VOTING AND STANDSTILL AGREEMENT
THIS VOTING AND STANDSTILL AGREEMENT (the "Agreement"), dated as of June
17, 1998, is made between OPEN PLAN SYSTEMS, INC., a Virginia corporation
("OPS"), GREAT LAKES CAPITAL, LLC, a Delaware limited liability company ("LLC"),
and GREAT LAKES CAPITAL, INC., a Delaware corporation ("GLC").
W I T N E S S E T H:
WHEREAS, OPS and LLC have entered into a Management and Consulting
Agreement, dated as of June 17, 1998 (the "Consulting Agreement"), under which
LLC and agreed to provide certain management and consulting services; and
WHEREAS, pursuant to the Consulting Agreement, LLC has acquired (i) 200,000
shares of the Common Stock, without par value, of OPS ("Common Stock") and (ii)
an option to purchase 600,000 shares of Common Stock, and, as a result,
beneficially owns as of the date hereof approximately 15.2% of the issued and
outstanding shares of Common Stock on a diluted basis; and
WHEREAS, OPS, LLC and GLC desire to establish in this Agreement certain
conditions of LLC's and GLC's relationship with OPS.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and in the Consulting Agreement, OPS, LLC and GLC hereby agree as
follows:
ARTICLE I
Definitions; Representations and Warranties
Section 1.1. Definitions. For purposes of this Agreement, the following
terms have the following meanings:
(a) "Additional Shares" shall mean shares of Common Stock that LLC and its
Affiliates may acquire following the date of the Consulting Agreement on the
open market, in privately negotiated transactions and/or directly from OPS so
that LLC and its Affiliates would beneficially own no greater than 21.0% of the
issued and outstanding shares of Common Stock on a fully diluted basis; provided
that shares of Common Stock that LLC and its Affiliates may acquire pursuant to
OPS's 1996 Stock Incentive Plan and 1996 Stock Option Plan for Non-Employee
Directors shall not be deemed to be Additional Shares.
(b) "Adjusted Outstanding Shares" shall mean, at any time and with respect
to the determination of (i) the LLC Ownership Percentage as it relates to LLC
and its Affiliates, (ii) the Standstill Percentage as it relates to LLC and its
Affiliates, and (iii) any other percentage of the beneficial ownership of Common
Stock as it relates to a Person or Group, the total number of shares of Common
Stock then issued and outstanding together with the total number of shares of
Common Stock not then issued and outstanding that would be outstanding if (x)
all then existing shares of convertible preferred stock had been converted into
shares of Common Stock and (y) all then existing warrants and options
exercisable into shares of Common Stock had been exercised (other than
underwriters' overallotment options and stock options granted under benefit
plans of OPS or any of its Affiliates), but excluding any rights that may be
exercisable under any Rights Agreement that may be adopted by OPS.
(c) "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
in effect on the date of this Agreement, and shall include, with respect to a
determination of the Affiliates of LLC, any Affiliate of GLC.
(d) "Beneficial ownership," "beneficial owner" and "beneficially own" shall
have the meanings ascribed to such terms in Rule 13d-3 under the Exchange Act as
in effect on the date of this Agreement; provided that LLC and each of its
Affiliates and any Person or Group shall be deemed to be the beneficial owners
of any shares of Common Stock that LLC or such Affiliate, Person and/or Group,
as the case may be, has the right to acquire within one year pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion or
exchange rights, warrants, options or otherwise.
(e) "Common Stock" shall have the meaning set forth in the recitals to this
Agreement.
(f) "Consulting Agreement" shall have the meaning set forth in the recitals
to this Agreement.
(g) "Continuing Directors" shall mean the members of the Board of Directors
of OPS immediately prior to the closing of the transactions contemplated by the
Consulting Agreement and any future members of the Board of Directors nominated
by the Board of Directors; provided, however, that no LLC Director shall
constitute a Continuing Director or be counted in determining the presence of a
quorum of Continuing Directors.
(h) "Control" shall mean, with respect to a Person or a Group, (i)
beneficial ownership by such Person or Group of securities that entitle it to
exercise in the aggregate more than fifty percent (50%) of the votes in any
election of directors or other governing body of the entity in question; or (ii)
possession by such Person or Group of the power, directly or indirectly, (x) to
elect a majority of the board of directors (or equivalent governing body) of the
entity in question or (y) in case of a non-corporate entity, to manage or govern
the business, operations or investments of any such non-corporate entity.
