James E. Cecchi Nadeem Faruqi 

Lindsey H. Taylor Shane Rowley 

CARELLA, BYRNE, CECCHI, Juan E. Monteverde 

OLSTEIN, BRODY & AGNELLO Francis McConville 

5 Becker Farm Road FARUQI & FARUQI, LLP 

Roseland, New Jersey 07068 369 Lexington Avenue, 10th Floor 

(973) 994-1700 New York, New York 10017 

 (212) 983-9330 

Scott A. Bursor 

BURSOR & FISHER, P.A. 

369 Lexington Avenue, 10th Floor 

New York, New York 10017 

(212) 989-9113 

Counsel for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

NISSIM BOTTON, On Behalf of himself and 

All Others Similarly Situated, 

 Plaintiff, 

v. 

NESS TECHNOLOGIES, INC., AHARON 

FOGEL, AJIT BHUSHAN, SATYAM C. 

CHERUKURI, SASHI GERLITZ, P. 

HOWARD EDELSTEIN, GABRIEL 

EICHLER, DAN S. SUESSKIND, MORRIS 

WOLFSON, CITI VENTURE CAPITAL 

INTERNATIONAL, JERSEY HOLDING 

CORPORATION, AND JERSEY 

ACQUISITION CORPORATION, 

 Defendants. 

 

 

 Case No. 

(Securities Class Action) 

CLASS ACTION COMPLAINT FOR 

VIOLATIONS OF THE FEDERAL 

SECURITIES LAWS AND FOR BREACHES 

OF FIDUCIARY DUTIES 

JURY TRIAL DEMANDED

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 1 of 30 PageID: 1
 2 

Plaintiff, Nissim Botton (“Plaintiff”), by and through his attorneys, alleges upon 

information and belief, except to paragraph 12 which is alleged upon personal knowledge, as 

follows: 

SUMMARY OF THE ACTION

1. This is both an individual action and a shareholder class action brought by 

Plaintiff on behalf of holders of the common stock of Ness Technologies, Inc. (“Ness” or the 

“Company”) to enjoin the acquisition of the publicly owned shares of Ness common stock by 

Citi Venture Capital International (“CVCI”), through its affiliates Jersey Holding Corporation, 

(“Jersey Holding”) and Jersey Acquisition Corporation, a wholly-owned subsidiary of Jersey 

Holding, which CVCI or its affiliates do not already own, in an all cash transaction valued at 

approximately $307 million (the “Proposed Transaction”). 

2. On June 10, 2011, Ness announced that the Company had signed a definitive 

agreement in which CVCI will acquire all of the outstanding shares of Ness (“Merger 

Agreement”). Under the terms of the Merger Agreement, Ness stockholders will receive $7.75 

per share in cash for each share of common stock they hold. 

3. In pursuing the plan to induce Ness shareholders to approve the Proposed 

Transaction, each of the defendants violated applicable state law by directly breaching and/or 

aiding the other defendants’ breaches of their fiduciary duties of loyalty, due care, diligence, 

good faith and fair dealing, independence, and candor. 

4. The Proposed Transaction is unfair and undervalued. Indeed, according to 

Thomson/First Call, at least one financial analyst values Ness common stock at $8.00 per share 

and both the mean and median Wall Street analyst target price is $7.88 per share, which is above 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 2 of 30 PageID: 2
 3 

the $7.75 per share Ness’s Board of Directors (the “Board”) has accepted as adequate 

consideration for the Proposed Transaction. 

5. Based upon the fact that CVCI owns 9.6% of the outstanding stock of Ness and 

has a designee on the Board, namely defendant Ajit Bhushan (“Bhushan”), CVCI is well aware 

of Ness’s intrinsic enterprise value. Knowing that the economy and the Company’s performance 

is recovering, CVCI recognized that it had an opportunity to cash in on Ness’s undervalued stock 

price by acquiring the Company before it felt the full effects of the economic turnaround and 

reached analyst targets. As such, CVCI, in possession of non-public information regarding Ness, 

is taking advantage of its position to acquire the Company at a substantial discount to its true 

value. More troubling is that Ness’s Board is allowing CVCI to buy the Company on the cheap. 

6. To ensure the success of the Proposed Transaction, Ness’s Board locked up the 

deal in favor of CVCI by agreeing to impermissible “deal-protection” devices, effectively 

rendering the Proposed Transaction a fait d’accompli. For example, the Board agreed to: (i) a 

“no-shop” provision that prevents the Company from negotiating with or providing confidential 

Company information to competing bidders except under extremely limited circumstances; (ii) a 

“matching rights” provision that allows CVCI three (3) business days to match any competing 

proposal in the unlikely event that one emerges; and (iii) a $8.35 million termination fee to be 

paid to CVCI if the Board agrees to a competing proposal. These terms are particularly 

egregious since a bidder identified in the Proxy only as “Bidder D” had previously entered into 

an exclusivity agreement which provided that any merger agreement would contain a thirty (30) 

day “go shop” period and a termination fee of only $3 million. Defendants’ however, refused to 

continue negotiations with Bidder D, forgoing the more favorable merger provisions in order to 

enter into the Merger Agreement with CVCI, which already owned a substantial stake in the 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 3 of 30 PageID: 3
 4 

Company and which had a designee on the Board. As result, on June 27, 2011, the Ness Special 

Committee received a letter from Bidder D claiming violations of its exclusivity agreement and 

confidentiality agreement with Ness and reserving its rights and remedies arising from such 

alleged breaches. 

7. Similarly, in an attempt to induce shareholder approval of the unfair Proposed 

Transaction, Defendants caused to be filed with the Securities and Exchange Commission 

(“SEC”) a false and misleading Proxy Statement on Schedule 14, on June 30, 2011 (the “Proxy 

Statement”) for the required vote by Ness shareholders. The Proxy Statement is false and 

misleading in that it misstates and/or fails to disclose material information concerning, inter alia, 

the sales process leading to the Proposed Transaction including specific details regarding why 

the Board chose to abandon negotiations with Bidder D and why Bidder D is accusing Ness of 

violating its exclusivity agreement and confidentiality agreement. Furthermore, the Proxy 

Statement omits certain material projections for Ness, including free cash flows, as well as key 

inputs in the analyses performed by Jefferies & Company, Inc. (Financial Advisor to the Special 

Committee) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (Financial Advisor to the 

Board). These material misstatements and omissions contained in the Proxy Statement constitute 

violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) 

as well as violations of breach of fiduciary duties owed by the Board to Ness shareholders. 

