<PAGE>
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): OCTOBER 31, 1995 (OCTOBER 16,
-----------------------------
1995)
- -----
QMS, INC.
---------
(Exact name of registrant as specified in its charter)
DELAWARE 1-9348 63-0737870
- ----------------------------------- ----------- ------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
ONE MAGNUM PASS, MOBILE ALABAMA 36618
------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (334) 633-4300
--------------------
NOT APPLICABLE
--------------
(Former name or former address, if changed since last report.)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
------------------------------------
On October 16, 1995 (the "Closing Date"), the Registrant sold all of the
shares of capital stock of QMS Europe B.V. ("QMS Europe"), a limited liability
company organized under the laws of the Netherlands, and of QMS Australia PTY
Ltd. ("QMS Australia"), a corporation organized under the laws of Victoria,
Australia (collectively, the "Shares"), to Jalak Investments, B.V. ("Jalak"),
a limited liability company organized under the laws of the Netherlands,
effective as of October 12, 1995 (the "Effective Date"). The sale was
effected pursuant to a Share Purchase Agreement (the "Purchase Agreement")
dated October 12, 1995 between the Registrant and Jalak. The Shares represent
all of the issued and outstanding shares of each of Europe and Australia. A
copy of the Purchase Agreement is attached as Exhibit 1 to this report and is
incorporated by reference herein.
The purchase price received by the Registrant for the Shares was
U.S.$2,332,000, which was paid by Jalak in cash. The purchase price was
determined by arms-length negotiations between the parties. Also, pursuant to
the Purchase Agreement, on the Closing Date Jalak caused QMS Europe and QMS
Australia to pay in full all amounts owed by them to the Registrant as of the
Effective Date by delivery of (i) a Promissory Note in the original principal
amount of U.S.$4,000,000 (the "Note"), and (ii) U.S.$3,996,929 in cash. A
copy of the Note is attached hereto as Exhibit 2 and is incorporated by
reference herein.
The Note is guaranteed by Jalak, and is secured by the pledge of the
Shares by Jalak pursuant to that certain Pledge and Security Agreement dated
October 16, 1995 from Jalak in favor of the Registrant and related Pledging of
Shares which was filed with a Dutch notary public (Collectively, the "Pledge
Agreement"). A copy of the Pledge Agreement is attached hereto as Exhibit 3
and is incorporated by reference herein. The Registrant has agreed that its
right to payment under the Note is subordinate to any obligations QMS Europe
may have to Jalak's bank as set forth in that certain Deed of Subordination
and Pledge dated October 16, 1995 by and among QMS Europe, Credit Lyonnais
Bank Nederland N.V. and the Registrant (the "Subordination Agreement"). A
copy of the Subordination Agreement is attached hereto as Exhibit 4 and is
incorporated by reference herein.
In connection with the sale of the Shares and pursuant to the Purchase
Agreement, on October 16, 1995 the Registrant entered into a Master
Distributor Agreement (the "Distributor Agreement") with QMS Europe, pursuant
to which QMS Europe will distribute the Registrant's products in certain
defined geographic areas. A copy of the Distributor Agreement is attached as
Exhibit 5 to this report and is incorporated by reference herein. The
Registrant also entered into a Trademark and Trade Name License Agreement on
October 16, 1995 (the "License Agreement"), pursuant to which the Registrant
has granted QMS Europe a license to use the trademarks, trade names, logos and
slogans of the Registrant solely in connection with the advertising, promotion
and sale of Registrant's products pursuant to the Distributor Agreement. A
copy of the License Agreement is attached as Exhibit 6 and is incorporated by
reference herein.
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<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
a. Financial Statements of Business Sold.
-------------------------------------
The Registrant has determined that it is impracticable to provide
the required financial statements of Europe and Australia prepared
in accordance with Regulation S-X with the this report. The
Registrant will file the required financial statements by amendment
to this report as soon as practicable, but in any event no later
than 60 days after October 31, 1995, the date by which this report
is required to be filed.
b. Pro Forma Financial Information.
-------------------------------
The Registrant has determined that it is impracticable to provide
the required pro forma financial information with this report. The
Registrant will file such pro forma financial information by
amendment to this report as soon as practicable, but in any event no
later than 60 days after October 31, 1995, the date by which this
report is required to be filed.
c. Exhibits.
--------
1. Share Purchase Agreement dated October 12, 1995 between the
Registrant and Jalak Investments B.V.
