SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 7, 1996
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The Netplex Group, Inc. formerly known as CompLink, Ltd.
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(Exact name of registrant as specified in its charter)
New York 1-11784 11-2824578
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
175 Community Drive, Great Neck, New York 11021
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(Address of principal executive offices)
Registrant's telephone number, including area code: (516) 829-1883
N/A
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(Former name or former address, if changed since last report.)
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Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
On June 7, 1996, CompLink, Ltd. (the "Registrant"), through
two wholly-owned subsidiaries, merged with The Netplex Group, Inc. ("Netplex")
and America's Work Exchange, Inc. ("AWE"). In connection with the Mergers, the
Shareholders of Netplex and AWE received an aggregate of approximately 3,250,000
shares of Common Stock of the Registrant (or approximately 50% of the
outstanding shares of the Registrant upon consummation of the Mergers). In
addition, the name of the Registrant has changed to The Netplex Group, Inc. and
the name of Netplex has changed to The Netplex System Integration Group, Inc. As
of June 10, 1996, the Registrant's Common Stock will be traded on the OTC
Electronic Bulletin Board and The Boston Stock Exchange under the symbols NPLX
and NLX respectively.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(a) EXHIBIT NO. EXHIBITS
2 Agreement and Plan of Reorganization and
Merger, dated as of November 20, 1995, by and
among the Registrant, Netplex and AWE.
99(a)* Financial Statements of AWE and Netplex.
99(b)* Pro forma financial information.
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* To be filed as soon as practicable but not later than
August 7, 1996.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE NETPLEX GROUP, INC. F/K/A
COMPLINK, LTD.
Dated: June 7, 1996 By:/s/ Gene Zaino
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Name: Gene Zaino
Title: Chairman of the Board
and President
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AGREEMENT AND PLAN
OF REORGANIZATION AND MERGER
AMONG THE NETPLEX GROUP, INC. ("NetPlex"),
AMERICA'S WORK EXCHANGE, INC. ("Work"),
AND COMPLINK, LTD.
This Agreement and Plan of Reorganization and Merger ("Agreement") is
made as of November 20, 1995, among The NetPlex Group, Inc. ("NetPlex"), a
Virginia corporation, America's Work Exchange, Inc. ("Work"), a New York
corporation, (NetPlex and Work are sometimes collectively referred to as the
"Merger Partners") and CompLink, Ltd., a New York corporation ("CompLink").
BACKGROUND
A. Work and Software Resources of New Jersey, Inc. ("Software"), a New
Jersey corporation, desire to combine their businesses and immediately
thereafter the Merger Partners and CompLink desire to combine their businesses
and CompLink has formed two subsidiaries to merge with and into NetPlex and
Work, with each of NetPlex and Work to survive such mergers and each of which
shall become a wholly-owned subsidiary of CompLink pursuant to the terms of this
Agreement.
B. To accomplish the transactions referred to in Paragraph A above, a
to-be-formed Virginia corporation, which shall be a wholly-owned subsidiary of
CompLink, shall be merged with and into NetPlex, and a to-be-formed New York
corporation which shall be a wholly-owned subsidiary of CompLink, shall be
merged with and into Work, and each of NetPlex and Work shall be the surviving
corporation of such respective mergers and each shall be a wholly-owned
subsidiary of CompLink.
C. The parties intend that such mergers shall constitute a "tax-free
exchange" under Section 351 of the Code (as defined in Section 1.8), and that
each such merger shall also constitute a "reorganization" under Section 368(a)
of the Code.
In consideration of the mutual premises and agreements set forth
herein, THE PARTIES INTENDING TO BE LEGALLY BOUND AGREE AS FOLLOWS:
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ARTICLE I
DEFINITIONS
The terms defined in this Article I shall, for purposes of this
Agreement, have the meanings specified in this Article I unless the context
expressly or by necessary implication otherwise requires:
1.1 AFFILIATES AGREEMENT. "Affiliates Agreement" shall have
the meaning set forth in Section 8.12 of this Agreement.
1.2 ACQUISITION PROPOSAL. "Acquisition Proposal" shall have
the meaning set forth in Section 12.1 of this Agreement.
1.3 BALANCE SHEET. "Balance Sheet" shall have the meaning set
forth in Section 3.6 of this Agreement.
1.4 BALANCE SHEET DATE. "Balance Sheet Date" shall have the
meaning set forth in Section 3.6 of this Agreement.
1.5 CERTIFICATE. "Certificate" shall have the meaning set
forth in Section 2.5.3 of this Agreement.
1.6 CLOSING. "Closing" shall mean the delivery by N
Acquisition Corp., V Acquisition Corp., the Merger Partners and CompLink of the
various documents contemplated by this Agreement or otherwise required in order
to consummate the Mergers.
1.7 CLOSING DATE. "Closing Date" shall have the meaning set
forth in Section 2.2 of this Agreement.
1.8 CODE. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
1.9 COMPANY. "Company" shall have the meaning set forth in
Article III of this Agreement.
1.10 CONSULTANTS OPTIONS. "Consultants Options" shall have the
meaning set forth in Section 2.4 of this Agreement.
1.11 CONSULTANTS PLAN. "Consultants Plan" shall have the
meaning set forth in Section 2.4 of this Agreement.
1.12 COMPLINK COMMON. "CompLink Common" shall mean the Common
Stock, $.01 par value, of CompLink.
1.13 COMPLINK OPTION AND COMPLINK WARRANT. "CompLink Option"
and "CompLink Warrant" shall each have the respective meanings set forth in
Section 2.4 of this Agreement.
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1.14 COMPLINK PLAN. "CompLink Plan" shall have the meaning set
forth in Section 2.4 of this Agreement.
1.15 DIRECTORS PLAN. "Directors Plan" shall have the meaning
set forth in Section 2.4 of this Agreement.
1.16 DISSENTING COMPLINK SHARES. "Dissenting CompLink Shares"
shall mean all shares, if any, of the outstanding stock of CompLink for which
dissenter's rights granted to shareholders under Section 910 of the New York
Code shall be perfected under Section 623 of the New York Code.
1.17 DISSENTING NETPLEX SHARES. "Dissenting NetPlex Shares"
shall mean all shares, if any, of the outstanding capital stock of NetPlex for
which dissenter's rights shall be perfected under Section 13.1-730 of the
Virginia Code.
1.18 DISSENTING WORK SHARES. "Dissenting Work Shares" shall
mean all shares, if any, of the outstanding capital stock of Work for which
dissenter's rights shall be perfected under Sections 623 and 910 of the New York
Code.
1.19 EFFECTIVE TIME. "Effective Time" shall mean the time when
each of the Merger Agreements is filed with the Secretary of State of the State
of New York or the Secretary of State of the State of Virginia, as the case may
be, and each of the Mergers has become effective. It shall occur simultaneously
with the Closing or follow the Closing as closely as possible.
1.20 EXCHANGE ACT. "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
1.21 EXCHANGE AGENT. "Exchange Agent" shall have the meaning
set forth in Section 2.5 of this Agreement.
1.22 GKN AND GKN OPTIONS. "GKN" and "GKN Options" shall each
have the respective meanings set forth in Section 2.4 of this Agreement.
1.23 HOLDERS. "Holders" shall mean holders of NetPlex Common
or Work Common immediately prior to the Effective Time.
1.24 MERGER (NEW YORK). "Merger (New York)" shall mean the
merger of N Acquisition Corp with and into Work in accordance with this
Agreement, the Merger Agreement (New York) and applicable law.
1.25 MERGER (VIRGINIA). "Merger (Virginia)" shall mean the
merger of V Acquisition Corp. with and into NetPlex in accordance with this
Agreement, the Merger Agreement (Virginia) and applicable law.
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1.26 MERGERS. "Mergers" shall mean the Merger (New York) and
the Merger (Virginia).
1.27 MERGER AGREEMENT (NEW YORK). "Merger Agreement (New York)
shall mean the agreement of merger between N Acquisition Corp and Work, in the
form attached to this Agreement as Exhibit A.
1.28 MERGER AGREEMENT (VIRGINIA). "Merger Agreement
(Virginia)" shall mean the agreement of merger between V Acquisition Corp. and
NetPlex, in the form attached hereto as Exhibit B.
1.29 MERGER AGREEMENTS. "Merger Agreements" shall mean the
Merger Agreement (New York) and the Merger Agreement (Virginia).
1.30 N ACQUISITION CORP. "N Acquisition Corp." shall mean a
to-be-formed New York corporation which shall be a wholly- owned subsidiary of
CompLink.
1.31 N ACQUISITION CORP. COMMON. "N Acquisition Corp. Common"
shall mean the Common Stock, $.01 par value of N Acquisition Corp.
1.32 NASDAQ. "NASDAQ" shall mean the Nasdaq Stock Market.
1.33 NEW YORK CODE. "New York Code" shall mean the Business
Corporation Law of the State of New York, as amended from time to time.
1.34 NEW JERSEY CODE. "New Jersey Code" shall mean the New
Jersey Business Corporation Act, as amended from time to time.
1.35 NETPLEX COMMON. "NetPlex Common" shall mean the Common
Stock, no par value, of NetPlex.
1.36 NETPLEX OPTION. "NetPlex Option" shall have the meaning
set forth in Section 2.3.2 of this Agreement.
1.37 NETPLEX PLAN. NetPlex Plan" shall have the meaning set
forth in Section 2.3.2 of this Agreement.
1.38 1933 ACT. "1933 Act" shall mean the Securities Act of
1933, as amended, and the rules, regulations and forms thereunder.
1.39 OFFICER-CERTIFIED DISCLOSURE STATEMENT.
"Officer-Certified Disclosure Statement" shall have the meaning
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set forth in the first paragraph of Article III of this Agreement.
1.40 PROXY STATEMENT. "Proxy Statement" shall mean the Proxy
Statement to be mailed to the shareholders of the Merger Partners in connection
with the Mergers.
1.41 REGISTRATION RIGHTS AGREEMENT. Shall have the meaning set
forth in Section 8.17 of this Agreement.
1.42 REGISTRATION STATEMENT. "Registration Statement" shall
mean the Registration Statement to be prepared by CompLink and the Merger
Partners and filed by CompLink with the SEC in connection with the issuance of
CompLink Common pursuant to the Mergers.
1.43 SEC. "SEC" shall mean the Securities and Exchange
Commission.
1.44 SUBSIDIARY. "Subsidiary" shall mean, with respect to a
particular party hereto, any corporation or other organization, whether
incorporated or unincorporated, of which at least a majority of the securities
or interests having by the terms thereof ordinary voting power to elect a
majority of the board of directors or others performing similar functions with
respect to such corporation or other organization is directly or indirectly
owned by such party and/or by one or more Subsidiaries of such party.
1.45 VIRGINIA CODE. "Virginia Code" shall mean the Virginia
Stock Corporation Act, as amended from time to time.
1.46 V ACQUISITION CORP. "V Acquisition Corp." shall mean a
to-be-formed Virginia corporation which shall be a wholly- owned subsidiary of
CompLink.
1.47 V ACQUISITION CORP. COMMON. "V Acquisition Corp. Common"
shall mean the Common Stock, $.01 par value, of V Acquisition Corp.
1.48 VOTING AGREEMENT. "Voting Agreement" shall have the
meaning set forth in Section 12.3 of this Agreement.
1.49 WORK COMMON. "Work Common" shall mean the Common Stock,
0.001 par value, of Work.
1.50 WORK OPTIONS. "Work Option" shall have the meaning set
forth in Section 2.3.1 of this Agreement.
1.51 WORK PLAN. "Work Plan" shall have the meaning set forth
in Section 2.3.1 of this Agreement.
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ARTICLE II
MERGERS, CLOSING AND CONVERSION OF SHARES
2.1 MERGERS. Subject to and in accordance with the terms and
conditions of this Agreement and the Merger Agreements: (a) Work, N Acquisition
Corp. and CompLink shall execute and file the Merger Agreement (New York) with
the Secretary of State of the State of New York, whereupon N Acquisition Corp.
shall be merged with and into Work pursuant to Section 907 of the New York Code
and (b) NetPlex, V Acquisition Corp. and CompLink shall execute and file the
Merger Agreement (Virginia) with the Secretary of State of the State of
Virginia, whereupon V Acquisition Corp shall be merged with and into NetPlex
pursuant to Article 12 of the Virginia Code.
2.2 CLOSING. The Closing shall take place at the offices of
Olshan Grundman Frome & Rosenzweig LLP, 505 Park Avenue, New York, New York
10022-1170, on March 31, 1996 at 10:00 a.m., or at such other day and time as
CompLink and the Merger Partners shall agree (the "Closing Date") after all of
the conditions to the parties' obligations to consummate the Mergers set forth
in Articles VII and VIII of this Agreement have been satisfied or waived.