8. For these reasons and as set forth in detail herein, Plaintiff seeks to enjoin 

Defendants (defined below) from taking any steps to consummate the Proposed Transaction or, 

in the event the Proposed Transaction is consummated, recover damages resulting from the 

Individual Defendants’ (defined below) violations of their fiduciary duties of loyalty, good faith, 

due care, and full and fair disclosure. 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 4 of 30 PageID: 4
 5 

JURISDICTION AND VENUE

9. This Court has jurisdiction over all claims asserted herein pursuant to 28 U.S.C 

§1331 in that Plaintiff’s claims arise in part under the Constitution and laws of the United States, 

including the Exchange Act [15 U.S.C. §78aa] and 28 U.S.C. §1331. This Court also has 

supplemental jurisdiction pursuant to 28 U.S.C. §1367(a). 

10. This Court also has jurisdiction over this action pursuant to 28 U.S.C. §§ 1332(a), 

(c), and (d) as Plaintiff and the defendants are citizens of and domiciled in different states and the 

amount in controversy exceeds $75,000, exclusive of interests and costs. Given that the 

Proposed Transaction is valued at $307 million, the injunctive relief sought herein will exceed a 

sum or value of $75,000. This action is not a collusive one to confer jurisdiction on this Court. 

11. Venue is proper in this Court pursuant to 28 U.S.C. §1391 because one or more of 

the defendants, including Ness, either resides in or maintains executive offices in this District, 

and a substantial portion of the transactions and wrongs that are the subject of this complaint 

occurred in substantial part in this District. Finally, the defendants have received substantial 

compensation in this District by doing business here and engaging in numerous activities that 

had an effect in this District. 

THE PARTIES

12. Plaintiff Nissim Botton is, and at all relevant times was, a continuous stockholder 

of defendant Ness. 

13. Defendant Ness Technologies, Inc. (“Ness”) is a Delaware corporation 

headquartered in Tel Aviv, Israel, and New Jersey, with its U.S. headquarters located at 300 

Frank W. Burr Boulevard, 7th Floor, Teaneck, New Jersey 07666. Ness is a global provider of IT 

and business services and solutions with specialized expertise in software product engineering; 

and system integration, application development, consulting and software distribution. Ness 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 5 of 30 PageID: 5
 6 

delivers its portfolio of solutions and services using a global delivery model combining offshore, 

near-shore and local teams. Ness common stock publicly trades on the NASDAQ Global Select 

(“NASDAQ”) under the symbol “NSTC.” 

14. Defendant Aharon Fogel (“Fogel”) has served as a member and Chairman of the 

Board since 1999. 

15. Defendant Bhushan has served as a member of the Board since September 2009. 

Defendant Bhushan is a managing director at CVCI, where he has served since 2001. 

16. Defendant Satyam C. Cherukuri (“Cherukuri”) has served as a member of the 

Board since October 2004 and as its Interim Chairman since February 2011. Defendant 

Cherukuri served as Vice Chairman of the Board from December 2010 through January 2011. 

17. Defendant Sashi Gerlitz (“Gerlitz”) has served as President and Chief Executive 

Officer (“CEO”) of Ness since March 2007 and as a member of the Board since February 2007. 

18. Defendant P. Howard Edelstein (“Edelstein”) has served as a member of the 

Board since June 2008. 

19. Defendant Gabriel Eichler (“Eichler”) has served as a member of the Board since 

December 2008. Defendant Eichler is the senior partner of Benson Oak, an investment banking 

and private equity firm operating in central Europe which he founded in 1991. 

20. Defendant Dan S. Suesskind (“Suesskind”) has served as a member of the Board 

since October 2004. 

21. Defendant Morris Wolfson (“Wolfson”) is the founder of the Company and has 

served as a member of the Board since its inception in 1999. 

22. Defendants in paragraph 14 through 21 are collectively referred to hereinafter as 

the “Individual Defendants.” 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 6 of 30 PageID: 6
 7 

23. Each of the Individual Defendants herein is sued individually, and as an aider and 

abettor, as well as in his or her capacity as an officer and/or director of the Company, and the 

liability of each arises from the fact that he or she has engaged in all or part of the unlawful acts, 

plans, schemes, or transactions complained of herein. 

24. Defendant CVCI is a leader in global emerging markets private equity investing, 

and currently manages over $7 billion in equity investments and committed capital with its 

headquarters located at 399 Park Avenue, New York, New York 10022. CVCI has an 

internationally integrated investment team with over 45 professionals worldwide with a local 

presence in Singapore, Mumbai, New Delhi, Hong Kong, London, New York and Santiago. 

CVCI-advised funds have made significant investments in Business Services and Cross-Border 

Outsourcing companies in the industry. Over the last decade, funds and entities advised by CVCI 

have invested in business services and Information Technology (“IT”) Services companies in 

China, the U.S., India, Mexico, and Korea. 

25. Defendant Jersey Holding is a Delaware corporation and an affiliate of CVCI with 

its headquarters at 399 Park Avenue, New York, New York 10022. 

26. Defendant Jersey Acquisition Corporation (“Merger Sub”) is a Delaware 

corporation and a direct wholly owned subsidiary of Jersey Holding. 

27. CVCI, Jersey Holding and Merger Sub are collectively referred to herein as 

“CVCI.” 

28. Collectively, the Individual Defendants, Ness, and CVCI are referred to herein as 

the “Defendants.” 