(i) "Group" shall have the meaning comprehended by Section 13(d)(3) of the
Exchange Act as in effect on the date of this Agreement.
(j) "Hobey Termination" shall mean (i) the termination by OPS of the
employment of John L. Hobey ("Hobey") as Chief Executive Officer of OPS for
Proper Cause (as defined in the Employment Agreement, effective June 17, 1998,
by and between John L. Hobey and OPS (the "Employment Agreement")), (ii) the
termination by OPS of Hobey as Chief Executive Officer of OPS due to death or
disability (in accordance with the Employment Agreement) or (iii) the voluntary
resignation of Hobey as Chief Executive Officer of OPS, whichever is the first
to occur.
(k) "LLC Directors" shall mean Hobey and W. Sydnor Settle ("Settle"), each
of whom OPS has agreed to appoint to the OPS Board of Directors pursuant to the
Consulting Agreement.
(l) "LLC Ownership Percentage" shall mean, at any time, the percentage of
the Adjusted Outstanding Shares that is beneficially owned in the aggregate by
LLC and its Affiliates.
(m) "LLC Shares" shall mean collectively (i) the 200,000 shares of Common
Stock owned by LLC, (ii) the 600,000 shares of Common Stock that LLC has the
option to acquire pursuant to the terms of the Stock Option Agreement, (iii) the
3,000 shares of Common Stock owned by Settle, (iv) the 5,000 shares of Common
Stock owned by Hobey, (v) the 25,000 shares of Common Stock that Hobey has the
option to acquire pursuant to the terms of an Employee Nonqualified Stock Option
Agreement, dated as of June 17, 1998, between OPS and Hobey, (vi) the 3,000
shares of Common Stock owned by William F. Crabtree ("Crabtree"), (vii) the
12,500 shares of Common Stock that Crabtree has the option to acquire pursuant
to the terms of an Employee Nonqualified Stock Option Agreement, dated as of
June 17, 1998, between OPS and Crabtree, (viii) the Additional Shares and (ix)
such additional shares of Common Stock that OPS may issue with respect to such
shares pursuant to any stock splits, stock dividends, recapitalizations,
restructurings, reclassifications or similar transactions.
(n) "Person" shall have the meaning set forth in Section 3(a)(9) of the
Exchange Act as in effect on the date of this Agreement.
(o) "Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated June 17, 1998, executed by OPS and LLC in connection with the
Consulting Agreement.
(p) "Standstill Percentage" shall mean, at any time, not more than 21.0% of
the Adjusted Outstanding Shares.
(q) "Stock Option Agreement" shall mean the Nonqualified Stock Option
Agreement, dated June 17, 1998, executed by OPS and LLC in connection with the
Consulting Agreement.
(r) "Transfer" shall mean sell, transfer, assign, pledge, hypothecate, give
away or in any manner dispose of any Common Stock.
Section 1.2. Representations and Warranties of LLC. LLC represents and
warrants to OPS as follows:
(a) LLC is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Delaware.
(b) Except for the LLC Shares, neither LLC nor any of its Affiliates
beneficially owns any Common Stock or any options, warrants or rights of any
nature (including conversion and exchange rights) to acquire beneficial
ownership of any Common Stock.
(c) LLC has full legal right, power and authority to enter into and perform
this Agreement, and the execution and delivery of this Agreement by LLC have
been duly authorized by all necessary action on behalf of LLC. This Agreement is
enforceable against LLC.
(d) The execution, delivery and performance of this Agreement by LLC does
not and will not conflict with or constitute a violation of or default under the
Charter or Operating Agreement (or comparable documents) of LLC, or any statute,
law, regulation, order or decree applicable to LLC, or any contract, commitment,
agreement, arrangement or restriction of any kind to which LLC is a party or by
which LLC is bound, other than such violations as would not prevent or
materially delay the performance by LLC of its obligations hereunder or
otherwise subject OPS to any claim or liability.
