shall have the meaning set forth in Section 3.13(c)
hereof.


 


“Tax Return” shall have the meaning set forth in
Section 3.13(c) hereof.


 


“Transfer” means any sale, assignment, pledge, hypothecation, or
other disposition or Encumbrance.


 


“Warburg APP Holders” means Warburg, Pincus Ventures, L.P., a
Delaware limited partnership, and WPVI.


 


“WPVI” means Warburg, Pincus Ventures International, L.P., a
Bermuda limited partnership.


 


4

















 


ARTICLE II.


THE EXCHANGE AND
RELATED TRANSACTIONS


 


2.1.         Exchange.  Subject to the terms and conditions set
forth in this Agreement, the APP Holders hereby sell and agree to transfer on
the Closing Date to Ness and Ness hereby purchases, and agrees to accept
transfer of, on the Closing Date, free and clear of all Encumbrances, the
Shares held by them set forth opposite their respective names on Annex A
attached hereto in exchange for the Exchange Consideration.  Such exchanges shall be effected on the
Closing Date by the transfer of the Shares by means of a notarial deed,
substantially in the form of that attached hereto as Annex C, to be
executed by Mr. Steven Perrick, civil law notary in Amsterdam, or his
substitute against delivery by Ness of the Exchange Consideration multiplied by
the number of Shares being purchased by it. 
The “Exchange Consideration” shall be equal to the consideration
per Share set forth opposite the respective names of the APP Holders on Annex
A attached hereto.  The Exchange
Consideration shall be evidenced by Ness executing and delivering to each of
the APP Holders, duly registered in its name, a duly executed stock certificate
evidencing Ness Common Stock being received by such of the APP Holders in the
transactions contemplated hereby (the “Ness Shares”).  The transactions described in this
Section 2.1 shall be referred to as the “Exchange”.  In addition, Ness hereby covenants to make a
reasonable offer to holders of APP share capital as per the APP Shareholders’
Agreement in respect of the APP Non-Convertible Shares, after consultation with
the APP Holders regarding such offer. 
To the extent the APP Holders (other than the Warburg APP Holders)
refuse to sell their APP Non-Convertible Shares to Ness, the Warburg APP
Holders hereby covenant to grant an irrevocable proxy to Ness with respect to
the APP Non-Convertible Shares held by them.


 


2.2.         APP
Options.


 


(a)          Ness hereby agrees that
the holders (the “APP Option Holders”) of options outstanding on the
Closing Date to directly purchase Shares (“APP Options”) shall have the
right to elect (i) to convert such APP Options, whether vested or unvested,
into options to purchase Ness Shares (the “Ness Options”), in which
case, from and after the Closing Date, all references to APP in the APP Options
shall be deemed to refer to Ness; (ii) if such APP Options are vested, to
convert such APP Options into Shares and to participate in the Exchange; or
(iii) to leave the APP Options, whether vested or unvested, outstanding and
unchanged.  The number of outstanding
APP Options are set forth opposite the respective names of the APP Option
Holders on Annex D attached hereto. 
If the APP Option Holders elect to convert into Ness Options pursuant to
clause (i) above, the APP Options converted into Ness Options shall vest and
become exercisable substantially upon the same terms and conditions as under
the APP Options except that such APP Options shall entitle the holder to
purchase from Ness the number of Ness Shares as set forth on Annex D
attached hereto, and further such Ness Options shall in all other respects be
subject to the terms of Ness’s existing stock option plan attached hereto at Annex
E.


 


(b)          With respect to
depository receipts that have been issued by the Stichting Administratiekantoor
APP Group CEE (the “Stichting”), prior to the Closing, Ness shall enter
into an agreement with the holders of the depository receipts pursuant to which
Ness shall acquire from such holders the depository receipts in the Stichting,
which depository receipts have been issued by the Stichting in relation to
certain of the ordinary shares in APP currently held by the Stichting.  In consideration for agreeing to sell and
transfer such depository receipts to Ness,


 


5

















 


Ness shall deliver a number of Ness Shares to such
holders calculated on the same basis as the number of Ness Shares to be
delivered to each APP Holder for each Share, it being understood that one such
depository receipt shall entitle the holder thereof to the same number of Ness
Shares as an APP Holder would receive for one Share.


 


2.3.         Closing.  (a) 
Subject to the satisfaction or waiver of the conditions set forth in
Articles VI and VII hereof, the closing of the purchase, sale and transfer of
the Shares and the other transactions contemplated hereby (the “Closing”)
shall be held at the offices of Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, New York  10019, at
10:00 a.m. New York time, on the second business day following the satisfaction
of such conditions (or such other date and place as the Parties may mutually
agree).  The date on which the Closing
actually occurs is hereinafter referred to as the “Closing Date.”


 


(b)          On the Closing Date, all
Parties shall take all such steps as are necessary to effect the transfer of
the Shares contemplated under this Agreement by means of a notarial deed to be executed
by Mr. Steven Perrick, civil law notary in Amsterdam, or his substitute and
shall procure that such transfer is recorded in the shareholders register of
the Company.  Furthermore, all Parties
shall take all such steps as are necessary to effect the transfer of the
depository receipts referred to in Section 2.2(b) by means of a deed of
transfer of depository receipts and shall procure that such transfer is
recorded in the depository receipts register of the Stichting.  Furthermore, with respect to the Ness
Shares, all Parties shall deliver all of the stock certificates and the stock
consideration required to be delivered by each of them, as applicable, by
Section 2.1 and 2.2.


 


(c)          At the Closing, the APP
Holders shall cause, each to the extent within its power, and acting
individually and jointly in the context of a meeting of stockholders, the
following to be delivered to Ness:


 


(i)           the resignations of
such members of the boards of directors of each of APP and its Subsidiaries and
the Stichting as Ness shall have requested in writing no less than ten business
days prior to the Closing Date and the necessary resolutions appointing such
replacement members as Ness shall have requested in writing no less than ten
business days prior to the Closing Date to the boards of directors of each of
APP and its Subsidiaries and the Stichting;


 


(ii)          the shareholder
register, record of minutes and, if applicable, stock books, stock ledgers and
corporate seals of each of APP and its Subsidiaries; provided, that any of the
foregoing items shall be deemed to have been delivered pursuant to this
Section 2.3(c)(ii) if such item has been delivered to or is otherwise
located at any offices of APP;


 


(iii)        the certificates
contemplated by Section 7.3 hereof;


 


(iv)         a copy of the notarial
deed of amendment of the articles of association of the Stichting, pursuant to
which amendment all excess after liquidation of the Stichting will be
distributed as decided by resolution of the management board of the Stichting;


 


6

















 


(v)          a copy of the deed of
amendment of the employee stock option plan applicable to the employees of APP
and its Affiliates, pursuant to which amendment the transfer of the depository
receipts held by any APP Option Holder will also be possible if such transfer
is approved by the management board of the Stichting;


 


(vi)         a waiver by the Stichting
of its rights under the APP Shareholders’ Agreement with respect to the
transaction contemplated under this Agreement;


 


(vii)        a copy of the resolution
of the management board of APP pursuant to which the Shares being sold to Ness
hereby that were previously in the form of convertible preference shares in the
share capital of APP, were converted into ordinary shares in the share capital
of APP;


 


(viii)       a copy of the resolution of
the management board of APP approving the transfer of shares in APP
contemplated by this Agreement; and


 


(ix)         all other documents
required to be delivered by the APP Holders on or prior to the Closing Date pursuant
to this Agreement or otherwise reasonably required from the APP Holders in
connection herewith.


 


(d)          At the Closing, Ness
shall deliver to the APP Holders:


 


(i)           the certificates
contemplated by Section 6.3 hereof;


 


(ii)          the resolutions of the
board of directors of Ness Technologies B.V. authorizing the execution of the
Guarantee Agreement, in the form attached hereto at Annex G and as
contemplated by Section 6.7(b) hereof, by Ness Technologies B.V. and
declaring that such execution is in the best interest of Ness Technologies
B.V.; and


 


(iii)        all other documents
required to be delivered by Ness on or prior to the Closing Date pursuant to
this Agreement or otherwise reasonably required from Ness in connection
herewith.


 


ARTICLE III.


REPRESENTATIONS AND
WARRANTIES OF THE APP HOLDERS


 


Except as set forth in the Disclosure Schedule, the APP Holders,
severally, and not jointly, hereby represent and warrant to Ness as follows:


 


3.1.         Corporate Organization, Etc.  Each of APP and its Subsidiaries is a
corporation duly organized, validly existing and, to the extent applicable
under the laws of the relevant jurisdiction, in good standing under the laws of
the jurisdiction of its incorporation and has all requisite corporate power and
authority to conduct its business as it is now being conducted and to own,
lease and operate its property and assets, except where the failure to be so
organized, existing and, if applicable, in good standing or to have such power
or authority will not, in the aggregate, either (i) have a material adverse
effect on the business, operations, assets


 


7

















 


or financial condition or results of operations of APP
and its Subsidiaries taken as a whole or (ii) materially impair the ability of
the APP Holders to perform any of their obligations under this Agreement
(either of such effects, an “APP Material Adverse Effect”).  Each of APP and its Subsidiaries is
qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which ownership of property or the conduct of
its business requires such qualification or license, except where the failure
to be so qualified or licensed will not have an APP Material Adverse
Effect.  True and complete copies of the
organizational and governing documents of APP and its Subsidiaries as presently
in effect, have been heretofore delivered to Ness.


 


3.2.         Capitalization of APP  .  The authorized share capital of APP is as
set forth in Section 3.2 of the Disclosure Schedule.  All the Shares are issued and outstanding as
of the date of this Agreement.  All of
the Shares are duly authorized, validly issued, fully paid and non-assessable
and, except as set forth in Section 3.2 of the Disclosure Schedule, free
of any preemptive rights in respect thereto. 
Except as set forth in Section 3.2 of the Disclosure Schedule,
there are no outstanding (a) securities convertible into or exchangeable for
the capital stock of APP, (b) options, warrants or other rights to purchase or
subscribe for capital stock of APP or (c) contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
capital stock of APP, any such convertible or exchangeable securities or any
such options, warrants or rights, pursuant to which, in any of the foregoing
cases, APP is subject or bound.  Except
as set forth in Section 3.2 of the Disclosure Schedule, there are no
voting trusts, stockholders’ agreements or other similar instruments
restricting or relating to the rights of the holders of Shares to vote,
transfer or receive dividends with respect to the Shares.