2. Promissory Note dated October 16, 1995 in the original
principal amount of U.S.$4,000,000 from QMS Europe B.V. and
QMS Australia PTY Ltd. in favor of QMS, Inc.
3. Pledge and Security Agreement and Pledging of Shares, each
dated October 16, 1995 by Jalak Investments, B.V. in favor of
QMS, Inc.
4. Deed of Subordination and Pledge dated October 16, 1995 by and
among QMS, Inc., QMS Europe B.V.and Credit Lyonnais Bank
Nederland N.V.
5. Master Distributor Agreement dated October 16, 1995 among the
Registrant, QMS Europe, B.V. and QMS Australia PTY Ltd.
6. Trademark and Trade Name License Agreement dated October 16,
1995 between the Registrant and QMS Europe B.V.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
QMS. INC.
By: /s/ James K. Doan
------------------------------
Name: James K. Doan
-------------------------
Title: Chief Financial Officer
------------------------
Date: October 31, 1995
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
1. Share Purchase Agreement dated October 12, 1995 between the
Registrant and Jalak Investments B.V.
2. Promissory Note dated October 16, 1995 in the
original principal amount of U.S.$4,000,000
from QMS Europe B.V. and QMS Australia PTY Ltd.
in favor of QMS, Inc.
3. Pledge and Security Agreement and Pledging of Shares, each
dated October 16, 1995 by Jalak Investments, B.V. in favor of
QMS, Inc.
4. Deed of Subordination and Pledge dated October 16, 1995 by
and among QMS, Inc., QMS Europe B.V.and Credit Lyonnais Bank
Nederland N.V.
5. Master Distributor Agreement dated October 16, 1995
among the Registrant, QMS Europe, B.V. and
QMS Australia PTY Ltd.
6. Trademark and Trade Name License Agreement dated
October 16, 1995 between the Registrant and
QMS Europe B.V.
</TABLE>
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<PAGE>
EXHIBIT 1
SHARE PURCHASE AGREEMENT
------------------------
THIS SHARE PURCHASE AGREEMENT (the "Agreement"), is made and entered
into this 12th day of October, 1995 by and among QMS, Inc., a Delaware
corporation ("Seller"), and Jalak Investments B.V. i.o., a corporation organized
or to be organized under the laws of The Netherlands ("Purchaser").
WITNESSETH:
----------
WHEREAS, Seller owns 100% of the outstanding shares of common stock of
QMS Europe B.V. (the "QMS Europe Stock"); and
WHEREAS, Seller owns 100% of the outstanding shares of common stock of
QMS Australian PTY Ltd. (the "QMS Australia Stock");
WHEREAS, Seller desires to sell all of the QMS Europe Stock and the
QMS Australia Stock (collectively, the "Shares") to Purchaser and Purchaser
desires to purchase the Shares from Seller on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Agreement shall have the meaning set
forth below:
Section 1.1 "Closing" shall have the meaning set forth in Section 3.1
herein.
Section 1.2 "Australian Deed of Transfer" shall mean the deed of
transfer attached hereto as Exhibit A to be executed before an Australian notary
---------
public following the Closing and filed with the appropriate authorities in
Australia, if necessary, to record or register the transfer.
Section 1.3 "Closing Date" shall mean the date upon which the Closing
is held.
Section 1.4 "Distributor Agreement" shall mean that certain Master
Distributor Agreement to be entered into by Seller, QMS Australia and QMS Europe
in substantially the form attached hereto as Exhibit B.
---------
<PAGE>
Section 1.5 "Dutch Deed of Pledge" shall mean the Deed of Pledge
attached hereto as Exhibit D to be signed before a Dutch notary public following
---------
the Closing and registered or filed, if necessary, with the appropriate Dutch
authorities.
Section 1.6 "Dutch Deed of Transfer" shall mean the deed of transfer
attached hereto as Exhibit C to be signed before a Dutch notary public following
---------
the Closing and registered or filed, if necessary, with the appropriate Dutch
authorities.
Section 1.7 "License Agreement" shall mean the Trademark and Trade
Name License Agreement to be entered into by (i) Seller and QMS Europe and (ii)
Seller and QMS Australia substantially in the form attached hereto as Exhibit E.
