STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of the 31st day
of August, 1999, by and between Stan A. Fischer (the "Seller"), Open Plan
Systems, Inc., a Virginia corporation (the "Company") and those persons named as
Buyers in Exhibit A hereto (collectively, excluding the Company, the "Buyers"
and each a "Buyer").
RECITALS:
WHEREAS, the Seller is the legal and beneficial owner of 993,542 issued and
outstanding shares (the "Shares") of the common stock of the Company; and
WHEREAS, the Seller desires to sell, and the Buyers and the Company desire
to purchase, all of the Shares on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
SALE AND DELIVERY OF THE SHARES
1.1 Purchase and Sale of the Shares. Subject to the terms and conditions of
this Agreement, at the closing of the transactions contemplated by this
Agreement (the "Closing"), the Seller agrees to sell, transfer, assign and
convey to each of the Buyers and the Company, and the Buyers and the Company
severally agree to purchase, acquire and accept from the Seller, the number of
Shares set forth opposite the name of each on Exhibit A hereto.
1.2 Purchase Price. The purchase price for each Share shall be $2.50, and
the aggregate respective purchase price for the Shares to be paid by each of the
Buyers and the Company ("Purchase Price") is set forth opposite the name of each
in Exhibit A. At the Closing, each Buyer and the Company shall pay to the Seller
its respective Purchase Price for the Shares in immediately available funds in
the form of a certified or cashier's check payable to the Seller or by wire
transfer to a bank account designated by the Seller at least three (3) days
prior to the Closing.
1.3 Delivery of Share Certificates. At the Closing, the Seller shall
deliver to the Buyers and the Company certificates representing the Shares
accompanied by duly executed stock powers prescribing transfer to each Buyer and
the Company in the amounts set forth on Exhibit A. In order to assure the smooth
administration of the Closing, the Seller agrees to deliver to Williams, Mullen,
Clark & Dobbins, P.C., counsel to the Company ("WMCD"), such stock certificates
and stock powers at least seven (7) days prior to the Closing, to be held by
WMCD on behalf of the Seller until the Closing.
1.4 Closing Date and Time. The Closing shall take place on September 15,
1999 at 11:00 a.m. (Richmond, Virginia time) at the offices of WMCD, 1021 East
Cary Street, Richmond, Virginia 23219, or at such earlier date and time as may
be mutually agreed upon by the parties (the day of the Closing is referred to
herein as the "Closing Date").
1.5 Seller's Further Assurances. At any time and from time to time after
the Closing, at the request of a Buyer or the Company and without further
consideration, the Seller shall execute and deliver such instruments of sale,
transfer, conveyance, assignment and confirmation, and take such other action,
as such Buyer or the Company may reasonably request to more effectively
transfer, convey and assign to such Buyer or the Company the respective Shares
to be transferred to him, to confirm such Buyer's or the Company's title
thereto, to assist such Buyer or the Company in exercising all rights with
respect thereto and/or to carry out the purpose and intent of this Agreement.
ARTICLE II
CERTAIN COVENANTS RELATING TO THE COMPANY
2.1 Registration of Shares.
(a) Following the Closing, the Company shall use its reasonable best
efforts to file as soon as practicable a registration statement (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "Securities Act"), to
register the resale of the Shares by the Buyers and to cause such registration
statement to become effective as soon as practicable after the filing thereof
with the SEC. The Company shall use its reasonable best efforts to maintain the
effectiveness of such registration statement for a period ending on the earlier
of (i) the second anniversary of the Closing Date, (ii) all of the Shares having
been sold by the Buyers, or (iii) the Shares having ceased to be outstanding.
(b) The Company shall notify the Buyers at any time when a prospectus is
required to be delivered under the Securities Act with respect to one or more of
the Shares, and of the Companys becoming aware that a prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and shall proceed as soon as practicable to prepare and furnish
to the Buyers a reasonable number of copies of an amendment to such prospectus
as may be necessary so that, as thereafter delivered to the purchasers of the
Shares, such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading.
(c) The Company shall notify the Buyers in the event of the issuance of any
stop order of which the Company or its counsel is aware suspending the
effectiveness of the Registration Statement or any order suspending or
preventing the use of any related prospectus or suspending the registration or
qualification of any Shares for sale in any jurisdiction, and in such event the
Company shall use its reasonable best efforts to obtain the withdrawal of any
such order as soon as practicable.