 


3.3.         APP’s Subsidiaries.  Section 3.3 of the Disclosure
Schedule lists each of APP’s Subsidiaries.  All issued and outstanding shares in the share capital of each of
APP’s Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable, and are owned, directly or indirectly, by APP, free and clear of
all Encumbrances and any preemptive rights in respect thereto.  True and complete copies of the organizational
and governing documents of each of APP’s Subsidiaries have been heretofore
delivered to Ness.


 


3.4.         Authority
Relative to this Agreement. 
The APP Holders have all requisite corporate authority and power to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.  The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all required corporate
action on the part of the APP Holders and no other corporate proceedings on the
part of the APP Holders are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered
by the APP Holders and, assuming this Agreement has been duly authorized,
executed and delivered by Ness, this Agreement constitutes a valid and binding
agreement of the APP Holders, enforceable against the APP Holders in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally, including the effect of
statutory and other laws regarding fraudulent conveyances and preferential transfers
and subject to the limitations imposed by general equitable principles
(regardless whether such enforceability is considered in a proceeding at law or
in equity).


 


8

















 


3.5.         Consents
and Approvals; No Violations. 
Neither the execution and delivery of this Agreement by the APP Holders
nor the consummation of the transactions contemplated hereby by the APP Holders
will (a) violate any provision of the organizational or governing documents of
APP or the APP Holders, (b) require any consent, waiver, approval, exemption,
registration, declaration, license, authorization or permit of, or filing with
or notification to, any Federal, state, local or foreign government, executive
official thereof, governmental or regulatory authority, agency or commission,
including courts of competent jurisdiction, domestic or foreign (a “Governmental
Entity”), except for such consents, waivers, approvals, exemptions,
registrations, declarations, licenses, authorizations, permits, filings or
notifications which are listed in Section 3.5 of the Disclosure
Schedule (the “APP Consents”), or which, if not obtained or made,
will not, in the aggregate, have an APP Material Adverse Effect, (c) result in
a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration or any obligation to repay) under, any of the terms, conditions
or provisions of any indenture, mortgage, note, bond, encumbrance, license,
government registration, contract, lease, franchise, permit, agreement or other
instrument or obligation to which the APP Holders, APP or its Subsidiaries is a
party or by which the APP Holders, APP or its Subsidiaries or any of their
respective properties or assets may be bound, except such violations, breaches
and defaults which, in the aggregate, will not have an APP Material Adverse
Effect or (d) violate any order, writ, judgment, injunction, decree, statute,
ordinance, rule or regulation of any Governmental Entity applicable to the APP
Holders, APP or its Subsidiaries or by which any of their respective properties
or assets may be bound, except such violations which, in the aggregate, will
not have an APP Material Adverse Effect.


 


3.6.         Financial Statements.  Ness has previously been furnished with (i)
the audited consolidated balance sheets of APP and the related audited
consolidated statements of earnings, retained earnings and cash flows of APP
(including any related notes) for the fiscal year ended December 31, 2001,
together with the report thereon of the independent public accountant of APP
(the “APP Audited Financial Statements”) and (ii) the unaudited
consolidated balance sheets of APP and related unaudited consolidated statements
of earnings, retained earning and cash flows of APP (including any related
notes) for the six-month period ending June 30, 2002, as reviewed by the
independent public accountants of APP (the “APP Reviewed Financial
Statements”, and together with the APP Audited Financial Statements, the “APP
Financial Statements”).  Each of the
balance sheets included in the APP Financial Statements, in all material
respects, fairly presents the consolidated financial position of APP as of its
date, and the other related statements included in the APP Financial
Statements, in all material respects, fairly present the consolidated results
of operations and changes in consolidated financial position of APP for the
periods presented therein, all in conformity with GAAP, applied on a consistent
basis during the periods involved, except as otherwise noted therein.


 


3.7.         Absence of Certain Changes.  Since June 30, 2002, APP and its
Subsidiaries taken as a whole have not (a) suffered any change in its business,
operations or financial position, except such changes which, in the aggregate,
are not reasonably likely to have an APP Material Adverse Effect, (b) conducted
their respective businesses in any material respect not in the ordinary and
usual course consistent with past practice or (c) except in the ordinary course
of business and consistent with past practice, (i) incurred any long-term
indebtedness or issued any debt securities or assumed, guaranteed or endorsed
the obligations of


 


9

















 


any other Person, (ii) declared, set aside for payment
or paid any dividend or other distribution (whether in cash, stock, property or
any combination thereof) in respect of the capital stock of APP, or redeemed or
otherwise acquired any shares of capital stock of APP, (iii) sold, transferred
or otherwise disposed of, any of their material property or assets, (iv)
created any material Encumbrance on any of their material property or assets,
(v) increased in any manner the rate or terms of compensation of any of their
directors, officers or other employees, (vi) paid or agreed to pay any pension,
retirement allowance or other employee benefit not required by any existing
Plan or other agreement or arrangement to any such director, officer or employee,
whether past or present, or (vii) entered into or amended any employment,
bonus, severance or retirement contract.


 


3.8.         Compliance with Law.  The business of APP and its Subsidiaries is
not being conducted in violation of any applicable order, writ, judgment,
injunction, decree, statute, ordinance, rule or regulation of any Governmental
Entity, except such violations which, in the aggregate, will not have an APP
Material Adverse Effect.


 


3.9.         Contracts and Commitments.  Except as set forth in Section 3.9 of
the Disclosure Schedule, neither APP nor its Subsidiaries is in breach or
default and, to the knowledge of APP, no other party to any of the material
contracts of APP is as of the date of this Agreement in breach or default (and
no event has occurred which with notice or the lapse of time or both would
constitute a default or violation) under any of the material contracts of APP,
except such defaults which, in the aggregate, will not have an APP Material
Adverse Effect.


 


3.10.      No Undisclosed Liabilities.  Except as and to the extent set forth in the
APP Reviewed Financial Statements or in Section 3.10 of the Disclosure
Schedule, at June 30, 2002, APP had no liabilities required by GAAP to be
reflected on its consolidated balance sheet. 
Since June 30, 2002, APP has not incurred any liabilities
(absolute, accrued, contingent or otherwise) required by GAAP to be reflected
on its consolidated balance sheet, except such liabilities which were incurred
in the ordinary course of business or which, in the aggregate, are not material
to APP and its Subsidiaries taken as a whole.


 


3.11.      No
Default.  Except as set forth in
Section 3.11 of the Disclosure Schedule, neither APP nor any of its
Subsidiaries is in default or violation (and no event has occurred which with
notice or the lapse of time or both would constitute a default or violation) of
any term, condition or provision of (i) its organizational or governing
documents or (ii) any order, writ, judgment, injunction, decree, statute,
ordinance, rule or regulation of any Governmental Entity applicable to APP and
its Subsidiaries, except such defaults and violations which, in the aggregate,
will not have an APP Material Adverse Effect. 
APP and its Subsidiaries have all governmental permits, licenses and
authorizations necessary for the conduct of their businesses in all material
respects as presently conducted (the “Permits”) and are in compliance
with the terms of the Permits, except for such Permits the absence of which
would not have an APP Material Adverse Effect or any non-compliance which will
not have an APP Material Adverse Effect.


 


3.12.      Litigation.  Except as set forth in Section 3.12 of
the Disclosure Schedule, as of the date of this Agreement, there is no action,
suit or proceeding pending, or, to the knowledge of the APP Holders, action,
suit or proceeding threatened, against APP or its


 


10

















 


Subsidiaries or any properties or rights of APP or its Subsidiaries,
before any Governmental Entity which (a) involves a material claim or (b) seeks
material injunctive relief.  As of the
date of this Agreement, APP has not received notice that it is subject to any
outstanding injunction, writ, judgment, order or decree of any Governmental
Entity which will have an APP Material Adverse Effect.


 


3.13.      Taxes.  (a) 
APP and its Subsidiaries have, within the time and manner prescribed by
law, (i) filed with the appropriate taxing authorities (or joined in the filing
of) all Tax Returns required to be filed by it in respect of any Taxes other
than those Tax Returns the failure of which to file would not have an APP
Material Adverse Effect, and each such Tax Return was complete and accurate in
all material respects and (ii) paid in full all Taxes shown to be due and
payable thereon.


 


(b)          (i) No deficiencies for
any Taxes have been asserted in writing or, to the knowledge of the APP
Holders, verbally proposed or assessed against APP and its Subsidiaries which
remain unpaid and which in the aggregate are material to the business or
financial condition of APP and its Subsidiaries taken as a whole, or which are
not being contested in good faith by appropriate proceedings; and (ii) APP and
its Subsidiaries have adequately reserved for all material Taxes payable by APP
and its Subsidiaries for which no Tax Return has yet been filed.


 


(c)          For purposes of this
Agreement, (i) “Taxes” shall mean all national, federal, state, local or
foreign and other taxes, assessments, duties and similar charges of any kind
imposed by any taxing authority, including interest, penalties and additions
thereto, and (ii) “Tax Return” shall mean any return, report,
information return or other document (including any related or supporting
information) with respect to Taxes.


 


3.14.      Title to Properties.  APP and its Subsidiaries have good and valid
title to all of the material assets and properties (real and personal) which
they own and which are reflected on the APP Reviewed Financial Statements
(except for assets and properties sold, consumed or otherwise disposed of by
them in the ordinary course of business), and such assets and properties are
owned free and clear of all Encumbrances, except for (i) Encumbrances to secure
indebtedness reflected on the APP Reviewed Financial Statements or indebtedness
incurred in the ordinary course of business and consistent with past practice
after the date thereof, (ii) other Encumbrances which have arisen in the
ordinary course of business and (iii) Encumbrances which, in the aggregate, are
not reasonably likely to impair, in any material respect, the continued use of
such asset or property.


 


3.15.      Patents, Trademarks, Etc.  (a) 
Section 3.15 of the Disclosure Schedule sets forth a true and
complete list as of April 18, 2002 of all Intellectual Property Rights
filed by, or issued or registered to, APP and its Subsidiaries and all material
intellectual property license agreements to which APP and its Subsidiaries are
a party.  With respect to registered
trademarks, such list sets forth a list of all jurisdictions in which such trademarks
are registered or applied for and all registration and application numbers.