---------
Section 1.8 "Note" shall mean the Promissory Note in favor of Seller
from QMS Europe and QMS Australia in substantially the form attached hereto as
Exhibit F, which shall be subordinate to the loan to QMS Europe from Credit
- ---------
Lyonais Bank Nederland, N.V..
Section 1.9 "Option Agreement" shall mean that certain Option
Agreement between Purchaser and Seller substantially in the form attached hereto
as Exhibit G granting the Option.
---------
Section 1.10 "Option" shall mean the option to be granted by
Purchaser to Seller to re-acquire sixty-five percent (65%) of the outstanding
shares of common stock of QMS Europe and QMS Australia which Option is
exercisable between November 1, 1998 and November 30, 1998
Section 1.11 "QMS Australia" shall mean QMS Australia PTY Ltd., a
corporation organized under the laws of Victoria, Australia and wholly owned
subsidiary of QMS.
Section 1.12 "QMS Europe" shall mean QMS Europe B.V., a corporation
organized under the laws of The Netherlands and wholly owned subsidiary of QMS.
Section 1.13 "Pledge Agreement" shall mean that certain Pledge and
Security Agreement from Purchaser to Seller substantially in the form attached
hereto as Exhibit H.
---------
ARTICLE 2
PURCHASE AND SALE OF SHARES
Section 2.1 Purchase and Sale of Shares. At the Closing, subject to
---------------------------
the terms and conditions set forth herein, Seller shall sell to Purchaser and
Purchaser shall purchase from Seller the Shares. Seller shall transfer all of
its right, title and interest in and to the Shares to Purchaser free and clear
of any lien, security interest, or other encumbrance of any nature and free of
any claim by any person or entity to or against the Shares.
Section 2.2 Purchase Price. The purchase price for the Shares shall
--------------
be an amount equal to U.S. Two Million Three Hundred Thirty-Two Thousand Dollars
(U.S. $2,332,000.00).
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<PAGE>
Section 2.3 Payment of Purchase Price. As payment for the Shares,
-------------------------
Purchaser shall deliver to Seller U.S. $2,332,000.00 payable by check or wire
transfer at the Closing.
Section 2.4 Allocation of Purchase Price. The purchase price shall
----------------------------
be allocated between the QMS Europe Stock and QMS Australia Stock as follows:
(a) QMS Australia Stock - US$1,000,000.00
(b) QMS Europe Stock - US$1,332,000.00
ARTICLE 3
CLOSING
Section 3.1 Closing. The Closing shall take place on the date upon
-------
which the cash portion of the purchase price is delivered to Seller, effective
as of October 12, 1995 at the offices of Meijer c.s. in The Netherlands, or such
other time or place as mutually agreed to by the parties, provided that in no
event shall the Closing be held after October 20, 1995.
Section 3.2 Items To Be Delivered by Seller. At the Closing and
-------------------------------
subject to the terms and conditions contained herein, Seller shall deliver to
Purchaser the following:
(a) the Distributor Agreement; and
(b) the License Agreement.
All of the above-mentioned documents shall be in form and substance satisfactory
to Purchaser and its counsel.
Section 3.3 Items to be Delivered by Purchaser. At the Closing and
----------------------------------
subject to the terms and conditions contained herein, Purchaser shall deliver to
Seller the following:
(a) the cash portion of the Purchase Price;
(b) the Distributor Agreement;
(c) the License Agreement;
(d) the Option Agreement; and
(e) the Pledge Agreement.
All of the above-mentioned documents shall be in form and substance satisfactory
to Seller and its counsel.
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<PAGE>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
Section 4.1 Ownership of Shares. Seller is the sole record and beneficial
-------------------
owner of all of the issued and outstanding Shares, and it has good and valid
title to such Shares free and clear of any lien, security interest or
encumbrance of any nature and free of any claim by any person to or against such
Shares. Seller has the full right, power and authority to sell, assign,
transfer and convey the Shares to Purchaser as provided herein.
Section 4.2 Authorization, Validity and Enforceability. This Agreement
------------------------------------------
has been duly authorized by all necessary corporate action of Seller. This
Agreement constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms, and the execution, delivery and performance of this
Agreement will not violate or result in a default under any provision of any
material commitment, agreement or instrument to which the Seller is a party or
by which the Seller is bound and will not contravene any law, rule or regulation
of any administrative agency or governmental body, or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to the Seller.