2.3 CONVERSION OF SHARES.
2.3.1 MERGER (NEW YORK).
(a) Common Stock. In accordance with the Merger
Agreement (New York): (i) each share of N Acquisition Corp. Common issued and
outstanding immediately prior to the Effective Time shall continue to be
outstanding and shall not be converted or changed by virtue of the Merger (New
York) and (ii) each share of Work Common outstanding immediately prior to the
Effective Time (except those shares of Work Common which are Dissenting Work
Shares and whose holder and Work do not thereafter agree in writing should not
be treated as Dissenting Work Shares) shall, by virtue of the Merger (New York)
and without any action on the part of the holder thereof be converted, at and as
of the Effective Time into 0.1894238 shares of CompLink Common; provided,
however, that in no event shall there be more than 1,500,005 shares of CompLink
Common issued as a result of the Merger (New York).
(b) Work Options. At the Effective Time, each
outstanding option to purchase one share of Work Common ("Work Option") issued
under the Work 1995 Stock Option Plan (the "Work Plan") shall thereafter entitle
the holder thereof to receive, upon exercise thereof, one share of CompLink
Common at an exercise price for each full share of CompLink Common equal to the
quotient obtained by dividing (a) the exercise price per
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share of Work Common by (b) .1894238, which exercise price per share shall be
rounded up to the nearest two-place decimal. (For purposes of illustration only,
an option to purchase one share of Work Common at $.55 per share would
represent, following the Mergers, an option to purchase one share of CompLink
Common at an exercise price of $2.90 per share.) Such options will be granted
pursuant to the CompLink Plan. CompLink shall assume in full such Work Options
and all of Work's rights and obligations under the Work Plan, as provided
herein. Section 4.1 of the Officer- Certified Disclosure Statement of the Merger
Partners contains a list summarizing all Work Options, including the term and
exercise price of each. The assumption of a Work Option by CompLink shall not
terminate or modify (except as required hereunder) any right of first refusal,
right of repurchase, vesting schedule, or other restriction on transferability
relating to the Work Option. Continuous employment with Work shall be credited
to an optionee for purposes of determining the number of shares subject to
exercise, vesting or repurchase after the Effective Time. After such assumption,
CompLink shall issue, upon any partial or total exercise of any Work Option, in
lieu of shares of Work Common, the number of shares of CompLink Common to which
the holder of the Work Option is entitled pursuant to this Agreement. The
assumption by CompLink of Work Options shall not give the holders of such Work
Options any additional benefits which they did not have immediately prior to the
Effective Time.
2.3.2 MERGER (VIRGINIA).
(a) Common Stock. In accordance with the Merger
Agreement (Virginia): (i) each share of V Acquisition Corp. Common issued and
outstanding immediately prior to the Effective Time shall continue to be
outstanding and shall not be converted or changed by virtue of the Merger
(Virginia) at and as of the Effective Time and (ii) each share of NetPlex Common
outstanding immediately prior to the Effective Time (except those shares of
NetPlex Common which are Dissenting NetPlex Shares and whose holder and NetPlex
do not thereafter agree in writing should not be treated as Dissenting NetPlex
Shares) shall, by virtue of the Merger (Virginia) and without any action on the
part of the holder thereof be converted, at and as of the Effective Time into
0.1176272 shares of CompLink Common; provided, however, that in no event shall
there be more than 1,750,027 shares of CompLink Common issued as a result of the
Merger (Virginia).
(b) NetPlex Options. At the Effective Time, each
outstanding option to purchase one share of NetPlex Common ("NetPlex Option")
issued under the NetPlex 1995 Stock Option Plan (the "NetPlex Plan") shall
thereafter entitle the holder thereof to receive, upon exercise thereof, one
share of CompLink Common at an exercise price for each full share of CompLink
Common equal to the quotient obtained by dividing (a) the
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exercise price per share of NetPlex Common by (b) .1176272, which exercise price
per share shall be rounded up to the nearest two- place decimal. (For purposes
of illustration only, an option to purchase one share of NetPlex Common at $.35
per share would represent, following the Mergers, an option to purchase one
share of CompLink Common at an exercise price of $2.98 per share.) Such options
will be granted pursuant to the CompLink Plan. CompLink shall assume in full
such NetPlex Options and all of NetPlex' rights and obligations under the
NetPlex Plan, as provided herein. Section 4.1 of the Officer-Certified
Disclosure Statement of the Merger Partners contains a list summarizing all
NetPlex Options, including the term and exercise price of each. The assumption
of a NetPlex Option by CompLink shall not terminate or modify (except as
required hereunder) any right of first refusal, right of repurchase, vesting
schedule, or other restriction on transferability relating to the NetPlex
Option. Continuous employment with NetPlex shall be credited to an optionee for
purposes of determining the number of shares subject to exercise, vesting or
repurchase after the Effective Time. After such assumption, CompLink shall
issue, upon any partial or total exercise of any NetPlex Option, in lieu of
shares of NetPlex Common, the number of shares of CompLink Common to which the
holder of the NetPlex Option is entitled pursuant to this Agreement. The
assumption by CompLink of NetPlex Options shall not give the holders of such
NetPlex Options any additional benefits which they did not have immediately
prior to the Effective Time.
2.3.3 FRACTIONAL SHARES. Holders of NetPlex Common and
Work Common shall receive only whole shares of CompLink Common; in lieu of any
fractional share of CompLink Common, Holders shall receive an additional whole
share of CompLink Common.
2.4 COMPLINK OPTIONS AND WARRANTS. At the Effective Time, each
outstanding option to purchase CompLink Common ("CompLink Option"): (i) granted
under the CompLink 1992 Stock Option Plan (the "CompLink Plan"); (ii) granted
under the CompLink, Ltd. 1995 Directors' Stock Option Plan (the "Directors'
Plan"); (iii) granted to GKN Securities Corp. ("GKN") to purchase 100,000 shares
and 100,000 warrants (the "GKN Options"); (iv) granted under the 1995
Consultant's Stock Option Plan (the "Consultant's Plan") and (v) granted to
certain consultants to purchase 170,000 shares (the "Consultants Options"), and
each outstanding warrant to purchase CompLink Common ("CompLink Warrant") shall
continue thereafter to entitle the holder thereof to receive, upon exercise
thereof, one share of CompLink Common subject to such CompLink Option or
CompLink Warrant, at an exercise price for each share of CompLink Common equal
to the exercise price per share of such CompLink Option or CompLink Warrant
except as provided in Section 2.4 of the Disclosure Schedule with regard to the
adjustment of the exercise price and
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terms of the GKN options. Section 5.1 of the Officer-Certified Disclosure
Statement of CompLink contains a list of CompLink Options and CompLink Warrants,
including the holder, the term and the exercise price of each. The Mergers shall
not terminate or modify (except as required hereunder) any right of first
refusal, right of repurchase, vesting schedule, or other restriction on
transferability relating to CompLink Option except as provided in Section 2.4 of
the Disclosure Schedule with regard to the adjustment of the exercise price and
terms of the GKN Options.
2.5 EXCHANGE OF CERTIFICATES.
2.5.1 Prior to the Closing Date, CompLink shall appoint
Continental Stock Transfer and Trust Co. or such other bank or trust company
selected by CompLink as the Merger Partners may approve, to act as exchange
agent in the Mergers (the "Exchange Agent").
2.5.2 Promptly after the Closing Date, but in no event
later than three business days thereafter, the Exchange Agent shall make
available for exchange in accordance with this Section 2.5, the shares of
CompLink Common issuable pursuant to Section 2.3 in exchange for outstanding
shares of NetPlex Common and Work Common.
2.5.3 As soon as practicable after the Closing Date but no
later than five business days, the Exchange Agent shall mail to each Holder of
record of a stock certificate that, immediately prior to the Closing Date,
represented outstanding shares of NetPlex Common and Work Common (a
"Certificate") whose shares are being converted into CompLink Common pursuant to
Section 2.3: (i) a letter of transmittal reasonably satisfactory to the parties
hereto; and (ii) instructions for use in effecting the surrender of Certificates
in exchange for certificates evidencing CompLink Common. Upon the surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by CompLink pursuant to the provisions hereof,
together with such letter of transmittal, duly executed, the Holder of such
Certificate shall be entitled to receive in exchange therefor a certificate for
the number of shares of CompLink Common to which such Holder is entitled
pursuant to Section 2.3 hereof. The Certificate so surrendered shall forthwith
be canceled. In the event of a transfer of ownership of NetPlex Common or Work
Common that is not registered in the transfer records of NetPlex or Work, or
their respective transfer agents, as the case may be, CompLink Common may be
delivered to a transferee if the Certificate representing such shares is
presented to the Exchange Agent and accompanied by all documents which in the
opinion of the Exchange Agent are required to evidence and effect such transfer
and to evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 2.5.3, each
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Certificate shall be deemed at any time after the Closing Date to represent the
right to receive upon such surrender such number of whole shares of CompLink
Common into which the number of shares evidenced by the Certificate are
convertible pursuant to Section 2.3.
2.5.4 No dividends or distributions payable to holders of
record of Complink Common after the Effective Time shall be paid to the holder
of any unsurrendered Certificate until the holder of the Certificate shall
surrender such Certificate.
2.5.5 All CompLink Common delivered upon the surrender for
exchange of shares of NetPlex Common or Work Common in accordance with the terms
hereof shall be deemed to have been delivered in full satisfaction of all rights
pertaining to such shares. There shall be no further registration of transfers
on the stock transfer books of NetPlex or Work, or their respective transfer
agents, as the case may be, of any shares of stock that were outstanding
immediately prior to the Effective Time. If, after the Closing Date,
Certificates are presented for any reason, they shall be canceled and exchanged
as provided in this Section 2.5.
2.6 DISSENTING SHARES.
2.6.1 DISSENTING NETPLEX SHARES. Holders of Dissenting
NetPlex Shares shall have those rights, but only those rights, specified in
Section 13.1-730 of the Virginia Code. NetPlex shall give CompLink prompt notice
of any demand, purported demand or other written communication received by
NetPlex with respect to any Dissenting NetPlex Shares or shares claimed to be
Dissenting NetPlex Shares, and CompLink shall have the right to participate in
all negotiations and proceedings with respect to such shares. NetPlex agrees
that, without the prior written consent of CompLink, it shall not voluntarily
make any payment with respect to, or settle or offer to settle, any demand or
purported demand respecting such shares.
2.6.2 DISSENTING WORK SHARES. Holders of Dissenting Work
Shares shall have those rights, but only those rights, specified in Section 910
of the New York Code. Work shall give CompLink prompt notice of any demand,
purported demand or other written communication received by Work with respect to
any Dissenting Work Shares or shares claimed to be Dissenting Work Shares, and
CompLink shall have the right to participate in all negotiations and proceedings
with respect to such shares. Work agrees that, without the prior written consent
of CompLink, it shall not voluntarily make any payment with respect to, or
settle or offer to settle, any demand or purported demand respecting such
shares.
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2.7 REGISTRATION.
2.7.1 FORM S-4. The CompLink Common to be issued in the
Mergers shall be registered under the 1933 Act on the S-4. As promptly as
practicable after the date hereof: (i) the Merger Partners and CompLink shall
prepare and file with the SEC the Proxy Statement and any other documents
required by the Exchange Act in connection with the Mergers; (ii) CompLink shall
prepare and file with the SEC the S-4 and any other documents required by the
SEC under the 1933 Act in connection with the Mergers; and (iii) CompLink shall
prepare and file a listing application with NASDAQ and any other forms or
documents required by the SEC (including, without limitation the filing of Forms
8-K and 10-C by CompLink when appropriate). Each of CompLink and the Merger
Partners shall use its best efforts to have the S-4 declared effective under the
1933 Act as promptly as practicable after such filing. CompLink shall also take
any action required to be taken under any applicable state securities or "blue
sky" laws in connection with the issuance of CompLink Common in the Mergers. The
Merger Partners shall furnish to CompLink all information concerning the Merger
Partners as may be reasonably requested in connection with any action
contemplated by this Section 2.7.1.
2.8 TAX-FREE REORGANIZATION. The parties intend to adopt this
Agreement as a tax-free plan of reorganization in accordance with the provisions
of Section 368(a) of the Code and a tax-free exchange in accordance with the
provisions of Section 351 of the Code and to consummate the Mergers in
accordance therewith.
2.9 DIRECTORS. The directors of CompLink shall serve as the
directors of CompLink until the Effective Time. As of the Effective Time and as
a result of the Mergers, the directors of CompLink shall increase the number of
directors to seven (7) and the persons listed on SCHEDULE 2.9 hereto shall
become the directors of CompLink and shall hold office from the Effective Time
until their respective successors are duly elected or appointed and qualified in
the manner provided in the Certificate of Incorporation and By-Laws of CompLink,
or as otherwise provided by law.
2.10 OFFICERS. The officers of CompLink shall serve as the
officers of CompLink until the Effective Time. As of the Effective Time, the
persons listed on SCHEDULE 2.10 hereto shall be appointed by the Board of
Directors of CompLink as the officers of CompLink and shall hold office from the
Effective Time until their respective successors are duly elected or appointed
and qualified in the manner provided in the By-Laws of CompLink, or as otherwise
provided by law.