Section 1.3. Representations and Warranties of GLC. GLC represents and
warrants to OPS as follows:
(a) GLC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) GLC has full legal right, power and authority to enter into and perform
this Agreement, and the execution and delivery of this Agreement by GLC have
been duly authorized by all necessary corporate action on behalf of GLC. This
Agreement is enforceable against GLC.
(d) The execution, delivery and performance of this Agreement by GLC does
not and will not conflict with or constitute a violation of or default under the
Charter or Bylaws (or comparable documents) of GLC, or any statute, law,
regulation, order or decree applicable to GLC, or any contract, commitment,
agreement, arrangement or restriction of any kind to which GLC is a party or by
which GLC is bound, other than such violations as would not prevent or
materially delay the performance by GLC of its obligations hereunder or
otherwise subject OPS to any claim or liability.
Section 1.4. Representations and Warranties of OPS. OPS hereby represents
and warrants to LLC and GLC as follows:
(a) OPS is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia.
(b) OPS has full legal right, power and authority to enter into and perform
this Agreement, and the execution and delivery of this Agreement by OPS have
been duly authorized by all necessary corporate action on behalf of OPS. This
Agreement is enforceable against OPS.
(c) The execution, delivery and performance of this Agreement by OPS does
not and will not conflict with or constitute a violation of or default under the
Charter or Bylaws of OPS, or any statute, law, regulation, order or decree
applicable to OPS, or any contract, commitment, agreement, arrangement or
restriction of any kind to which OPS is a party or by which OPS is bound, other
than such violations as would not prevent or materially delay the performance by
OPS of its obligations hereunder or otherwise subject LLC to any claim or
liability.
ARTICLE II
Board Representation
Section 2.1. Election of LLC Directors. On the date of this Agreement, OPS
will (i)take such action as may be necessary to increase the size of the OPS
Board of Directors (the "Board of Directors") to ten (10) directors, and (ii)
upon receipt from each LLC Director of an executed letter agreement regarding
resignation in the form attached to this Agreement as Exhibit A, fill the two
(2) vacancies created thereby with the LLC Directors in accordance with the
applicable provisions of the Charter and Bylaws of OPS. OPS will appoint each
LLC Director to Class I (current term expiring in 2001) and agrees to nominate
and recommend each LLC Director not subject to resignation pursuant to Section
2.3 below for election at the next annual meeting of OPS's shareholders
following such appointments as Class I directors; provided that, if any such LLC
Director is not elected by the shareholders of OPS, OPS shall have no further
obligations under this Section 2.1; and provided further that OPS shall be under
no obligation to appoint or recommend for election any LLC Director to the Board
of Directors unless and until it has received from such LLC Director an executed
letter agreement regarding resignation in the form attached to this Agreement as
Exhibit A.
Section 2.2. Continuing Board Representation. Until the termination or
expiration of the Consulting Agreement, OPS agrees that it will not take or
recommend to its shareholders any action that would (i) cause the Board of
Directors to consist of greater than ten (10) directors; provided that if a LLC
Director resigns from the Board of Directors, OPS shall have the right to reduce
the size of the Board of Directors to eliminate the vacancy or to fill the
vacancy thereby created with a nominee approved by the Continuing Directors, or
(ii) result in any amendment to the Bylaws of OPS in effect on the date hereof
that would impose any qualifications on the eligibility of directors of OPS to
serve on any committee of the Board of Directors, except as may be required by
the then-current rules and regulations of the Nasdaq National Market (the
"Nasdaq Rules"), the rules and regulations under the Internal Revenue Code of
1986, as amended, relating to the qualification of employee stock benefit plans
and the deductibility of compensation paid to executive officers, the rules and
regulations under Section 16(b) of the Exchange Act, including Rule 16b-3
thereunder or any successor rule, and OPS's Bylaws.
Section 2.3. Required Resignations.
(a) Upon the earlier of the Hobey Termination and the expiration of the
Consulting Agreement, LLC shall, if requested by OPS, require Hobey to resign
immediately from the Board of Directors.
(b) In the event that the Hobey Termination occurs on or before December
17, 1998, LLC shall, if requested by OPS, require Settle to resign immediately
from the Board of Directors.