Section 4.3 Litigation. There are no proceedings pending or threatened,
----------
and there is no order, writ, judgment or decree affecting the Seller which, if
adversely determined, would have a material adverse effect on the transactions
contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
Section 5.1 Validity and Enforceability. This Agreement constitutes the
---------------------------
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement will
not violate or result in a default under any provisions of any material
commitment, agreement or instrument to which the Purchaser is a party or by
which the Purchaser is bound, and will not contravene any law, rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to Purchaser.
Section 5.2 Litigation. There are no proceedings pending or threatened,
----------
and there is no order, writ, judgment or decree affecting the Purchaser, which,
if adversely determined, would have a material adverse effect on the
transactions contemplated hereby.
Section 5.3 Investigation. Purchaser has been afforded access to all
-------------
business and financial information and records of QMS Europe and QMS Australia,
the opportunity to ask questions of, and receive answers from, the officers and
other employees of QMS Europe and QMS Australia relating to all aspects of QMS
Europe and QMS Australia and their business, and otherwise to obtain
-4-
<PAGE>
from QMS Europe and QMS Australia any and all information necessary to verify
the accuracy of any and all information with respect to QMS Europe and QMS
Australia. Purchaser has relied solely on information obtained by it from such
investigation, and has not relied on information received by it from any other
source (including Seller), in making the investment represented by the purchase
of Shares under this Agreement. Purchaser has not looked to Seller for or
received from Seller any information in making such investment.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.1 Purchaser's Obligations. The Purchaser's obligations to
-----------------------
consummate the transactions contemplated hereby are conditioned upon the
satisfaction of the following conditions on or prior to the Closing:
(a) receipt of the corporate records of QMS Europe and QMS Australia;
(b) the approval of Purchaser's lender bank(s);
(c) receipt of the Distributor Agreement executed by Seller; and
(d) receipt of the License Agreement executed by Seller.
Section 6.2 Seller's Obligations. The Seller's obligations to consummate
--------------------
the transactions contemplated hereby are conditioned upon the satisfaction of
the following conditions on or prior to Closing;
(a) receipt of the Distributor Agreement executed by QMS Europe and QMS
Australia;
(b) receipt of a License Agreement executed by QMS Europe and a License
Agreement executed by QMS Australia;
(c) receipt of the Option Agreement executed by Purchaser; and
(d) receipt of the Pledge Agreement executed by Purchaser.
-5-
<PAGE>
ARTICLE 7
POST-CLOSING COVENANTS OF PURCHASER
Section 7.1 Settlement of QMS Europe and QMS Australia Intercompany
-------------------------------------------------------
Account. Within 48 hours following the Closing, Purchaser shall cause QMS
- -------
Europe to pay in full all amounts owed by QMS Europe and QMS Australia to Seller
as of the Closing Date. Such amount shall be paid to the Seller as follows:
(a) the Note in the original principal amount of $4,000,000; and
(b) the balance to be paid by check or wire transfer of readily
available U.S. funds.
Section 7.2 Australian Deed of Transfer. As soon as practicable after the
---------------------------
Closing, Purchaser and Seller shall cause the Australian Deed of Transfer to be
filed with an Australian notary public, and shall have the transfer recorded on
the register of shareholders of QMS Australia.
Section 7.3 Dutch Deed of Transfer. As soon as practicable after the
----------------------
Closing, Purchaser and Seller shall cause the Dutch Deed of Transfer to be filed
with a Dutch notary public, and shall have the transfer recorded on the register
of shareholders of QMS Europe.
Section 7.4 Transfer of QMS Australia to QMS Europe. Within one (1) year
---------------------------------------
following the Closing Date, Purchaser shall contribute the stock of QMS
Australia to QMS Europe.
Section 7.5 Corporate Governance. For a period of five (5) years
--------------------
following the Closing, Seller shall have the right, at its option, to appoint
one (1) supervising member to the board of directors of QMS Europe, and
Purchaser shall take all action necessary to effect such appointment.
ARTICLE 8
ARBITRATION
Section 8.1 Arbitration. All disputes under this Agreement other than
-----------
disputes regarding the Distributor Agreement, which shall be settled as set
forth therein, shall be settled by arbitration in Atlanta, Georgia, U.S.A.
pursuant to the rules of the American Arbitration Association Commercial
Arbitration Rules which rules are deemed to be incorporated by reference herein,
and judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
Section 8.2 Selection of Arbitrators. The number of arbitrators shall be
------------------------
three (3), each of whom shall be disinterested in the dispute or controversy,
shall have no connection with any party hereto and shall be a person experienced
in international trade and business matters. Each party shall nominate one (1)
arbitrator and the two arbitrators so appointed shall select a third arbitrator.