 


(b)          (i) APP or its
Subsidiaries owns or possesses adequate licenses or other valid rights to use
all patents, trademarks (registered or unregistered), trade names, service


 


11

















 


marks, copyrights and applications and registrations
therefor, trade secrets and other intellectual property and proprietary rights,
whether or not subject to statutory registration or protection, which are
material to the conduct of the business of APP and its Subsidiaries taken as a
whole (the “Intellectual Property Rights”), (ii) as of the date of this
Agreement, the validity of the Intellectual Property Rights and the title or
rights to use thereof of APP or its Subsidiaries are not being questioned in
any litigation to which APP or its Subsidiaries is a party, nor to the
knowledge of the APP Holders, is any such litigation threatened, (iii) as of
the date of this Agreement, none of APP or its Subsidiaries has received notice
that it is a party to any litigation in connection with which a Person has
alleged that the conduct of the business of APP or its Subsidiaries infringed
or infringes with any valid patents, trademarks, trade name, service marks or
copyrights of others, nor, to the knowledge of the APP Holders, is any such
litigation threatened, and (iv) to the knowledge of the APP Holders, (A) no
Person is materially infringing upon or violating any of the Intellectual
Property Rights and (B) no material claim is pending or threatened to that
effect.


 


3.16.      Insurance.  APP and its Subsidiaries maintain policies
of fire and casualty, liability and other forms of insurance in such amounts,
with such deductibles and against such risks and losses, and with such
reputable insurers, as are reasonable for their business, assets and
properties.  All material insurance
policies (the “Insurance Policies”) with respect to the property,
assets, operations and business of APP and its Subsidiaries are in full force
and effect and all premiums due and payable thereon have been paid in full, and
no notice of cancellation or termination has been received with respect to any
such policy which has not been replaced on substantially similar terms prior to
the date of such cancellation.  As of
the date of this Agreement, there are no pending material claims under the
Insurance Policies by APP or its Subsidiaries as to which the insurers have
denied liability.  The APP Holders make
no representation or warranty that such insurance will be continued or is
continuable after the Closing .


 


3.17.      Environmental Matters.  To the knowledge of the APP Holders, (a) APP
and its Subsidiaries are in compliance with all applicable Environmental Laws,
except where failure to be in compliance would not have an APP Material Adverse
Effect; and (b) there is no Environmental Claim pending or threatened against
APP or any of its Subsidiaries which would have an APP Material Adverse Effect.


 


3.18.      Employee and Labor Matters.  Neither APP nor any of its Subsidiaries is a
party to any collective bargaining or other labor union contract applicable to
persons employed by them, no collective bargaining agreement is being
negotiated by the APP or any of its Subsidiaries, and the APP Holders do not know
of any activities or proceedings of any labor union to organize any of its
employees.  Except as set forth in
Section 3.18 of the Disclosure Schedule, as of the date hereof, (i) APP
and its Subsidiaries are in compliance in all material respects with all
applicable laws relating to employment and employment practices, wages, hours,
occupational safety, health standards, severance payments, equal opportunity,
payment of social security, national insurance and other Taxes, and terms and
conditions of employment, (ii) there are no charges with respect to or relating
to APP or any of its Subsidiaries pending, or to the knowledge of the APP
Holders, threatened before or any Governmental Entity responsible for the
prevention of unlawful, unfair labor or discriminatory employment practices,
and (iii) there is no labor dispute, strike or work stoppage against APP or its
Subsidiaries, pending or, to


 


12

















 


the knowledge of the APP Holders, threatened which may
interfere with the business activities of APP and its Subsidiaries taken as a
whole, except where such non-compliance, charge, dispute, strike or work
stoppage would not have an APP Material Adverse Effect.  To the APP Holders knowledge, all sums due
for employee compensation and benefits, including pension and severance
benefits, and all vacation time owing to any employees of APP or any of its
Subsidiaries have been duly and adequately accrued in all material respects on
the accounting records of APP.


 


3.19.      Brokers and Finders.  Neither the APP Holders nor APP or any of
their respective Representatives has employed any broker or finder or incurred
any liability for any investment banking fees, brokerage fees, commissions or
finders’ fees in connection with the transactions contemplated by this
Agreement.


 


3.20.      Additional Representations.  The Ness Shares have not been registered
under the Securities Act nor qualified under any United States securities
laws.  The Ness Shares being offered and
sold in the Exchange are being done so pursuant to an exemption from the
Securities Act.  In order to qualify for
such exemption, Ness will rely upon the following representations and
warranties of the APP Holders:  


 


(a)          Offering Exemption.  The APP Holders understand that the Ness
Shares have not been registered under the Securities Act, nor qualified under
any state securities laws, and that they are being offered and sold pursuant to
an exemption from such registration and qualification based in part upon their
representations contained herein.  The
APP Holders that reside or do business in the United States are “accredited
investors” as defined under Rule 501 promulgated under the Securities Act.


 


(b)          Knowledge of Offer.  The APP Holders are familiar with the
business and operations of Ness and have been given the opportunity to obtain
from Ness all information that they have requested regarding its business plans
and prospects.


 


(c)          Knowledge and
Experience; Ability to Bear Economic Risks.  The APP Holders have such knowledge and experience in financial
and business matters that the APP Holders are capable of evaluating the merits
and risks of the investment contemplated by this Agreement; and the APP Holders
are able to bear the economic risk of this investment in Ness (including a
complete loss of this investment).


 


(d)          Limitations on
Disposition.  The APP Holders
recognize that no public market exists for Ness Shares, and none will exist in
the future.  The APP Holders understand
that the APP Holders must bear the economic risk of this investment
indefinitely unless the Ness Shares are registered pursuant to the Securities
Act or an exemption from such registration is available, and unless the
disposition of such Ness Shares is qualified under applicable state securities laws
or an exemption from such qualification is available, and that Ness has no
obligation or present intention of so registering the Ness Shares.  The APP Holders further understand that
there is no assurance that any exemption from the Securities Act will be
available, or, if available, that such exemption will allow the APP Holders to
Transfer any or all the Ness Shares, in the amounts, or at the times the APP
Holders might propose.  The APP Holders
understand at the present time Rule 144 promulgated under the Securities Act by
the


 


13

















 


Securities and Exchange Commission (“Rule 144”)
is not applicable to sales of the Ness Shares because they are not registered
under Section 12 of the Exchange Act and there is not publicly available
the information concerning Ness specified in Rule 144.  The APP Holders further acknowledge that
Ness is not presently under any obligation to register under Section 12 of
the Exchange Act or to make publicly available the information specified in
Rule 144 and that it may never be required to do so.


 


(e)          Investment Purpose.  The APP Holders are acquiring the Ness
Shares solely for the APP Holders’ own accounts for investment and not with a
view toward the resale, Transfer, or distribution thereof, nor with any present
intention of distributing the Ness Shares. 
No other Person has any right with respect to or interest in the Ness
Shares to be purchased by the APP Holders, nor have the APP Holders agreed to
give any Person any such interest or right in the future.


 


3.21.      Shareholdings.  The APP Holders own all of the Shares (or
securities convertible into the Shares) set forth opposite their names on Annex
A attached hereto free and clear of all Encumbrances except for the
Encumbrances contained in the APP Shareholders’ Agreement.


 


3.22.      Reliance.  The foregoing representations and warranties
are made by the APP Holders with the knowledge and expectation that Ness is
relying upon them.  Ness acknowledges
that neither the APP Holders nor any of their Representatives have made any
warranties, express or implied, except for those expressly set forth in this
Agreement.


 


ARTICLE IV.


REPRESENTATIONS
AND WARRANTIES OF NESS


 


Except as set forth in the Disclosure Schedule, Ness represents and warrants
to the APP Holders as follows:


 


4.1.         Corporate Organization; Etc.  Ness is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to conduct
its business as it is now being conducted and to own, lease and operate its
property and assets except where the failure to be so organized, existing and
in good standing or to have such power or authority would not, in the
aggregate, either (i) have a material adverse effect on the business,
operations, assets or financial condition of Ness or (ii) impair, hinder or
adversely affect the ability of Ness to perform any of its obligations under
this Agreement or to consummate the transactions contemplated hereby (either of
such effects, a “Ness Material Adverse Effect”).


 


4.2.         Capitalization of Ness.  The authorized and issued share capital of
Ness is as set forth in Section 4.2 of the Disclosure Schedule.  All of the outstanding shares of Ness capital
stock are, and at the Closing, the shares of Ness Common Stock to be issued
pursuant to Section 2.1 will be duly authorized, validly issued, fully
paid and non-assessable and free of any preemptive rights in respect thereto.  Except as set forth in Section 4.2 of
the Disclosure Schedule, there are no outstanding (a) securities convertible
into or exchangeable for the capital stock of Ness, (b) options, warrants or
other rights to purchase or subscribe for capital stock of


 


14

















 


Ness or (c) contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
capital stock of Ness, any such convertible or exchangeable securities or any
such options, warrants or rights, pursuant to which, in any of the foregoing
cases, Ness is subject or bound.  Except
as set forth in Section 4.2 of the Disclosure Schedule, there are no
voting trusts, stockholders’ agreements or other similar instruments
restricting or relating to the rights of the holders of Ness capital stock to
vote, transfer or receive dividends with respect to the shares of Ness capital
stock.


 


4.3.         Ness’s Subsidiaries.  Section 4.3 of the Disclosure
Schedule lists each of Ness’s Subsidiaries.  Each of Ness’s Subsidiaries (with the exception of Ness USA Inc.
as set forth in Schedule 4.3 of the Disclosure Schedule) are 100% owned,
directly or indirectly, by Ness.


 


4.4.         Authority Relative to this Agreement.  Ness has all requisite corporate authority
and power to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.  The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
required corporate action on the part of Ness and no other corporate
proceedings on the part of Ness are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered
by Ness and, assuming this Agreement has been duly authorized, executed and
delivered by each of the other Parties hereto, this Agreement constitutes a
valid and binding agreement of Ness, enforceable against Ness in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally, including the effect of
statutory and other laws regarding fraudulent conveyances and preferential
transfers and subject to the limitations imposed by general equitable
principles (regardless whether such enforceability is considered in a
proceeding at law or in equity).