(c) If LLC does not cause the resignation of a LLC Director as required by
this Section 2.3, OPS may seek such resignation or, in the alternative, the
Continuing Directors may seek the removal of the LLC Directors that are subject
to such resignation. Upon any shareholder vote relating to the removal of a LLC
Director for failure to resign pursuant to this Section 2.3, LLC and its
Affiliates shall (i) attend any meeting either in person or by proxy and (ii)
vote in favor of such removal. At such time as a LLC Director becomes subject to
resignation pursuant to this Section 2.3, OPS may amend its Bylaws or take such
other action as it deems appropriate to reduce the number of directors
constituting the Board of Directors proportionately or fill the vacancy caused
by such resignation with its own nominee in accordance with the applicable
provisions of the Charter and Bylaws of OPS.
Section 2.4. Charter and Bylaws. The obligations of OPS set forth in this
Article II shall be subject to compliance with the applicable provisions of the
Charter and Bylaws of OPS.
Section 2.5. No Voting Trust. This Agreement does not create or constitute,
and shall not be construed as creating or constituting, a voting trust agreement
under the Virginia Stock Corporation Act or any other applicable corporation
law.
Section 2.6. No Duty to Serve; Reduction of Board Representation. Nothing
contained in this Article II shall be construed as requiring any LLC Director to
serve in office if such LLC Director elects to resign. In the event of any
vacancy created by the death, resignation or removal of a LLC Director, OPS may
amend its Bylaws or take such other action as it deems appropriate to reduce the
number of directors constituting the Board of Directors proportionately or fill
the vacancy caused by such resignation with its own nominee in accordance with
the applicable provisions of the Charter and Bylaws of OPS.
ARTICLE III
Standstill Restrictions; Voting Matters
Section 3.1. Standstill Restrictions.
(a) During the term of this Agreement, unless approved in advance by a
resolution adopted by a majority of the Continuing Directors or otherwise
permitted under this Agreement, LLC and GLC covenant and agree that they shall
not, and shall not permit any of their Affiliates to, either individually or as
part of a Group, directly or indirectly:
(i) acquire (other than acquisitions (x) pursuant to or contemplated by the
Consulting Agreement, including without limitation the exercise of options under
the Stock Option Agreement, or (y) resulting from corporate action taken by the
Board of Directors with respect to any pro rata distribution of shares of Common
Stock in connection with any stock split, stock dividend, recapitalization,
reclassification or similar transaction), propose to acquire (or publicly
announce or otherwise disclose an intention to propose to acquire), offer to
acquire, or agree to acquire any Common Stock if the effect of such acquisition
would cause the LLC Ownership Percentage to exceed the Standstill Percentage
(other than as a result of any stock purchases or repurchases by OPS); provided
that this Section 3.1(a)(i) shall not apply to any acquisition (a) of options,
Common Stock, warrants, rights or other securities convertible or exchangeable
into Common Stock granted to any person, including without limitation the LLC
Directors, pursuant to any benefit plan of OPS or any of its Affiliates or the
exercise of any such option, warrant or right or conversion or exchange of any
convertible or exchangeable security or (b) upon the exercise by LLC or its
Affiliates of rights pursuant to any Rights Agreement that may be adopted by
OPS, provided that all of the shares of Common Stock so acquired upon the
exercise of the rights shall be subject to all of the terms of this Agreement;
(ii) propose (or publicly announce or otherwise disclose an intention to
propose), solicit, offer, seek to effect, negotiate with or provide any
confidential information relating to OPS or its business to any other Person
with respect to, any tender or exchange offer, merger, consolidation, share
exchange, business combination, restructuring, recapitalization or similar
transaction involving OPS;
(iii) make, or in any way participate in, any "solicitation" of "proxies"
to vote (as such terms are defined in Rule 14a-1 under the Exchange Act),
solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Common Stock or become a
"participant" in any "election contest" (as such terms are defined or used in
Rule 14a-11 under the Exchange Act) with respect to OPS; provided that nothing
in this Section 3.1(a)(iii) shall apply to any deemed solicitation of proxies by
the LLC Directors that may result from such LLC Directors' position or status as
a director of OPS at the time of any general solicitation of proxies by the
management of OPS;
(iv) form, participate in or join any Person or Group (other than a Group
comprised of the six members of LLC and its Affiliates as of the date of this
Agreement) with respect to any Common Stock, or otherwise act in concert with
any third Person for the purpose of (x) acquiring any Common Stock or (y)
holding or disposing of Common Stock for any purpose prohibited by this Section
3.1(a);
(v) deposit any Common Stock into a voting trust or subject any Common
Stock to any arrangement or agreement with respect to the voting thereof;
(vi) initiate, propose or otherwise solicit shareholders for the approval
of any shareholder proposal with respect to OPS as described in Rule 14a-8 under
the Exchange Act, or induce or attempt to induce any other Person to initiate,
propose or otherwise solicit any such shareholder proposal;
(vii) except as specifically provided in Article II of this Agreement, seek
election to or seek to place a representative on the Board of Directors, or seek
the removal of any member of the Board of Directors (other than a LLC Director);
(viii) call or seek to have called any meeting of the shareholders of OPS
for any purpose;
(ix) except through the LLC Directors, take any other action to seek to
control, disrupt or influence the management or policies of OPS;
(x) agree to do any of the foregoing.