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ARTICLE III
MUTUAL REPRESENTATIONS AND WARRANTIES
Each of CompLink (together with its Subsidiary for purposes of Sections
3.3 through 3.25) and the Merger Partners (together with any of its Subsidiaries
for purposes of Sections 3.3 through 3.25) is a "Company" for the purposes of
the representations and warranties made pursuant to this Article III. Each
Company's representations and warranties are made with respect to said Company
and are not with respect to any other entity defined as a "Company" herein,
except that with respect to Work, for purposes of the representations and
warranties made by it pursuant to this Article 3, such representations and
warranties are meant to include Software. For purposes of Section 3.1 and 3.2
only, N Acquisition Corp. and V Acquisition Corp, when each is formed, shall be
a "Company". Any disclosure delivered by one Company to another party pursuant
to this Article shall have been delivered on or prior to the date hereof and
certified by an officer of the delivering Company as true, accurate and
complete, shall specifically refer to this Agreement and shall identify the
Section of this Agreement requiring the delivery of such disclosure (each such
disclosure being referred to herein as an "Officer-Certified Disclosure
Statement"). CompLink hereby represents and warrants to each of the Merger
Partners, and each of the Merger Partners hereby represents and warrants to
CompLink and each of the other Merger Partners that, except as set forth in an
Officer-Certified Disclosure Statement of such Company:
3.1 ORGANIZATION AND AUTHORITY. The Company and each of its
Subsidiaries: (a) is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; (b) has
all requisite corporate power to own and lease its properties, to carry on its
business as now being conducted and to enter into and perform this Agreement and
all agreements to which the Company is or will be a party that are exhibits to
this Agreement; and (c) is qualified to do business and is in good standing as a
foreign corporation in all jurisdictions in which the failure to so qualify
would have a material adverse effect on its business or consolidated financial
condition. The Company has made available to each other party for inspection
complete and correct copies of its Articles or Certificates of Incorporation, as
amended, and By-Laws as in effect on the date hereof and true, complete and
correct copies of minutes of any and all meetings and actions taken by written
consent of its Board of Directors and shareholders, since inception.
3.2 AUTHORITY RELATING TO THIS AGREEMENT; NO VIOLATION OF
OTHER INSTRUMENTS.
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3.2.1 The Company has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement and
all agreements to which the Company is or will be a party that are exhibits to
or provided for in this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company, other than shareholder approval as
contemplated by Sections 6.4 and 7.4 hereof and, when so approved and assuming
execution of this Agreement and such other agreements by each of the other
parties thereto, this Agreement and such other agreements will constitute legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject as to enforcement: (i) to bankruptcy,
insolvency, reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights generally; and (ii) to
general principles of equity, whether such enforcement is considered in a
proceeding in equity or at law.
3.2.2 Neither the execution of this Agreement or any other
agreement to which the Company is or will be a party that is an exhibit to or
provided for in this Agreement nor the performance of any of them by the Company
will: (i) conflict with or result in any breach or violation of the terms of any
decree, judgment, order, law or regulation of any court or other governmental
body now in effect applicable to the Company; (ii) conflict with, or result in,
with or without the passage of time or the giving of notice, any breach of any
of the terms, conditions and provisions of, or constitute a default under or
otherwise give another party the right to terminate, or result in the creation
of any lien, charge, or encumbrance upon any of the assets or properties of the
Company pursuant to any indenture, mortgage, lease, agreement or other material
instrument to which the Company is a party or by which it or any of its assets
or properties are bound, including all Contracts (as defined in Section 3.19);
(iii) permit the acceleration of the maturity of any material indebtedness of
the Company or of any other person secured by the assets or properties of the
Company; or (iv) violate or conflict with any provision of the Company's
Articles or Certificate of Incorporation, By-Laws, or similar organizational
instruments.
3.2.3 Except as contemplated in Sections 2.4, 2.5, 2.7,
6.4, 6.8, 6.14, 7.4, 7.7, 7.10 and 7.13 of this Agreement, no consent from any
third party and no consent, approval or authorization of, or declaration, filing
or registration with, any government or regulatory authority is required to be
made or obtained by the Company in order to permit the execution, delivery or
performance of this Agreement or any other agreement to which the Company is or
will be a party that
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is an exhibit to this Agreement by the Company, or the consummation of the
transactions contemplated by this Agreement and such other agreements.
3.3 COMPLIANCE WITH LAW. The Company has all franchises,
permits, licenses and any similar authority necessary for the conduct of the
Company's business as now conducted by it, the lack of which would materially
and adversely affect the business, properties or condition, financial or
otherwise, of the Company. The Company is not in violation of any decree,
judgment, order, law or regulation of any court or other governmental body
(including without limitation, applicable environmental protection legislation
and regulations, equal employment and civil rights regulations, wage and hour
regulations and the withholding and payment of social security taxes and
occupational health and safety legislation), which violation would materially
and adversely affect the business, properties or condition, financial or
otherwise, of the Company.
3.4 INVESTMENTS IN OTHERS. Section 3.4 of the
Officer-Certified Disclosure Statement of the Company contains a list of each
corporation, association, partnership, joint venture or other entity in which
the Company, directly or indirectly, owns an equity interest and sets forth the
Company's percentage interest by voting rights and by profits, in each such
entity. Except for the entities identified in such list, the Company does not
own any interest in or control, directly or indirectly, nor conduct any part of
its business operations through, any Subsidiaries or any other entity.
3.5 TAX MATTERS. All tax returns and reports with respect to
the Company required by law to be filed under the laws of any jurisdiction,
domestic or foreign, have been duly and timely filed and have been true and
correct in all material respects and all taxes, fees or other governmental
charges of any nature shown to be due thereon or which were required to have
been paid have been paid when due or if not yet due have been adequately
provided for. The Company has no knowledge of any actual or threatened
assessment of deficiency or additional tax or other governmental charge or a
basis for such a claim against the Company, including any liability for the
payment of taxes of any kind: (i) as a result of being a "transferee" (within
the meaning of Section 6901 of the Code or any other applicable law) of another
person; or (ii) a member of an affiliated or combined group. The Company has no
knowledge of any tax audit of the Company by any taxing or other authority in
connection with any of its fiscal years; the Company has no knowledge of any
such audit currently pending or threatened, no waivers of statutes of
limitations have been requested with respect to the Company by any tax authority
and there are no tax liens on any of the properties of the Company. The Company
has not made an election to be treated as a "consenting corporation" under
Section 341(f)
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of the Code, and the Company is not a party to any written or oral, formal or
informal, agreement or contract with a "disqualified individual" (as defined in
Section 280G(c) of the Code) which could result in a disallowance of the
deduction for any "excess parachute payment" (as defined in Section 280G(b)(1)
of the Code) under Section 280G of the Code.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date (the
"Balance Sheet Date") of the most recent balance sheet delivered by the Company
pursuant to Section 4.2 or 5.2, as the case may be (the "Balance Sheet"), except
as contemplated by this Agreement, there have been no material adverse changes,
including, without limitation, any of the following in the condition, financial
or otherwise, assets, liabilities, business or the results of operations of the
Company, other than changes in the ordinary course of business which in the
aggregate have not been materially adverse:
(a) the Company has not entered into any material
transaction other than in the ordinary course of business;
(b) there have been no material losses or damage to any
of the assets or properties of the Company due to fire or other casualty,
whether or not insured;
(c) there has been no increase or decrease in the rates
of direct compensation payable or to become payable by the Company to any
employee, agent or consultant (other than routine increases made in the ordinary
course of business), or any bonus, percentage compensation, service award or
other like benefit, granted, made or accrued to or to the credit of any such
employee, agent or consultant, or any material welfare, pension, retirement or
similar payment or arrangement made or agreed to be made by the Company (other
than such events occurring pursuant to any previously existing benefit plan or
collective bargaining agreement);
(d) the Company has not executed, created, amended or
terminated any material contract, except in the ordinary course of business;
(e) the Company has not declared or paid any dividend
or made any distribution on its capital stock, nor redeemed, purchased or
otherwise acquired any of its capital stock or issued any capital stock, other
than as a result of the exercise of options outstanding on the Balance Sheet
Date [under its stock incentive plans identified in Section 4.1 or 5.1, as the
case may be];
(f) the Company has not received notice that there has
been a cancellation of an order for its products or a
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loss of a customer of the Company, the cancellation or loss of which would
materially adversely affect the condition, financial or otherwise, business or
results of operations of the Company;
(g) there has been no resignation or termination of
employment of any officer or key employee of the Company and the Company does
not know of the impending resignation or termination of employment of any
officer or key employee of the Company;
(h) there has been no material change in the contingent
obligations of the Company by way of guaranty, endorsement, indemnity, warranty
or otherwise:
(i) there have been no loans made by the Company to its
employees, officers or directors, other than travel advances and other advances
made in the ordinary course of business;
(j) to the best of the Company's knowledge, there has
been no waiver or compromise by the Company of a material right or of a material
debt owed to it;
(k) the Company has not made or agreed to make any
disbursements or payments of any kind to any member or members of its Board of
Directors, other than travel advances made in the ordinary course of business
and salaries to Directors who are employees;
(l) there have been no capital expenditures by the
Company exceeding $40,000 in the aggregate;
(m) there has been no change in accounting methods or
practices (including without limitation, any change in depreciation or
amortization policies or rates) by the Company;
(n) there has been no material revaluation by the
Company of any of the assets or properties of the Company;
(o) there has been no material sale or transfer of any
of the assets or properties of the Company, except in the ordinary course of
business;
(p) there has been no loan by the Company to any person
or entity;
(q) there has been no commencement or notice of threat
of commencement of any governmental proceeding against or investigation of the
Company or its affairs;
(r) there has been no revocation of license or right to
do business granted to the Company;
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(s) the Company has not paid any obligation or
liability (fixed, contingent or otherwise) or discharged or satisfied any lien,
or settled any liability, claim, dispute, proceeding, suit or appeal pending or
threatened against it, except for current liabilities incurred in the ordinary
course of business; and
(t) there has been no agreement or commitment by the
Company to do or perform any of the acts described in this Section 3.6.
3.7 INVENTORIES. The inventories shown on the Balance Sheet of
the Company are of a quantity and quality useable and saleable in accordance
with good business practices and represent a distribution of the types of
inventories utilized in the business of the Company in accordance with good
business practices. Additions and deletions from the inventories since the
Balance Sheet Date have been in the ordinary course of business. The amounts
shown for inventories on the Balance Sheet of the Company have been determined
in accordance with generally accepted accounting principles on a first-in,
first-out basis and are stated at lower of cost or market. All of the
inventories currently held by the Company were produced in compliance with all
applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act,
as amended, and the regulations and orders issued under Section 14 thereof by
the United States Department of Labor. The Company has not received any property
on consignment or approval which is not so reflected on its inventory records.
3.8 ACCOUNTS RECEIVABLE. The accounts receivable of the
Company shown on the Balance Sheet as of the Balance Sheet Date, or thereafter
generated by the Company prior to the date hereof, have been generated in the
ordinary course of business, are genuine obligations enforceable in accordance
with their terms and represent undisputed and bona fide indebtedness owed to the
Company without defenses, set offs or counterclaim and have been or are (as the
case may be) collectible within 120 days from the date of Closing in amounts not
less than the aggregate amounts thereof carried on the books of the Company
reduced by the reserves for discounts and bad debts taken on the Balance Sheet.
3.9 TITLE TO PROPERTY. The Company has good title to its
property and assets, free and clear of all title defects, objections,
encumbrances and liens, except such encumbrances and liens that arise in the
ordinary course of business, including statutory liens, and do not impair the
Company's ownership or use of such property or assets in any material respect,
and the lien of current taxes not yet due and payable. With respect to the
property and assets it leases, all of such leases are valid and enforceable and
are not in default by the Company, or, to the
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knowledge of the Company, are any of the other parties thereto in default
thereof.
3.10 REAL PROPERTY. The Company does not own any real
property. Section 3.10 of the Officer Certified Disclosure Statement of the
Company contains a list of all leases for real property to which the Company is
a party, the square footage leased with respect to each lease and the expiration
date of each lease. All such leases are, to the knowledge of the Company, valid
and enforceable and are not in default. There are no outstanding contracts made
by the Company for any improvements made to the real property leased or occupied
by the Company that have not been paid for.
3.11 PATENTS, TRADEMARKS, TRADE NAMES AND COPYRIGHTS. Section
3.11 of the Officer-Certified Disclosure Statement contains a list of all
patents, trademarks, trade names, copyrights owned by or used by the Company.
All of the processes, designs, formulas, inventions, trade secrets, know-how,
technology or other proprietary rights which are material to the conduct of the
Company's business are owned or are useable by the Company. To the best of its
knowledge, the conduct of its business by the Company does not infringe any
patent, trademark, trade name, copyright, trade secret, or other proprietary
right of any other person. No litigation is pending or, to the knowledge of the
Company, has been threatened against the Company or any officer, director,
shareholder, employee or agent of the Company, and the Company has not received
any communication regarding the infringement of any patents, trademarks or trade
names of any other party or for the misuse or misappropriation of any trade
secret, know-how or other proprietary right owned by any other party nor, to the
best knowledge of the Company, does any basis exist for such litigation. To the
best of the Company's knowledge, there has been no infringement or unauthorized
use by any other party of any patent, trademark, trade name, copyright, process,
design, formula, invention, trade secret, know-how, technology or other
proprietary right belonging to the Company.