 


4.5.         Consents and Approvals; No
Violations.  Neither the
execution and delivery of this Agreement by Ness nor the consummation of the
transactions contemplated hereby by Ness will (a) violate any provision of the
certificate of incorporation, by-laws or other constitutional documents of
Ness, (b) require any consent, waiver, approval, exemption, registration,
declaration, license, authorization or permit of, or filing with or
notification to, any Governmental Entity, except for such consents, waivers,
approvals, exemptions, registrations, declarations, licenses, authorizations, permits,
filings or notifications which are listed in Section 4.5 of the Disclosure
Schedule (the “Ness Consents”), or which, if not obtained or made,
will not, in the aggregate, have a Ness Material Adverse Effect, (c) result in
a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration or any obligation to repay) under, any of the terms, conditions
or provisions of any indenture, mortgage, note, bond, encumbrance, license,
government registration, contract, lease, franchise, permit, agreement or other
instrument or obligation to which Ness is a party or by which Ness or any of
its properties or assets may be bound, except such violations, breaches and
defaults which, in the aggregate, will not have a Ness Material Adverse Effect
or (d) violate any order, writ, judgment, injunction, decree, statute,
ordinance, rule or regulation of any Governmental Entity applicable to Ness or
by which any of


 


15

















 


its properties or assets may be bound, except such
violations which, in the aggregate, will not have a Ness Material Adverse
Effect.


 


4.6.         Financial Statements.  The APP Holders have previously been
furnished with (i) the audited consolidated balance sheets of Ness and the
related audited consolidated statements of earnings, retained earnings and cash
flows of Ness (including any related notes) for the fiscal year ended
December 31, 2001, together with the report thereon of the independent
public accountants of Ness (the “Ness Audited Financial Statements”) and
(ii) the unaudited consolidated balance sheets of Ness and the related
unaudited consolidated statements of earnings, retained earnings and cash flows
of Ness (including any related notes) for the six month period ending
June 30, 2002, as reviewed by the independent public accountants of Ness
(collectively, the “Ness Reviewed Financial Statements”, and together
with the Ness Audited Financial Statements, the “Ness Financial Statements”).  Each of the balance sheets included in the
Ness Financial Statements, in all material respects, fairly presents the
consolidated financial position of Ness as of its date, and the other related
statements included in the Ness Financial Statements, in all material respects,
fairly present the consolidated results of operations and changes in
consolidated financial position of Ness for the periods presented therein, all
in conformity with GAAP, applied on a consistent basis during the periods
involved, except as otherwise noted therein.


 


4.7.         Absence of Certain Changes.  Since June 30, 2002, Ness and its
Subsidiaries taken as a whole have not (a) suffered any change in its business,
operations or financial position, except such changes which, in the aggregate,
are not reasonably likely to have a Ness Material Adverse Effect, (b) conducted
their respective businesses in any material respect not in the ordinary and
usual course consistent with past practice or (c) except in the ordinary course
of business and consistent with past practice or in any other way not having a
Ness Material Adverse Effect, (i) incurred any long-term indebtedness or issued
any debt securities or assumed, guaranteed or endorsed the obligations of any other
Person, (ii) declared, set aside for payment or paid any dividend or other
distribution (whether in cash, stock, property or any combination thereof) in
respect of the capital stock of Ness, or redeemed or otherwise acquired any
shares of capital stock of Ness, (iii) sold, transferred or otherwise disposed
of, any of their material property or assets, (iv) created any material
Encumbrance on any of their material property or assets, (v) increased in any
manner the rate or terms of compensation of any of their directors, officers or
other employees, (vi) paid or agreed to pay any pension, retirement allowance
or other employee benefit not required by any existing Plan or other agreement
or arrangement to any such director, officer or employee, whether past or
present, or (vii) entered into or amended any employment, bonus, severance or
retirement contract.


 


4.8.         Compliance with Law.  The business of Ness and its Subsidiaries is
not being conducted in violation of any applicable order, writ, judgment, injunction,
decree, statute, ordinance, rule or regulation of any Governmental Entity,
except such violations which, in the aggregate, will not have a Ness Material
Adverse Effect.


 


4.9.         Contracts and Commitments.  Neither Ness nor its Subsidiaries is in
breach or default and, to the knowledge of Ness, no other party to any of the
material contracts of Ness is as of the date of this Agreement in breach or
default (and no event has occurred which with notice or the lapse of time or
both would constitute a default or violation) under any of the


 


16

















 


material contracts of Ness, except such defaults
which, in the aggregate, will not have a Ness Material Adverse Effect.


 


4.10.      No Undisclosed Liabilities.  Except as and to the extent set forth in the
Ness Reviewed Financial Statements, at June 30, 2002, Ness had no
liabilities required by GAAP to be reflected on its consolidated balance
sheet.  Since June 30, 2002, Ness has
not incurred any liabilities (absolute, accrued, contingent or otherwise)
required by GAAP to be reflected on its consolidated balance sheet, except such
liabilities which were incurred in the ordinary course of business or which, in
the aggregate, are not material to Ness and its Subsidiaries taken as a whole.


 


4.11.      No
Default.  Neither Ness nor any
of its Subsidiaries is in default or violation (and no event has occurred which
with notice or the lapse of time or both would constitute a default or
violation) of any term, condition or provision of (i) its organizational or
governing documents or (ii) any order, writ, judgment, injunction, decree,
statute, ordinance, rule or regulation of any Governmental Entity applicable to
Ness and its Subsidiaries, except such defaults and violations which, in the aggregate,
will not have a Ness Material Adverse Effect. 
Ness and its Subsidiaries have all governmental permits, licenses and
authorizations necessary for the conduct of their businesses in all material
respects as presently conducted (the “Ness Permits”) and are in
compliance with the terms of the Ness Permits, except for such Ness Permits the
absence of which would not have a Ness Material Adverse Effect or any
non-compliance which will not have a Ness Material Adverse Effect.


 


4.12.      Litigation.  As of the date of this Agreement, there is
no action, suit or proceeding pending, or, to the knowledge of Ness, action,
suit or proceeding threatened, against Ness or its Subsidiaries or any
properties or rights of Ness or its Subsidiaries, before any Governmental Entity
which (a) involves a material claim or (b) seeks material injunctive
relief.  As of the date of this
Agreement, Ness has not received notice that it is subject to any outstanding
injunction, writ, judgment, order or decree of any Governmental Entity which
will have a Ness Material Adverse Effect.


 


4.13.      Taxes.  (a) 
Ness and its Subsidiaries have, within the time and manner prescribed by
law, (i) filed with the appropriate taxing authorities (or joined in the filing
of) all Tax Returns required to be filed by it in respect of any Taxes other
than those Tax Returns the failure of which to file would not have a Ness
Material Adverse Effect, and each such Tax Return was complete and accurate in
all material respects and (ii) paid in full all Taxes shown to be due and
payable thereon.


 


(b)          (i) No deficiencies for
any Taxes have been asserted in writing or, to the knowledge of Ness, verbally
proposed or assessed against Ness which remain unpaid and which in the
aggregate are material to the business or financial condition of Ness and its
Subsidiaries taken as a whole, or which are not being contested in good faith
by appropriate proceedings; and (ii) Ness and its Subsidiaries have adequately
reserved for all material Taxes payable by Ness and its Subsidiaries for which
no Tax Return has yet been filed.


 


4.14.      Title to Properties.  Ness and its Subsidiaries have good and
valid title to all of the material assets and properties (real and personal)
which they own and which are


 


17

















 


reflected on the Ness Reviewed Financial Statements
(except for assets and properties sold, consumed or otherwise disposed of by
them in the ordinary course of business), and such assets and properties are
owned free and clear of all Encumbrances, except for (i) Encumbrances to secure
indebtedness reflected on the Ness Reviewed Financial Statements or
indebtedness incurred in the ordinary course of business and consistent with
past practice after the date thereof, (ii) other Encumbrances which have arisen
in the ordinary course of business and (iii) Encumbrances which, in the
aggregate, are not reasonably likely to impair, in any material respect, the
continued use of such asset or property.


 


4.15.      Patents, Trademarks, Etc.  (a) 
Ness or its Subsidiaries owns or possesses adequate licenses or other
valid rights to use all patents, trademarks (registered or unregistered), trade
names, service marks, copyrights and applications and registrations therefor,
trade secrets and other intellectual property and proprietary rights, whether
or not subject to statutory registration or protection, which are material to
the conduct of the business of Ness and its Subsidiaries taken as a whole (the
“Ness Intellectual Property Rights”), (i) as of the date of this
Agreement, the validity of the Ness Intellectual Property Rights and the title
or rights to use thereof of Ness or its Subsidiaries are not being questioned
in any litigation to which Ness or its Subsidiaries is a party, nor to the
knowledge of Ness, is any such litigation threatened, (ii) as of the date of
this Agreement, none of Ness or its Subsidiaries has received notice that is a
party to any litigation in connection with which a Person has alleged that the
conduct of the business of Ness or its Subsidiaries infringed or infringes with
any valid patents, trademarks, trade name, service marks or copyrights of
others, nor, to the knowledge of Ness, is any such litigation threatened, and
(iii) to the knowledge of Ness, (A) no Person is materially infringing upon or
violating any of the Ness Intellectual Property Rights and (B) no material
claim is pending or threatened to that effect.


 


4.16.      Insurance.  Ness and its Subsidiaries maintain policies
of fire and casualty, liability and other forms of insurance in such amounts,
with such deductibles and against such risks and losses, and with such
reputable insurers, as are reasonable for their business, assets and
properties.  All material insurance
policies (the “Ness Insurance Policies”) with respect to the property,
assets, operations and business of Ness and its Subsidiaries are in full force
and effect and all premiums due and payable thereon have been paid in full, and
no notice of cancellation or termination has been received with respect to any
such policy which has not been replaced on substantially similar terms prior to
the date of such cancellation.  As of
the date of this Agreement, there are no pending material claims under the Ness
Insurance Policies by Ness or its Subsidiaries as to which the insurers have
denied liability.  Ness make no
representation or warranty that such insurance will be continued or is
continuable after the Closing.


 


4.17.      Environmental Matters.  To the knowledge of Ness (a) Ness and its
Subsidiaries are in compliance with all applicable Environmental Laws, except
where failure to be in compliance would not have a Ness Material Adverse
Effect; and (b) there is no Environmental Claim pending or threatened against
Ness or any of its Subsidiaries which would have a Ness Material Adverse
Effect.