(b) LLC and GLC agree that they will notify OPS promptly if any inquiries
or proposals are received by, any information is exchanged with respect to, or
any negotiations or discussions are initiated or continued by or with, LLC, GLC
or any of their Affiliates regarding any matter described in Section 3.1(a)
above. LLC and OPS shall mutually agree upon an appropriate response to be made
to any such proposals received by LLC, GLC or any of their Affiliates.
(c) Nothing contained in this Article III shall be deemed to restrict the
manner in which the LLC Directors may participate in deliberations or
discussions of the Board of Directors or individual consultations with the
Chairman of the Board or any other members of the Board of Directors or the
manner in which the LLC Directors may vote on matters brought for consideration
before the Board of Directors, so long as such actions do not otherwise violate
any provision of Section 3.1(a) above.
(d) With respect to any acquisition of, proposal to acquire, offer to
acquire, or agreement to acquire any Common Stock by LLC and its Affiliates not
otherwise prohibited by Section 3.1(a) above, OPS and LLC agree to take such
actions as may be deemed necessary or advisable (including without limitation
the acquisition of Common Stock directly from OPS) consistent with the prudent
discharge of their fiduciary duties to their shareholders and members,
respectively, so that the provisions of the Control Shares Acquisition Statute,
as set forth in Article 14.1 of the Virginia Stock Corporation Act, as amended,
in effect on the date of this Agreement, shall not apply to such acquisition,
proposal, offer or agreement.
Section 3.2. Voting Matters.
(a) During the term of this Agreement, LLC and GLC will take all such
action as may be required so that the Common Stock beneficially owned and
entitled to be voted by LLC, GLC and their Affiliates, as a Group, are voted or
caused to be voted (in person or by proxy):
(i) with respect to the Continuing Director's nominees to the Board of
Directors, in accordance with the recommendation of the Board of Directors, or a
nominating or similar committee of the Board of Directors, if any such committee
exists and makes a recommendation;
(ii) with respect to any "election contest" (as such term is defined or
used in Rule 14a-11 under the Exchange Act as in effect on the date of this
Agreement) initiated by any Person in connection with any tender offer, in the
same proportion as the total votes cast by or on behalf of all shareholders of
OPS (other than LLC, GLC and their Affiliates) with respect to such proxy
contest;
(iii) with respect to all matters brought before OPS's shareholders for a
vote not otherwise provided for in this Section 3.2(a) or Section 2.3 above, in
accordance with the independent judgment of LLC, GLC and their Affiliates,
without regard to any request or recommendation of the Board of Directors.
(b) LLC and its Affiliates who beneficially own any of the LLC Shares shall
be present, in person or by proxy, at all duly held meetings of shareholders of
OPS so that the Common Stock held by LLC and its Affiliates may be counted for
the purposes of determining the presence of a quorum at such meetings.