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<PAGE>
Section 8.3 Arbitration Awards. Arbitration may be commenced at any time
------------------
by either Purchaser or Seller giving written notice to the other that such
dispute has been referred to arbitration under this Article 8. Any award
---------
rendered by the arbitrators shall be final, conclusive, non-appealable and
binding on the parties hereto and shall be accompanied by a written opinion of
the arbitrators giving the reasons for the awards; provided, however, that the
arbitrators shall have no authority to award any special, indirect, incidental,
consequential, punitive or other damages not measured by the prevailing party's
actual damages and the arbitrators may not make any ruling, finding or award
that does not conform with the terms and conditions of this Agreement. Each
party shall pay its own expenses of arbitration and the expenses of the
arbitrators shall be equally shared; provided, however, that the arbitrators may
assess, as part of their award, all or any part of the arbitration expenses of
the other party (including reasonable attorney's fees) and of the arbitrators
against the party raising an unreasonable claim, defense or objection.
ARTICLE 9
TAX INDEMNITY
TAX INDEMNITY. Seller will indemnify, defend and hold Purchaser harmless
-------------
from and against all liabilities, losses, damages, claims, actions, causes of
actions, costs and expenses (including without limitation attorneys' fees)
arising out of or with respect to any tax liability incurred by QMS Europe or
QMS Australia prior to the Closing Date.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Survival of Agreements. All covenants, agreements,
----------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Shares pursuant
hereto. The foregoing provisions with regard to the survival of the warranties
and representations of the parties in this Agreement is meant only to establish
the period of time within which a claim for breach of such warranties and
representations may be brought, and is not intended to extend the applicability
of such warranties and representations to events or circumstances which may
occur after the Closing date.
Section 10.2 Expenses. Each party hereto shall pay its own expenses in
--------
connection with the transactions contemplated hereby.
Section 10.3 Access to Books and Records.
---------------------------
(a) Seller shall, upon reasonable notice to Purchaser, have access to and
a right to make copies of the books and records of Purchaser relating
to the operations and affairs of QMS Europe and QMS Australia prior to
the Closing Date.
-7-
<PAGE>
(b) Seller shall permit Purchaser to have access, upon reasonable notice
to Seller, to books and records maintained by Seller relating to QMS
Europe's and QMS Australia's operations and affairs prior to the
Closing Date.
Section 10.4 Notices. All notices, requests, consents, or other
-------
communication hereunder shall be in writing and shall be delivered personally or
by courier or mailed by first class registered or certified mail, postage
prepaid, as follows:
If to Seller: QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 36689-1250
Attn: Legal Department
with a required copy to: Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600
Attention: G. William Speer, Esq.
If to Purchaser: Jalak Investments B.V. i.o.
c/o QMS Europe B.V.
Reactorweg 160
3542 AD Utrecht
P. O. Box 8540
3503 RM Utrecht
The Netherlands
Attn: Peter van Schaick
with a required copy to: Meijer c.s.
Scheveningseweg 50
2517 KW 's - Gravenhage
The Netherlands
070-358 87 77
Attn: Georg Werger
Section 10.5 Captions and Section Headings. As used herein, captions and
-----------------------------
section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 10.6 Entire Agreement. This Agreement and the other documents
----------------
delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement
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<PAGE>
between the parties hereto concerning the transactions contemplated herein and
supersede all prior agreements or understandings between the parties hereto
relating to the subject matter hereof.
Section 10.7 Additional Documents. The parties hereto will, at any time
--------------------
after the date hereof, sign, execute and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments, documents and instruments and do or
cause to be done all such other acts and deeds as may be necessary or proper to
carry out the transactions contemplated by this Agreement.
Section 10.8 Amendment. This Agreement may be amended, supplemented or
---------
interpreted at any time, but only by a written agreement executed by the parties
hereto.
Section 10.9 Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 10.10 Severability. If any one or more of the provisions of this
------------
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 10.11 Governing Law. This Agreement shall be governed by the laws
-------------
of the State of Georgia.