 


4.18.      Employee and Labor Matters.  Neither Ness nor any of its Subsidiaries is
a party to any collective bargaining or other labor union contract applicable
to persons employed by them, no collective bargaining agreement is being negotiated
by Ness or any of its


 


18

















 


Subsidiaries, and Ness does not know of any activities
or proceedings of any labor union to organize any of its employees.  As of the date hereof, (i) Ness and its
Subsidiaries are in compliance in all material respects with all applicable
laws relating to employment and employment practices, wages, hours,
occupational safety, health standards, severance payments, equal opportunity,
payment of social security, national insurance and other Taxes, and terms and
conditions of employment, (ii) there are no charges with respect to or relating
to Ness or any of its Subsidiaries pending, or to the knowledge of Ness,
threatened, before or any Governmental Entity responsible for the prevention of
unlawful, unfair labor or discriminatory employment practices, and (iii) there
is no labor dispute, strike or work stoppage against Ness or its Subsidiaries,
pending or, to the knowledge of Ness, threatened which may interfere with the
business activities of Ness and its Subsidiaries taken as a whole, except where
such non-compliance, charge, dispute, strike or work stoppage would not have a
Ness Material Adverse Effect.  All sums
due for employee compensation and benefits, including pension and severance
benefits, and all vacation time owing to any employees of Ness or any of its
Subsidiaries have been duly and adequately accrued in all material respects or
the accounting records of Ness.


 


4.19.      Brokers and Finders.  None of Ness or any of its Representatives
has employed any investment banker, broker or finder or incurred any liability
for any investment banking fees, brokerage fees, commissions or finders’ fees
in connection with the transactions contemplated by this Agreement.


 


4.20.      Reliance.  The foregoing representations and warranties
are made by Ness with the knowledge and expectation that the APP Holders are
relying upon them.  The APP Holders
acknowledge that neither Ness nor any of its Representatives has made any
representations or warranties, express or implied, except for those expressly
set forth in this Agreement.


 


ARTICLE V.


COVENANTS


 


5.1.         Conduct of the Business Pending
the Closing.  Except as
contemplated by this Agreement, as set forth in Section 5.1 of the
Disclosure Schedule or with the prior written consent of Ness, during the
period from the date of this Agreement to the Closing, the APP Holders will, to
the extent within their powers, cause APP and its Subsidiaries to, conduct
their respective businesses and operations according to their ordinary and
usual course of business consistent with past practice and will use all
reasonable efforts consistent therewith to preserve intact APP’s and its
Subsidiaries’ properties, assets and business organizations, to keep available
the services of APP’s and its Subsidiaries’ officers and employees and to
maintain satisfactory relationships with customers, suppliers, distributors and
others having commercially beneficial business relationships with APP and its
Subsidiaries’, in each case in the ordinary course of business consistent with
past practice.  The APP Holders will
not, and will not, to the extent within their powers, permit APP or its
Subsidiaries, to take any action with the purpose of causing any of the
conditions to Ness’s obligations set forth in Article VII hereof to not be
satisfied.  Except as set forth in
Section 5.1 of the Disclosure Schedule, without limiting the generality of
the foregoing, and except as otherwise provided in this Agreement, the APP
Holders will not, to the extent within their powers, permit APP or its
Subsidiaries, prior to the Closing, without the prior written consent of Ness,
to:


 


19

















 


(a)          issue, sell or pledge,
or authorize or propose the issuance, sale or pledge of (i) additional shares
in the share capital of APP or its Subsidiaries (including Shares), or
securities convertible into or exchangeable for any such shares, or any rights,
warrants or options to acquire any such shares or other convertible securities
or (ii) any other securities in respect of, in lieu of, or in substitution for,
Shares outstanding on the date hereof;


 


(b)          declare or pay any
dividend or distribution on any shares in the share capital of APP or its
Subsidiaries;


 


(c)          redeem, purchase or
otherwise acquire any outstanding shares in the share capital of APP or its
Subsidiaries;


 


(d)          propose or adopt any
amendment to the organizational or governing documents of APP or its
Subsidiaries;


 


(e)          except in the ordinary
course of business consistent with past practice, incur any long-term
indebtedness or issue any debt securities or assume, guarantee or endorse the
obligations of any other Person;


 


(f)           (i) increase in any
manner the rate or terms of compensation or benefits of any of its directors,
officers or other employees, except as may be allowed under existing employment
agreements or such increases as are granted in the ordinary course of business
consistent with past practice, or (ii) pay or agree to pay any pension,
retirement allowance or other employee benefit not required or permitted by any
existing Plan or other agreement or arrangement to any such director, officer
or employee, whether past or present, or (iii) enter into or amend any
employment, bonus, severance or retirement contract or adopt any employee
benefit plan; or


 


(g)          agree in writing to take
any of the foregoing actions.


 


5.2.         Access to Information.  From the date of this Agreement to the
Closing, the APP Holders will, to the extent within their powers, cause APP and
its Subsidiaries to (i) give Ness and its authorized Representatives reasonable
access to all personnel, books, records, offices and other facilities and
properties of APP and its Subsidiaries, (ii) permit Ness to make such
inspections thereof as Ness may reasonably request and (iii) cause its officers
to furnish Ness with such financial and operating data and other information
with respect to the business and properties of APP and its Subsidiaries as Ness
may from time to time reasonably request; provided, however, that
any such access shall be conducted at a reasonable time and in such a  manner
as not to interfere unreasonably with the operation of the business of APP and
its Subsidiaries; provided  further that Ness and its authorized
Representatives shall not contact or hold discussions with customers, suppliers
or non-management employees of APP and its Subsidiaries without the prior
written consent of the APP Holders.  All
such information and access shall be subject to the terms and conditions of the
letter agreement dated April 26, 2002, between Ness and Warburg Pincus (the “Confidentiality
Agreement”).  Notwithstanding
anything to the contrary in this Agreement, none of the APP Holders, APP or its
Subsidiaries shall be required to disclose any information if doing so could
violate any agreement or Federal,


 


20

















 


state, local or foreign law, rule or regulation to
which any of them is a party or to which any of them is subject.


 


5.3.         Disclosure Supplements.  From time to time prior to the Closing, the
APP Holders and Ness will supplement or amend the Disclosure Schedule with
respect to any matter hereafter arising which, if existing or occurring at or
prior to the date of this Agreement, would have been required to be set forth
or described in the Disclosure Schedule or which is necessary to complete
or correct any information in the Disclosure Schedule or in any
representation or warranty of the APP Holders or Ness which has been rendered
inaccurate thereby.  No such supplement
or amendment shall be given effect for purposes of determining (a) the
satisfaction of the conditions set forth in Article VII hereof, except as
explicitly set forth herein including as set forth in Article VII hereof.


 


5.4.         Consents and Approvals.  Each of the Parties shall use its reasonable
best efforts to (i) obtain as promptly as practicable all consents, waivers,
approvals, exemptions, licenses and authorizations required in connection with
the consummation of the transactions contemplated by this Agreement under any
Federal, state, local or foreign law or regulation, (ii) lift or rescind any
injunction or restraining order or other order adversely affecting the ability
of the Parties to consummate the transactions contemplated hereby and (iii)
effect all necessary registrations and filings.  The Parties further covenant and agree, with respect to any
threatened or pending preliminary or permanent injunction or other order,
decree or ruling or statute, rule, regulation or executive order that would
adversely affect the ability of the Parties to consummate the transactions
contemplated hereby, to respectively use their reasonable best efforts to
prevent the entry, enactment or promulgation thereof, as the case may be.


 


5.5.         Filings.
 Promptly after the execution of this
Agreement, each of the Parties shall prepare and make or cause to be made any
required filings, submissions and notifications under the laws of any domestic
or foreign jurisdiction to the extent that such filings are necessary to
consummate the transactions contemplated hereby and will use its reasonable
best efforts to take all other actions necessary to consummate the transactions
contemplated hereby in a manner consistent with applicable law.  Each of the Parties will furnish to the
other Parties such necessary information and reasonable assistance as such
other Parties may reasonably request in connection with the foregoing.


 


5.6.         Further Assurances.  Upon the terms and subject to the conditions
herein provided, each of the Parties agrees to use its reasonable best efforts
to take or cause to be taken all action, to do or cause to be done, and to
assist and cooperate with the other Parties hereto in doing, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement, including, but not limited to, (i)
the satisfaction of the conditions precedent to the obligations of any of the
Parties; (ii) the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the performance of
the obligations hereunder or thereunder; and (iii) the execution and delivery
of such instruments, and the taking of such other actions as the other Parties
hereto may reasonably require in order to carry out the intent of this
Agreement.


 


21

















 


5.7.         Employee Benefit Matters.  From and after the Closing, Ness and its
Affiliates shall provide, in all material respects, the employees of APP and
its Subsidiaries and their dependents with the same employee benefits as those
provided by Ness and its Subsidiaries to similarly situated employees of Ness
and its Subsidiaries.


 


ARTICLE VI.


CONDITIONS TO THE
APP HOLDERS’ OBLIGATIONS


 


The obligations of the APP Holders to effect the transactions
contemplated hereby shall be subject to the fulfillment, or written waiver by
the APP Holders, at or prior to the Closing, of each of the following
conditions:


 


6.1.         Representations and Warranties.  The representations and warranties of Ness
contained herein qualified as to materiality shall be true and correct and
those not so qualified shall be true and correct in all material respects as of
the date hereof and at and as of the Closing Date as though such
representations and warranties were made at and as of such date unless limited
by their terms to a prior date.


 


6.2.         Performance.  Ness shall have performed and complied in all
material respects with all agreements, obligations, covenants and conditions
required by this Agreement to be performed or complied with by it on or prior
to the Closing.


 


6.3.         Certificates.  Ness shall have furnished the APP Holders
with such certificates to evidence its compliance with the conditions set forth
in Sections 6.1 and 6.2 hereof as the APP Holders may reasonably request.


 


6.4.         No Injunction or Proceeding.  No statute, rule, regulation, executive
order, decree, preliminary or permanent injunction or restraining order shall
have been enacted, entered, promulgated or enforced by any Governmental Entity
which prohibits or restricts the consummation of the transactions contemplated
hereby.


