OPEN PLAN SYSTEMS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of June 17, 1998, between Open Plan Systems, Inc.,
a Virginia corporation (the "Company"), and Great Lakes Capital, LLC, a Delaware
limited liability company ("Optionee"), is made pursuant and subject to the
provisions of that certain Management and Consulting Agreement, dated June 17,
1998, by and between the Company and Optionee (the "Consulting Agreement"). All
terms used herein that are defined in the Consulting Agreement shall have the
same meaning given them in the Consulting Agreement.
1. Grant of Option. Pursuant to the terms of the Consulting Agreement, the
Company hereby grants to Optionee, subject to the terms and conditions herein
set forth, the right and option to purchase from the Company all or any part of
an aggregate of Six Hundred Thousand (600,000) shares of the Common Stock,
without par value, of the Company (the "Common Stock") at an option price per
share as follows:
Number of Strike
Shares Price
150,000 $3.00
150,000 $4.50
150,000 $6.00
150,000 $7.50
Such option is to be exercisable as hereinafter provided.
2. Terms and Conditions. This option is subject to the following terms and
conditions:
(a) Expiration Date. The Expiration Date of this option is June 30, 2003.
(b) Exercise of Option. This option is immediately exercisable by Optionee,
in whole or in part, as of the date hereof. A partial exercise of this option
shall not affect Optionee's right to exercise subsequently this option with
respect to the remaining shares that are exercisable, subject to the conditions
of this Agreement.
(c) Method of Exercising and Payment for Shares. This option may be
exercised only by written notice delivered to the attention of the Company's
Secretary at the Company's principal office in Richmond, Virginia. The written
notice shall specify the number of shares being acquired pursuant to the
exercise of the option when such option is being exercised in part in accordance
with subparagraph 2(b) hereof. The exercise date shall be the date upon which
such notice is received by the Company. Such notice shall be accompanied by
payment of the option price in full for each share either in cash in United
States Dollars, or by the surrender of shares of Common Stock, or by cash
equivalent acceptable to the Company or any combination thereof having an
aggregate fair market value equal to the total option price for all the shares
being purchased.
(d) Nontransferability. This option is nontransferable.
3. Fractional Shares. Fractional shares shall not be issuable hereunder.
4. Investment Representation. Optionee agrees that, unless such shares
shall previously have been registered under the Securities Act of 1933, as
amended, (a) any shares purchased hereunder will be purchased for investment and
not with a view to distribution or resale, and (b) until such registration,
certificates representing such shares may bear an appropriate legend to assure
compliance with such Act. This investment representation shall terminate when
such shares have been registered under the Securities Act of 1933, as amended.
Optionee understands and agrees that transfer of such shares will be restricted
in their resale and that each certificate evidencing the shares will bear the
following legend, or one substantially similar thereto:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and no
transfer, sale, assignment, pledge, hypothecation or other disposition of the
shares represented by this certificate may be made except (A) pursuant to the
effective registration statement under the Act and any applicable state
securities laws or (B) pursuant to an exemption from the provisions of Section 5
of the Act, and the rules and regulations in effect thereunder, and state
securities laws.
5. Change in Capital Structure. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
this option, and the price per share thereof, shall be proportionately adjusted
and its terms shall be adjusted, to reflect (i) any increase or decrease in the
number of issued and outstanding shares of Common Stock resulting from any stock
dividend (but only on, or payable in, Common Stock), stock split, subdivision,
combination, reclassification or recapitalization, (ii) the issuance of rights,
options, warrants or other securities exercisable for or convertible into Common
Stock having an exercise or conversion price below the fair market value of the
Common Stock on the date of such issuance, (iii) any change in the number of
such shares outstanding resulting from the issuance of Common Stock for cash or
property or labor or services by the Company, if the amount of cash, or, if
other than cash consideration is received, the value of such other consideration
(as determined in good faith by the Company's Board of Directors) is less than
the fair market value of the Common Stock on the date of such issuance, or (iv)
any spin-off, spin-out, split-up, split-off or other distribution of assets to
shareholders.
In the event of a change in the Common Stock of the Company as presently
constituted, which is limited to a change of all of its authorized shares with
par value or without par value, the shares resulting from any such change shall
be deemed to be the Common Stock.
The grant of this option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its business or
assets.
6. Sale of the Company. In the event that the Company enters into an
agreement prior to the Expiration Date of this option whereby the Company shall
be acquired by merger, share exchange or consolidation, or shall sell
substantially all of its assets, the Board of Directors of the Company shall use
its reasonable best efforts to see that this option is converted into an option
to purchase the acquiring company's stock upon consummation of such transaction.
In the event this option is not converted into an option for the purchase of
shares in the acquiring company, then any unexercised portion of this option at
such time shall be deemed to have a value equal to the price computed by using
the Black-Scholes option pricing model using as inputs each option's expiration
date and strike price, a price for the Common Stock of the Company equal to the
acquisition price per share and an assumed volatility rate of 45%. The Company
shall pay to Optionee such value on the date of consummation of such
transaction.
