As filed with the Securities and Exchange Commission on October 31, 1996.
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OPEN PLAN SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
Virginia 54-1515256
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4299 Carolina Avenue, Building C, Richmond, Virginia 23222
(Address of Principal Executive Offices) (Zip Code)
------------------
OPEN PLAN SYSTEMS, INC.
1996 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Stan A. Fischer With a copy to:
4299 Carolina Avenue, Building C Robert E. Spicer, Jr., Esquire
Richmond, Virginia 23222 Williams, Mullen, Christian & Dobbins
(804) 228-5600 1021 East Cary Street, 16th Floor
(Name, Address and Telephone Number, Richmond, Virginia 23219
Including Area Code, of Agent for Service)
-----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================== ================= ========================= ====================== ===================
Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities to Registered(1) Offering Price per Aggregate Offering Registration Fee
be Registered Share(2) Price
=============================== ================= ========================= ====================== ===================
<S> <C> <C> <C> <C>
Common Stock, no par value 400,000 $9.75 $3,900,000 $1,182
=============================== ================= ========================= ====================== ===================
</TABLE>
(1) The amount of Common Stock registered hereunder shall be deemed to
include any additional shares issuable as a result of any stock split,
stock dividend or other change in the capitalization of the Registrant.
(2) Pursuant to Rule 457(h), the offering price is based on the average
of the high ($10.00) and low ($9.50) prices as reported on the Nasdaq
National Market System on October 29, 1996.
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated herein by reference and made
a part hereof:
(1) the Registrant's Prospectus filed on May 31, 1996 pursuant to
Rule 424(b)(4) under the Securities Act of 1933, as amended
(the "Securities Act");
(2) the Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1996, filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(3) the Registrant's Reports on Form 10-C, filed June 12, 1996 and
June 17, 1996;
(4) the Registrant's Current Reports on Form 8-K filed
July 2, 1996 and October 16, 1996; and
(5) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed May
20, 1996.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modified or
supersedes such earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Williams, Mullen, Christian & Dobbins, counsel to the Registrant, has
rendered its opinion that the shares of Common Stock that constitute original
issuance securities will, when issued pursuant to the terms and conditions of
the Plan, be validly issued, fully paid and nonassessable. Attorneys employed by
the firm beneficially owned an aggregate of 7,000 shares of the Registrant's
Common Stock as of October 22, 1996.
Item 6. Indemnification of Directors and Officers
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia (the
"Code") permits a Virginia corporation to indemnify any director or officer for
reasonable expenses incurred in any legal proceeding in advance of final
disposition of the proceeding, if the director or officer furnishes the
corporation a written statement of his good faith belief that he has met the
standard of conduct prescribed by the Code, and a determination is made by the
board of directors that such standard has been met. In a proceeding by or in the
right of the corporation, no indemnification shall be made in respect of any
matter as to which an officer or director is adjudged to be liable to the
corporation, unless the court in which the proceeding took place determines
that, despite such liability, such person is reasonably entitled to
indemnification in view of all of the relevant circumstances. In any other
proceeding, no indemnification shall be made if the director or officer is
adjudged liable to the corporation on the basis that personal benefit was
improperly received by him. Corporations are given the power to make any other
or further indemnity, including advance of expenses, to any director or officer
that may be authorized by the articles of incorporation or any bylaw made by the
shareholders, or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against willful misconduct or a knowing
violation of the criminal law. Unless limited by its articles of incorporation,
indemnification of a director or officer is mandatory when he entirely prevails
in the defense of any proceeding to which he is a party because he is or was a
director or officer.
The Amended and Restated Articles of Incorporation of the Registrant
contain provisions indemnifying the directors and officers of the Registrant. In
addition, the Amended and Restated Articles of Incorporation of the Registrant
eliminate the personal liability of the Registrant's directors and officers to
the Registrant or its shareholders for monetary damages to the full extent
permitted by Virginia law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed on behalf of the Registrant as part of
this Registration Statement:
4.1 Amended and Restated Articles of Incorporation of Open Plan
Systems, Inc., attached as Exhibit 3.1 to the Registrant's
Registration Statement on Form SB-2, as amended, Registration
No. 333-3188, incorporated herein by reference.
4.2 Amended and Restated Bylaws of Open Plan Systems, Inc.,
attached as Exhibit 3.2 to the Registrant's Registration
Statement on Form SB-2, as amended, Registration No. 333-3188,
incorporated herein by reference.
4.3 Form of Stock Certificate, attached as Exhibit 4 to the
Registrant's Registration Statement on Form SB-2, as amended,
Registration No. 333-3188, incorporated herein by reference.