 


6.5.         Ness
Consents.  All Ness Consents
shall have been obtained.


 


6.6.         APP Shareholders’ Agreement.  The obligations of the Warburg APP Holders
to send to the other shareholders of APP party to the APP Shareholders’
Agreement an investor sale notice as required under Section 6.4(B) of the
APP Shareholders’ Agreement and the obligations to afford the other
shareholders of APP the co-sale and other rights contemplated by the APP
Shareholders’ Agreement, shall have been, to the reasonable satisfaction of the
attorneys of both APP and the Warburg APP Holders, including but not limited to
Willkie Farr & Gallagher, complied with in all material respects, it being
understood that this condition precedent shall not be capable of waiver.  However, the Parties agree that if any of
the shareholders of APP (other than the Warburg APP Holders) agree to
participate in this transaction upon the terms and conditions reflected in this
Agreement, the Warburg APP Holders shall be deemed to have complied with their
obligations under the APP Shareholders’ Agreement referred to in the previous
sentence of this Section 6.6 with respect to such APP Holder who has
agreed to so participate in this transaction.


 


22

















 


6.7.         APP Indebtedness.  


 


(a)          Ness, the Warburg APP
Holders and APP shall have delivered and executed, an amendment to the Letter
of Indebtedness and Debenture, each dated as of August 28, 2000, by the
Warburg APP Holders in favor of APP, on the terms set forth at Annex F
attached hereto (the “Amended Loan Documents”).


 


(b)          Ness shall have
delivered to the Warburg APP Holders, a Guarantee Agreement in the form
attached hereto at Annex G, duly executed by Ness Technologies B.V.
guaranteeing the obligations of APP to the Warburg APP Holders pursuant to the
Amended Loan Documents.  


 


6.8.         Ness Registration Rights Agreement.  Ness shall have delivered to the APP Holders
an Amendment to the Amended and Restated Registration Rights Agreement, dated
as of May 18, 2000, by and among Ness, the other persons named therein and the
APP Holders, in the form attached hereto at Annex H, each duly executed
by Ness and each of the Ness stockholders required for the effectiveness of the
respective agreement.


 


ARTICLE VII.


CONDITIONS TO
NESS’S OBLIGATIONS


 


The obligation of Ness to effect the transactions contemplated hereby
shall be subject to the fulfillment, or written waiver by Ness, at or prior to
the Closing of each of the following conditions:


 


7.1.         Representations and Warranties
of the APP Holders.  The
representations and warranties of the APP Holders contained herein qualified as
to materiality shall be true and correct and those not so qualified shall be
true and correct in all material respects as of the date hereof and at and as
of the Closing Date as though such representations and warranties were made at
and as of such date unless limited by their terms to a prior date.


 


7.2.         Performance by the APP Holders.  Each of the APP Holders shall have performed
and complied in all material respects with all agreements, obligations,
covenants and conditions required by this Agreement to be performed or complied
with by the APP Holders on or prior to the Closing.


 


7.3.         Certificates.  Each of the APP Holders shall have furnished
Ness with such certificates to evidence its compliance with the conditions set
forth in Sections 7.1 and 7.2 hereof as Ness may reasonably request.


 


7.4.         No Injunction or Proceeding.  No statute, rule, regulation, executive
order, decree, preliminary or permanent injunction or restraining order shall
have been enacted, entered, promulgated or enforced by any Governmental Entity
which prohibits or restricts the consummation of the transactions contemplated
hereby.


 


7.5.         APP
Consents.  All APP Consents
shall have been obtained.


 


23

















 


7.6.         APP Shareholders’ Agreement.  The obligations of the Warburg APP Holders
to send to the other shareholders of APP party to the APP Shareholders’
Agreement an investor sale notice as required under Section 6.4(B) of the
APP Shareholders’ Agreement and the obligations to afford the other
shareholders of APP the co-sale and other rights contemplated by the APP
Shareholders’ Agreement, shall have been, to the reasonable satisfaction of the
attorneys of Ness, including but not limited to Olshan Grundman Frome Rosenzweig
& Wolosky LLP, complied with in all material respects, it being understood
that this condition precedent shall not be capable of waiver.  However, the Parties agree that if any of
the shareholders of APP (other than the Warburg APP Holders) agree to
participate in this transaction upon the terms and conditions reflected in this
Agreement, the Warburg APP Holders shall be deemed to have complied with their
obligations under the APP Shareholders’ Agreement referred to in the previous
sentence of this Section 7.6  with
respect to such APP Holder who has agreed to so participate in this
transaction.


 


7.7.         Materiality of Conditions.  Notwithstanding anything contained herein,
no condition involving the performance of agreements by the APP Holders or the
accuracy of representations and warranties made by the APP Holders as of the
Closing Date shall be deemed not fulfilled, and Ness shall not be entitled to
fail to consummate the transactions contemplated by this Agreement or terminate
this Agreement on such basis, if the respects in which such conditions have not
been performed or such representations and warranties are untrue (assuming for
this purpose that the representations and warranties are not qualified by
materiality), in the aggregate, neither (i) are materially adverse to the
business, operations, assets, condition or results of operations of the APP
taken as a whole nor (ii) adversely affect the title to the Shares being
acquired by Ness hereunder.  Nothing
herein shall restrict the ability of the APP Holders to provide a certificate
pursuant to Section 7.3 hereof that sets forth therein exceptions, and the
existence of any exceptions in the certificate delivered pursuant to
Section 7.3 hereof shall not be deemed a failure to meet the condition set
forth in Section 7.3 hereof; provided that the existence of the events
described therein may result in the failure to satisfy the conditions set forth
in Section 7.1 or 7.2 hereof.


 


7.8.         Legal
Opinion. 
..A legal opinion
being provided for the benefit of Ness from Freshfields Bruckhaus Deringer
Amsterdam, Netherlands counsel to the Warburg APP Holders, with respect to (i)
the due incorporation and valid existence of APP; (ii) the applicability of the
pre-emptive rights contained in the articles of association of APP; (iii) the
need in relation to APP and the APP Holders to file or register this Agreement
with any governmental authority in the Netherlands; (iv) the need to obtain in
relation to APP and the APP Holders any consent, authorisation or approval from
any governmental authority in the Netherlands in connection with the execution
of this Agreement; and (v) whether the delivery and execution of this Agreement
and the transfer of the Shares to Ness contemplated under this Agreement
violates the terms of the articles of association of APP and Netherlands law,
it being understood, however, that such legal opinion shall be confined to
matters of Netherlands law and shall be subject to such assumptions and
qualifications as are standard to legal opinions issued by Freshfields
Bruckhaus Deringer Amsterdam in transactions similar to that contemplated under
this Agreement.


 


24

















 


ARTICLE VIII.


TERMINATION AND
ABANDONMENT


 


8.1.         Termination.  This Agreement may be terminated at any time
prior to the Closing:


 


(a)          by mutual consent of
Ness and the APP Holders holding a majority of the Shares;


 


(b)          by Ness or the APP
Holders holding a majority of the Shares if the Closing shall not have occurred
on or before December 31, 2002, except that Ness or the APP Holders
holding a majority of the Shares shall have the right, in their mutual
discretion, to extend the time period in this Section 8.1(b) an additional
45 days; provided that the right to terminate this Agreement pursuant to this
Section 8.1(b) shall not be available to any Party whose failure to
perform any of its obligations under this Agreement results in the failure of
the Closing to be consummated by such date; or


 


(c)          by Ness or the APP
Holders holding a majority of the Shares, if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting any of the transactions contemplated hereby
and such order, decree, ruling or other action shall have become final and
nonappealable.


 


8.2.         Procedure and Effect of Termination.  In the event of termination of this
Agreement pursuant to Section 8.1 hereof, by one Party, written notice
thereof shall forthwith be given to the other Parties, and, except as set forth
below, this Agreement shall terminate and be void and have no effect and the
transactions contemplated hereby shall be abandoned.  If this Agreement is terminated as provided herein:


 


(a)          Ness will redeliver, and
will cause its agents (including, without limitation, attorneys and
accountants) to redeliver, all documents, work papers and other material of APP
and its Subsidiaries relating to the transactions contemplated hereby, whether
obtained before or after the execution hereof;


 


(b)          all information received
by Ness with respect to the business, operations, assets or financial condition
of APP and its Subsidiaries shall remain subject to the Confidentiality
Agreement; and


 


(c)          except as otherwise
expressly set forth herein, no Party shall have any liability hereunder to any
other Party, except (i) for any breach by such party of the terms and
provisions of this Agreement, (ii) as stated in paragraphs (a) and (b) of this
Section 8.2 and (iii) as provided in the Confidentiality Agreement.


 


8.3.         Indemnification.


 


(a)          Indemnification by  APP Holders.


 


(i)           The APP Holders shall,
severally and not jointly, defend, indemnify and hold Ness and its Affiliates
harmless from and against and in


 


25

















 


respect of any and all
actual losses, liabilities, damages, judgments, settlements and expenses,
including reasonable attorneys’ fees, incurred directly by Ness and its
Affiliates (hereinafter “Ness Losses”) which arise out of any breach of
any of the representations and warranties contained in Sections 3.1, 3.2, 3.3,
3.6, 3.10, 3.20 and 3.21 hereof.  Ness
shall give the APP Holders prompt written notice of any third party claim which
may give rise to any indemnity obligation under this Section 8.3(a),
together with the estimated amount of such claim, and the APP Holders (based on
a vote by percentage ownership) shall have the right to assume the defense of
any such claim through counsel of its own choosing, by so notifying Ness within
60 days of receipt of Ness’s written notice; provided, however,
that APP Holders’ counsel shall be reasonably satisfactory to Ness.  Failure to give prompt notice shall not
affect the indemnification obligations hereunder in the absence of actual
prejudice.  If Ness desires to participate
in any such defense assumed by the APP Holders, it may do so at its sole cost
and expense.  If the APP Holders decline
to assume any such defense, they shall be liable for all reasonable costs and
expenses of defending such claim incurred by Ness, including reasonable fees
and disbursements of counsel.  Neither
party shall, without the prior written consent of the other party, which shall
not be unreasonably withheld, settle, compromise or offer to settle or compromise
any such claim or demand on a basis which would result in the imposition of a
consent order, injunction or decree which would restrict the future activity or
conduct of the other
party or any Subsidiary or Affiliate thereof or if such settlement or
compromise does not include an unconditional release of the other party for any
liability arising out of such claim or demand or any related claim or demand.