THE FIDUCIARY DUTIES OF THE INDIVIDUAL DEFENDANTS

UNDER STATE LAW

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 7 of 30 PageID: 7
 8 

29. By reason of the Individual Defendants’ positions with the Company as officers 

and/or directors, said individuals are in a fiduciary relationship with Plaintiff and the other 

shareholders of Ness and owe Plaintiff and the other members of the Class (defined herein) the 

duties of good faith, fair dealing, loyalty and full and candid disclosure. 

30. By virtue of their positions as directors and/or officers of Ness, the Individual 

Defendants, at all relevant times, had the power to control and influence, and did control and 

influence and cause Ness to engage in the practices complained of herein. 

31. Each of the Individual Defendants is required to act in good faith, in the best 

interests of the Company’s shareholders and with such care, including reasonable inquiry, as 

would be expected of an ordinarily prudent person. In a situation where the directors of a 

publicly traded company undertake a transaction that may result in a change in corporate control, 

the directors must take all steps reasonably required to maximize the value shareholders will 

receive rather than use a change of control to benefit themselves, and to disclose all material 

information concerning the proposed change of control to enable the shareholders to make an 

informed voting decision. To diligently comply with this duty, the directors of a corporation 

may not take any action that: 

(a) adversely affects the value provided to the corporation’s shareholders; 

(b) contractually prohibits them from complying with or carrying out their fiduciary 

duties; 

(c) discourages or inhibits alternative offers to purchase control of the corporation or 

its assets; 

(d) will otherwise adversely affect their duty to search for and secure the best value 

reasonably available under the circumstances for the corporation’s shareholders; or 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 8 of 30 PageID: 8
 9 

(e) will provide the directors and/or officers with preferential treatment at the 

expense of, or separate from, the public shareholders. 

32. Plaintiff alleges herein that the Individual Defendants, separately and together, in 

connection with the Proposed Transaction, violated duties owed to Plaintiff and the other 

shareholders of Ness, including their duties of loyalty, good faith and independence, insofar as 

they, inter alia, engaged in self-dealing and obtained for themselves personal benefits, including 

personal financial benefits, not shared equally by Plaintiff or the other shareholders of Ness 

common stock. 

CLASS ACTION ALLEGATIONS

33. Plaintiff brings the Exchange Act claims on behalf of himself individually. 

Plaintiff brings the state law claims pursuant to Rule 23 on behalf of himself and as a class 

action, on behalf of all holders of Ness common stock who are being and will be harmed by 

Defendants’ actions described below (the “Class”). Excluded from the Class are Defendants 

herein and any person, firm, trust, corporation or other entity related to or affiliated with any of 

the Defendants. 

34. This action is properly maintainable as a class action because: 

A. The Class is so numerous that joinder of all members is impracticable. As 

of April 29, 2011, there were over 38.1 million shares of Ness common stock issued and 

outstanding. The actual number of public shareholders of Ness will be ascertained through 

discovery; 

B. There are questions of law and fact which are common to the Class, 

including inter alia, the following: 

(i) whether the Individual Defendants have breached their fiduciary duties of 

undivided loyalty, independence or due care with respect to Plaintiff and 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 9 of 30 PageID: 9
 10 

the other members of the Class in connection with the Proposed 

Transaction; 

(ii) whether the Individual Defendants have breached their fiduciary duty to 

secure and obtain the best price reasonable under the circumstances for the 

benefit of Plaintiff and the other members of the Class in connection with 

the Proposed Transaction; and 

(iii) whether Plaintiff and the other members of the Class would suffer 

irreparable injury were the Proposed Transaction complained of herein 

consummated; and 

C. Plaintiff is an adequate representative of the Class, has retained competent 

counsel experienced in litigation of this nature and will fairly and adequately protect the interests 

of the Class; 

D. Plaintiff’s claims are typical of the claims of the other members of the 

Class and Plaintiff does not have any interests adverse to the Class; 

E. The prosecution of separate actions by individual members of the Class 

would create a risk of inconsistent or varying adjudications with respect to individual members 

of the Class which would establish incompatible standards of conduct for the party opposing the 

Class; and 

F. Defendants have acted on grounds generally applicable to the Class with 

respect to the matters complained of herein, thereby making appropriate the relief sought herein 

with respect to the Class as a whole. 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 10 of 30 PageID: 10
 11 

SUBSTANTIVE ALLEGATIONS

A. Background 

35. Ness is a global provider of information technology, or IT, and business services 

and solutions with specialized expertise in software product engineering; system integration, 

application development, consulting and software distribution. The primary industries, or 

verticals, the Company serves include high-tech companies and independent software vendors, 

or ISVs; utilities and public sector; financial services; defense and homeland security; and life 

sciences and healthcare. Ness has operations in North America, Europe, Israel and India, serving 

customers in over 20 countries. 

36. Ness provides services to over 500 clients located throughout the world, including 

a number of Fortune 1000 and Global 2000 companies. Ness has achieved recurring revenues 

from multi-year contracts and long-standing relationships with clients such as Chordiant 

(Pegasystems), the Czech Office for Surveying, Mapping and Cadastre, Komercní Banka, Israel 

Aircraft Industries, Israel’s Ministry of Defense, Kaiser Permanente, Lockheed Martin, 

NAVTEQ, Quintiles, Standard & Poor’s and Telefónica O2. 

37. The Company’s revenues have grown from $161.4 million in 2002 to $571.8 

million in 2010, representing a compound annual growth rate of approximately 17%, while 

results of operations have improved from net income from continuing operations of $0.7 million 

for 2002 to $30.5 million for 2008. In 2009, the Company recognized a net loss from continuing 

operations of $10.0 million, primarily as a result of severance, restructuring and related project 

costs incurred in the fourth quarter of 2009 as Ness reorganized, reduced, sold or closed selected 

smaller operations that were unprofitable or that the Company determined were not strategic to 

its planned future operations and growth. These strategic initiatives produced immediate 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 11 of 30 PageID: 11
 12 

benefits to the Company’s financial performance, as in 2010, Ness reported that net income from 

continuing operations improved to $8.4 million. 