4.4 Open Plan Systems, Inc. 1996 Stock Incentive Plan.
5.1 Opinion of Williams, Mullen, Christian & Dobbins.
23.1 Consent of Williams, Mullen, Christian & Dobbins (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Martin, Dolan & Holton, Ltd.
24 Powers of Attorney.
Item 9. Undertakings
The undersigned Registrant hereby undertakes that it will
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this
Registration Statement to:
(i) Include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or
events which, individually or together,
represent a fundamental change in the
information in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume
of securities offered (if the total dollar
value of securities offered would
not exceed that which was registered) and
any deviation from the low or high
end of the estimated maximum offering
range may be reflected in the form of
prospectus filed with the Commission
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation
of Registration Fee" table in the effective
Registration Statement; and
(iii) Include any additional or changed material
information on the plan of distribution;
provided, however, that paragraph (1)(i) and (1)(ii) shall not
apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required in a post-effective
amendment is incorporated by reference from periodic reports
filed by the Registrant under the Exchange Act.
(2) For determining liability under the Securities Act,
treat each such post-effective amendment as a new
registration statement of the securities offered, and
the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Open Plan
Systems, Inc., the Registrant, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Richmond, Commonwealth of
Virginia, on this 21st day of October, 1996.
OPEN PLAN SYSTEMS, INC.
/s/ Stan A. Fischer
--------------------------------------
By: Stan A. Fischer
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Stan A. Fischer President and Director October 21, 1996
- --------------------------------------- (Principal Executive Officer)
Stan A. Fischer
/s/ Gary M. Farrell Chief Financial Officer, October 21, 1996
- --------------------------------------- Secretary and Director
Gary M. Farrell (Principal Financial and Accounting
Officer)
* Director
- ---------------------------------------
Troy A. Peery, Jr.
* Director
- ---------------------------------------
Anthony F. Markel
* Director
- ---------------------------------------
Theodore L. Chandler, Jr.
<PAGE>
* Director
- ---------------------------------------
Robert F. Mizell
* Director
- ---------------------------------------
C.T. Hill
</TABLE>
*Gary M. Farrell, by signing his name hereto, signs this document on
behalf of each of the persons indicated by an asterisk above pursuant to powers
of attorney duly executed by such persons and filed as exhibits to this
Registration Statement.
Date: October 21, 1996 /s/ Gary M. Farrell
---------------------------------
Gary M. Farrell
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
4.1 Amended and Restated Articles of Incorporation of Open Plan
Systems, Inc., attached as Exhibit 3.1 to the Registrant's
Registration Statement on Form SB-2, as amended, Registration
No. 333-3188, incorporated herein by reference.
4.2 Amended and Restated Bylaws of Open Plan Systems, Inc.,
attached as Exhibit 3.2 to the Registrant's Registration
Statement on Form SB-2, as amended, Registration No. 333-3188,
incorporated herein by reference.
4.3 Form of Stock Certificate, attached as Exhibit 4 to the
Registrant's Registration Statement on Form SB-2, as amended,
Registration No. 333-3188, incorporated herein by reference.
4.4 Open Plan Systems, Inc. 1996 Stock Incentive Plan.
5.1 Opinion of Williams, Mullen, Christian & Dobbins.
23.1 Consent of Williams, Mullen, Christian & Dobbins (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Martin, Dolan & Holton, Ltd.
24 Powers of Attorney.
OPEN PLAN SYSTEMS, INC.
1996 STOCK INCENTIVE PLAN
(as amended November 1, 1996)
Article I
DEFINITIONS
1.01 Affiliate means any "subsidiary" or "parent corporation"
(within the meaning of Section 424 of the Code) of the Company.
1.02 Agreement means a written agreement (including any amendment
or supplement thereto) between the Company and a Participant specifying the
terms and conditions of a Grant or an Award issued to such Participant.
1.03 Award means an award of Common Stock, Restricted Stock and/or
Phantom Stock.
1.04 Board means the Board of Directors of the Company.
1.05 Change of Control means and shall be deemed to have taken
place if: (i) any individual, entity or group (within the meaning of Sections
13(d)(3) or 14(d)(2) of the Exchange Act) becomes the beneficial owner of shares
of the Company having 20 percent or more of the total number of votes that may
be cast for the election of directors of the Company, other than (x) as a result
of any acquisition directly from the Company or (y) as a result of any
acquisition by any employee benefit plans (or related trusts) sponsored or
maintained by the Company or its Subsidiaries; or (ii) a change in the
composition of the Board such that the individuals who, as of the date hereof,
constitute the Board (the Board as of the date hereof shall be hereinafter
referred to as the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, for purposes of this Section,
that any individual who becomes a member of the Board subsequent to the date
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of those individuals who are
members of the Board and who were also members of the Incumbent Board (or deemed
to be such pursuant to this proviso) shall be considered as though such
individual were a member of the Incumbent Board; but, provided further, that any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a person other
than the Board shall not be so considered as a member of the Incumbent Board.