 


(ii)          The foregoing obligation
to indemnify Ness and its Affiliates set forth in this Section 8.3(a)
shall be subject to each of the following limitations:


 


(1)          The
APP Holders’ indemnification obligation for any breach of the representations
and warranties described in Sections 3.1, 3.2, 3.3 and 3.21 of this Agreement
shall survive from the Closing until the end of time.  The APP Holders’ indemnification obligation for any breach of the
representations and warranties described in Sections 3.6 and 3.10 shall survive
for only a period of 9 months after the Closing and the APP Holders’
indemnification obligation for any breach of the representations and warranties
described in Section 3.20 of this Agreement shall survive for only a
period of 2 years after the Closing; thereafter all such representations and
warranties of the APP Holders under this Agreement shall be extinguished.  No claim for the recovery of such Ness
Losses may be asserted by Ness after such 9 month or 2 year period; provided,
however, that claims first asserted in writing with specificity within
such period shall not thereafter be barred.


 


(2)          No reimbursement for
Ness Losses asserted against the APP Holders under this Section 8.3(a)
shall be required unless and until


 


26

















 


the cumulative aggregate
amount of such Ness Losses equals or exceeds $1,250,000 (the “APP Holders
Threshold”) and then only to the extent that the cumulative aggregate
amount of Ness Losses, as finally determined, exceeds said APP Holders
Threshold; provided that in calculating such APP Holders Threshold any
Ness Losses which individually total less than $100,000 each (“De Minimis
Ness Losses”) shall be excluded in their entirety and the APP Holders in
any event shall have no liability hereunder to Ness and its Affiliates for any
such De Minimis Ness Losses.


 


(3)          The APP Holders’
liability to Ness and its Affiliates under this Section 8.3(a) shall be
limited to the confiscation and forfeiture of those Ness Shares received by
them pursuant to this Agreement.  An APP
Holder’s liability for Ness Losses in excess of the APP Holders Threshold shall
not exceed the total number of Ness Shares received by such APP Holder at the
Closing; the value of which shall be $13.00 per share.


 


(iii)        The indemnities provided
in this Section 8.3(a) shall survive the Closing.  The indemnity provided in this
Section 8.3(a) shall be the sole and exclusive remedy of the indemnified
party against the indemnifying party at law or equity for any matter covered by
paragraphs (a)(i) and (ii).


 


(iv)         In no event shall the APP
Holders or their Affiliates be liable to Ness or its Affiliates for special,
indirect, incidental, consequential or punitive damages.


 


(b)          Indemnification by
Ness.


 


(i)           Ness shall defend,
indemnify and hold the APP Holders harmless from and against and in respect of
any and all actual losses, liabilities, damages, judgments, settlements and
expenses, including reasonable attorney fees, incurred directly by the APP
Holders (hereinafter “APP Holders Losses”) arising out of any breach of
any of the representations and warranties contained in Sections 4.1, 4.2, 4.3,
4.6 and 4.10 hereof.  The APP Holders
shall give Ness prompt written notice of any third party claim which may give
rise to any indemnity obligation under this Section 8.3(b), together with
the estimated amount of such claim, and Ness shall have the right to assume the
defense of any such claim through counsel of its own choosing, by so notifying
the APP Holders within 60 days of receipt of Ness’s written notice; provided,
however, that Ness’s counsel shall be reasonably satisfactory to the APP
Holders.  Failure to give prompt notice
shall not affect the indemnification obligations hereunder in the absence of
actual prejudice.  If any APP Holder
desires to participate in any such defense assumed by Ness such APP Holder may
do so at their own individual sole cost and expense.  If Ness declines to assume any such defense, it shall be liable
for all costs and expenses of defending such claim incurred by the APP Holders,
including reasonable fees and disbursements of counsel.  Neither party shall, without the prior
written consent of


 


27

















 


the other party, which
shall not be unreasonably withheld, settle, compromise or offer to settle or
compromise any such claim or demand on a basis which would result in the
imposition of a consent order, injunction or decree which would restrict the
future activity or conduct of the other party or any Subsidiary or Affiliate
thereof or if such settlement or compromise does not include an unconditional
release of the other party for any liability arising out of such claim or
demand.


 


(ii)          The foregoing obligation
to indemnify the APP Holders set forth in this Section 8.3(b) shall be
subject to each of the following limitations:


 


(1)          Ness’s indemnification
obligation for any breach of the representations and warranties described in
Sections 4.1, 4.2 and 4.3 of this Agreement shall survive from the Closing
until the end of time. Ness’s indemnification obligation for any breach of the
representation and warranties described in Sections 4.6 and 4.10 shall survive
for only a period of 9 months from the Closing and thereafter all such
representations and warranties of the APP Holders under this Agreement shall be
extinguished.  No claim for the recovery
of such Ness Losses may be asserted after such 9 month period; provided,
however, that claims first asserted in writing with specificity within
such period shall not be thereafter barred.


 


(2)          No reimbursement for the
APP Holders Losses asserted against Ness under this Section 8.3(b) shall
be required unless and until the cumulative aggregate amount of such APP
Holders Losses equals or exceeds $1,250,000 (the “Ness Threshold”) and
then only to the extent that the cumulative aggregate amount of the APP Holders
Losses, as finally determined, exceeds said Ness Threshold; provided
that in calculating the Ness Threshold, any Ness Losses which individually
total less than $100,000 each (“De Minimis APP Holders Losses”) shall be
excluded in their entirety and Ness and its Affiliates in any event shall have
no liability hereunder to the APP Holders and its Affiliates for any such De
Minimis APP Holders Losses.


 


(3)          Ness’s liability to the
APP Holders under this Section 8.3(b) for APP Holders Losses in excess of
the Ness Threshold shall not exceed the cash value of the total Exchange
Consideration delivered to the APP Holders hereunder with each Ness Share being
valued at $13.00 per share.


 


(iii)        The indemnities provided
in this Section 8.3(b) shall survive the Closing.  The indemnity provided in this
Section 8.3(b) shall be the sole and exclusive remedy of the indemnified
party against the indemnifying party at law or equity for any matter covered by
paragraphs (b)(i) and (ii).


 


28

















 


(iv)         In no event shall Ness be
liable to the APP Holders for special, indirect, incidental, consequential or
punitive damages.


 


ARTICLE IX.


MISCELLANEOUS


 


9.1.         Amendment and Modifications.  This Agreement may be amended, modified or
supplemented at any time by the Parties. 
This Agreement may be amended only by an instrument in writing signed on
behalf of all Parties.


 


9.2.         Extension; Waiver.  At any time prior to the Closing, the Parties entitled to the
benefits of the respective term or provision may (i) extend the time for the
performance of any of the obligations or other acts of the other Parties, (ii)
waive any inaccuracies in the representations and warranties contained herein
or in any document, certificate or writing delivered pursuant hereto or (iii)
waive compliance with any obligation, covenant, agreement or condition
contained herein.  Any agreement on the
part of any Party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of the Parties entitled to
the benefits of such extended or waived term or provision.


 


9.3.         Representations and Warranties; Etc.  (a) 
The Parties hereby acknowledge and agree that no Party is making any
representation or warranty whatsoever, express or implied, except those
representations and warranties explicitly set forth in this Agreement or in
Disclosure Schedule or in any certificate contemplated hereby and
delivered in connection herewith.


 


(b)          Except as set forth in
Section 8.3, the Parties agree that on and after the Closing Date none of
the APP Holders or any of their respective officers, directors or
Representatives, as the case may be, of the APP Holders (collectively, the “Selling
Group”), shall have any liability or responsibility to any Person,
including, without limitation, Ness or APP, for (and each of them
unconditionally releases the Selling Group from) any liability or obligation
of, or arising out of, or relating to, Ness or APP of whatever kind or nature,
whether contingent or absolute, whether arising prior to, on or after, and
whether determined or indeterminable on, the Closing Date, and whether or not
specifically referred to in this Agreement, including, without limitation,
liabilities and obligations (i) relating to this Agreement and the transactions
contemplated hereby, (ii) arising out of or due to any inaccuracy of any
representation or warranty or the breach of any covenant, undertaking or other
agreement of in this Agreement, Disclosure Schedule or in any certificate
contemplated hereby and delivered in connection herewith and (iii) relating to
any information (whether written or oral), documents or materials furnished by
the APP Holders, APP or any of its Affiliates or any of their respective
Representatives and any information, documents or material made available to
Ness in certain “data rooms”, management presentations or any other form in
expectation of the transactions contemplated by this Agreement.


 


(c)          Except as set forth in
Section 8.3, the Parties agree that on and after the Closing Date neither
Ness nor any of its officers, directors or Representatives, shall have any
liability or responsibility to the Selling Group, for (and each of them
unconditionally releases Ness from) any liability or obligation of, or arising
out of, or relating to, Ness of whatever kind


 


29

















 


or nature, whether contingent or absolute, whether
arising prior to, on or after, and whether determined or indeterminable on, the
Closing Date, (i) relating to this Agreement and the transactions contemplated
hereby, (ii) arising out of or due to any inaccuracy of any representation
or warranty or the breach of any covenant, undertaking or other agreement of in
this Agreement, Disclosure Schedule or in any certificate contemplated
hereby and delivered in connection herewith and (iii) relating to any
information (whether written or oral), documents or materials furnished by
Ness, or any of its officers, directors or Representatives and any information,
documents or material made available to the Selling Group in certain “data
rooms”, management presentations or any other form in expectation of the
transactions contemplated by this Agreement.


 


9.4.         Entire Agreement; Assignment.  This Agreement (a) constitutes the entire
agreement among the Parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, among the Parties or any of them with respect to the subject matter
hereof (other than the Confidentiality Agreement) and (b) shall not be assigned
by operation of law or otherwise.


 


9.5.         Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.


 


9.6.         Notices.  All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by facsimile (which is confirmed)
or sent by registered or certified mail (postage prepaid, return receipt
requested) to the Parties at the following addresses:


 


If to
Ness, to:


 


Ness Technologies, Inc.

Kiryat Atidim, Tel Aviv

ISRAEL

Attention:   Raviv Zoller

Facsimile:   972-3-7666809


 


30

















 


With a
copy to:


 


Ephraim Abramson & Co.

16B King George Street

Jerusalem

ISRAEL


Attention:  Ilan Rotem, Adv.


Facsimile:   972-2-6259264


 


If to APP,
to:


 


APP Group

BB Centrum

Vyskocilova 1A/1422, 140 00

Prague 4, Czech Republic


Attention:  Jan Renato Stavek


Facsimile:  420-2-44026200


 


With a
copy to:


 


GLATZOVÁ & Co.