(d) The Buyers agree that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Sections 2.2(b) or (c)
above, the Buyers will forthwith discontinue the transfer or disposition of any
Shares pursuant to the prospectus relating to the Registration Statement
covering such Shares until the Buyers receive copies of the amended or
supplemented prospectus contemplated by Section 2.2(b) or the withdrawal of any
order contemplated by Section 2.2(c), and, if so directed by the Company, the
Buyers will deliver to the Company all copies, other than permanent file copies
then in the Buyers' possession, of the prospectus covering such Shares at the
time of receipt of such notice.
(e) The Buyers, severally and not jointly, will, and hereby agree to,
indemnify and hold harmless and defend the Company and the Company's officers,
directors, employees, agents, representatives and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any alleged untrue statement in, or any omission or alleged omission from, the
Registration Statement, any prospectus or any amendment or supplement thereto,
if such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such Buyer from time to time
specifically for use in the Registration Statement, or the prospectus or any
such amendment or supplement thereto. Such indemnity shall survive the transfer
of the Shares by the Buyers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to each of the Buyers and the Company,
as of the date of this Agreement and as of the Closing, as follows:
3.1 Beneficial Ownership of the Shares. The Seller beneficially owns the
Shares, which consist of 993,542 issued and outstanding shares of the common
stock of the Company. The Seller beneficially owns no other issued and
outstanding shares of common stock of the Company. For the purposes of this
Agreement, beneficial ownership means ownership determined in accordance with
the provisions of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
3.2 No Encumbrances on Shares. The Seller is the sole record and beneficial
owner of the Shares, and has good and marketable title to the Shares free and
clear of any liens, encumbrances, pledges, security interests, restrictive
agreements, options, rights of first refusal, transfers or restrictions,
conditional sales agreements, voting trust arrangements or claims of any nature
whatsoever (collectively, "Encumbrances"), and the Seller has the absolute
right, power and capacity to sell, assign and deliver the Shares to each of the
Buyers and the Company free and clear of any such Encumbrances. At the Closing,
upon payment of the Purchase Price for the Shares, the respective Buyers and the
Company shall receive good and merchantable title to the respective Shares
transferred to each of them, free of any Encumbrance or interest whatsoever of
any third party.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each Buyer, severally and not jointly, represents and warrants, as of the
date of this Agreement and as of the Closing Date, as follows:
4.1 Shares are Restricted until Registration. Each Buyer understands that
the Shares to be purchased by him have been sold in reliance upon, among other
things, the representations made by him herein, and have not been registered
under the Securities Act or the securities laws of any state. Each Buyer
understands and agrees that the Shares to be purchased by him, or any portion
thereof, will not be freely transferable and may not be resold, transferred or
assigned by him except (i) pursuant to the Registration Statement during the
effectiveness thereof and subject to the provisions of Article II hereof, or
(ii) upon the delivery to the Seller of an opinion of legal counsel for such
Buyer stating that registration is not required under applicable federal and
state securities laws. Each Buyer agrees that a statement or legend reflecting
the foregoing limitations on the resale or transfer of the Shares, or any
portion thereof, may appear on any certificate evidencing the Shares; provided,
however, that the Company consents to the removal of any such legend upon the
Registration Statement becoming effective and remaining effective during the
period described in the second sentence of Section 2.1(a).
4.2 No Distribution of the Shares. Each Buyer seeks to acquire the Shares
for investment for his own account and beneficial interest (and not for the
account or interest of any other person or persons) and has no present intention
of dividing them with others or reselling, assigning or otherwise distributing
the Shares to others.
4.3 Available Information. Each Buyer understands and agrees that:
(a) The Company is subject to the informational requirements of the
Exchange Act, and in accordance therewith files reports, proxy statements and
other information with the SEC and that:
(i) such reports, proxy statements and other information filed by the
Company are available to the Buyer and can be inspected and copied at the public
reference facilities maintained at the SEC at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549-1004, and at various regional offices of
the SEC;
(ii) copies of such materials can be obtained by the Buyer by mail from the
Public Reference Section of the SEC at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549-1004, at prescribed rates; and
(iii) the SEC maintains a website (http://www-sec.gov) that contains
reports, proxy statements and other information regarding the Company, which may
be accessed by the Buyer.
(b) The Buyer acknowledges receipt of and has reviewed the copy of the
Company's report on Form 10-Q for the quarter ended June 30, 1999, which is
attached hereto as Exhibit B.
(c) The Buyer acknowledges receipt of, and has reviewed, the Company's 1998
Annual Report to Shareholders and Proxy Statement dated April 13, 1999, which
have been provided to all shareholders of record.