7. Continued Employment of C.E.O. If at any time prior to December 17,
1998, John L. Hobey ("Hobey") voluntarily terminates his employment with the
Company as its Chief Executive Officer for any reason, or is terminated by the
Company for (i) "Proper Cause" (as that term is defined in that certain
Employment Agreement, dated June 17, 1998, between Hobey and the Company (the
"Hobey Employment Agreement")) or (ii) death or disability (in accordance with
the Hobey Employment Agreement), any unexercised portion of this option shall be
immediately forfeited by the Optionee and shall be immediately null and void and
without effect. If after December 17, 1998, but prior to June 17, 1999, Hobey's
employment with the Company as its Chief Executive Officer is voluntarily
terminated by him for any reason, or at any time is terminated by the Company
for (x) "Proper Cause" (as that term is defined in the Hobey Employment
Agreement) or (y) death or disability (in accordance with the Hobey Employment
Agreement), then any unexercised portion of this option must be exercised within
one (1) year from the date on which Hobey's employment with the Company as its
Chief Executive Officer ceases, or this option will be forfeited by the Optionee
and shall be immediately null and void and without effect. If, after June 17,
1999, Hobey's employment with the Company as its Chief Executive Officer is
terminated for any reason (including voluntary resignation), there shall be no
effect on this option and this option shall continue in accordance with its
terms.
8. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if in writing (including telecopy or
similar teletransmission), addressed as follows:
(A) If to the Company, to it at the following address:
4299 Carolina Avenue
Building C
Richmond, Virginia 23222
Telecopier: (804) 228-5656
Attn: Chairman of the Board
with a copy to:
Williams Mullen Christian & Dobbins
1021 East Cary Street, 16th Floor
Richmond, Virginia 23219
Telecopier: (804) 783-6507
Attention: Theodore L. Chandler, Jr., Esquire
(B) If to the Optionee, to it at the following address:
Great Lakes Capital, LLC
310 South Street
Morristown, New Jersey 07960
Telecopier: (973) 539-7909
Attention: W. Sydnor Settle
with a copy to:
Dykema, Gossett P.C.
400 Renaissance Center
Detroit, Michigan 48243-1668
Telecopier: (313) 568-6915
Attention: Fredrick M. Miller, Esquire
Unless otherwise specified herein, such notices or other communications
shall be deemed received (a) in the case of any notice or communication sent
other than by mail, on the date actually delivered to such address (evidenced,
in the case of delivery by overnight courier, by confirmation of delivery from
the overnight courier service making such delivery, and in the case of a
telecopy, by receipt of a transmission confirmation form or the addressee's
confirmation of receipt), or (b) in the case of any notice or communication sent
by mail, three Business Days after being sent, if sent by registered or
certified mail, with first-class postage prepaid. Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid
to each of the other parties hereto.
9. Amendments. This Agreement may not be amended, changed, supplemented,
waived or otherwise modified or terminated except by an instrument in writing
signed by the Company and Optionee.
10. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties and their respective successors and assigns,
including without limitation in the case of any corporate party hereto any
corporate successor by merger or otherwise; provided that no party may assign
this Agreement without the other party's prior written consent.
11. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter.
12. Consent to Jurisdiction. Each party to this Agreement, by its execution
hereof, (i) hereby irrevocably submits, and agrees to cause each of its
Affiliates to submit, to the jurisdiction of the federal courts located in the
City of Richmond, Virginia, and in the event that such federal courts shall not
have subject matter jurisdiction over the relevant proceeding, then of the state
courts located in the City of Richmond, Virginia, for the purpose of any action
arising out of or based upon this Agreement or relating to the subject matter
hereof or the transactions contemplated hereby, (ii) hereby waives, and agrees
to cause each of its Affiliates to waive, to the extent not prohibited by
applicable law, and agrees not to assert, and agrees not to allow any of its
Affiliates to assert, by way of motion, as a defense or otherwise, in any such
action, any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that any such proceeding brought in one of the above-named courts is
improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court and (iii) hereby agrees not to commence or to
permit any of its Affiliates to commence any action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before one of
the above-named courts nor to make any motion or take any other action seeking
or intending to cause the transfer or removal of any such action to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by Virginia law, as the case may be, and
agrees that service of process by registered or certified mail, return receipt
requested, is reasonably calculated to give actual notice. Notwithstanding
anything contained in this paragraph 12 to the contrary with respect to the
parties' forum selection, if an action is filed against a party to this
Agreement, including its Affiliates, by a person who or which is not a party to
this Agreement, an Affiliate of a party to this Agreement, or an assignee
thereof (a "Third Party Action"), in a forum other than the federal district
court or a state court located in the City of Richmond, Virginia, and such Third
Party Action is based upon, arises from, or implicates rights, obligations or
liabilities existing under this Agreement or acts or omissions pursuant to this
Agreement, then the party to this Agreement, including its Affiliates, joined as
a defendant in such Third Party Action shall have the right to file cross-claims
or third-party claims in the Third Party Action against the other party to this
Agreement, including its Affiliates, and even if not a defendant therein, to
intervene in such Third Party Action with or without also filing cross-claims or
third-party claims against the other party to this Agreement, including its
Affiliates.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive law of the Commonwealth of Virginia,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the law of any other jurisdiction.
14. Name, Captions. The name assigned to this Agreement and the section
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
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IN WITNESS WHEREOF, the Company and Optionee have caused this Agreement to
be signed by duly authorized officers and managers, respectively, as of the date
first above written.
GREAT LAKES CAPITAL, LLC OPEN PLAN SYSTEMS, INC.
By: /s/ W. Sydnor Settle By: /s/ Anthony F. Markel
W. Sydnor Settle Anthony F. Markel
Manager Chairman of the Board