3.12 WARRANTIES. The Company has made no warranties or
guarantees relating to its products or services other than as implied or
required by law or as set forth in its standard contracts and the customary
terms and conditions applicable thereto. Section 3.12 of the Officer-Certified
Disclosure Statement of the Company contains a list of all warranty and
indemnification obligations of the Company relating to patents and other
proprietary rights.
3.13 LITIGATION. Neither the Company nor any officer or
director of the Company is a party to any pending or, to the best of the
Company's knowledge, threatened action, suit, proceeding or investigation, at
law or in equity or otherwise in,
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for or by any court or other governmental body which is required to be disclosed
in the S-4 or which could have a material adverse effect on: (a) the condition,
financial or otherwise, business or the ability of the Company to conduct its
business substantially as heretofore conducted or results of operations of the
Company; or (b) the transactions contemplated by this Agreement; nor, to the
best of the Company's knowledge, does any basis exist for any such action, suit,
proceeding or investigation. The Company is not and has not been subject to any
pending or, to its knowledge, threatened product liability claim; nor, to its
knowledge, does any basis exist for any such claim. The Company is not subject
to any decree, judgment, order, law or regulation of any court or other
governmental body which could have a material adverse effect on the condition,
financial or otherwise, business or results of operations of the Company or
which could prevent the transactions contemplated by this Agreement.
3.14 PROTECTION OF INTANGIBLE PROPERTY. To the Company's
knowledge, the Company's source codes and trade secrets have not been used,
distributed or otherwise commercially exploited under circumstances which have
caused, or with the passage of time could cause, the loss of copyright or trade
secret status.
3.15 PERSONNEL; EMPLOYEE PLANS. Section 3.15 of the
Officer-Certified Disclosure Statement of the Company contains a list of: (a)
all employment, bonus, profit sharing, deferred compensation, percentage
compensation, employee benefit plans, incentive plans, pension or retirement
plans, stock purchase and stock option plans, oral or written contracts or
agreements with directors, officers, employees or unions, or consulting
agreements, to which the Company is a party or is subject as of the date of this
Agreement; and (b) all group insurance programs in effect for employees of the
Company. The Company is not in any material default with respect to any of the
obligations so listed. The Company has delivered complete and correct copies of
all such obligations (to the extent they are in writing or written descriptions
to the extent they are oral) to the other Company. The Company has no union
contracts or collective bargaining agreements with, or any other obligations to
employee organizations or groups relating to the Company's business, nor is the
Company currently engaged in any labor negotiations, except in minor grievances
not involving any employee organization or group, nor, to the knowledge of the
Company, is the Company the subject of any union organization affecting its
business. There is no pending or, to the Company's knowledge, threatened labor
dispute, strike or work stoppage affecting the Company's business. All plans
described in Section 3.15 of the Officer-Certified Disclosure Statement are in
full compliance with applicable provisions of the Employees Retirement Income
Security Act of 1974 ("ERISA") and regulations issued under ERISA, and there is
no unfunded liability with respect to such
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plans, and to the knowledge of the Company, there are no pending, threatened or
anticipated claims (other than routine claims) for benefits by, on behalf of, or
against any of such plans. Neither the Company nor any of the plans subject to
ERISA, nor any fiduciary thereof, has engaged in a transaction subject to either
a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax
imposed pursuant to Section 4975 or 4976 of the Code in connection with which
the Company has directly or indirectly sponsored or contributed to a defined
benefit pension plan as defined in Section 414(j) of the Code. The Company has
never sponsored or contributed to a defined benefit pension plan as defined in
Section 414(j) of the Code. Section 3.15 of the Officer-Certified Disclosure
Statement also lists the amount payable to employees of the Company under other
fringe benefit plans.
3.16 CERTAIN PAYMENTS. To the knowledge of the Company,
neither the Company, nor any shareholder, director, officer, employee or agent
of the Company, has made or caused to be made, directly or indirectly, the
payment of any consideration whatsoever to any public official, candidate for
public office, political party, or other third person in connection with the
business or operations of the Company, or pertaining to the Company's relations
with any customer, supplier, or creditor, in contravention of the law of any
applicable jurisdiction.
3.17 BROKERS AND FINDERS. Neither the Company nor any
shareholder, director, officer, employee or agent of the Company has retained
any broker, finder or investment banker in connection with the transactions
contemplated by this Agreement. The Company will indemnify and hold each other
Company harmless against all claims for brokers', finders' or investment
bankers' fees made or asserted by any party claiming to have been employed by
the Company or any shareholder, director, officer, employee or agent of the
Company and all costs and expenses (including the reasonable fees of counsel) of
investigating and defending such claims.
3.18 ORDER BACKLOG. Section 3.18 of the Officer- Certified
Disclosure Statement of the Company contains a list of the aggregate backlog of
orders for the Company's products as of September 30, 1995. All such orders have
been or will be filled by the Company in the ordinary course of business, and
the Company knows of no reason why any customer placing any such order may
refuse delivery of the ordered products or fail timely to pay for such products
in accordance with the terms of such orders.
3.19 CONTRACTS. Section 3.19 of the Officer-Certified
Disclosure Statement lists all oral or written agreements, notes, instruments,
or contracts to which the Company is a party or by which its assets or
properties may be bound which involve the
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payment or receipt of more than $100,000 (on an annual basis), or which have a
term of more than one year, or which involve intellectual property, or which are
employment or consulting agreements between the Company and one of its employees
or consultants (the "Contracts"). The Company is not in default in performance
of its obligations under any material provisions of such Contracts nor does it
know of any event or state of facts which with notice or the passage of time or
both could cause it to be in default. The Company has no knowledge of any
violation of any Contract by any other party thereto and has no knowledge of any
intent by any other party to a Contract not to perform its obligations in all
material respects under such Contract.
3.20 SHAREHOLDERS AND EMPLOYEES. None of the shareholders,
directors or management personnel of the Company is presently a party to any
transaction with the Company, including without limitation, any contract,
agreement or other arrangement: (a) providing for the furnishing of services to
or by; (b) providing for rental of real or personal property to or from; or (c)
otherwise requiring payments to or from any shareholder, director or management
personnel, or any member of the family of any shareholder, director or
management personnel or any corporation, trust or other entity in which any
shareholder, director or management personnel has a substantial interest or is
an officer, director, investor or partner.
3.21 ABSENCE OF ENVIRONMENTAL LIABILITIES. So far as is known
to the Company, neither the Company nor the real property owned, leased or
occupied by the Company is in violation of any applicable federal, state or
local law, ordinance, regulation or order relating to industrial hygiene, worker
safety, public health and safety, environmental protection, or Hazardous
Materials (as defined below) on, under or about such real property, including
the soil and ground water underlying such real property. No current use of or
condition at the real property owned, leased or occupied by the Company
constitutes a public or private nuisance. Any handling, transportation, storage,
treatment or use of Hazardous Material (as defined below) by the Company that
has occurred on the real property owned, leased or occupied by the Company
during the Company's ownership, tenancy, or occupancy and prior to the Closing
Date has been and will be as of the Closing Date in compliance with all
applicable laws, ordinances, regulations and orders relating to Hazardous
Material. As used herein, the term "Hazardous Material" means any substance,
material or waste which is or becomes regulated as "hazardous" or "toxic" by any
local government authority, the State of New York, any other state or the United
States Government, including without limitation, any material or substance which
is: (1) petroleum; (2) asbestos; (3) defined as a "substance hazardous to the
environment" under Article 37 of New York and any regulations applicable
thereunder; or (4) defined as a 'hazardous substance' under Section 101 or
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Section 102 of the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., as amended ("CERCLA"), and any
regulations applicable thereunder. So far as is known to the Company, the real
property owned, leased or occupied by the Company, including without limitation,
the soil and groundwater on or under such real property, is free of any
significant release of any Hazardous Material. No notification of release of
Hazardous Material pursuant to CERCLA or the federal Clean Water Act, or any
state or local environmental law or regulatory requirement has been received by
the Company as to any of such real property. So far as is known to the Company,
no hazardous wastes generated by the Company or any of its affiliates in
operating the Company's business have ever been sent directly or indirectly to
any site listed or formally proposed for listing on the National Priority List
promulgated pursuant to CERCLA or to any site listed on any state list of
hazardous substances sites requiring investigation or clean-up, nor has the
Company arranged for the transportation, treatment, or disposal at any site of
any Hazardous Material. The Company has not received from any governmental
authority or third party any requests for information, notices of claim, demand
letters, or other notification that, in connection with the conduct of its
business, it is or may be potentially responsible with respect to any
investigation or clean-up of Hazardous Material at any site.
3.22 POWER OF ATTORNEY; SURETYSHIPS. The Company has no power
of attorney outstanding, nor has any obligation or liability, either actual,
accrued, accruing or contingent, as guarantor, surety, cosigner, endorser,
co-maker, indemnitor or otherwise in respect of the obligation of any other
person, corporation, partnership, joint venture, association, organization or
other entity.
3.23 MANUFACTURING AND MARKETING RIGHTS. Except as set forth
in Section 3.23 of the Officer-Certified Disclosure Statement, the Company has
not licensed any of its products and has not granted any rights to manufacture,
produce, assemble, license, market or sell its products to any other person, and
is not bound by any agreement that affects the Company's exclusive rights to
develop, manufacture, assemble, distribute, market or sell its products.
3.24 PROXY STATEMENT AND REGISTRATION STATEMENT. None of the
information relating to the Company and its Subsidiaries or their respective
officers and directors supplied by the Company for inclusion or incorporation by
reference in the Proxy Statement or the Registration Statement will, in the case
of the Proxy Statement or any amendments or supplements thereto, at the time of
the mailing of the Proxy Statement and any amendments or supplements thereto,
and at the time of the meeting of shareholders of the Company to vote upon this
Agreement, the
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Mergers and related transactions, or, in the case of the Registration Statement,
at the time it becomes effective under the 1933 Act and at the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement insofar as it relates to the Company will comply
as to form in all material respects with the provisions of the Exchange Act. If
at any time prior to the Effective Time any event with respect to the Company,
its officers or directors should occur which is or is required to be described
in an amendment or a supplement to the Proxy Statement or the Registration
Statement, such event shall be so described and such description in such
amendment or supplement of such information will not contain any statement
which, at the time and in light of the circumstances under which it is made, is
false or misleading with respect to any material fact or omit to state any
material fact required to be stated therein or in the Proxy Statement or the
Registration Statement or necessary to make the statements therein or in the
Registration Statement or Proxy Statement not false or misleading.
3.25 ACCURACY OF DOCUMENTS AND INFORMATION. The copies of all
instruments, agreements, other documents and written information set forth as,
or referenced in, Schedules or Exhibits to this Agreement or specifically
required to be furnished pursuant to this Agreement by the Company to the other
Company, including, without limitation, the Officer-Certified Disclosure
Statement of the Company, are and will be complete and correct in all material
respects. All information in the Officer-Certified Disclosure Statement of the
Company is as of the date hereof or such earlier date as is specified therein,
and there have been no material changes in the information set forth therein
between the date so specified and the date of this Agreement, except as updated
in the ordinary course of business, or as otherwise agreed to by CompLink and
the Merger Partners. No representations or warranties made by the Company in
this Agreement, nor any document, written information, statement, financial
statement, certificate, Schedule or Exhibit furnished directly to the other
Company pursuant to this Agreement or in the Officer-Certified Disclosure
Statement of the Company contains any untrue statement of a material fact, or
omits to state a material fact necessary to make the statements or facts
contained herein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE MERGER PARTNERS
The Merger Partners hereby jointly and severally represent and warrant
to CompLink, N Acquisition Corp. and V Acquisition
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Corp. that as of the date hereof and as of the Closing, except as set forth in
the Officer-Certified Disclosure Statement of the Merger Partners:
4.1 CAPITALIZATION. The authorized capital stock of (i)
NetPlex is 20,000,000 shares of Common Stock, of which 14,877,500 shares of
Common Stock are issued and outstanding, (ii) Work is 25,000,000 shares of
Common Stock, of which 10,000,000 shares of Common Stock are issued and
outstanding and of which 7,918,750 Shares will be outstanding on the Closing
Date. In addition, immediately prior to the merger of Software and Work there
were 100 shares of Common Stock of Software authorized all of which shares were
issued and outstanding. A list of all of the shareholders of NetPlex, Work, and
Software, respectively, with the number of shares owned by each as of the date
hereof is provided in Section 4.1 of the respective Officer-Certified Disclosure
Statements of the Merger Partners. All such issued and outstanding shares have
been duly authorized and validly issued, and are fully paid and non-assessable.