(d) In determining whether or not to make an investment in the Shares, the
Buyer has relied solely upon information set forth in the SEC filings and other
reports described above and independent investigations made by him and his
purchaser representative(s), if any.
(e) The Buyer and his purchaser representative(s), if any, have been given
ample opportunity to ask questions of and receive answers from representatives
of the Company concerning an investment in the Shares and to obtain additional
information necessary to verify the accuracy of the information set forth in the
SEC filings and other reports set forth above.
4.4 Accredited Investor. The Buyer is an "accredited investor" as such term
is defined under Rule 501 of the Securities Act because:
(a) The Buyer is a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase exceeds $1,000,000;
(b) The Buyer is a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same level in the current year;
(c) The Buyer is a director or executive officer of the Company; or
(d) The Buyer is an entity in which all the equity owners are accredited
investors.
4.5 Sophisticated Investor.
(a) The Buyer, either alone or with a purchaser representative, has a
sufficient degree of sophistication to understand and evaluate the merits and
risks associated with an investment in the Shares.
(b) The Buyer's overall commitment to investments which are not readily
marketable is not disproportionate to his net worth and his investment in the
Shares will not cause such overall commitment to become excessive.
(c) The Buyer has adequate net worth and means for providing for any
current needs and contingencies such that he is able to sustain a complete loss
of his investment in the Shares, and he has no need for liquidity in such
investment.
(d) The Buyer has evaluated the risks of investing in the Shares.
(e) The Buyer has such knowledge and experience of financial and business
matters that he is capable of evaluating the merits and risks of an investment
in the Shares.
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of Buyers and the Company. The obligations of
the Buyers and the Company under this Agreement are subject to the fulfillment,
at the Closing, of the following conditions precedent, compliance with which, or
the occurrence of which may be waived prior to the Closing in writing by all of
the Buyers and the Company in their sole discretion:
(a) The representations and warranties of the Seller shall be true on and
as of the Closing Date as though such representations and warranties were made
on and as of such date. The Seller shall have performed and complied with all
terms, conditions, covenants, obligations, agreements and restrictions required
by this Agreement to be performed or complied with by it prior to or at the
Closing.
(b) Each of the Buyers and the Company shall have received at the Closing
certificates representing the Shares accompanied by duly executed stock powers
as required by Section 1.3 hereof.
5.2 Conditions to Obligations of Seller. The obligations of the Seller
under this Agreement are subject to the fulfillment, at the Closing, of the
following conditions precedent, compliance with which, or the occurrence of
which may be waived prior to the Closing in writing by the Seller in its sole
discretion:
(a) The representations and warranties of each of the Buyers shall be true
on and as of the Closing as though such representations and warranties were made
on and as of such date. Each Buyer and the Company shall have performed and
complied with all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
(b) The Seller shall have received at the Closing the Purchase Price from
each of the Buyers and the Company pursuant to the requirements of Section 1.2.
ARTICLE VI
EQUITABLE RELIEF
Each party understands and agrees that money damages alone would not be a
sufficient remedy for any breach of this Agreement by any other party and that
any party hereto shall be entitled to injunctive or equitable relief, as a
remedy for any such breach by another party. Such remedies shall not be deemed
to be exclusive remedies for a breach of this Agreement, but shall be in
addition to all other remedies available at law or in equity.
ARTICLE VII
GENERAL PROVISIONS
7.01 Further Assurances. Each of the parties shall, at any time and from
time to time after the Closing, upon the request of any other party hereto, and
without further consideration, do, execute, acknowledge and deliver, or cause to
be done, executed, acknowledged and delivered, any and all such further acts,
deeds, assignments, transfers, conveyances and assurances as may reasonably be
required by the requesting party to further evidence or effectuate the
transactions set forth or contemplated by this Agreement.
7.02 Survival of Representations and Warranties. The representations and
warranties contained in this Agreement shall survive the Closing for the full
period of the applicable statute of limitations with respect thereto, if any, or
otherwise indefinitely.
7.03 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Virginia applicable to contracts
made and to be wholly performed in such state.
7.04 Entire Agreement; Amendment. This Agreement, and the exhibits attached
hereto, constitute the entire agreement among the parties with respect to the
transactions contemplated hereby and supersede all prior agreements and
understandings. No amendment, modification or waiver of this Agreement shall be
valid unless in each instance such amendment, modification or waiver is in
writing or signed by the parties.