Bétlémský paláe, Husova 5

110 00 Prague 1

Czech Republic

Attention:  Vladimira Glatzov


Facsimile:  420-2-24248701


 


If to the APP Holders, to their addresses set
forth below their names on Annex A hereto.


 


With a copy to:


 


Willkie Farr & Gallagher


787 Seventh Avenue


New York, NY 
10019-6099


Attention: 
Christopher E. Manno


Facsimile: (212) 728-8111


 


or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).


 


9.7.         Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. 
Notwithstanding the foregoing, any transfer of the Shares and/or the transfer
of depository receipts that have been issued by the


 


31

















 


Stichting as contemplated by this Agreement, shall be
governed by and construed in accordance with the laws of the Netherlands.


 


9.8.         Specific Performance.  The Parties agree that if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the Parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.


 


9.9.         Publicity.  Except as otherwise required by law, for so
long as this Agreement is in effect, none of the Parties or their Affiliates,
shall issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this Agreement
without the express prior written approval of the other Parties.


 


9.10.      Jurisdiction;
Forum.  (a)  By the execution and delivery of this
Agreement, the Parties hereto submit to the personal jurisdiction of any state
or federal court in the State of New York in any suit or proceeding arising out
of or relating to this Agreement.


 


(b)          The Parties agree that the
appropriate and exclusive forum for any disputes between any of the Parties
arising out of this Agreement or the transactions contemplated hereby shall be
in any state or Federal court in the State of New York.  The Parties further agree that the Parties
will not bring suit with respect to any disputes arising out of this Agreement
or the transactions contemplated hereby in any court or jurisdiction other than
the above specified courts; provided, however, that the foregoing
shall not limit the rights of the Parties to obtain execution of judgment in
any other jurisdiction.  The Parties
further agree, to the extent permitted by law, that final and unappealable
judgment against a Party in any action or proceeding contemplated above shall
be conclusive and may be enforced in any other jurisdiction within or outside
the United States by suit on the judgment, a certified or exemplified copy of
which shall be conclusive evidence of the fact and amount of such judgment.


 


9.11.      Descriptive Headings.  The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.


 


9.12.      Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.


 


9.13.      Expenses.  Whether or not the transactions contemplated
by this Agreement are consummated, and except as otherwise expressly set forth
herein, all legal and other costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the Party
incurring such expenses.


 


9.14.      Parties
in Interest.  This Agreement
shall be binding upon and inure solely to the benefit of each Party and, except
as set forth in herein, nothing in this Agreement, express or implied, is
intended by or shall confer upon any other Person or Persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this Agreement.


 


32

















 


9.15.      Interpretation.  No reference in this Agreement to
“reasonable best efforts” or “all reasonable efforts” shall require a Person
obligated to use such efforts to incur unreasonable out-of-pocket expenses or
indebtedness or, except as expressly provided herein, to institute litigation
or to consent generally to service of process in any jurisdiction.  The term “knowledge” as used herein shall
refer to actual knowledge and no implied knowledge or due diligence inquiry
should be attributed to the use of such term. 
All references to “dollars” or “$” herein refer to United States
dollars.


 


9.16.      Fair
Construction.  The Parties shall
be deemed to have participated jointly in the negotiation and drafting of this
Agreement.  Any rule of construction
that a document shall be interpreted or construed against the drafting party
shall not be applicable.  It is
acknowledged that Willkie Farr & Gallagher is counsel to the Warburg APP
Holders and the following stockholders of Ness:  Warburg Pincus Equity Partners, L.P., a Delaware limited
partnership, Warburg, Pincus Netherlands Equity Partners I, C.V., a Netherlands
limited partnership, Warburg Pincus Netherlands Equity Partners II, C.V., a
Netherlands limited partnership, Warburg, Pincus Netherlands Equity Partners
III, C.V., a Netherlands limited partnership, and WPVI and that certain
conflicts may arise in connection with such representation.  All such conflicts are expressly waived by
the Parties in all respects.


 


9.17.      Survival of Sections 2.1 and 2.2.  Notwithstanding anything to the contrary
contained herein, the covenants contained in Sections 2.1 and 2.2 shall survive
the Closing.


 


9.18.      Release
of Claims.  Except arising from,
related to or in connection with the obligations under the Letter of
Indebtedness and Debenture, each dated as of August 28, 2000, by the
Warburg APP Holders in favor of APP, the APP Holders hereby unconditionally
release Ness and APP from any and all claims against APP arising prior to the
Closing Date.


 


33

















 


IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.


 


	
   

  	
  NESS TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raviv Zoller,

  	
  /s/ Morris Wolfson

  
	
   

  	
   

  	
  Name:

  	
  Raviv Zoller

  	
  Morris Wolfson

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WARBURG, PINCUS VENTURES

  INTERNATIONAL, L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg, Pincus & Co., its General
  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H. Janeway

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William H. Janeway

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Vice Chairman

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WARBURG, PINCUS VENTURES, L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg, Pincus & Co., its General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H. Janeway

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William H. Janeway

  
	
   

  	
   

  	
  Title:

  	
   Vice Chairman

  	
   

  
									



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this __ day of
______, 2002.


 


	
  Esther Dyson

  
	
   

  	
   

  
	
  By

  	
  /s/ Esther Dyson

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 9 day of
October, 2002.


 


	
  Erwin Kelen Family Ltd. Partnership

  
	
   

  	
   

  
	
  By

  	
  /s/ Erwin Kelen

  
	
   

  	
  Name: Erwin Kelen

  
	
   

  	
  Title: General Partner

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 4 day of
October, 2002.


 


	
  Robert Glanville

  
	
   

  	
   

  
	
  By

  	
  /s/ Robert Glanville

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 16 day of
October, 2002.


 


	
  Insight Capital Partners II, L.P.

  
	
   

  
	
  By:

  	
  Insight Venture Associates II, LLC, its General Partner

  
	
   

  	
   

  
	
  By

  	
  /s/ Jeff Horing

  
	
   

  	
  Name: Jeff Horing

  
	
   

  	
  Title: Managing Member

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this __ day of
______, 2002.


 


	
  Insight Capital Partners (Cayman) II, L.P.

  
	
   

  
	
  By:

  	
  Insight Venture Associates II, LLC, its General Partner

  
	
   

  	
   

  
	
  By

  	
  /s/ Jeff Horing

  
	
   

  	
  Name: Jeff Horing

  
	
   

  	
  Title: Managing Member

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 7 day of
October, 2002.


 


	
  Manfred Joseph

  
	
   

  	
   

  
	
  By

  	
  /s/ Manfred Joseph

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this __ day of
______, 2002.


 


	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Petr Nevicky

  
	
   

  	
  Name: Petr Nevicky

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 7 day of
October, 2002.


 


	
  John August Rollwagen

  
	
   

  	
   

  
	
  By

  	
  /s/ John August Rollwagen

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 7th day of
October, 2002.


 


	
  Geoff Squire

  
	
   

  	
   

  
	
  By

  	
  /s/ Geoff Squire

  
	
   

  	
  Name: Geoff Squire

  
	
   

  	
  Title:

  



 

















 


COUNTERPART SIGNATURE PAGE

to

Stock Purchase Agreement, by and among 

the Shareholders of APP Group CEE B.V. listed therein and Ness Technologies,
Inc.,

dated as of August 30, 2002


 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of this 21st day of
October, 2002.


 


	
  WI Software Investors LLC

  
	
   

  
	
  By:

  	
  Wexford Capital LLC, its Manager

  
	
   

  	
   

  
	
  By

  	
  /s/ Paul Jacobi

  
	
   

  	
  Name: Paul Jacobi

  
	
   

  	
  Title: Vice President

  



 

















 


ANNEX
A


 


APP
HOLDERS


 


	
  APP Holders

  	
   

  	
  APP Shares
  (on an as-

  converted basis)

  	
   

  	
  NESS
  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Esther Dyson

  c/o Edventure Holdings Inc.

  104 Fifth Avenue

  20th Floor

  New York, NY  10011-6987

  	
   

  	
  25,000

  	
   

  	
  8,749

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Erwin Kelen Family Ltd.

  Partnership, a Minnesota limited partnership,

  c/o Kelen Ventures

  One Financial Plaza

  Suite 2005

  120 South Sixth Street

  Minneapolis, MN  55402

  	
   

  	
  10,000

  	
   

  	
  3,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Robert Glanville

  c/o Warburg, Pincus & Co.

  466 Lexington Avenue

  10th Floor

  New York, NY  10017-3147

  	
   

  	
  1,000

  	
   

  	
  350

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  InSight Capital Partners II,

  L.P., a Delaware limited partnership,

  527 Madison Avenue

  10th Floor

  New York, NY  10022

  	
   

  	
  139,177

  	
   

  	
  48,709

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  InSight Capital Partners

  (Cayman) II, L.P., a Cayman Islands limited partnership,

  527 Madison Avenue

  10th Floor

  New York, NY  10022

  	
   

  	
  15,463

  	
   

  	
  5,412

  	
   

  



 

















 


	
  Manfred Joseph

  ASP 1000, s.r.o.

  Konevova 65a

  Praha 3

  Ceska republika  130 00

  	
   

  	
  10,000

  	
   

  	
  3,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Petr Nevicky

  Za Zahradami 420

  Praha 10

  Česká republika  109 00

  	
   

  	
  419,680

  	
   

  	
  146,876

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John August Rollwagen

  1315 Foshay Tower

  Minneapolis, MN  55402

  	
   

  	
  10,000

  	
   

  	
  3,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Geoff Squire

  Les Rocques Barrees,

  Bordeaus, Vale

  Guernsey, Channel Islands,

  UK GY3 5LY

  	
   

  	
  25,000

  	
   

  	
  8,749

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Warburg, Pincus Ventures,

  L.P., a Delaware limited partnership,

  466 Lexington Avenue

  10th Floor

  New York, NY  10017-3147

  	
   

  	
  1,435,574

  	
   

  	
  502,410

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Warburg, Pincus Ventures

  International, L.P., a Bermuda limited partnership,

  466 Lexington Avenue

  10th Floor

  New York, NY  10017-3147

  	
   

  	
  1,439,554

  	
   

  	
  503,802

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WI Software Investors LLC, a

  Delaware limited liability company,

  411 West Putnam Avenue

  Greenwich, CT  060830

  	
   

  	
  50,070

  	
   

  	
  17,523

  	
   

  



 


36