Section 10.12 Governing Language. Regardless of whether a copy of this
------------------
Agreement is translated into another language, the official version hereof shall
be the English version, which shall prevail in all cases. All correspondence
and communications between the parties, all reports, orders, instructions,
literature, records and other written material pertaining to this Agreement
shall be maintained and delivered in the English language.
-9-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
QMS, INC.
By: /s/ James L. Busby
---------------------------------------
Title: President
-------------------------------------
PURCHASER:
JALAK INVESTMENTS B.V. i.o.
By: /s/ P.P. van Schaick
---------------------------------------
Title: Managing Director
------------------------------------
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<PAGE>
EXHIBIT 2
PROMISSORY NOTE
---------------
U.S. $4,000,000.00 OCTOBER 16, 1995
FOR VALUE RECEIVED, the undersigned, QMS Europe B.V., a corporation
organized under the law of The Netherlands, and QMS Australia PTY Ltd., a
corporation organized under the laws of Australia (collectively "Maker"),
promises to pay to the order of QMS, Inc., a Delaware corporation (herein, along
with each subsequent holder of this Note, referred to as "Holder"), the
principal sum of U.S. Four Million Dollars (U.S. $4,000,000.00) plus interest as
provided herein.
This Note constitutes partial payment in the intercompany debt owed by
Maker to Holder as set forth in that certain Share Purchase Agreement between
Maker and Jalak Investments B.V. i.o. ("Purchaser") dated October 12, 1995 (the
"Agreement") and is secured by the pledge by Purchaser of the stock of Maker
pursuant to that certain Pledge and Security Agreement dated the date hereof.
This Note shall be paid in full, plus accrued interest at a rate of six and
one-half percent (6.5%) per annum on the unpaid balance thereof, in the event a
third party takes and pays a partial stake in newly issued shares of QMS Europe
of at least US$4,000,000. Until such time, this Note shall be subordinate in
accordance with the attached deed of subordination and pledge.
Should the principal or any interest hereunder not be paid when due, the
Holder shall have the right to declare the unpaid principal and all accrued
interest of this Note to be forthwith due and payable. Any payment of principal
which is not paid when due shall bear interest until paid at a simple interest
rate equal to twelve percent (12.0%) per annum.
The principal hereof and any interest hereon shall be payable in lawful
money of the United States of America, at such place as the Holder hereof may
designate in writing to Maker. The Maker may prepay this Note in full or in
part at any time without notice, penalty or prepayment fee.
Maker agrees to pay the Holder hereof reasonable attorneys' fees for the
services of counsel employed to collect this Note, whether or not suit be
brought, and whether incurred in connection with collection, trial, appeal, or
otherwise, and to indemnify and hold the Holder harmless against liability for
the payment of state intangible, documentary and recording taxes, and other
taxes (including interest and penalties, if any) which may be determined to be
payable with respect to this transaction.
In no event shall the amount of interest due or payable hereunder exceed
the maximum rate of interest allowed by applicable law, and in the event any
such payment is inadvertently paid by Maker or inadvertently received by the
Holder, then such excess sum shall be credited as a payment of principal, unless
Maker shall notify the Holder, in writing, that Maker elects to have such excess
sum returned to it forthwith. It is the express intent hereof that Maker not
pay
<PAGE>
and the Holder not receive, directly or indirectly, in any manner whatsoever,
interest in excess of that which may be lawfully paid by the Maker under
applicable law.
The remedies of Holder as provided herein and in any other documents
governing or securing repayment hereof shall be cumulative and concurrent and
may be pursued singly, successively, or together, at the sole discretion of
Holder, and may be exercised as often as occasion therefor shall arise.
No act of omission or commission of Holder, including specifically any
failure to exercise any right, remedy, or recourse, shall be effective unless
set forth in a written document executed by Holder, and then only to the extent
specifically recited therein. A waiver or release with reference to one event
shall not be construed as continuing, as a bar to, or as a waiver or release of
any subsequent right, remedy, or recourse as to any subsequent event.
Maker hereby (a) waives demand, presentment of payment, notice of
nonpayment, protest, notice of protest and all other notice, filing of suit, and
diligence in collecting this Note; (b) agrees to any substitution, addition, or
release of any collateral or any party or person primarily or secondarily liable
hereon; (c) agrees that the Holder shall not be required first to institute any
suit, or to exhaust its remedies against Maker or any other person or party to
become liable hereunder, or against any collateral in order to enforce payment
of this Note; and (d) consents to any extension, rearrangement, renewal, or
postponement of time of payment of this Note and to any other indulgence with
respect hereto without notice, consent, or consideration.