1.06 Change of Control Date is the date on which an event described
in (i) or (ii) of Section 1.05 occurs.
1.07 Code means the Internal Revenue Code of 1986, and any
amendments thereto.
1.08 Commission means the Securities and Exchange Commission or any
successor agency.
1.09 Committee means the Compensation Committee of the Board.
1.10 Common Stock means the Common Stock of the Company.
1.11 Company means Open Plan Systems, Inc.
1.12 Exchange Act means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
1.13 Fair Market Value means, on any given date, the mean between
the highest and lowest reported sales prices of Common Stock as reported on the
Nasdaq National Market System. If there is no regular public trading market for
the Common Stock, the Fair Market Value shall be determined by the Committee in
good faith.
1.14 Grant means a grant of an Option and/or an SAR.
1.15 Incentive Stock Option means an Option that is intended to
qualify as an "incentive stock option" under Section 422 of the Code.
1.16 Initial Value means, with respect to an SAR, the Fair Market
Value of one share of Common Stock on the date of its grant, as set forth in the
Agreement.
1.17 Non-Qualified Stock Option means an option other than an
Incentive Stock Option.
1.18 Option means a stock option that entitles the holder to
purchase from the Company a stated number of shares of Common Stock at the price
set forth in an Agreement.
1.19 Option Price means the price per share for Common Stock
purchased on the exercise of an Option as provided in Article VI.
1.20 Participant means an officer, director or key employee of the
Company or of a Subsidiary who satisfies the requirements of Article IV and is
selected by the Committee to receive a Grant or an Award.
1.21 Phantom Stock means a bookkeeping entry on behalf of a
Participant by which his account is credited (but not funded) as though Common
Stock had been transferred to such account.
1.22 Plan means the Open Plan Systems, Inc. 1996 Stock Incentive
Plan.
1.23 Restricted Stock means shares of Common Stock awarded to a
Participant under Article IX. Shares of Common Stock shall cease to be
Restricted Stock when, in accordance with the terms of the applicable Agreement,
they become transferable and free of substantial risks of forfeiture.
1.24 Rule 16b-3 means Rule 16b-3, as promulgated by the Commission
under Section 16(b) of the Exchange Act, as amended from time to time.
1.25 SAR means a stock appreciation right granted pursuant to the
Plan that entitles the holder to receive, with respect to each share of Common
Stock encompassed by the exercise of such SAR, the lesser of (a) the excess of
the Fair Market Value at the time of exercise over the Initial Value of the SAR
or (b) the Initial Value of the SAR; provided that any limited stock
appreciation right granted by the Committee and exercisable upon a Change of
Control shall entitle the holder to receive, with respect to each share of
Common Stock encompassed by the exercise of such SAR, the higher of (x) the
highest sales price of a share of Common Stock on the Nasdaq National Market
System during the 60-day period prior to and including the Change of Control
Date or (y) the highest price per share paid in a Change of Control transaction,
except that in the case of SARs related to Incentive Stock Options, such price
shall be based only on the Fair Market Value on the date that the Incentive
Stock Option is exercised.
1.26 Securities Broker means the registered securities broker
acceptable to the Company who agrees to effect the cashless exercise of an
Option pursuant to Section 8.05 hereof.
1.27 Subsidiary means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if each of the
corporations in the chain (other than the last corporation) owns stock
possessing at least 50 percent of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
Article II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining
officers, directors and key employees with ability and initiative by enabling
such persons who contribute significantly to the Company or an Affiliate to
participate in its future success and to associate their interests with those of
the Company and its shareholders. The Plan is intended to permit the award of
Common Stock, Restricted Stock, and Phantom Stock, and the issuance of Options
qualifying as Incentive Stock Options or Non-Qualified Stock Options, as
designated by the Committee at the time of their grant, and SARs. No Option that
is intended to be an Incentive Stock Option, however, shall be invalid for
failure to qualify as an Incentive Stock Option under Section 422 of the Code
but shall be treated as a Non-Qualified Stock Option.