Work has outstanding options to purchase 575,000 shares of Work Common pursuant
to the Work Plan and NetPlex has outstanding options to purchase 1,116,000
shares of NetPlex pursuant to the NetPlex Plan. Except as set forth in the
preceding sentence, there are no outstanding warrants, options, agreements,
convertible or exchangeable securities or other commitments pursuant to which
NetPlex and Work is or may become obligated to issue, sell, purchase, retire or
redeem any shares of capital stock or other securities of their respective
securities. None of the Merger Partners is a party or subject to any agreement
or understanding which affects or relates to the voting or giving written
consents with respect to any security of the Company, or which requires any
limitations in its charter, by-laws or otherwise. A list of all the option
holders of Work and NetPlex is provided in Section 4.1 of the Officer-Certified
Disclosure Statement of the Merger Partners which includes the holder, the term
and the exercise price of each.
4.2 FINANCIAL STATEMENTS. The Merger Partners have delivered
the following financial statements of the Merger Partners (the "the Merger
Partners' Financial Statements") to CompLink: (a) a Balance Sheet (unaudited) of
NetPlex as of September 30, 1995 and Statements of Operations, (unaudited)
during the three (3) years ended 12/31/92, 12/31/93, 12/31/94 and the nine
months ended 9/30/95; (b) Balance Sheets (unaudited) of Work as of 12/31/94,
6/30/95 and 9/30/95; (c) a Balance Sheet of Software (unaudited) as of 12/31/94
and Statements of Cash Balances and Receivables of Software (unaudited) as of
9/30/95. Each of the Merger Partner's Financial Statements together with the
notes thereto is in accordance with the books and records of the applicable
Merger Partner, fairly presents the financial position and results of operations
of the applicable Merger Partner for the period indicated, and has been prepared
in
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accordance with generally accepted accounting principles ("GAAP") consistently
applied, except for the Statements of Cash Balances and Receivables of Software
and except that the unaudited financial statements do not contain all footnotes
required under GAAP and are subject to year-end adjustments. As promptly as the
same are available, but no later than January 31, 1996, the Merger Partners
shall deliver final audited Merger Partners' Financial Statements.
4.3 ABSENCE OF UNDISCLOSED LIABILITIES. As of September 30,
1995, no Merger Partner had any material liabilities (absolute or contingent)
not shown or provided for in full on the Balance Sheet dated September 30, 1995
of NetPlex the Balance Sheet dated December 31, 1994 of Software, and the
Balance Sheet dated September 30, 1995 of Work included in the Merger Partners'
Financial Statements, other than liabilities incurred in the ordinary course of
business subsequent to the respective dates of each balance sheet, and
obligations under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in the Merger Partners'
Financial Statements, which in both cases, individually and in the aggregate,
are not material to the financial condition or operating results of any Merger
Partner.
4.4 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of the Merger Partners contained in this
Agreement shall be deemed to have been made again at and as of the Closing
(including the update of the Officer-Certified Disclosure Statement of the
Merger Partners referred to in Section 8.1 of this Agreement) and shall be true
in all material respects.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF COMPLINK
CompLink hereby represents and warrants to each of the Merger Partners
that as of the date hereof and as of the Closing, except as set forth in the
Officer-Certified Disclosure Statement of CompLink:
5.1 CAPITALIZATION. The authorized capital stock of CompLink
is 2,000,000 shares of Preferred Stock, none of which is issued and outstanding,
and 10,000,000 shares of CompLink Common, 3,197,608 of which are issued and
outstanding. Other than options to purchase 932,000 shares of CompLink Common
granted under the CompLink Plan, the Directors Plans, the Consultants Options
and the Consultant's Plan; the GKN Options; and warrants to purchase 220,000
shares of CompLink Common, there are no outstanding warrants, options,
agreements, convertible or exchangeable securities or other commitments pursuant
to which CompLink is or may become obligated to issue, sell, purchase,
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retire or redeem any shares of capital stock or other securities, other than as
set forth in this Agreement. A list of all the option and warrant holders of
CompLink is provided in Section 5.1 of the Officer-Certified Disclosure
Statement of CompLink which includes the holder, the term and the exercise price
of each.
5.2 FINANCIAL STATEMENTS. CompLink has delivered the following
consolidated financial statements of CompLink (the "CompLink Financial
Statements") to the Merger Partners: Audited Balance Sheets of CompLink dated as
of July 31, 1994 and 1995, together with audited Statements of Operations,
Shareholders' Equity and Cash Flows during the three years ended July 31, 1995
and a Statement of Cash Balances of CompLink dated as of September 30, 1995.
Each CompLink Financial Statement together with the notes thereto is in
accordance with the books and records of CompLink, fairly presents the financial
position and results of operations of CompLink for the period indicated, and has
been prepared in accordance with GAAP consistently applied.
5.3 ABSENCE OF UNDISCLOSED LIABILITIES. As of July 31, 1995,
CompLink had no material liabilities (absolute or contingent) not shown or
provided for in full on the Balance Sheet dated July 31, 1995, included in the
CompLink Financial Statements, other than liabilities incurred in the ordinary
course of business subsequent to July 31, 1995, and obligations under contracts
and commitments incurred in the ordinary course of business and not required
under GAAP to be reflected in the CompLink Financial Statements, which in both
cases, individually and in the aggregate, are not material to the financial
condition or operating results of CompLink.
5.4 EXCHANGE ACT REPORTS. Since the time that the CompLink
Common has been registered under the Exchange Act, CompLink has filed within the
time period permitted all reports required to be filed under the Exchange Act.
Each of such reports was complete and correct in all material respects when
filed and did not contain any untrue statement of a material fact nor omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
In addition to any disclosure required by Sections 5.1 through
5.4 hereof, the Officer-Certified Disclosure Statement of CompLink shall provide
the following information, which shall be updated as provided in Section [8.1]
hereof:
5.5 ACTIVITIES OF SUBSIDIARIES. Each of N Acquisition Corp.
and V Acquisition Corp will be formed for the purpose of participating in the
Mergers as contemplated in this Agreement. Prior to the Effective Time, none of
such corporations will carry on any business.
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5.6 NASDAQ LISTING. CompLink Common satisfies all the criteria
for listing or quotation of its common shares on NASDAQ, and since the time that
the CompLink Common has been approved for listing and quotation on NASDAQ,
CompLink has received no communication questioning its right to continue said
listing or quotation.
5.7 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of CompLink contained in this Agreement shall be
deemed to have been made again at and as of the Closing (including the update of
the Officer-Certified Disclosure Statement of CompLink referred to in Section
8.2 of this Agreement) and shall be true in all material respects.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE MERGER PARTNERS
The obligations of the Merger Partners to consummate the Merger (New
York) and the Merger (Virginia) are subject to the fulfillment, at or before the
Closing of all the following conditions, any one or more of which may be waived
by the Merger Partners.
6.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of CompLink contained in this Agreement shall be
deemed to have been made again at and as of the Closing (including the update of
the Officer-Certified Disclosure Statement of CompLink referred to in Section
8.2 of this Agreement) and shall be true in all material respects.
6.2 COVENANTS PERFORMED. All of the obligations of CompLink, N
Acquisition Corp., V Acquisition Corp. and the Merger Partners, to be performed
at or before the Closing pursuant to the terms of this Agreement shall have been
duly performed.
6.3 CERTIFICATE. At the Closing, the Merger Partners shall
have received a certificate signed by an officer of CompLink to the effect that
the representations and warranties of CompLink contained in this agreement are
true, complete and correct as though they had been repeated at and as of the
closing, and nothing shall have come to the attention of the Merger Partner that
would make any representation or warranty incorrect or incomplete and the
conditions set forth in Sections 6.1 and 6.2 have been satisfied.
6.4 SHAREHOLDER APPROVAL. This Agreement and the Merger
Agreements shall have been duly approved in accordance with applicable law by
the shareholders of the Merger Partners, N Acquisition Corp., V Acquisition
Corp. and CompLink.
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6.5 DISSENTING MERGER PARTNERS SHARES. No more than 10% of the
outstanding shares of NetPlex Common or Work Common shall be eligible to become
Dissenting NetPlex Shares or Dissenting Work Shares, respectively and no more
than 10% of the outstanding shares of Common Stock of Software exercised
dissenters' rights with respect to the merger of Software and Work.
6.6 TAX-FREE REORGANIZATION. The Merger Partners shall have
received the opinion of their tax adviser to the effect that the Merger (New
York), the Merger of Software into a Work subsidiary and the Merger (Virginia)
will constitute tax-free reorganizations within the meaning of Section 368(a) or
a tax-free exchange under Section 351 of the Code, which opinion shall be
substantially similar to the opinion delivered to CompLink pursuant to Section
7.5. In preparing the tax opinion, the adviser may rely upon (and to the extent
reasonably required, the parties shall make and use their best efforts to cause
their directors and shareholders to make) reasonable representations relating
thereto.
6.7 OPINION OF COUNSEL TO COMPLINK. Olshan Grundman Frome &
Rosenzweig LLP, counsel to CompLink, shall have issued an opinion in favor of
the Merger Partners covering the matters set forth in Exhibit I.
6.8 APPROVAL FOR LISTING. The CompLink Common to be issued
hereunder shall have been approved for listing or quotation on NASDAQ, and
CompLink shall have duly notified such exchange or inter-dealer quotation system
of the proposed issuance of CompLink Common pursuant to the Mergers.
6.9 AFFILIATES AGREEMENTS. CompLink shall have delivered to
the Merger Partners the letter required by Section 8.12 naming all persons who
are considered to be "affiliates" of CompLink, and each such affiliate shall
have executed and delivered an Affiliates Agreement to CompLink.
6.10 REGISTRATION STATEMENT. The Registration Statement shall
have become effective under the 1933 Act and shall not be the subject of any
stop order.
6.11 MATERIAL CHANGES IN THE BUSINESS OF COMPLINK BETWEEN THE
DATE OF THIS AGREEMENT AND THE CLOSING. There shall have been no material
adverse change in the financial position, results of operations, assets,
liabilities or business of CompLink between the date of this Agreement and the
Closing.
6.12 NO ACTION TO PREVENT COMPLETION. No action to enjoin the
transactions contemplated by this Agreement shall have been instituted and be
pending.
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6.13 CONSENTS. Each of the Merger Partners and CompLink shall
have received in writing all consents, approvals and waivers required in
connection with the Mergers: (a) from parties to material agreements,
indentures, mortgages, franchises, licenses, permits, leases and other
instruments set forth in the Officer-Certified Disclosure Statement of the
Merger Partners and CompLink; and (b) from all applicable governmental
authorities whose approval or consent to the transactions contemplated by this
agreement is required.
6.14 AMENDMENT TO COMPLINK PLAN. The Board of Directors of
CompLink shall have approved an amendment to the CompLink Plan (subject to
stockholder approval) increasing the number of shares of CompLink Common
authorized to be issued under the CompLink Plan to 3,000,000 CompLink Common.
CompLink agrees that it shall seek stockholder approval of the amendment to the
CompLink Plan at a meeting of stockholders to be held within 60 days after the
Closing Date. CompLink shall file (i) a listing application with NASDAQ for
listing the additional CompLink Common shares on NASDAQ and (ii) with the SEC
within 30 days following stockholder approval of the amendment to the CompLink
Plan a registration statement on Form S-8 under the 1933 Act covering the
additional 3,000,000 shares of CompLink Common. CompLink shall use its best
efforts to qualify as soon as practicable after stockholder approval of the
amendment to the CompLink Plan under applicable state securities law, as and
where determined by CompLink, the issuance of such shares of CompLink Common
issuable upon exercise of the CompLink Options and CompLink Warrants as well as
such shares of CompLink Common issuable upon the exercise of options granted in
connection with Sections 2.3.1 and 2.3.2 hereof.
6.15 EMPLOYMENT AGREEMENTS. At the Closing, CompLink shall
enter into employment agreements with each of Gene Zaino, John Thompson, Stan
Fischer and Michael O'Connor in the forms attached hereto as Exhibits C, D, E
and F.
6.16 DOCUMENTATION. All actions, proceedings, instruments,
resolutions, certificates and documents reasonably requested by the Merger
Partners to be executed and delivered to CompLink, N Acquisition Corp., and V
Acquisition Corp. in order to carry out this Agreement and to consummate the
Mergers, and all of the relevant legal matters, shall be reasonably satisfactory
to the Merger Partners and their counsel.
6.17 CHANGE IN MAJORITY OF DIRECTORS NOTICE. If required,
materials shall have been filed with the Securities and Exchange Commission and
mailed to all stockholders of Complink, in such form as required pursuant to
Rule 14f-1 of the Securities Exchange Act of 1934, as amended, relating to the
change in the majority of directors of Complink.
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6.18 GENE ZAINO CONSULTING. CompLink shall not have committed
a material breach of the Consulting Agreement with Gene Zaino dated as of
November 20, 1995 and attached hereto as Exhibit G.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF COMPLINK
The obligations of CompLink, N Acquisition Corp., and V Acquisition
Corp. to consummate the Merger (New York) and Merger (Virginia) are subject to
the fulfillment, at or before the Closing, of all of the following conditions,
any one or more of which may be waived by CompLink:
7.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of the Merger Partners contained in this
Agreement shall be deemed to have been made again at and as of the Closing
(including the update of the Officer-Certified Disclosure Statement of the
Merger Partners referred to in Section 8.2 of this Agreement) and shall be true
in all material respects.