7.05 Notices. Any notice or other communication to be given hereunder by
any party to another shall be deemed to be received by the intended recipient
(a) when delivered personally, (b) the day following delivery to a nationally
recognized overnight courier service with proof of delivery, or (c) three days
after mailing by certified mail, postage prepaid with return receipt requested,
in each case addressed to the intended recipient as set forth below with
applicable postage or delivery fees prepaid or billing therefor arranged to the
sender:
If to the Buyers, to each of the Buyers at the addresses set forth on
Exhibit A hereto.
If to the Seller, to: Stan A. Fischer
12887 River Road
Richmond, Virginia 23233
If to the Company, to: John L. Hobey
Chief Executive Officer
Open Plan Systems, Inc.
4299 Carolina Avenue, Building C
Richmond, Virginia 23222
with copies to: Theodore L. Chandler, Jr., Esquire
Williams, Mullen, Clark & Dobbins, P.C.
1021 East Cary Street
Richmond, Virginia 23219
7.06 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties and their respective successors and assigns. None of the
parties may assign any provision of this Agreement without the prior written
consent of the other parties.
7.07 Interpretations. The headings to the sections of this Agreement are
for the convenience of reference only and do not form part of this Agreement and
shall not affect interpretations thereof. Unless the context indicates
otherwise, words in a singular number shall be deemed to include words in the
plural and vice versa, and words in one gender shall be deemed to include words
in other genders.
7.08 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall, in the aggregate, be considered one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first written above.
[THIS SPACE INTENTIONALLY LEFT BLANK]
SELLER:
/s/ Stan A. Fischer
Stan A. Fischer
BUYERS:
/s/ A. G. Bertozzi
A. G. Bertozzi
/s/ John C. Cullather
John C. Cullather
/s/ J. Wesley Hall
J. Wesley Hall
/s/ Anthony F. Markel
Anthony F. Markel
/s/ Gary L. Markel
Gary L. Markel
/s/ Robert F. Mizell
Robert F. Mizell
/s/ E. W. Mugford
E. W. Mugford
/s/ Troy A. Peery, Jr.
Troy A. Peery, Jr.
THE COMPANY
OPEN PLAN SYSTEMS, INC.
By: /s/ Anthony F. Markel
Anthony F. Markel
Chairman of the Board
Exhibits:
Exhibit A - Buyers' and Company's Purchase Obligations
Exhibit B - Company's Form 10-Q for the quarter ended June 30, 1999
0549622.05
EXHIBIT A
Buyers' and Company's Purchase Obligations
- ------------------------------------------- -------------------------------------- --------------------------------------
Names and Addresses Number of Shares
of to be
Buyers to be Purchased Purchase Price
- ------------------------------------------- -------------------------------------- --------------------------------------
Anthony A. Bertozzi 50,000 $ 125,000
3006 Impala Place
Richmond, VA 23228
- ------------------------------------------- -------------------------------------- --------------------------------------
J. Cullather 100,000 250,000
Cullather Realty
P. O. Box 9316
Richmond, VA 23227
- ----------------------------------------- -------------------------------------- --------------------------------------
J. Wesley Hall 125,000 312,500
15 Broad Run Road
Manakin-Sabot, VA 23103
- ------------------------------------------- -------------------------------------- --------------------------------------
Anthony F. Markel 100,000 250,000
Markel Corporation
4551 Cox Road
Glen Allen, VA 23060
- ------------------------------------------- -------------------------------------- --------------------------------------
Gary L. Markel 100,000 250,000
Markel & Associates
9700 9th Street, N
St. Petersburg, FL 33702
- ------------------------------------------- -------------------------------------- --------------------------------------
Robert F. Mizell 10,000 25,000
Davenport & Company
901 East Cary Street
Richmond, VA 23219
- ------------------------------------------- -------------------------------------- --------------------------------------
E. W. Mugford 4,000 10,000
Royal Oldsmobile
8200 West Broad Street
Richmond, VA 23294
- ------------------------------------------- -------------------------------------- --------------------------------------
Troy A. Peery, Jr. 75,000 187,500
Heilig Meyers Furniture Co.
1900 Manakin Road
Manakin-Sabot, VA 23103
- ------------------------------------------- -------------------------------------- --------------------------------------
Redemption by the Company1 429,542 1,073,855
- ------------------------------------------- -------------------------------------- --------------------------------------
Total 993,542 $2,483,855
- ------------------------------------------- -------------------------------------- --------------------------------------
EXHIBIT B
[The Issuer's Form 10-Q for the quarterly period ended June
30, 1999, previously filed with the Commission, has been
omitted.]
- --------
1 For the purposes of the Agreement, the Company is not and shall not be deemed
to be a "Buyer."