Article III
ADMINISTRATION
The Plan shall be administered by the Committee, which shall be
composed of two or more directors. The Committee shall have authority to issue
Grants and Awards upon such terms (not inconsistent with the provisions of the
Plan) as the Committee may consider appropriate. The terms of such Grants and
Awards may include conditions (in addition to those contained in the Plan) on
(i) the exercisability of all or part of an Option or SAR and (ii) the
transferability or forfeitability of Restricted Stock or Phantom Stock. In
addition, the Committee shall have complete authority to interpret all
provisions of the Plan; to prescribe the form of Agreements; to adopt, amend,
and rescind rules and regulations pertaining to the administration of the Plan;
and to make all other determinations necessary or advisable for the
administration of the Plan. To fulfill the purposes of the Plan without amending
the Plan, the Committee may also modify any Grants or Awards issued to
Participants who are nonresident aliens or employed outside of the United States
to recognize differences in local law, tax policy or custom.
The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made, or action taken, by the Committee or in connection with the
administration of the Plan shall be final and conclusive. All expenses of
administering the Plan shall be borne by the Company.
Article IV
ELIGIBILITY
4.01 General. Any officer, director or employee of the Company or a
Subsidiary (including any corporation that becomes a Subsidiary after the
adoption of the Plan) who, in the judgment of the Committee, has contributed
significantly or can be expected to contribute significantly to the profits or
growth of the Company or a Subsidiary may receive one or more Grants and/or
Awards, or any combination or type thereof. Employee and non-employee directors
of the Company are eligible to participate in the Plan.
4.02 Grants and Awards. The Committee will designate individuals to
whom Grants and/or Awards are to be issued and will specify the number of shares
of Common Stock subject to each such Grant or Award. An Option may be granted
alone or in addition to other Grants and/or Awards under the Plan. The Committee
shall have the authority to grant any Participant Incentive Stock Options,
Non-Qualified Stock Options or both types of Options (in each case with or
without a related SAR); provided, however, that Incentive Stock Options may be
granted only to employees of the Company and its Subsidiaries. An SAR may be
granted with or without a related Option. All Grants and Awards issued under the
Plan shall be evidenced by Agreements that shall be subject to applicable
provisions of the Plan and to such other provisions as the Committee may
determine. No Participant may be granted Options that are Incentive Stock
Options, or related SARs (under all Incentive Stock Option Plans of the Company
and its Affiliates), that are first exercisable in any calendar year for stock
having an aggregate Fair Market Value (determined as of the date that an Option
is granted) exceeding $100,000.
4.03 Designation of Option as an Incentive Stock Option or
Non-Qualified Stock Option. The Committee will designate at the time that an
Option is granted whether the Option is to be treated as an Incentive Stock
Option or a Non-Qualified Stock Option. In the absence, however, of any such
designation, such Option shall be treated as an Incentive Stock Option.
4.04 Qualification of Incentive Stock Option under Section 422 of the
Code. Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options shall be interpreted, amended or altered nor
shall any discretion or authority granted under the Plan be exercised so as to
disqualify the Plan under Section 422 of the Code or, without the consent of the
optionee affected, to disqualify any Incentive Stock Option under such Section
422.
Article V
STOCK SUBJECT TO PLAN
5.01 Maximum Number of Shares to be Awarded. Upon the exercise of any
Option (or tandem SAR), the award of Common Stock or Restricted Stock, or the
payment of an award of Phantom Stock, the Company may deliver to the Participant
authorized but previously unissued shares of Common Stock or previously issued
shares of Common Stock reacquired by the Company. The maximum aggregate number
of shares of Common Stock that may be issued pursuant to the Plan is 400,000.
The maximum aggregate number of shares of Common Stock that may be issued
pursuant to the exercise of Options (or tandem SARs) and the award of Common
Stock or Restricted Stock or the payment of an award of Phantom Stock under the
Plan is subject to adjustment as provided in Article XI. If an Option is
terminated, in whole or in part, for any reason other than its exercise, the
number of shares of Common Stock allocated to the Option or a portion thereof
may be reallocated to other Grants or Awards to be made under the Plan. Any
shares of Restricted Stock that are forfeited may be reallocated to other Grants
or Awards to be made under the Plan.
5.02 Independent SARs. Upon the exercise of an SAR granted
independently of an Option, the Company may deliver to the Participant
authorized but previously unissued Common Stock, cash, or a combination thereof
as provided in Section 8.03. The maximum aggregate number of shares of Common
Stock that may be issued pursuant to SARs that are granted independently of
Options is subject to the provisions of Section 5.01 hereof.
Article VI
OPTION PRICE
The price per share for Common Stock purchased on the exercise of an
Option shall be fixed by the Committee on the date of its grant; provided,
however, that, in the case of an Option that is an Incentive Stock Option, the
price per share shall not be less than the Fair Market Value on such date.