7.2 COVENANTS PERFORMED. All of the obligations of the Merger
Partners to be performed at or before the Closing pursuant to the terms of this
Agreement shall have been duly performed.
7.3 CERTIFICATE. At the Closing, CompLink shall have received
a certificate signed by an officer of each of the Merger Partners to the effect
that the representations and warranties of CompLink contained in this agreement
are true, complete and correct as though they had been repeated at and as of the
closing, and nothing shall have come to the attention of the Merger Partner that
would make any representation or warranty incorrect or incomplete and the
conditions set forth in Sections 7.1 and 7.2 have been satisfied.
7.4 SHAREHOLDER APPROVAL. This Agreement and the Merger
Agreements shall have been duly approved in accordance with the applicable law
by the shareholders of the Merger Partners and CompLink.
7.5 DISSENTING COMPLINK SHARES. No more than 10% of the
outstanding shares of CompLink shall be eligible to become Dissenting CompLink
Shares.
7.6 TAX-FREE REORGANIZATION. CompLink shall have received the
opinion of its counsel to the effect that the Merger (New York) and Merger
(Virginia) will constitute a tax-free reorganization within the meaning of
Section 368(a) or a tax-free exchange under Section 351 of the Code, which
opinion shall be
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substantially similar to the opinion delivered to the Merger Partners pursuant
to Section 6.6. In preparing the tax opinion, counsel may rely upon (and to the
extent reasonably required, the parties shall make and use their best efforts to
cause their directors and shareholders to make) reasonable representations
relating thereto.
7.7 OPINION OF COUNSEL TO THE MERGER PARTNERS. Edward J. Walsh
Jr., counsel to the Merger Partners, shall have issued an opinion in favor of
CompLink in the form of Exhibit J which opinion may rely on those addressed to
him and CompLink concerning laws of jurisdictions other than New York provided
said opinions indicate that they may be relied on.
7.8 APPROVAL FOR LISTING. The CompLink Common issuable
pursuant to this Agreement shall have been approved for listing or quotation on
NASDAQ, and CompLink shall have duly notified NASDAQ of the proposed issuance of
CompLink Common pursuant to the Mergers.
7.9 AFFILIATES AGREEMENTS. The Merger Partners shall have
delivered to CompLink the letter required by Section 8.12 naming all persons who
would be considered "affiliates" of CompLink, and each such affiliate shall have
executed and delivered an Affiliates Agreement to CompLink.
7.10 THE REGISTRATION STATEMENT. The Registration Statement
shall have become effective under the 1933 Act and shall not be the subject of
any stop order or proceedings seeking a stop order.
7.11 MERGER OF WORK AND SOFTWARE. Work and Software shall have
executed and filed a merger agreement with the Secretary of State of the State
of New York and the Secretary of State of the State of New Jersey, respectively,
and by virtue of such filing, Software shall have been merged with and into a
subsidiary of Work pursuant to Section 907 of the New York Code and Section
14A:10-1 of the New Jersey Code.
7.12 MATERIAL CHANGES IN THE BUSINESS OF THE MERGER PARTNERS
BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING. There shall have been no
material adverse change in the financial position, results of operations,
assets, liabilities or business of any of the Merger Partners.
7.13 NO ACTION TO PREVENT COMPLETION. No action to enjoin the
transactions contemplated by this Agreement shall have been instituted and be
pending.
7.14 CONSENTS. Each of CompLink and the Merger Partners shall
have received in writing all consents, approvals and waivers required in
connection with the Mergers: (a) from
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parties to material agreements, indentures, mortgages, franchises, licenses,
permits, leases and other instruments set forth in the Officer-Certified
Disclosure Statement of the Merger Partners and CompLink; and (b) from all
governmental authorities.
7.15 DOCUMENTATION. All actions, proceedings, instruments,
resolutions, certificates and documents reasonably requested by CompLink to be
executed and delivered to the Merger Partners in order to carry out this
Agreement and to consummate the Mergers, and all of the relevant legal matters,
shall be reasonably satisfactory to CompLink and its counsel.
7.16 DISSENTING NETPLEX SHARES AND DISSENTING WORK SHARES. No
more than 10% of the outstanding shares of NetPlex Common or Work Common shall
be eligible to become Dissenting NetPlex Shares or Dissenting Work Shares.
7.17 AUDITED FINANCIAL STATEMENTS. The Merger Partners shall
have delivered final audited financial statements to CompLink for the fiscal
years ended December 31, 1994 and December 31, 1993 which when taken as a whole,
shall present a financial position or results of operations which are not
materially different from that reflected on the financial statements previously
delivered pursuant to Section 4.2.
7.18 CHANGE IN MAJORITY OF DIRECTORS NOTICE. If required,
materials shall have been filed with the Securities and Exchange Commission and
mailed to all stockholders of CompLink, in such form as required pursuant to
Rule 14f-1 of the Securities Exchange Act of 1934, as amended, relating to the
change in the majority of directors of CompLink.
7.19 MERGER OF SOFTWARE. The merger of Software with and into
Work was consummated and no more than 10% of the outstanding shares of Software
shall have perfected dissenter's rights under the New Jersey Business
Corporation Act.
ARTICLE VIII
PRE-CLOSING COVENANTS
For the purposes of this Article VIII, references to the "business" of
a Company shall be taken to include the business of that Company and its
Subsidiaries taken as a whole. During the period from the date of this Agreement
until the Effective Time, the Merger Partners and CompLink (each sometimes
referred to as a "Company" for the purposes of this Article VIII) each severally
covenants and agrees as follows:
8.1 LOAN AGREEMENT. Simultaneously with the execution of this
Agreement, CompLink shall loan to NetPlex $250,000
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pursuant to the terms of the promissory note (the "Promissory Note") attached as
Exhibit H.
8.2 ADVICE OF CHANGES. Each Company will promptly advise each
other Company in writing: (a) of any event occurring subsequent to the date of
this Agreement that would render any representation or warranty of such Company
contained in this Agreement, if made on or as of the date of such event or the
Closing Date, untrue or inaccurate in any material respect; and (b) of any
material adverse change in such Company's business. Not less than four days
before the Closing, each Company shall deliver to the other Company an update of
the Officer-Certified Disclosure Statement previously delivered by such Company,
showing any changes which have occurred with respect to the information
contained therein since it was originally issued and containing a description of
any representation or warranty in this Agreement which is no longer true as of
such date. Such update shall be certified by an officer of such Company.
8.3 MAINTENANCE OF BUSINESS. Each Company will use its best
efforts to carry on and preserve its business and its relationships with
customers, suppliers, employees and others in substantially the same manner as
it has prior to the date hereof. If any Company becomes aware of a deterioration
in the relationship with any customer, supplier or key employee, it will
promptly bring such information to the attention of the other Company in writing
and, if requested by the other Company, will exert its best efforts to restore
the relationship.
8.4 CONDUCT OF BUSINESS. Each Company will continue to conduct
its business and maintain its business relationships in the ordinary and usual
course and will not, and will cause its subsidiaries not to, without the prior
written consent of the other Company:
8.4.1 borrow any money, except as set forth on the
Officer-Certified Disclosure Statement of the Company or contemplated hereby;
8.4.2 incur any liability, except for those that may be
incurred: (i) in the ordinary course of business, consistent with past practice,
and which are not material in amount; (ii) in connection with the performance or
consummation of this Agreement; or (iii) with respect to capital expenditures
set forth on the Officer-Certified Disclosure Statement of the Company;
8.4.3 encumber or permit to be encumbered any of its
assets, except in the ordinary course of its business consistent with past
practice;
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8.4.4 dispose of any of its assets, except inventory in
the ordinary course of business, consistent with past practice;
8.4.5 enter into any material lease or contract for the
purchase or sale of any property, real or personal, except in the ordinary
course of business, consistent with past practice;
8.4.6 fail to maintain its equipment and other assets in
good working condition and repair according to the standards it has maintained
to the date of this Agreement, subject only to ordinary wear and tear;
8.4.7 pay or commit itself to pay any bonus, increased
salary, deferred compensation or special remuneration to any officer, employee
(other than those paid in the ordinary course of business, consistent with past
practice) or consultant or enter into any new employment or consulting agreement
with any such person, except in the ordinary course of business, consistent with
past practice;
8.4.8 change accounting methods;
8.4.9 declare, set aside or pay any cash or stock dividend
or other distribution in respect of capital stock, or redeem or otherwise
acquire any of its capital stock (except pursuant to employee stock repurchase
agreements upon termination of employment consistent with its past practice);
8.4.10 amend or terminate any material contract, agreement
or license to which it is a party, except those amended or terminated in the
ordinary course of business consistent with past practice, and which are not
material in amount;
8.4.11 loan any amount to any person or entity, other than
advances for travel and expenses which are incurred in the ordinary course of
business consistent with past practice, not material in amount and documented by
receipts for the claimed amounts;
8.4.12 guarantee or act as a surety for any obligation,
except for the endorsement of checks and other negotiable instruments in the
ordinary course of business, consistent with past practice, which are not
material in amount;
8.4.13 waive or release any material right or claim,
except in the ordinary course of business, consistent with past practice;
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8.4.14 issue or sell any shares of its capital stock of
any class (except upon the exercise of an option currently outstanding, as
disclosed in Section 4.1 or 5.1, as the case may be, or granted in accordance
with this Section 8.3.14), or any other of its securities, or issue or create
any warrants, obligations, subscriptions, options, convertible securities, or
other commitments to issue shares of capital stock without the prior written
consent of the other Company, which consent shall not be withheld unreasonably
if options are being granted for the purpose of recruiting new personnel in
accordance with the past practices regarding the pricing, the total number of
options granted, the options awarded in relation to the job title of the
recipient and the timing of the option awards;
8.4.15 accelerate, or take acts that cause the
acceleration of the vesting of any outstanding options;
8.4.16 split or combine the outstanding shares of its
capital stock of any class or enter into any recapitalization affecting the
number of outstanding shares of its capital stock of any class or affecting any
other of its securities;
8.4.17 amend its Articles of Incorporation or By-Laws,
except as expressly contemplated by or as required to consummate this Agreement
or the Merger Agreements;
8.4.18 license any of its technology or intellectual
property, except under non-exclusive hardware or software licenses granted to
consumers or end-users in the ordinary course of business; or
8.4.19 agree to do any of the things described in the
preceding clauses 8.4.1 through 8.4.18.
Provided, however, that nothing in this Section 8.3 shall
prohibit the merger of Software with and into [a wholly owned subsidiary of]
Work and the acquisition of such assets, rights and privileges subject to
Software's liabilities as shall arise therefrom or be effected thereby.
8.5 SHAREHOLDER MEETINGS. Each Merger Partner will use its
best efforts to hold a special meeting of its shareholders at the earliest
practicable date to submit this Agreement and related matters for their
consideration and approval, which approval shall be recommended by each of the
Merger Partner's Board of Directors and management, subject to the fiduciary
obligations of its directors and officers.
8.6 REGULATORY APPROVALS. Prior to the Closing, each Company
shall execute and file, or join in the execution and filing, of any application
or other document that may be
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necessary in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign which may be reasonably
required, or which the other Company may reasonably request, in connection with
the consummation of the transactions contemplated by this Agreement. Each
Company shall use its best efforts to obtain all such authorizations, approvals
and consents.
8.7 NECESSARY CONSENTS. Prior to the Closing, each Company
will use its best efforts to obtain such written consents and take such other
actions as may be necessary or appropriate in addition to those set forth in
Section 8.6 to allow the consummation of the transactions contemplated hereby
and to allow such Company to carry on its business after the Closing.
8.8 LITIGATION. Prior to the Closing, each Company will notify
the other Company in writing promptly after learning of any material actions,
suits, proceedings or investigations by or before any court, board or
governmental agency, initiated by or against it or any of its Subsidiaries, or
known by it to be threatened against it or any of its Subsidiaries.
8.9 SEC FILING. Prior to the Closing, CompLink will timely
file all reports and other documents required to be filed under the Exchange Act
and shall provide draft copies thereof to the Merger Partners and their counsel
for review and comment prior to such filing.
8.10 DUE DILIGENCE. Until the Closing, each Company shall
provide the other Company (including accounting, legal and investment banking
representatives) with access to its offices and its senior employees for the
purpose of due diligence, in accordance with procedures established by the
parties to minimize disruptions of their businesses.
8.11 SATISFACTION OF CONDITIONS PRECEDENT. Subject to the
fiduciary obligations of its directors and officers, each Company will use its
best efforts to satisfy or cause to be satisfied all the conditions precedent
which are set forth in Section 6 and 7, and each Company will use its best
efforts to cause the transactions contemplated by this Agreement to be
consummated, and, without limiting the generality of the foregoing, to obtain
all consents and authorizations of third parties and to make all filings with,
and give all notices to, third parties that may be necessary or reasonably
required on its part in order to effect the transactions contemplated hereby.