ARTICLE IV
Transfers of LLC Shares
Section 4.1 Permitted Transfers. During the term of this Agreement, LLC
shall not, directly or indirectly, Transfer any of the LLC Shares to any Person
or Group without the prior written consent of OPS (which consent shall not be
unreasonably withheld), if, as a result of such Transfer, such Person or Group
would have beneficial ownership of Common Stock representing in the aggregate
more than 9.9% of the issued and outstanding shares of Common Stock. Subject to
the foregoing limitation, LLC may Transfer the LLC Shares without the prior
written consent of OPS in the following manner:
(a) to OPS or any Affiliate of OPS;
(b) pursuant to an effective registration statement under the Securities
Act as provided in the Registration Rights Agreement; provided that the rights
of LLC under this Agreement shall not transfer to any transferee(s) of such LLC
Shares;
(c) pursuant to Rule 144, Rule 144A, Regulation S or any other applicable
exemption from registration under the Securities Act; provided that the rights
of LLC under this Agreement shall not transfer to any transferee(s) of such LLC
Shares;
(d) pursuant to a distribution (including any such distribution pursuant to
any liquidation or dissolution of LLC) by LLC to its members; provided that the
rights of LLC under this Agreement shall not transfer to any distributee of such
LLC Shares; provided further that, LLC shall not distribute any of the LLC
Shares to its members pursuant to this Section 4.2(d) or otherwise unless LLC
has obtained an agreement in writing by the distributee to be bound by the terms
and conditions of this Agreement;
(e) pursuant to a merger or consolidation of OPS or pursuant to a plan of
liquidation of OPS, which has been approved by the affirmative vote of a
majority of the members of the Board of Directors then in office; or
(f) pursuant to a tender offer or exchange offer that the Board of
Directors, by action taken by the affirmative vote of a majority of the members
of the Board of Directors then in office, has determined not to oppose.
Section 4.2 Transfers to Affiliates. In the event that any Affiliate of LLC
receives a distribution of any of the LLC Shares under Section 4.1 above, or
otherwise becomes the beneficial owner of any of the LLC Shares, LLC shall use
its best efforts to cause such Affiliate to comply with all of the provisions of
this Agreement, including without limitation this Article IV.
Section 4.3 Confidential Information. In connection with any permitted
Transfer of the LLC Shares pursuant to this Article IV, neither LLC nor its
Affiliates shall disclose any confidential information relating to OPS or its
business to any Person except as required by applicable law, including without
limitation Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, but only
to the extent that any required disclosure of such confidential information has
been preceded by notice to OPS of the expected disclosure of such information
and the execution of a confidentiality agreement by LLC (or its Affiliates, as
the case may be) and such Person in the form attached hereto as Exhibit B. Such
confidentiality agreement shall be promptly forwarded to OPS for its execution,
which execution by OPS may be subsequent to the disclosure described in this
proviso; provided that the failure of OPS to so execute such confidentiality
agreement shall in no way be construed to be a failure on the part of LLC (or
its Affiliates, as the case may be) to fulfill its obligations under this
paragraph or to limit or affect the validity of such confidentiality agreement
as between LLC (or its Affiliates, as the case may be) and such Person.
ARTICLE V
Further Assurances
Each party shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of its respective obligations under
this Agreement. If reasonably requested by OPS at any time during the term of
this Agreement, LLC agrees to execute a letter to OPS confirming the number of
LLC Shares held, beneficially and of record, by LLC and its Affiliates as of the
latest practicable date.
ARTICLE VI
Termination
Unless earlier terminated by written agreement of the parties hereto, this
Agreement shall terminate five (5) years from the date of this Agreement. Any
termination of this Agreement as provided herein shall be without prejudice to
the rights of any party arising out of the breach by any other party of any
provisions of this Agreement that occurred prior to the termination.
ARTICLE VII
Miscellaneous
Section 7.1. 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:
If to OPS,
to it at: Open Plan Systems, Inc.
4299 Carolina Avenue
Building C
Richmond, Virginia 23222
Telecopier: (804) 228-5656
Attention: Anthony F. Markel
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
If to LLC,
to it at: 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 PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
Telecopier: (313) 568-6915
Attention: Fredrick M. Miller, Esquire
If to GLC,
to it at: Great Lakes Capital, Inc.
310 South Street
Morristown, New Jersey 07960
Telecopier: (973) 539-7909
Attention: W. Sydnor Settle
With a copy to:Dykema Gossett PLLC
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.
Section 7.2. Amendments. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by LLC, GLC and OPS.
Section 7.3. 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.
Section 7.4. 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. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement, the Consulting Agreement, the Registration Rights Agreement and
the Stock Option Agreement.
Section 7.5. Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
Section 7.6. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
Section 7.7. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 7.8. No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of and shall not be enforceable by any Person who or which
is not a party hereto.