Article VII
EXERCISE OF OPTIONS
7.01 Maximum Option or SAR Period. The period in which an Option or
SAR may be exercised shall be determined by the Committee on the date of its
grant; provided, however, that an Incentive Stock Option or related SAR shall
not be exercisable after the expiration of ten years from the date that the
Incentive Stock Option is granted.
7.02 Nontransferability. Any Option or SAR granted under the Plan
shall be nontransferable except by will or by the laws of descent and
distribution. In the event of any such transfer, the Option and any related SAR
must be transferred to the same person or persons, trust or estate. During the
lifetime of the Participant to whom an Incentive Stock Option or related SAR is
granted, such Option or SAR may be exercised only by the Participant. No right
or interest of a Participant in any Option or SAR shall be liable for, or
subject to, any lien, obligation or liability of such Participant.
7.03 Employee Status. For purposes of determining the applicability of
Section 422 of the Code (relating to Incentive Stock Options), or in the event
that the terms of any Grant provide that it may be exercised only during
employment or within a specified period of time after termination of employment,
the Committee may decide to what extent leaves of absence for governmental or
military service, illness, temporary disability, or other reasons shall not be
deemed interruptions of continuous employment.
Article VIII
METHOD OF EXERCISE
8.01 Exercise. Subject to the provisions of Articles VII and XII, an
Option or SAR may be exercised in whole at any time or in part from time to time
at such times and in compliance with such requirements as the Committee shall
determine; provided, however, that an SAR that is related to an Option may be
exercised only to the extent that the related Option is exercisable and when the
Fair Market Value exceeds the Option Price of the related Option. An Option or
SAR granted under the Plan may be exercised with respect to any number of whole
shares less than the full number for which the Option or SAR could be exercised.
Such partial exercise of an Option or SAR shall not affect the right to exercise
the Option or SAR from time to time in accordance with the Plan with respect to
remaining shares subject to the Option or related SAR. The exercise of an Option
shall result in the termination of the SAR to the extent of the number of shares
with respect to which the Option is exercised.
8.02 Payment. Unless otherwise provided by the Agreement, payment of
the Option Price shall be made in cash. If the Agreement provides, payment of
all or part of the Option Price (and any applicable withholding taxes) may be
made by the Participant's surrendering shares of Common Stock to the Company or
by the Company's withholding shares of Common Stock from the Participant upon
exercise, provided that the shares surrendered or withheld have a Fair Market
Value (determined as of the day preceding the date of exercise) that is not less
than such price or part thereof and any such withholding taxes. In addition, the
Committee may establish such payment or other terms as it may deem to be
appropriate and consistent with these purposes.
8.03 Determination of Payment of Cash and/or Common Stock upon Exercise
of SAR. At the Committee's discretion, the amount payable as a result of the
exercise of an SAR may be settled in cash, Common Stock, or a combination
thereof. No fractional shares shall be delivered upon the exercise of an SAR,
and a cash payment will be made in lieu thereof.
8.04 Shareholder Rights. No participant shall have any rights as a
shareholder with respect to shares subject to his Option or SAR until the date
that he exercises such Option or SAR.
8.05 Cashless Exercise. To the extent permitted under the applicable
laws and regulations, at the request of the Participant and with the consent of
the Committee, the Company agrees to cooperate in a "cashless exercise" of the
Option. The cashless exercise shall be effected by the Participant delivering to
the Securities Broker instructions to exercise all or part of the Option,
including instructions to sell a sufficient number of shares of Common Stock to
cover the costs and expenses associated therewith. The Committee may permit a
Participant to elect to pay any applicable withholding taxes by requesting that
the Company withhold the number of shares of Common Stock equivalent at current
market value to the withholding taxes due.
8.06 Cashing Out of Option. The Committee may elect to cash out all
or part of the portion of any Option to be exercised by paying the optionee an
amount, in cash or Common Stock, equal to, on the effective date of such cash
out, the excess of the Fair Market Value of the Common Stock that is the subject
of the portion of the Option to be exercised over the Option Price times the
number of shares of Common Stock subject to the portion of the Option to be
exercised.
Article IX
COMMON STOCK AND RESTRICTED STOCK
9.01 Award. In accordance with the provisions of Article IV, the
Committee may designate persons to whom an award of Common Stock and/or
Restricted Stock is to be made and will specify the number of shares of Common
Stock covered by such award or awards.
9.02 Vesting. In the case of Restricted Stock, on the date of the
award, the Committee may prescribe that the Participant's rights in the
Restricted Stock shall be forfeitable or otherwise restricted for a period of
time set forth in the Agreement and/or until certain financial performance
objectives are satisfied as determined by the Committee in its sole discretion.