38. This highly favorable financial performance continued into 2011. For example, 

on January 31, 2011, the Company announced that its Software Product Labs business unit had 

signed an extension of its development contract with NAVTEQ, the leading global provider of 

maps, traffic and location-data-enabling navigation, location-based services and mobile 

advertising around the world. The Company reported that the new three year deal extends and 

expands the large global development center in Košice, Slovakia. 

39. Commenting on this development contract with Ness, Amreesh Modi (“Modi”), 

Chief Technology Officer and Executive Vice President, NAVTEQ, stated, in relevant part: 

We are extremely pleased with the level of technical excellence and results the 

Ness team has delivered over the past three years. Ness’ Košice center provides us 

with the right mix of skills and resources to meet our requirements for high 

quality, creativity and innovation. We look forward to our continued 

collaboration. 

40. Similarly, on February 14, 2011, Ness announced that its defense and homeland 

security business unit had signed a $16 million contract to provide a training and simulation 

system to a foreign country’s national command and control center. The Company reported that 

the solution will be based on Ness’ sophisticated Integrated Command and Control System, 

which Ness implemented for the purchasing country beginning in May 2008, and a simulation 

product. 

41. Michael Zinderman, President, Ness Technologies and Systems Group, 

commented on the $16 million contract, stating, in relevant part: 

Following the very successful implementation and deployment of its national 

command and control center, the foreign country’s ministry of defense is 

beginning a strong proactive training process, utilizing the training and simulation 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 12 of 30 PageID: 12
 13 

system. Our dedicated ICCS trainer and simulation system significantly enhances 

the performance and decision making process of officers in real life situations. 

42. Again, on March 15, 2011, the Company announced that it won another contract – 

this one with Barclays Capital, the investment banking division of Barclays Bank PLC, to 

establish an Israel Development and Engineering Center. The Company reported that the center 

will provide technology development and engineering services. The contract is expected to be 

worth more than $75 million over five years. 

43. Commenting on the Barclays contract, Defendant Gerlitz stated: 

We are pleased to partner with Barclays Capital on this significant initiative to 

establish a software development and engineering center in Israel. During the 

course of the engagement, we will contribute our knowledge and expertise in 

building and managing software development labs. We will employ our unique 

software development methodology, taking good advantage of Israel’s pool of 

high quality engineering talent. 

44. On April 13, 2011, the Company announced it was awarded another $17.3 million 

engagement from Israel Electric Corporation to implement SAP-based projects, including 

software testing. In announcing the contract, Effi Kotek, President of Ness Israel boasted: 

We will provide IEC, which is a strategic client, with our extensive experience 

and expertise in the utilities industry, including experts from Israel as well as from 

our subsidiaries in Eastern Europe, where we routinely conduct similarly complex 

projects for European utilities companies. IEC’s selection of Ness for these 

important projects underscores our position as Israel’s leading SAP systems 

integrator and implementer. 

45. Based upon the strategic initiatives adopted by the Company in 2009, as well as 

the new contracts awarded to the Company, Ness’s financial prospects are extremely promising. 

On February 2, 2011, the Company announced financial results for its fourth quarter and full 

year, ended December 31, 2010. Ness reported that quarterly revenues were a record $157.4 

million, up 16% year-over-year; and full year revenues were $571.8 million, up 12% year-overyear. The Company further reported quarterly operating income of $7.3 million, compared to a 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 13 of 30 PageID: 13
 14 

loss of $11.3 million in the fourth quarter of 2009; and full year operating income of $16.4 

million, up from $0.3 million in 2009. Moreover, the Company reported that on a non-GAAP 

basis, quarterly operating income was $10.1 million, up 87% year-over-year; and full year 

operating income was $27.7 million, up 11% year-over-year. Furthermore, on both a GAAP and 

non-GAAP basis, the Company reported that quarterly operating income and operating margin 

improved sequentially, reaching the highest levels achieved in nine quarters. 

46. Defendant Gerlitz, commenting on the Company’s fourth quarter and full year 

financial results, stated: 

We had a good fourth quarter and I am particularly proud of the operating margin 

expansion we delivered; this steady progress is a direct result of our strategy to 

focus on differentiation, global offerings and higher-margin revenue streams. As 

we continue our long-term priority to maximize margin expansion in 2011, we 

feel that we are on a solidly upward trajectory with a good outlook for the 

coming year. 

47. Similarly, Ofer Segev (“Segev”), Ness’s Executive Vice President and CFO, 

credited the Company’s financial performance in 2010 to the strategic initiatives adopted by 

Ness in 2009 and 2010, stating: 

We are pleased by the major recovery we implemented in 2010, as seen in our 

strong fourth quarter numbers, which speak for themselves. We will continue to 

focus on excelling in our operations, driving to increase the bottom line, generate 

good operating cash flows and maintain our strong liquidity. 

48. Then, on May 4, 2011, Ness announced financial results for its first quarter, ended 

March 31, 2011. The Company reported that revenues were $137.3 million, up 3% year-overyear; and operating income was $6.9 million, up 186% year-over-year. The Company stated 

that, on a non-GAAP basis, operating income was $8.9 million, up 79% year-over-year. 

Additionally, on a GAAP and non-GAAP basis, the Company reported that operating margin 

improved sequentially, reaching the highest levels in ten quarters. Further, the Company stated 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 14 of 30 PageID: 14
 15 

that net income from continuing operations was $4.2 million, up 497% year-over-year. Based 

upon these results, the Company Ness reiterated its full year 2011 guidance for revenues from 

continuing operations in the range of $595 million to $605 million, up from the $571 million in 

revenues reported for 2010. 

49. Commenting on these first quarter 2011 results and the success of the Company’s 

strategic initiatives, Defendant Gerlitz stated: 

We had a good first quarter and I am very proud of the continued operating 

margin expansion we delivered. Our steady progress improving operating margins 

is a direct result of record first quarter results in Israel as well as ongoing 

improvement in Central and Eastern Europe. We are making excellent headway 

on the strategic integration of our business units into one global entity, as 

manifested by our recent landmark contract with Barclays Capital. We are 

confident about the year ahead, and look forward to further improvements in 

our results. 

50. Rather than permitting the Company’s shares to continue to trade freely and 

allowing its public shareholders to reap the benefits of the Company’s strategic initiatives and 

integration which were already producing increasingly positive financial results and poised the 

Company for “further improvements” in the coming year, the Individual Defendants have acted 

for their own benefit and the benefit of CVCI, and to the detriment of the Company’s 

shareholders, by entering into the Merger Agreement. The Individual Defendants effectively 

capped Ness’s price at a time when the Company’s stock was overcoming the effects of the 

lingering economic recession and when it was poised to capitalize on its positive and 

encouraging financial outlook. 

B. The Proposed Transaction

51. On June 10, 2011, Ness issued a press release announcing the Proposed 

Transaction which stated: 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 15 of 30 PageID: 15
 16 

Teaneck, NJ – June 10, 2011 – Ness Technologies, Inc. (NASDAQ: NSTC and 

TASE: NSTC), a global provider of information technology solutions and 

services, announced today that the company has entered into a definitive merger 

agreement under which an affiliate of Citi Venture Capital International (CVCI), a 

global private equity investment fund, will acquire the company in an all-cash 

transaction valued at approximately $307 million. 

 

Under the terms of the agreement, Ness stockholders will receive $7.75 per share 

in cash for each share of common stock they hold, representing a premium of 

17.6% over the closing price of the company’s shares on the Nasdaq Global 

Select Market on June 9, 2011, the last trading day prior to today’s 

announcement, or 22.2% over the average closing price of the company’s shares 

over the 30 trading days prior to June 10, 2011. 

 

The company’s Board of Directors, acting upon the unanimous recommendation 

of a Special Committee of disinterested members of the company’s Board of 

Directors, approved the transaction as being in the best interests of Ness 

Technologies and its stockholders and recommends that the company’s 

stockholders approve the transaction. 

 

“We believe this transaction provides attractive value for our stockholders and 

represents an exciting opportunity for Ness, our over-500 customers and our 

6,900 employees to continue our growth and development in partnership with 

CVCI,” said Sachi Gerlitz, president and CEO, Ness Technologies. “We look 

forward to completing the transaction and continuing to provide superior solutions 

and services to our strong customer base, as we build upon our leadership position 

in our markets and continue to implement our strategic plan.” 

 

“We are excited about the prospect of increasing our investment in Ness,” said 

Bob Khanna, CVCI’s Managing Director. “Ness is the leader in several segments 

of the IT services marketplace, serves the most sophisticated global clients and 

has an outstanding reputation for delivering complex projects. We look forward to 

working with management, employees and partners of all business units to ensure 

that Ness becomes even more valuable to its clients and fully leverages the 

strengths of its global network.” 

 

P. Howard Edelstein, Chairman of the Special Committee, said: “After a thorough 

assessment, we concluded that the transaction with CVCI delivers significant 

value and is in the best interest of our stockholders.” 

 

The transaction is subject to certain closing conditions, including approval of the 

company’s stockholders, antitrust regulatory approvals and other customary 

closing conditions. Ness’s stockholders will be asked to vote on the proposed 

transaction at a special meeting that will be held on a date to be announced. Ness 

expects the transaction to be completed in the next three to six months. 

 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 16 of 30 PageID: 16
 17 

Jefferies & Company, Inc. is acting as financial advisor to the Special Committee, 

and managed the process for the Special Committee soliciting bids from both 

strategic and financial sponsors in response to an unsolicited indication of interest. 

BofA Merrill Lynch is acting as financial advisor to the Board of Directors of 

Ness. Citigroup Global Markets Inc. is acting as financial advisor to CVCI. 

Olshan Grundman Frome Rosenzweig & Wolosky LLP is acting as legal advisor 

to Ness, Ropes & Gray LLP is acting as legal advisor to the Special Committee 

and Cleary Gottlieb Steen & Hamilton LLP is acting as legal advisor to CVCI. 

52. The Proposed Transaction is unfair and undervalued. Indeed, according to 

Thomson/First Call, at least one financial analyst values Ness common stock at $8.00 per share 

and both the mean and median analyst target price is $7.88 per share, which is above the $7.75 

per share Ness’s Board has accepted as adequate consideration for the Proposed Transaction. 

Interestingly, Ness refused to continue to negotiate in good faith with competing bidders, such as 

the bidder identified in the Proxy as Bidder D, even though Bidder D offered far more favorable 

terms under a merger agreement which would provide a 30 day “go shop” period and a 

termination fee of just $3 million, compared to the termination fee of over $8 million agreed to in 

the Merger Agreement with CVCI. Instead of negotiating with Bidder D, the Board agreed to 

sell the Company to CVCI, where fellow Board member defendant Bhushan was a managing 

director. 

53. In addition, certain of the Individual Defendants will receive lavish compensation, 

benefits or change of control and severance benefits. First, while no formal agreements have 

been negotiated or executed, it is expected certain of the Individual Defendants and other key 

members of the Company’s management will continue their employment with the Company 

following the consummation of the Proposed Transaction. Moreover, in the midst of negotiating 

the terms of the Proposed Transaction and Merger Agreement, certain of the Individual 

Defendants and other members of the Company’s management negotiated transition incentive 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 17 of 30 PageID: 17
 18 

bonuses and other incentives to remain with the Company through the consummation of the 

Proposed Transaction. 

54. For example, defendant Gerlitz alone is in line to receive $ 2,075,783 upon a 

change of control, even though he expects to continue his employment and lavish compensation 

after the consummation of the Proposed Transaction. 

55. Moreover, under the terms of the Merger Agreement, all unvested stock options 

and restricted stock units will immediately vest and will entitle the holders to immediate payment 

of the consideration offered in the Proposed Transaction. Pursuant to these terms, Defendant 

Gerlitz alone will receive $654,247 for his unvested equity awards, and the directors as a group 

will received over $775,000 collectively for their unvested equity awards and more than $1.3 

million in total consideration for their equity holdings. 

C. The Preclusive Deal Protection Devices

56. As part of the Merger Agreement, the Individual Defendants agreed to certain 

onerous and preclusive deal protection devices that operate conjunctively to make the Proposed 

Transaction a fait accompli and ensure that no competing offers will emerge for the Company. 

57. First, the Merger Agreement contains a strict “no shop” provision prohibiting the 

members of the Ness’s Board from taking any affirmative action to comply with their fiduciary 

duties to maximize shareholder value, including soliciting alternative acquisition proposals or 

business combinations. Specifically, §5.3(a) of the Merger Agreement precludes the Board and 

any Company personnel from attempting to procure a price in excess of the amount offered by 

CVCI. 

58. Similarly, §5.3(d) of the Merger Agreement provides a matching rights provision 

whereby the Company must notify Ness of any unsolicited competing bidder’s offer within 24 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 18 of 30 PageID: 18
 19 

hours. Then, if and only if the Board determines that the competing offer constitutes a “Superior 

Offer,” Ness is granted three business days to amend the terms of the Merger Agreement to make 

a counter-offer that the Company must consider in determining whether the competing bid still 

constitutes a “Superior Offer.” 

59. Thus, even if the Ness Board receives an intervening bid that appears to be 

“superior” to CVCI’s offer, they are precluded from even entering into discussions and 

negotiations unless they first reasonably determine in good faith that the alternative proposal is, 

in fact, “superior,” and give CVCI three business days to match the competing offer. 

Consequently, this provision prevents the Ness Board from exercising their fiduciary duties and 

precludes an investigation into competing proposals unless, as a prerequisite, the majority of the 

Ness Board first determines that the proposal is “superior.” 

60. In addition to the no-shop and matching rights provisions, the Proposed 

Transaction Agreement includes a $8.35 million termination fee that in combination will all but 

ensure that no competing offer will be forthcoming. 

61. These provisions are even more egregious in that the Board refused to continue to 

negotiate in good faith with Bidder D which had agreed to the terms of a merger agreement that 

would have provided a 30 day “go shop” period, and a modest termination fee of just $3 million. 

Indeed, Ness’s apparent disapproval of any merger with Bidder D is the result of the conflicts of 

interest arising out of the fact that defendant Bhushan – a fellow Board member – is a managing 

director of CVCI. 

62. These provisions cumulatively discourage bidders from making a competing bid 

for the Company. 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 19 of 30 PageID: 19
 20 

63. Accordingly, Plaintiff seeks injunctive and other equitable relief to prevent the 

irreparable injury that Company shareholders will continue to suffer absent judicial intervention. 

D. The Materially Misleading And/Or Incomplete Proxy Statement

64. In order to secure shareholder approval of this unfair deal, Defendants filed with 

the SEC a materially misleading and incomplete Proxy Statement. The Proxy Statement, which 

recommends that Ness shareholders vote in favor of the Proposed Transaction, omits and/or 

misrepresents material information about the unfair sale process, the unfair consideration, and 

the true intrinsic value of the Company. Specifically, the Proxy Statement omits/or 

misrepresents the material information set forth below in contravention to Sections 14(a) and 

20(a) of the Exchange Act. 

65. The Proxy Statement fails to provide the Company’s shareholders with material 

information and/or provides them with false and materially misleading information thereby 

rendering the shareholders unable to cast an informed vote regarding the Proposed Transaction. 

66. The Proxy Statement does not describe in sufficient detail the sales process 

leading up to the Proposed Transaction or the flaws that might have permeated the sales process. 

For example, the Proxy fails to provide an adequate explanation as to why the Board chose to 

abandon negotiations with Bidder D and instead rejected any further consideration of its proposal 

and more troubling why Bidder D is accusing Ness of violating its exclusivity agreement and 

confidentiality agreement and the specific accusations made by Bidder D in its letter dated June 

27, 2011, which is not attached to the Proxy Statement. 

67. Moreover, the analyses in support of the fairness opinion prepared by Jefferies & 

Company, Inc. (“Jefferies”) who acted as the financial advisor to the Special Committee, is 

plagued by materially false statements and omissions. The opinion of Jefferies fails to disclose 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 20 of 30 PageID: 20
 21 

information which would allow shareholders to intelligently determine whether or not they 

should vote in favor of the Proposed Transaction. In particular, the Proxy Statement is deficient 

and should provide, inter alia, the following: 

A. In the Selected Companies Analysis, (a) the criteria to select the companies 

and multiples used as well as multiples observed for each of the selected 

companies; (b) the selected reference ranges applied to the Company's 

EBITDA and EPS for its trailing 12 months as well as calendar years 

2011 and 2012 in the analysis. In fact, the analysis only discloses 

conclusory statements by showing the implied per share equity value for 

the different multiples without showing a fair summary of the analysis; 

B. In the Selected Transactions Analysis, (a) the rationale for selecting 

companies used; (b) the multiples observed for each of the selected 

transactions; (c) the selected reference ranges applied to the Company's 12 

months trailing EBITDA. In fact, the analysis only discloses conclusory 

statements by showing the implied per share equity value and suffers the 

same infirmities as the analysis above by failing to show a fair summary 

of the analysis; and 

C. In the Discounted Cash Flow Analysis, (a) the definition of “free cash 

flows”; and (b) the rationale for selecting an exorbitant discount rate of 

12% to 13% and EBITDA terminal growth rates of 2% to 4% in the 

analysis. Moreover, the analysis is silent as to whether stock based 

compensation was considered and how it was allocated in the analysis; 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 21 of 30 PageID: 21
 22 

68. Furthermore, the analyses in support of the fairness opinion prepared by Merrill 

Lynch, Pierce, Fenner & Smith Incorporated (“BofA Merrill Lynch”) who acted as financial 

advisor to the Board, is plagued by materially false statements and omissions. The opinion of 

BofA Merrill Lynch suffers similar infirmities as the Jefferies analyses and fails to disclose 

information which would allow shareholders to intelligently determine whether or not they 

should vote in favor of the Proposed Transaction. In particular, the Proxy Statement is deficient 

and should provide, inter alia, the following: 

