Exhibit 5
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
PARK AVENUE TOWER, 65 EAST 55TH STREET
NEW YORK, NEW YORK 10022
(212) 451-2300
FACSIMILE (212) 451-2222
www.olshanlaw.com
NEW JERSEY OFFICE
2001 ROUTE 46, SUITE 202
PARSIPPANY, NEW JERSEY 07054
(973) 335-7400
FACSIMILE (973) 335-8018
December 30, 2004
Ness Technologies, Inc.
Ness Tower
Atidim High-Tech Industrial Park
Building 4
Tel Aviv 61580, Israel
Re: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel to Ness Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8, dated the date hereof (as amended from time to time, the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to the registration of the 8,944,837
shares (the "Option Shares") of the common stock, $0.01 par value per share (the
"Common Stock"), of the Company, issuable pursuant to the terms and in the
manner set forth in the Company's 2003 Stock Option Plan, 2003 Israeli Share
Option Plan, 2001 Stock Option Plan, 1999 Israel Share Option Plan and Apar
Holding Corp. Employee Equity Plan (collectively, the "Plans") and the 382,058
shares (the "Resale Shares," and together with the Option Shares, the "Shares")
of Common Stock, which were issued by the Company upon the exercise of stock
options prior to the date hereof. This opinion letter is being delivered in
accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated
under the Securities Act.
In connection with this opinion, we have examined the Company's
Amended and Restated Certificate of Incorporation and Amended and Restated
By-Laws, the Plans, the Registration Statement and such other documents as we
have considered appropriate for purposes of this opinion.
We have also reviewed such other matters of law and examined and
relied upon such other documents, records and certificates as we have deemed
relevant hereto. In all such examinations we have assumed conformity with the
original documents of all documents submitted to us as conformed or photostatic
copies, the authenticity of all documents submitted to us as originals and the
genuineness of all signatures on all documents submitted to us. As to any facts
December 30, 2004
Page 2
material to this opinion that we did not independently establish or verify, we
have relied upon oral or written statements and representations of officers and
other representatives of the Company and others.
On the basis of the foregoing and subject to the assumptions,
qualifications and limitations set forth herein, we are of the opinion that the
Option Shares have been duly authorized by the requisite corporate action on the
part of the Company and, when issued pursuant to the terms and in the manner set
forth in the Plans, will be validly issued, fully paid and non-assessable and
that the Resale Shares were validly issued and are fully paid and
non-assessable.
The foregoing opinion is limited to the General Corporation Law of the
State of Delaware. We express no opinion herein as to any other laws, statutes,
regulations or ordinances. This opinion is given as of the date hereof and we
assume no obligation to update or supplement such opinion to reflect any facts
or circumstances that may hereafter come to our attention or any changes that
may hereafter occur. This opinion is being furnished solely for the Company's
benefit in connection with the issuance, offer and sale of the Shares and is not
to be used, quoted or otherwise referred to for any other purpose without our
prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference made to our firm under the caption
"Legal Matters" in the Prospectus constituting part of the Registration
Statement. In giving such consent, we do not thereby concede that our firm is
within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
A member of the firm is an optionholder of the Company.
Very truly yours,
/s/ Olshan Grundman Frome Rosenzweig & Wolosky LLP
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