Subject to the provisions of Article XII hereof, the Committee may award Common
Stock to a Participant that is not forfeitable and is free of any restrictions
on transferability.
9.03 Shareholder Rights. Prior to forfeiture in accordance with the
terms of the Agreement and while the shares are Restricted Stock, a Participant
will have all rights of a shareholder with respect to Restricted Stock,
including the rights to receive dividends, warrants and rights and to vote the
shares; provided, however, that (i) a Participant may not sell, transfer,
pledge, exchange, hypothecate, or otherwise dispose of Restricted Stock, (ii)
the Company shall retain custody of the certificates evidencing shares of
Restricted Stock, and (iii) the Participant will deliver to the Company a stock
power, endorsed in blank, with respect to each award of Restricted Stock.
Article X
PHANTOM STOCK
10.01 Award. Pursuant to the Plan or any Agreement establishing
additional terms and conditions, the Committee may designate employees to whom
awards of Phantom Stock may be made and will specify the number of shares of
Common Stock covered by such award.
10.02 Vesting. The Committee may prescribe such terms and conditions
under which a Participant's right to receive payment for Phantom Stock shall
become vested.
10.03 Shareholder Rights. A Participant for whom Phantom Stock has been
credited generally shall have none of the rights of a shareholder with respect
to such Phantom Stock. However, a plan or agreement for the use of Phantom Stock
may provide for the crediting of a Participant's Phantom Stock account with cash
or stock dividends declared with respect to Common Stock represented by such
Phantom Stock.
10.04 Payment. At the Committee's discretion, the amount payable to a
Participant for Phantom Stock credited to his account shall be made in cash,
Common Stock or a combination thereof.
10.05 Nontransferability. Any Phantom Stock awarded under the Plan
shall be nontransferable except by will or by the laws of descent and
distribution.
Article XI
ADJUSTMENT UPON CHANGE IN COMMON STOCK
Should the Company effect one or more (x) stock dividends, stock
split-ups, subdivisions or consolidations of shares or other similar changes in
capitalization; (y) spin-offs, spin-outs, split-ups, split-offs, or other such
distribution of assets to shareholders; or (z) direct or indirect assumptions
and/or conversions of outstanding Options due to an acquisition of the Company,
then the maximum number of shares as to which Grants and Awards may be issued
under the Plan shall be proportionately adjusted, and their terms shall be
adjusted as the Committee shall determine to be equitably required. Any
determination made under this Article XI by the Committee shall be final and
conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, any
Grant or Award.
Article XII
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Grant shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under the Plan except in compliance with all applicable Federal and
state laws and regulations (including, without limitation, withholding tax
requirements) and the rules of all domestic stock exchanges on which the
Company's shares may be listed or the Nasdaq Stock Market. The Company may rely
on an opinion of its counsel as to such compliance. Any share certificate issued
to evidence Common Stock for which a Grant is exercised or an Award is issued
may bear such legends and statements as the Committee may deem advisable to
assure compliance with Federal and state laws and regulations. No Grant shall be
exercisable, no Common Stock shall be issued, no certificates for shares shall
be delivered, and no payment shall be made under the Plan until the Company has
obtained such consent or approval as the Committee may deem advisable from
regulatory bodies having jurisdiction over such matters.
Article XIII
GENERAL PROVISIONS
13.01 Effect on Employment. Neither the adoption of the Plan, or its
operation, nor any documents describing or referring to the Plan (or any part
thereof) shall confer upon any employee any right to continue in the employ of
the Company or a Subsidiary or in any way affect any right and power of the
Company or a Subsidiary to terminate the employment of any employee at any time
with or without assigning a reason therefor.
13.02 Unfunded Plan. The Plan, insofar as it provides for a Grant or
for an award of Phantom Stock, is not required to be funded, and the Company
shall not be required to segregate any assets that may be represented at any
time by a Grant or by an award of Phantom Stock under the Plan.
13.03 Change of Control. Notwithstanding any other provision of the
Plan to the contrary, in the event of a Change of Control:
(a) Any outstanding Option, SAR (including any limited SAR) or Phantom
Stock that is not presently exercisable and vested as of a Change of Control
Date shall become fully exercisable and vested to the full extent of the
original Grant upon such Change of Control Date.
(b) The restrictions applicable to any outstanding Restricted Stock
shall lapse, and such Restricted Stock shall become free of all restrictions and
become fully vested, nonforfeitable and transferable to the full extent of the
original Grant. The Committee may also provide in an Agreement that a
Participant may elect, by written notice to the Company within 60 days after a
Change of Control Date, to receive, in exchange for shares that were Restricted
Stock immediately before the Change of Control Date, a cash payment equal to the
Fair Market Value of the shares surrendered on the last business day that the
Common Stock is traded on the Nasdaq National Market System prior to receipt by
the Company of such written notice.
13.04 Rules of Construction. Headings are given to the articles and
sections of the Plan for ease of reference. The reference to any statute,
regulation, or other provision of law shall be construed to refer to any
amendment to or successor of such provision of law.
13.05 Amendment. The Board may amend or terminate the Plan from time to
time; provided, however, that no amendment may become effective until
shareholder approval is obtained if the amendment (i) materially increases the
aggregate number of shares that may be issued pursuant to Options and Common
Stock and Restricted Stock awards, (ii) materially increases the benefits to
Participants under the Plan, or (iii) materially changes the requirements as to
eligibility for participation in the Plan. Except for an amendment made to cause
the Plan or a Grant or Award to qualify for the Rule 16b-3 exemption, no
amendment, without a Participant's consent, shall adversely affect any rights of
such Participant under any Grant or Award outstanding at the time that such
amendment is made.
13.06 Duration of Plan. No Grant or Award may be issued under the Plan
before March 27, 1996, or after March 26, 2006. Grants and Awards issued on or
after March 27, 1996, but on or before March 26, 2006, shall remain valid in
accordance with their terms.
13.07 Effective Date. The Plan has been approved by the Board and the
shareholders of the Company and shall be effective as of March 27, 1996.
Amendments to the Plan effective as of November 1, 1996 were approved by the
Board.
[Williams, Mullen, Christian & Dobbins letterhead]
October 30, 1996
Board of Directors
Open Plan Systems, Inc.
4299 Carolina Avenue
Building C
Richmond, Virginia 23222
Re: 1996 Stock Incentive Plan
Ladies and Gentlemen:
This letter is delivered to you in connection with the actions taken
and proposed to be taken by Open Plan Systems, Inc., a Virginia corporation (the
"Company"), with respect to the offer and sale from time to time pursuant to the
1996 Stock Incentive Plan (the "Plan"), of up to 400,000 shares of the Company's
Common Stock, without par value (the "Shares"). As counsel to the Company, we
have reviewed the registration statement on Form S-8 (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission to effect the registration of the Shares under the Securities Act of
1933, as amended (the "Act").
In this regard, we have examined the Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws of the Company, records of
proceedings of the Board of Directors of the Company, the Plan and such other
records and documents as we have deemed necessary or advisable in connection
with the opinions set forth herein. In addition, we have relied as to certain
matters on information obtained from public officials, officers of the Company
and other sources believed by us to be reliable.
Based upon our examination and inquiries, we are of the opinion that
the Shares which constitute original issuance securities will, when issued
pursuant to the terms and conditions of the Plan, be validly issued, fully paid
and nonassessable. The foregoing opinion is limited to the laws of the
Commonwealth of Virginia and we express no opinion as to the effect of the laws
of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us as counsel to the Company in
the Registration Statement. In giving such consent, we do not thereby admit that
we are persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ WILLIAMS, MULLEN, CHRISTIAN & DOBBINS
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Open Plan Systems, Inc. 1996 Stock Incentive Plan of
our report dated March 27, 1996, with respect to the financial statements of
Open Plan Systems, Inc. included in the Registration Statement (Form SB-2 No.
333-3188) and Prospectus filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
Richmond, Virginia
October 28, 1996
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Open Plan Systems, Inc. 1996 Stock Incentive Plan of
our report dated March 27, 1995, with respect to the financial statements of
Open Plan Systems, Inc. included in the Registration Statement (Form SB-2 No.
333-3188) and Prospectus filed with the Securities and Exchange Commission.