A. In the Selected Companies Analysis, (a) the criteria to select the companies 

and multiples used as well as multiples observed for each of the selected 

companies; (b) the selected reference range is disclosed here but it fails to 

explain it selection process to use 5.0x to 6.5x for 2011 EBITDA and 8.5 

to 11.0x for 2012 EBITDA. Furthermore, the analysis discloses 

conclusory statements by showing the implied per share equity value for 

the different multiples but it is an incomplete analysis since it failed to 

show a fair summary of the analysis; 

B. In the Selected Transactions Analysis, (a) the rationale for selecting 

companies used; (b) the multiples observed for each of the selected 

transactions; (c) the selected reference range is disclosed here but it fails to 

explain it selection process to use 6.5x to 9.0x for LTM EBITDA and 5.0x 

to 7.5x for NTM EBITDA. Furthermore, the analysis discloses conclusory 

statements by showing the implied per share equity value for the different 

multiples but it is an incomplete analysis since it failed to show a fair 

summary of the analysis; 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 22 of 30 PageID: 22
 23 

C. In the Discounted Cash Flow Analysis, (a) the definition of “free cash 

flows”; and (b) the rationale for selecting an exorbitant discount rate of 

13.5% to 15.5% and the terminal values used in the analysis. Moreover, 

the analysis is silent as to whether stock based compensation was 

considered and how it was allocated in the analysis; 

69. Moreover, while the Proxy Statement discloses certain Company projections at 

page 48, it fails to disclose Ness’ unlevered free cash flows or even the key inputs necessary to 

reach free cash flows, which are critical to understanding the basis for those projections as well 

as the projections for years 2011-2015 used by both Jefferies and BofA Merrill Lynch in its 

analyses. 

70. The information requested above in paragraphs 66-69collectively amounts to the 

key inputs necessary for one to be able to evaluate and understand the sales process and analysis 

rendered in connection with the Proposed Transaction. Therefore, the aforementioned omitted 

information is highly relevant and material to Ness shareholders. 

71. Accordingly, because the foregoing process and material misstatements and/or 

omissions represent a violation of state law and federal law, Plaintiff seeks injunctive and other 

equitable relief to prevent the irreparable injury that Company shareholders and he will continue 

to suffer absent judicial intervention. 

COUNT ONE 

On Behalf of Plaintiff for Violations of Section 14(a) of the Exchange Act 

Against the Individual Defendants and Ness 

72. Plaintiff brings this Exchange Act claim on behalf of himself as an individual. 

73. Plaintiff incorporates each and every allegation set forth above as if fully set forth 

herein. 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 23 of 30 PageID: 23
 24 

74. Defendants have issued the Proxy Statement with the intention of soliciting 

shareholder support for the Proposed Transaction. 

75. Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange 

Act, provides that such communications with shareholders shall not contain “any statement 

which, at the time an in the light of the circumstances under which it is made, is false or 

misleading with respect to any material fact, or which omits to state any material fact necessary 

in order to make the statements therein not false or misleading.” 17 C.F.R. §240.14a-9. 

76. Specifically, the Proxy Statement violates Section 14(a) and Rule 14a-9 because it 

omits material facts, including those set forth above. Moreover, in the exercise of reasonable 

care, Defendants should have known that the Proxy Statement is materially misleading and omits 

material facts that are necessary to render it non-misleading. 

77. The misrepresentations and omissions in the Proxy Statement are material to 

Plaintiff, who will be deprived of his entitlement to cast a fully informed vote if such 

misrepresentations and omissions are not corrected prior to the vote on the Proposed Transaction. 

As a direct and proximate result of Defendants’ conduct, Plaintiff will be irreparably harmed. 

COUNT TWO

On Behalf of Plaintiff for Violations of Section 20(a) of the Exchange Act 

Against the Individual Defendants and Ness 

78. Plaintiff brings this Exchange Act claim on behalf of himself as an individual. 

79. Plaintiff incorporates each and every allegation set forth above as if fully set forth 

herein. 

80. The Individual Defendants acted as controlling persons of Ness within the 

meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as 

officers and/or directors of Ness, and participation in and/or awareness of the Company’s 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 24 of 30 PageID: 24
 25 

operations and/or intimate knowledge of the false statements contained in the Proxy Statement 

filed with the SEC, they had the power to influence and control and did influence and control, 

directly or indirectly, the decision making of the Company, including the content and 

dissemination of the various statements which Plaintiff contends are false and misleading. 

81. Each of the Individual Defendants and Ness were provided with or had unlimited 

access to copies of the Proxy Statement and other statements alleged by Plaintiff to be 

misleading prior to and/or shortly after these statements were issued and had the ability to 

prevent the issuance of the statements or cause the statements to be corrected. 

82. In particular, each of the Individual Defendants had direct and supervisory 

involvement in the day-to-day operations of the Company, and, therefore, is presumed to have 

had the power to control or influence the particular transactions giving rise to the securities 

violations alleged herein, and exercised the same. The Proxy Statement at issue contains the 

unanimous recommendation of each of the Individual Defendants to approve the Proposed 

Transaction. They were, thus, directly involved in the making of this document. 

83. Ness also had direct supervisory control over the composition of the Proxy 

Statement and the information disclosed therein, as well as the information that was omitted 

and/or misrepresented in the Proxy Statement. Ness, in fact, disseminated the Proxy Statement 

and is, thus, directly responsible for materially misleading shareholders because it permitted the 

materially misleading Proxy Statement to be published to shareholders. 

84. In addition, as the Proxy Statement sets forth at length, and as described herein, 

the Individual Defendants and Ness were each involved in negotiating, reviewing, and approving 

the Proposed Transaction. The Proxy Statement purports to describe the various issues and 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 25 of 30 PageID: 25
 26 

information that the Individual Defendants reviewed and considered. The Individual Defendants 

and Ness participated in drafting and/or gave their input on the content of those descriptions. 

85. By virtue of the foregoing, the Individual Defendants and Ness have violated 

Section 20(a) of the Exchange Act. 