Section 7.9. 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, at its address specified pursuant to Section 7.1 above is reasonably
calculated to give actual notice. Notwithstanding anything contained in this
Section 7.9 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.
Section 7.10. 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.
Section 7.11. 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.
Section 7.12. 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.
Section 7.13. Expenses. Each of the parties hereto shall bear their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, except that in the event of a dispute concerning the terms
or enforcement of this Agreement, the prevailing party in any such dispute shall
be entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Voting and Standstill Agreement to be executed, as of
the date first above written, by their respective officers thereunto duly
authorized.
OPEN PLAN SYSTEMS, INC.
By: /s/ Anthony F. Markel
Anthony F. Markel
Chairman of the Board
GREAT LAKES CAPITAL, LLC
By: /s/ W. Sydnor Settle
W. Sydnor Settle
Manager
GREAT LAKES CAPITAL, INC.
By: /s/ W. Sydnor Settle
W. Sydnor Settle
Chairman
' Exhibit A
Form of Resignation Agreement
Open Plan Systems, Inc.
4299 Carolina Avenue
Building C
Richmond, Virginia 23222
Great Lakes Capital, LLC
310 South Street
Morristown, New Jersey 07960
Ladies and Gentlemen:
I hereby acknowledge that my position on the Board of Directors of Open
Plan Systems, Inc. ("OPS") is subject to the provisions of a Voting and
Standstill Agreement (the "Agreement"), dated June 17, 1998, between OPS, Great
Lakes Capital, LLC ("LLC") and Great Lakes Capital, Inc. Accordingly, I hereby
agree to resign immediately from such Board of Directors under the terms of
Article II of the Agreement in the event that LLC requests such resignation. I
understand that, if I do not resign immediately as requested pursuant to such
Article II, OPS may seek specific performance of this letter agreement through
court proceedings or otherwise may seek to remove me from office. I agree that
any failure to resign upon request pursuant to such Article II shall be deemed
to be "cause" for my removal from the Board of Directors pursuant to the Charter
and Bylaws of OPS.
Date: June ___, 1998
______________________________
Name
Agreed to and Accepted:
Open Plan Systems, Inc.
By:___________________________
Anthony F. Markel
Chairman of the Board
Form of Confidentiality Agreement
________ __, 19__
CONFIDENTIAL
[Name]
[Address]
Re: Confidentiality Agreement
Ladies and Gentlemen:
In connection with the proposed sale or transfer of shares of the Common
Stock, without par value, of Open Plan Systems, Inc. (the "Company"), we are
prepared to make available to you certain confidential information relating to
the Company and its business (the "Confidential Information"). As a condition to
your being furnished the Confidential Information, you agree to comply with the
terms and conditions of this letter agreement (this "Agreement").
For the purposes of this Agreement, the term "Representatives" shall mean
your employees, agents and advisors and the directors, officers, employees and
agents of any of your advisors. The term "Third Party" shall be broadly
interpreted to include without limitation any corporation, company, group,
partnership, other entity or individual. The term "Confidential Information"
shall not include information that (i) was or becomes generally available to the
public other than as a result of a disclosure by you or your Representatives, or
(ii) was or becomes available to you on a non-confidential basis from a source
other than the Company or its advisors.
You hereby agree to treat the Confidential Information as confidential and
you shall not, and shall direct your Representatives not to, use in any way or
to disclose, directly or indirectly, the Confidential Information to any Third
Party without the written consent of the Company.
It is understood and agreed that money damages would not be a sufficient
remedy for any breach of this Agreement by you and that the Company shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy for any such breach, and you further agree to waive any requirement for
the securing or posting of any bond in connection with such remedy. Such remedy
shall not be deemed to be the exclusive remedy for your breach of this
Agreement, but shall be in addition to all other remedies available at law or
equity to the Company.
If you are in agreement with the foregoing, please so indicate by signing
and returning one copy of this Agreement, whereupon it will constitute our
agreement with respect to the subject matter hereof.
Very truly yours,
[Name]
Officer of [LLC or Affiliate]
CONFIRMED AND AGREED as of
the date first written above:
[NAME]
By:______________________________
Name:
Title:
OPEN PLAN SYSTEMS, INC.
By:_____________________________
Name:
Title: