Exhibit 10.1
AMENDMENT NO. 1
TO
VOTING AND STANDSTILL AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of July 21, 2000, 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"), and amends that certain
Voting and Standstill Agreement dated June 17, 1998 between OPS, LLC and GLC
(the "Original Agreement").
W I T N E S S E T H:
WHEREAS, OPS and LLC entered into a Management and Consulting
Agreement, dated as of June 17, 1998 (the "Consulting Agreement"), under which
LLC agreed to provide certain management and consulting services; and
WHEREAS, OPS, LLC and GLC entered into the Original Agreement in order
to establish certain conditions of LLC's and GLC's relationship with OPS,
including limiting, in general, the ownership by LLC and its affiliates to no
greater than 21.0% of the "Adjusted Outstanding Shares" of Common Stock of the
Company, as such term as defined in the Original Agreement; and
WHEREAS, LLC and certain of its affiliates desire to acquire additional
shares of Common Stock of OPS, and OPS believes it is in the best interests of
OPS and its shareholders to permit such acquisition; and
WHEREAS, the parties hereto desire to amend the Original Agreement in
order to permit additional acquisitions of OPS Common Stock by LLC and its
affiliates.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, OPS, LLC and GLC hereby agree as follows:
Section 1. Definitions. Terms used herein and not defined which are
defined in the Original Agreement shall have for the purposes hereof the
respective meanings set forth therein.
Section 2. Amendments to the Original Agreement. The Original
Agreement is amended as follows:
(a) Section 1.1(a) is deleted in its entirety and the following
substituted therefor:
(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
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Affiliates would beneficially own no greater than the Standstill
Percentage; provided that the following shall not be deemed to be
Additional Shares for the purposes of this Agreement:
(i) 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 of conversion or exchange of any convertible or
exchangeable security, or
(ii) any security acquired upon the exercise by
LLC or any of its Affiliates of rights pursuant to any Rights
Agreement that may be adopted by OPS.
(b) Section 1.01(p) is amended by deleting it in its
entirety and substituting the following therefor:
(p) "Standstill Percentage" shall mean, at any time, not
more than 25.0% of the Adjusted Outstanding Shares.
Section 3. Board Recommendation for Restoration of Voting Rights.
OPS agrees that its Board of Directors shall, at the next Annual Meeting of
Shareholders of OPS, seek the approval of the shareholders of OPS for the
restoration of voting rights relating to shares purchased subsequent to date
hereof, which voting rights were lost pursuant to the operation of the Virginia
Control Share Acquisitions statute, Virginia Code ss.13.1-728.1 et seq., as
amended; provided, however Great Lakes at the time of such Annual Meeting as
Shareholders shall not be, and since the date hereof shall not have been, in
breach of or default under the Original Agreement as amended by this Amendment.
Section 4. Integration; Confirmation. On and after the date hereof,
each reference in the Original Agreement to "this Agreement," "herein,"
"hereunder," or words of similar import, shall be deemed to be a reference to
the Original Agreement as amended by this Amendment. Except as expressly
modified by this Amendment, all other terms and provisions of the Agreement
shall continue in full force and effect and unchanged and are hereby confirmed
in all respects. No novation is intended. If there is any conflict between this
Amendment and the Original Agreement, this Amendment shall control.
Section 5. Governing Law. This Amendment 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.
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Section 6. Name, Captions. The name assigned to this Amendment and
the section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
Section 7. Counterparts. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Amendment 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
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Anthony F. Markel
Chairman of the Board
GREAT LAKES CAPITAL, LLC
By: /s/ W. Sydnor Settle
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W. Sydnor Settle
Manager
GREAT LAKES CAPITAL, INC.
By: /s/ W. Sydnor Settle
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W. Sydnor Settle
Chairman
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