8.12 AFFILIATES. Each Company will promptly deliver to the
other a letter identifying all persons who are "affiliates" of the Company at
the time this Agreement is submitted for approval to such Company's
shareholders. Each Company shall use its best efforts to cause each of its
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affiliates to deliver to CompLink a written agreement (the "Affiliates
Agreement"), in form reasonably satisfactory to counsel to both parties,
providing that such person shall not offer or sell or otherwise dispose of any
of CompLink Common issued to such person in the Mergers in violation of the 1933
Act, including the applicable provisions and limitations of Rule 145 under the
1933 Act.
8.13 REPRESENTATIONS REGARDING TAX MATTERS. Each Company, its
officers, directors and shareholders, will make such representations as are
reasonably requested by counsel and advisers to both parties in order that such
counsel may render the tax opinions required by Sections 6.6 and 7.5 hereof.
8.14 NOTIFICATION OF CUSTOMERS, SUPPLIERS AND EMPLOYEES. Prior
to the Closing, each Company will notify each customer, supplier of products and
employee who is material to the Company's business of the basic facts relating
to the transactions contemplated by this Agreement, and each Company will use
its best efforts to keep and maintain the existing favorable business
relationship with each of such customers, suppliers and employees.
8.15 FORMATION OF SUBSIDIARIES. Prior to the Closing,
CompLink, shall, with the assistance of the Merger Partners incorporate N
Acquisition Corp. and V Acquisition Corp., issue their shares only to CompLink
and vote all such shares in favor of the mergers.
8.16 CONSULTING AGREEMENT. Simultaneously with the execution
of this Agreement, CompLink shall enter into a consulting agreement with Gene
Zaino in the form attached as Exhibit G.
8.17 REGISTRATION RIGHTS AGREEMENT. Simultaneously with the
execution of this Agreement, CompLink shall enter into a registration rights
agreement (the "Registration Rights Agreement") with Scott Pogoda and Ayudh
Athakravi-Soonthorn substantially in the form of Exhibit L.
ARTICLE IX
CONFIDENTIALITY COVENANT AND ANNOUNCEMENTS
9.1 CONFIDENTIALITY. No party to this Agreement shall use or
disclose any non-public information obtained from another party for any purpose
unrelated to the Mergers, and, if this Agreement is terminated for any reason
whatsoever, each party shall return to the other all originals and copies of all
documents and papers containing technical, financial and other information
furnished to such party pursuant to this Agreement or during the negotiations
which preceded this Agreement, and shall
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neither use nor disclose any such information, except to the extent that such
information is available to the public, is rightfully obtained from third
parties, is independently developed or in the event its disclosure or production
is ordered by a court of competent jurisdiction or an agency or department of a
city or federal government.
9.2 ANNOUNCEMENTS. No party to this Agreement shall issue a
press release or other public communication relating to this Agreement, the
Merger Agreements or the Mergers without the prior approval of the other
parties. Notwithstanding the foregoing, CompLink may make such announcements
regarding the Mergers as, in the judgment of its management after consultation
with legal counsel, are necessary to comply with securities laws or NASDAQ
regulations; provided, that CompLink shall use all reasonable efforts to allow
the Merger Partners to review and approve such announcements prior to issuance.
ARTICLE X
TERMINATION
10.1 MUTUAL AGREEMENT. This Agreement may be terminated at any
time prior to the Effective Time by the unanimous consent of CompLink and the
Merger Partners, even if and after the shareholders have approved this Agreement
and the Merger Agreements.
10.2 TERMINATION BY THE MERGER PARTNERS. This Agreement may be
terminated by the Merger Partners alone, by means of written notice to CompLink
if: (a) CompLink fails to perform any material covenant of CompLink contained in
this Agreement; (b) on or before March 31, 1996, any of the conditions set forth
in Article VI of this Agreement shall not have been satisfied by CompLink or
waived by the Merger Partners; or (c) in the event of an Acquisition Proposal
involving the Merger Partners, under the circumstances described in Section
12.1.1(A) hereof.
10.3 TERMINATION BY THE COMPLINK. This Agreement may be
terminated by CompLink alone, by means of written notice to the Merger Partners
if: (a) the Merger Partners fail to perform any material covenant of the Merger
Partners contained in this Agreement; or (b) on or before March 31, 1996, any of
the conditions set forth in Article VII of this Agreement shall not have been
satisfied by the Merger Partners or waived by CompLink; or (c) in the event of
an Acquisition Proposal involving CompLink, under the circumstances described in
Section 12.1.1(A) hereof.
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ARTICLE XI
INDEMNIFICATION
11.1 INDEMNIFICATION.
11.1.1 The certificate of incorporation of CompLink shall
contain a provision eliminating the personal liability of the directors of
CompLink (and to the extent permitted by New York law, the directors of any
subsidiary of CompLink), to the fullest extent permitted by New York law, and
such provision shall not be amended, repealed or otherwise modified for a period
of six years from the Effective Time in any manner that would adversely affect
the rights thereunder of individuals who at the time of execution and delivery
of this Agreement were directors of CompLink and, to the extent permitted by New
York law, the Merger Partners, unless such modification is required by law. To
the extent permitted by applicable law, the Merger Partners and CompLink agree
that all rights to indemnification now existing in favor of the directors,
officers, employees and agents of CompLink and the Merger Partners as provided
in CompLink and the Merger Partners' or any of its Subsidiaries' Certificates or
Articles of Incorporation and ByLaws in effect on the date hereof shall be
incorporated into the Certificate or Articles of Incorporation of the surviving
corporation and shall continue in full force and effect for a period of six
years from the Effective Time and CompLink, and the Merger Partners agree that
they will honor, or cause to be honored, all such rights to indemnification
subject to the requirements of applicable law.
11.1.2 In addition to the indemnification rights in
Section 11.1.1 above and not in limitation thereof, after the Effective Time,
CompLink shall (with respect to directors) and may, at the discretion of its
Board of Directors (with respect to officers, employees and agents), to the
fullest extent permitted under and subject to applicable law, indemnify and hold
harmless each person who at the date hereof serves as a director, officer,
employee or agent of CompLink or the Merger Partners (collectively, the
"Indemnified Parties") against any cost or expense (including reasonable
attorneys' fees), losses, claims, damages, liabilities, judgments and amounts
paid in settlement actually and reasonably incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to the
transactions contemplated by this Agreement for a period of six years after the
date hereof and in the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time): (i) the
Indemnified Parties shall provide prompt written notice thereof to CompLink;
provided, that CompLink shall only be relieved of its obligations under this
Section to the extent that it may be
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prejudiced by the failure to receive such prompt written notice; (ii) CompLink
shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to CompLink
promptly after statements therefor are received; (iii) CompLink shall cooperate
with the Indemnified Parties in the defense of any such matter; and (iv) any
determination required to be made with respect to whether an Indemnified Party's
conduct complies with the standards set forth under the New York Business
Corporation Law and CompLink's certificate of incorporation or by-laws shall be
made by independent counsel mutually acceptable to CompLink and the Indemnified
Party; provided, however, that CompLink shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and provided, further, that in the event any claim or claims for
indemnification are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims shall continue until the
disposition of any and all such claims. The Indemnified Parties as a group shall
retain only one law firm acceptable to CompLink to represent them with respect
to any such matters unless there is, under applicable standards of professional
conduct, a conflict between the positions of any two or more Indemnified Parties
with respect to any significant issue.
11.2 INSURANCE. To the extent available at rates not deemed,
in the good faith judgment of the Board of Directors of CompLink, commercially
unreasonable, CompLink shall maintain in effect for not less than two years from
the Effective Time a policy of directors' and officers' liability insurance
covering the present directors and officers of CompLink and its Subsidiaries for
their acts or omissions in such capacity prior to the Effective Time, which
policy shall provide coverage which is at least substantially similar to the
directors' and officers' liability insurance policy presently maintained by
CompLink.
11.3 THIRD PARTY BENEFICIARIES. This Section is intended to
benefit the Indemnified Parties, whether or not they are parties to this
Agreement, and to the extent they are benefitted, to bind the Indemnified
Parties.
ARTICLE XII
ADDITIONAL AGREEMENTS
12.1 ACQUISITION PROPOSALS.
12.1.1 CompLink and the Merger Partners each shall not,
directly or indirectly, through any officer, director, employee, representative
or agent of such party or any of its Subsidiaries (i) solicit, initiate or
encourage any inquiry or proposal that constitutes, or could reasonably be
expected to
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lead to, a proposal or offer for a merger, consolidation, business combination,
sale of substantial assets, sale of shares of capital stock (including without
limitation by way of a tender offer) or similar transaction involving such party
or any of its Subsidiaries, other than the transactions contemplated by this
Agreement (any of the foregoing being referred to in this Agreement as an
"Acquisition Proposal"); (ii) engage in negotiations or discussions concerning,
or provide any non-public information to any person or entity relating to, any
Acquisition Proposal; or (iii) agree to, approve or recommend any Acquisition
Proposal; provided, however, that nothing contained in this Agreement shall
prevent CompLink or the Merger Partners or their respective Boards of Directors
from (A) furnishing non-public information to, or entering into discussions or
negotiations with, any person or entity in connection with an unsolicited bona
fide written Acquisition Proposal by such person or entity or recommending an
unsolicited bona fide written Acquisition Proposal by such person or party, if
and only to the extent that (1) the Board of Directors of such party believes in
good faith (after consultation with its investment advisor) that such an
Acquisition Proposal would, if consummated, result in a transaction more
favorable to such party's stockholders from a financial point of view than the
transaction contemplated by this Agreement and the Board of Directors of such
party determines in good faith (after consultation with outside legal counsel)
that such action is necessary for such party to comply with its fiduciary duties
to stockholders under applicable law, and (2) prior to furnishing such
non-public information to, or entering into discussions or negotiations with,
such person or entity, such Board of Directors shall receive from such person or
entity an executed confidentiality agreement with terms no less favorable to
such party than those contained in the Non- Disclosure Agreement dated July 14,
1995 between the Merger Partners and CompLink (the "Confidentiality Agreement");
or (B) complying with Rule 14c-2 promulgated under the Exchange Act with regard
to an Acquisition Proposal.
12.1.2 CompLink and the Merger Partners shall each notify
the other party immediately (and no later than 24 hours) after receipt by
CompLink or the Merger Partners (or their advisors), respectively, of any
Acquisition Proposal or any request for non-public information in connection
with a possible Acquisition Proposal. Such notice to the other party shall be
made orally and in writing and shall, subject to the terms of the
confidentiality agreement with such person or entity, indicate in reasonable
detail the identity of the offeror and the terms and conditions of such
proposal, inquiry or contact.
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12.2 CERTAIN FEES AND EXPENSES. Notwithstanding anything
contained herein to the contrary, if any of the events set forth in clause (i)
or (ii) of this Section 12.2 shall occur, then the Merger Partners shall repay
to CompLink the expenses incurred by Complink under this Agreement and the
principal of and interest on the Promissory Note attached as Exhibit H, in the
original principal amount of $250,000, in accordance with the terms of such
note: (i) this Agreement shall have been terminated by the Merger Partners
pursuant to Sections 10.2(c) and 12.1 hereof; or (ii) the Board of Directors of
the Merger Partners shall have withdrawn or modified in a manner materially
adverse to CompLink (including by making a recommendation or taking a favorable
position with respect to a tender offer by a third party) its approval or
recommendation of this Agreement or the Merger, except as a result of CompLink's
material breach of this Agreement. If this Agreement is terminated by CompLink
and such termination is not the result of a breach of any of the provisions of
Articles III, IV, VI, VII, XIII or IX by the Merger Partners or (i) the failure
of either the Merger Partners or CompLink to obtain stockholder approval for
this Agreement or (ii) the refusal of Messrs. Zaino, Thompson, Fischer and
O'Connor to enter into the employment agreements attached hereto as Exhibits C,
D, E and F, CompLink shall repay to the Merger Partners the expenses incurred by
them under this Agreement. In addition, each side shall be responsible for their
own expenses if the Registration Statement is not declared effective by March
31, 1996.
12.3 VOTING AGREEMENTS. Concurrently with the execution of
this Agreement, each director of the Merger Partners and CompLink, as well as
each holder of outstanding shares of NetPlex Common, Software Common or Work
Common, as set forth in Section 12.3 of the Disclosure Schedule, except for
those directors or holders of outstanding shares of NetPlex Common, Software
Common or Work Common specified in the Officer-Certified Disclosure Statement of
the Merger Partners (each of whom shall enter into a voting agreement (the
"Voting Agreement") within 10 business days of the execution of this Agreement)
shall enter into a Voting Agreement in the form attached hereto an Exhibit K,
pursuant to which they shall agree to vote all the shares of NetPlex Common,
Software Common or Work Common held by them or as to which they have voting
control, in favor of the Mergers.
ARTICLE XIII
MISCELLANEOUS
13.1 EXPENSES. Except as expressly provided herein, each of
the Merger Partners and CompLink shall pay its own costs and expenses, including
legal, accounting and investment banking fees and expenses, relating to this
Agreement, the negotiations
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leading up to this Agreement and the transactions contemplated by this
Agreement. The Merger Partners severally represent and warrant that each has not
used any broker or finder in connection with the Mergers. CompLink represents
and warrants that it has not used any broker or finder in connection with the
Mergers.
13.2 AMENDMENT. This Agreement shall not be amended, except by
a writing duly executed by all parties hereto.
13.3 ENTIRE AGREEMENT. This Agreement, including the Exhibits,
Schedules and other documents delivered pursuant to this Agreement, contains all
the terms and conditions agreed upon by the parties relating to the subject
matter of this Agreement and supersedes all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, whether oral or
written, respecting that subject matter, except the Non-Disclosure Agreement
between CompLink and the Merger Partners dated July 14, 1995.
13.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13.5 HEADINGS. The headings contained in this Agreement are
intended for convenience and shall not be used to determine the rights of the
parties.
13.6 MUTUAL CONTRIBUTION. The parties to this Agreement and
their counsel have mutually contributed to its drafting.
13.7 NOTICES. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given on the date of delivery if delivered by
hand delivery to the persons identified below or five days after mailing if
mailed by certified or registered mail postage prepaid return receipt requested
addressed as follows:
If to the Merger Partners:
Mr. Gene Zaino
4 Beaumont Drive
Melville, NY 11747
Facsimile Number: 516-491-4012
with a copy to:
VEDDER, PRICE, KAUFMAN, KAMMHOLZ & DAY
805 Third Avenue
New York, New York 10022
ATTENTION: Edward J. Walsh, Jr., Esq.
Facsimile Number: (212) 407-7799
Confirmation Number:(212) 407-7740
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If to CompLink:
COMPLINK, LTD.
175 Community Drive
Great Neck, NY 11021
ATTENTION: President
Facsimile Number: (516) 829-5001
Confirmation Number:(516) 829-1883
with a copy to:
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, NY 10022
ATTENTION: Steven Wolosky, Esq.
Facsimile Number: (212) 755-1467
Confirmation Number: (212) 753-7200
Such addresses may be changed, from time to time, by means of a notice given in
the matter provided in this section.
13.8 SEVERABILITY. If any provision of this Agreement is held
to be unenforceable for any reason, it shall be amended rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
13.9 SURVIVAL OF REPRESENTATION AND WARRANTIES. All
representations and warranties contained in this Agreement, including the
Exhibits, Schedules and other documents delivered pursuant to this Agreement
shall survive the Effective Time until six months have elapsed after the
Effective Time.
13.10 WAIVER. Waiver of any term or condition of this
Agreement by any party shall not be construed as a waiver of a subsequent breach
or failure of the same term or condition, or a waiver of any other term or
condition in this Agreement.
13.11 ASSIGNMENT. Neither party may assign, by operation of
law or otherwise, all or any portion of its rights or duties under this
Agreement without the prior written consent of the other party, which consent
may be withheld in the absolute discretion of the party asked to give consent.
13.12 COUNTERPARTS. This Agreement may be signed in
counterparts with the same effect as if the signatures to each party were upon a
single instrument. All counterparts shall be deemed an original of this
Agreement.
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IN WITNESS WHEREOF, the Merger Partners and CompLink have
executed this Agreement as of the date first above written.
THE NETPLEX GROUP INC.
By:
---------------------------------
Title:
AMERICA'S WORK EXCHANGE, INC.
By:
----------------------------------
Title:
COMPLINK LTD.
By:
---------------------------------
Title:
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SCHEDULE 2.9
DIRECTORS AFTER THE MERGERS
Howard Landis
Gene Zaino
Neil Luden
Anthony DeFrances
Deborah Schondorf
[Two Directors to be designated by Gene Zaino subject to the
approval of the Board of Directors of CompLink, which approval
cannot be unreasonably withheld.]
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SCHEDULE 2.10
OFFICERS AFTER THE MERGERS
Gene Zaino President and Chief
Executive Officer
Kathryn Chin Eggleston Secretary and Treasurer
Neil Luden Executive Vice President
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................2
1.1 Affiliates Agreement..........................................2
1.2 Acquisition Proposal..........................................2
1.3 Balance Sheet.................................................2
1.4 Balance Sheet Date............................................2
1.5 Certificate...................................................2
1.6 Closing.......................................................2
1.7 Closing Date..................................................2
1.8 Code..........................................................2
1.9 Company.......................................................2
1.10 Consultants Options...........................................2
1.11 Consultants Plan..............................................2
1.12 CompLink Common...............................................2
1.13 CompLink Option and CompLink Warrant..........................2
1.14 CompLink Plan.................................................3
1.15 Directors Plan................................................3
1.16 Dissenting Complink Shares....................................3
1.17 Dissenting NetPlex Shares.....................................3
1.18 Dissenting Work Shares........................................3
1.19 Effective Time................................................3
1.20 Exchange Act..................................................3
1.21 Exchange Agent................................................3
1.22 GKN and GKN Options...........................................3
1.23 Holders.......................................................3
1.24 Merger (New York).............................................3
1.25 Merger (Virginia).............................................3
1.26 Mergers.......................................................4
1.27 Merger Agreement (New York)...................................4
1.28 Merger Agreement (Virginia)...................................4
1.29 Merger Agreements.............................................4
1.30 N Acquisition Corp............................................4
1.31 N Acquisition Corp. Common....................................4
1.32 NASDAQ........................................................4
1.33 New York Code.................................................4
1.34 New Jersey Code...............................................4
1.35 NetPlex Common................................................4
1.36 NetPlex Option................................................4
1.37 NetPlex Plan..................................................4
1.38 1933 Act......................................................4
1.39 Officer-Certified Disclosure Statement........................4
1.40 Proxy Statement...............................................5
1.41 Registration Rights Agreement.................................5
1.42 Registration Statement........................................5
1.43 SEC...........................................................5
1.44 Subsidiary....................................................5
1.45 Virginia Code.................................................5
1.46 V Acquisition Corp............................................5
1.47 V Acquisition Corp. Common....................................5
1.49 Work Common...................................................5
1.50 Work Options..................................................5
1.51 Work Plan.....................................................5
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ARTICLE II MERGERS, CLOSING AND CONVERSION OF SHARES....................6
2.1 Mergers......................................................6
2.2 Closing......................................................6
2.3 Conversion of Shares.........................................6
2.4 CompLink Options and Warrants................................8
2.5 Exchange of Certificates.....................................9
2.6 Dissenting Shares...........................................10
2.7 Registration................................................11
2.8 TaxFree Reorganization......................................11
2.9 Directors...................................................11
2.10 Officers....................................................11
ARTICLE III MUTUAL REPRESENTATIONS AND WARRANTIES.......................12
3.1 Organization and Authority..................................12
3.2 Authority Relating to this Agreement; No
Violation of Other Instruments............................12
3.3 Compliance with Law.........................................14
3.4 Investments in Others.......................................14
3.5 Tax Matters.................................................14
3.6 Absence of Certain Changes or Events........................15
3.7 Inventories.................................................17
3.8 Accounts Receivable.........................................17
3.9 Title to Property...........................................17
3.10 Real Property...............................................18
3.11 Patents, Trademarks, Trade Names and
Copyrights................................................18
3.12 Warranties..................................................18
3.13 Litigation..................................................18
3.14 Protection of Intangible Property...........................19
3.15 Personnel; Employee Plans...................................19
3.16 Certain Payments............................................20
3.17 Brokers and Finders.........................................20
3.18 Order Backlog...............................................20
3.19 Contracts...................................................20
3.20 Shareholders and Employees..................................21
3.21 Absence of Environmental Liabilities........................21
3.22 Power of Attorney; Suretyships..............................22
3.23 Manufacturing and Marketing Rights..........................22
3.24 Proxy Statement and Registration Statement..................22
3.25 Accuracy of Documents and Information.......................23
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
MERGER PARTNERS.............................................23
4.1 Capitalization..............................................24
4.2 Financial Statements........................................24
4.4 Representations and Warranties True at
Closing.....................................................25
ARTICLE V REPRESENTATIONS AND WARRANTIES OF COMPLINK..................25
5.1 Capitalization..............................................25
5.2 Financial Statements........................................26
5.3 Absence of Undisclosed Liabilities..........................26
5.4 Exchange Act Reports........................................26
5.5 Activities of Subsidiaries..................................26
5.6 NASDAQ Listing..............................................27
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5.7 Representations and Warranties True at
Closing.....................................................27
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF THE MERGER
PARTNERS....................................................27
6.1 Representations and Warranties True at
Closing.....................................................27
6.2 Covenants Performed.........................................27
6.3 Certificate.................................................27
6.4 Shareholder Approval........................................27
6.5 Dissenting Merger Partners Shares...........................28
6.6 TaxFree Reorganization......................................28
6.7 Opinion of Counsel to CompLink..............................28
6.8 Approval for Listing........................................28
6.9 Affiliates Agreements.......................................28
6.10 Registration Statement......................................28
6.11 Material Changes in the Business of
CompLink Between the Date of this
Agreement and the Closing...................................28
6.12 No Action to Prevent Completion.............................28
6.13 Consents....................................................29
6.14 Amendment to CompLink Plan..................................29
6.15 Employment Agreements.......................................29
6.16 Documentation...............................................29
6.17 Change in Majority of Directors Notice......................29
6.18 Gene Zaino Consulting.......................................30
ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF COMPLINK...................30
7.1 Representations and Warranties True at
Closing.....................................................30
7.2 Covenants Performed.........................................30
7.3 Certificate.................................................30
7.4 Shareholder Approval........................................30
7.5 Dissenting CompLink Shares..................................30
7.6 Tax-Free Reorganization.....................................30
7.7 Opinion of Counsel to the Merger Partners...................31
7.8 Approval for Listing........................................31
7.9 Affiliates Agreements.......................................31
7.10 The Registration Statement..................................31
7.11 Merger of Work and Software.................................31
7.12 Material Changes in the Business of the
Merger Partners Between the Date of this
Agreement and the Closing...................................31
7.13 No Action to Prevent Completion.............................31
7.14 Consents....................................................31
7.15 Documentation...............................................32
7.16 Dissenting NetPlex Shares and Dissenting
Work Shares.................................................32
7.17 Audited Financial Statements................................32
7.18 Change in Majority of Directors Notice......................32
7.19 Merger of Software..........................................32
ARTICLE VIII PRECLOSING COVENANTS........................................32
8.1 Loan Agreement..............................................32
8.2 Advice of Changes...........................................33
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8.3 Maintenance of Business...................................33
8.4 Conduct of Business.......................................33
8.5 Shareholder Meetings......................................35
8.6 Regulatory Approvals......................................35
8.7 Necessary Consents........................................36
8.8 Litigation................................................36
8.9 SEC Filing................................................36
8.10 Due Diligence.............................................36
8.11 Satisfaction of Conditions Precedent......................36
8.12 Affiliates................................................36
8.13 Representations Regarding Tax Matters.....................37
8.14 Notification of Customers, Suppliers and
Employees.................................................37
8.15 Formation of Subsidiaries.................................37
8.16 Consulting Agreement......................................37
8.17 Registration Rights Agreement.............................37
ARTICLE IX CONFIDENTIALITY COVENANT AND ANNOUNCEMENTS................37
9.1 Confidentiality...........................................37
9.2 Announcements.............................................38
ARTICLE X TERMINATION...............................................38
10.1 Mutual Agreement..........................................38
10.2 Termination by the Merger Partners........................38
10.3 Termination by the CompLink...............................38
ARTICLE XI INDEMNIFICATION...........................................39
11.1 Indemnification...........................................39
11.2 Insurance.................................................40
11.3 Third Party Beneficiaries.................................40
ARTICLE XII ADDITIONAL AGREEMENTS.....................................40
12.1 Acquisition Proposals.....................................40
12.2 Certain Fees and Expenses.................................42
12.3 Voting Agreements.........................................42
ARTICLE XIII MISCELLANEOUS.............................................42
13.1 Expenses..................................................42
13.2 Amendment.................................................43
13.3 Entire Agreement..........................................43
13.4 Governing Law.............................................43
13.5 Headings..................................................43
13.6 Mutual Contribution.......................................43
13.7 Notices...................................................43
13.8 Severability..............................................44
13.9 Survival of Representation and Warranties.................44
13.10 Waiver....................................................44
13.11 Assignment................................................44
13.12 Counterparts..............................................44
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TABLE OF EXHIBITS AND SCHEDULES
EXHIBIT A Merger Agreement (New York)
EXHIBIT B Merger Agreement (Virginia)
EXHIBIT C Employment Agreement with Gene Zaino
EXHIBIT D Employment Agreement with John Thompson
EXHIBIT E Employment Agreement with Stan Fischer
EXHIBIT F Employment Agreement with Mike O'Connor
EXHIBIT G Consulting Agreement with Gene Zaino
EXHIBIT H Promissory Note
EXHIBIT I Opinion of Counsel to CompLink
EXHIBIT J Opinion of Counsel to the Merger Partners
EXHIBIT K Voting Agreement
EXHIBIT L Registration Rights Agreement
SCHEDULE 2.9 Directors After the Mergers
SCHEDULE 2.10 Officers After the Mergers
Officer-Certified Disclosure Statement -
CompLink
Officer-Certified Disclosure Statement - Merger
Partners
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