86. As set forth above, the Individual Defendants and Ness had the ability to exercise 

control over and did control a person or persons who have each violated Section 14(a) and SEC 

Rule 14a-9, by their acts and omissions as alleged herein. By virtue of their positions as 

controlling persons, these defendants are liable pursuant to Section 20(a) of the Exchange Act. 

As a direct and proximate result of Defendants’ conduct, Plaintiff will be irreparably harmed. 

COUNT THREE 

On Behalf of Plaintiff and the Class for Breach of Fiduciary Duties 

Against the Individual Defendants 

87. Plaintiff repeats and realleges each allegation set forth herein. 

88. The Individual Defendants have violated fiduciary duties of care, loyalty, candor 

and good faith owed to public shareholders of Ness. 

89. By the acts, transactions and courses of conduct alleged herein, the Individual 

Defendants, individually and acting as a part of a common plan, are attempting to unfairly 

deprive Plaintiff and other members of the Class of the true value of their investment in Ness. 

90. As demonstrated by the allegations above, the Individual Defendants failed to 

exercise the care required, and breached their duties of loyalty, good faith, candor and 

independence owed to the shareholders of Ness because, among other reasons, they failed to take 

steps to maximize the value of Ness to its public shareholders. 

91. The Individual Defendants dominate and control the business and corporate 

affairs of Ness, and are in possession of private corporate information concerning Ness’s assets, 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 26 of 30 PageID: 26
 27 

business and future prospects. Thus, there exists an imbalance and disparity of knowledge and 

economic power between them and the public shareholders of Ness which makes it inherently 

unfair for them to benefit their own interests to the exclusion of maximizing shareholder value. 

92. Moreover, the Individual Defendants have failed to fully disclose to Plaintiff and 

the Class all material information necessary to make an informed decision regarding the 

Proposed Transaction. 

93. By reason of the foregoing acts, practices and course of conduct, the Individual 

Defendants have failed to exercise ordinary care and diligence in the exercise of their fiduciary 

obligations toward Plaintiff and the other members of the Class. 

94. As a result of the actions of the Individual Defendants, Plaintiff and the Class will 

suffer irreparable injury in that they have not and will not receive their fair portion of the value 

of Ness’s assets and businesses and have been and will be prevented from obtaining a fair price 

for their common stock. 

95. Unless the Individual Defendants are enjoined by the Court, they will continue to 

breach their fiduciary duties owed to Plaintiff and the members of the Class, all to the irreparable 

harm of the members of the Class. 

96. Plaintiff and the members of the Class have no adequate remedy at law. Only 

through the exercise of this Court’s equitable powers can Plaintiff and the Class be fully 

protected from the immediate and irreparable injury which the Individual Defendants’ actions 

threaten to inflict. 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 27 of 30 PageID: 27
 28 

COUNT FOUR 

On Behalf of Plaintiff and the Class 

Against Ness and CVCI for Aiding and 

Abetting the Individual Defendants’ Breaches of Fiduciary Duty 

97. Plaintiff incorporates by reference and realleges each and every allegation 

contained above, as though fully set forth herein. 

98. Ness and CVCI have acted and are acting with knowledge of, or with reckless 

disregard to, the fact that the Individual Defendants are in breach of their fiduciary duties to 

Ness’s public shareholders, and have participated in such breaches of fiduciary duties. 

99. Ness and CVCI knowingly aided and abetted the Individual Defendants’ 

wrongdoing alleged herein. In so doing, Ness and CVCI rendered substantial assistance in order 

to effectuate the Individual Defendants’ plan to consummate the Proposed Transaction in breach 

of their fiduciary duties. 

100. Plaintiff has no adequate remedy at law. 

WHEREFORE, Plaintiff prays for relief and judgment as follows: 

A. Determining that this action is a proper class action and certifying the case under 

Rule 23 of the Federal Rules of Civil Procedure; 

B. Declaring and certifying Plaintiff as a class representative; 

C. Enjoining Defendants, their agents, counsel, employees and all persons acting in 

concert with them from consummating the Proposed Transaction, unless and until the Company 

adopts and implements a procedure or process to obtain a Proposed Transaction agreement 

providing the best possible terms for shareholders; 

D. Rescinding, to the extent already implemented, the Proposed Transaction or any 

of the terms thereof, or granting Plaintiff and the Class rescissory damages; 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 28 of 30 PageID: 28
 29 

E. Directing the Individual Defendants to account to Plaintiff and the Class for all 

damages suffered as a result of the Individual Defendants wrongdoing; 

F. Awarding Plaintiff and the Class their reasonable costs and expenses incurred in 

this action, including counsel fees and expert fees; and the costs and disbursements of this action; 

and 

G. Such other and further relief as this Court may deem just and proper. 

Dated: July 7, 2011 /s/ James E. Cecchi____

James E. Cecchi 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road 

Roseland, New Jersey 07068 

(973) 994-1700 

 

FARUQI & FARUQI, LLP 

Nadeem Faruqi 

Shane Rowley 

Juan E. Monteverde 

Francis McConville 

369 Lexington Avenue, 10th Floor 

New York, New York 10017 

(212) 983-9330 

BURSOR & FISHER, P.A. 

Scott A. Bursor 

369 Lexington Avenue, 10th Floor 

New York, New York 10017 

(212) 989-9113 

Counsel for Plaintiff 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 29 of 30 PageID: 29
 30 

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury of all issues so triable. 

Dated: July 7, 2011 /s/ James E. Cecchi_____

James E. Cecchi 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road 

Roseland, New Jersey 07068 

(973) 994-1700 

FARUQI & FARUQI, LLP 

Nadeem Faruqi 

Shane Rowley 

Juan E. Monteverde 

Francis McConville 

369 Lexington Avenue, 10th Floor 

New York, New York 10017 

(212) 983-9330 

BURSOR & FISHER, P.A. 

Scott A. Bursor 

369 Lexington Avenue, 10th Floor 

New York, New York 10017 

(212) 989-9113 

Counsel for Plaintiff 

Case 2:11-cv-03950-SRC -MAS Document 1 Filed 07/07/11 Page 30 of 30 PageID: 30