/s/ Martin, Dolan & Horton
--------------------------
MARTIN, DOLAN & HOLTON
Richmond, Virginia
October 28, 1996
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Gary M. Farrell as my attorney-in-fact, with
power of substitution, for me in my name, place and stead, in any and all
capacities, to execute and file with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8 of the Company, with any and
all schedules, exhibits and other documents pertaining thereto or in connection
therewith, and any and all amendments or supplements thereto, relating to the
registration under the Securities Act of 1933, as amended, of shares of the
Company's Common Stock, no par value (the "Shares"), for issuance and sale under
the Open Plan Systems, Inc. 1996 Stock Incentive Plan. The attorney-in-fact is
further authorized to execute and deliver all documents, instruments, agreements
and regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Stan A. Fischer
----------------------------------------------
Stan A. Fischer
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer as my attorney-in-fact, with
power of substitution, for me in my name, place and stead, in any and all
capacities, to execute and file with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8 of the Company, with any and
all schedules, exhibits and other documents pertaining thereto or in connection
therewith, and any and all amendments or supplements thereto, relating to the
registration under the Securities Act of 1933, as amended, of shares of the
Company's Common Stock, no par value (the "Shares"), for issuance and sale under
the Open Plan Systems, Inc. 1996 Stock Incentive Plan. The attorney-in-fact is
further authorized to execute and deliver all documents, instruments, agreements
and regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Gary M. Farrell
---------------------------------------------
Gary M. Farrell
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer and Gary M. Farrell, either of
whom may act individually, as my attorney-in-fact, each with power of
substitution, for me in my name, place and stead, in any and all capacities, to
execute and file with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 of the Company, with any and all schedules,
exhibits and other documents pertaining thereto or in connection therewith, and
any and all amendments or supplements thereto, relating to the registration
under the Securities Act of 1933, as amended, of shares of the Company's Common
Stock, no par value (the "Shares"), for issuance and sale under the Open Plan
Systems, Inc. 1996 Stock Incentive Plan. The attorneys-in-fact are further
authorized to execute and deliver all documents, instruments, agreements and
regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that each said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Troy A. Peery, Jr.
----------------------------------------------
Troy A. Peery, Jr.
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer and Gary M. Farrell, either of
whom may act individually, as my attorney-in-fact, each with power of
substitution, for me in my name, place and stead, in any and all capacities, to
execute and file with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 of the Company, with any and all schedules,
exhibits and other documents pertaining thereto or in connection therewith, and
any and all amendments or supplements thereto, relating to the registration
under the Securities Act of 1933, as amended, of shares of the Company's Common
Stock, no par value (the "Shares"), for issuance and sale under the Open Plan
Systems, Inc. 1996 Stock Incentive Plan. The attorneys-in-fact are further
authorized to execute and deliver all documents, instruments, agreements and
regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that each said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Anthony F. Markel
----------------------------------------------
Anthony F. Markel
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer and Gary M. Farrell, either of
whom may act individually, as my attorney-in-fact, each with power of
substitution, for me in my name, place and stead, in any and all capacities, to
execute and file with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 of the Company, with any and all schedules,
exhibits and other documents pertaining thereto or in connection therewith, and
any and all amendments or supplements thereto, relating to the registration
under the Securities Act of 1933, as amended, of shares of the Company's Common
Stock, no par value (the "Shares"), for issuance and sale under the Open Plan
Systems, Inc. 1996 Stock Incentive Plan. The attorneys-in-fact are further
authorized to execute and deliver all documents, instruments, agreements and
regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that each said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Theodore L. Chandler, Jr.
----------------------------------------------
Theodore L. Chandler, Jr.
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer and Gary M. Farrell, either of
whom may act individually, as my attorney-in-fact, each with power of
substitution, for me in my name, place and stead, in any and all capacities, to
execute and file with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 of the Company, with any and all schedules,
exhibits and other documents pertaining thereto or in connection therewith, and
any and all amendments or supplements thereto, relating to the registration
under the Securities Act of 1933, as amended, of shares of the Company's Common
Stock, no par value (the "Shares"), for issuance and sale under the Open Plan
Systems, Inc. 1996 Stock Incentive Plan. The attorneys-in-fact are further
authorized to execute and deliver all documents, instruments, agreements and
regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that each said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ Robert F. Mizell
----------------------------------------------
Robert F. Mizell
Date: October 21, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Open Plan Systems, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints Stan A. Fischer and Gary M. Farrell, either of
whom may act individually, as my attorney-in-fact, each with power of
substitution, for me in my name, place and stead, in any and all capacities, to
execute and file with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 of the Company, with any and all schedules,
exhibits and other documents pertaining thereto or in connection therewith, and
any and all amendments or supplements thereto, relating to the registration
under the Securities Act of 1933, as amended, of shares of the Company's Common
Stock, no par value (the "Shares"), for issuance and sale under the Open Plan
Systems, Inc. 1996 Stock Incentive Plan. The attorneys-in-fact are further
authorized to execute and deliver all documents, instruments, agreements and
regulatory or governmental filings to the Commission and any applicable
securities or Blue Sky authorities of any state or other jurisdiction in
connection with the offer and sale of the Shares. The undersigned hereby
ratifies and confirms all that each said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ C.T. Hill
----------------------------------------------
C.T. Hill
Date: October 21, 1996