Whenever used in this Note, the words "Maker" and "Holder" shall be deemed
to include Maker and the Holder named in the opening paragraph of this Note, and
their respective legal representatives, successors, and assigns. It is
expressly understood and agreed that the Holder shall never be construed for any
purpose as a partner, joint venturer, co-principal, or associate of Maker, or of
any person or party claiming by, through, or under Maker in the conduct of their
respective businesses.
Time is of the essence of this Note.
This Note shall be construed and enforced in accordance with the laws of
the State of Georgia.
All references herein to any document, instrument, or agreement shall be
deemed to refer to such document, instrument, or agreement as the same may be
amended, modified, restated, supplemented, or replaced from time to time.
<PAGE>
IN WITNESS WHEREOF, the undersigned Maker has executed this instrument
under seal as of the day and year first above written.
MAKER:
QMS EUROPE B.V.
By: /s/ P.P. van Schaick
---------------------------
Title: J.M.D.
------------------------
QMS AUSTRALIA PTY LTD.
By: /s/ P.P. van Schaick
---------------------------
Title: J.M.D.
------------------------
<PAGE>
EXHIBIT 3
PLEDGE AND SECURITY AGREEMENT
-----------------------------
THIS PLEDGE AND SECURITY AGREEMENT (the "Agreement"), given as of this 16th
day of October 1995, by Jalak Investments B.V. i.o., a corporation organized or
to be organized under the laws of The Netherlands ("Pledgor") in favor of QMS,
Inc., a Delaware corporation ("QMS"),
W I T N E S S E T H :
WHEREAS, Pledgor has entered into a Share Transfer Agreement dated October
__, 1995 (the "Agreement") to purchase all of the issued and outstanding shares
of QMS Europe B.V. ("QMS Europe") and QMS Australia PTY Ltd. ("QMS Australia")
(collectively, the "Shares") from QMS; and
WHEREAS, in connection with the sale of the Shares, QMS Europe and QMS
Australia have paid the intercompany debt owed to QMS in cash and a note in the
original principal amount of U.S. $4,000,000 (as the same may be amended,
modified, renewed or extended from time to time, the "Note"); and
WHEREAS, Pledgor has guaranteed to QMS the obligations of QMS Europe and
QMS Australia under the Note pursuant to that certain Guaranty and Agreement to
Pay from Pledgor dated October __, 1995 (the "Guaranty"); and
WHEREAS, to secure the due and punctual payment and performance of all
obligations and covenants of QMS Europe and QMS Australia under the Note and of
Pledgor under the Guaranty (the "Obligations"), Pledgor has agreed to pledge and
assign to QMS all of Pledgor's right, title, and interest in and to the Shares;
NOW, THEREFORE, in consideration of the premises, the direct benefits to be
realized by Pledgor from the Agreement, the mutual covenants hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Pledgor hereby covenants and agrees with QMS as
follows:
1. Security Interest. Pledgor hereby grants, conveys, and pledges to QMS
-----------------
a security interest in and security title to all of its right, title, and
interest in and to the Shares as security for (a) payment and performance of all
Obligations, and (b) all obligations of Pledgor to QMS hereunder. Pledgor has
on this date delivered stock certificates representing the Shares or any other
deed or instrument of transfer or assignment necessary to effect the transaction
contemplated hereby and to secure or perfect to the fullest extent possible
under Dutch law QMS' security interest in the Shares to and deposited the same
with QMS. Pledgor agrees that at any time and from time to time, at the expense
of Pledgor, Pledgor will promptly execute and deliver all further instruments
and documents, and take all further action that may be necessary, or that QMS
may reasonably request, in order to perfect and
<PAGE>
protect the security interest granted hereby or to enable QMS to exercise and
enforce its rights and remedies hereunder with respect to all or any portion of
the Shares.
2. Warranties; Covenants.
---------------------
(a) Pledgor hereby warrants and represents to QMS (i) that except for the
security interest created hereby, Pledgor owns the Shares free and clear of all
liens, charges, and encumbrances, (ii) that the Shares are duly issued, fully
paid, and non-assessable, (iii) that Pledgor has the unencumbered and
unrestricted right to pledge the Stock, and (iv) that no consent or approval of
any governmental or regulatory authority, or of any securities exchange, which
has not been obtained was or is necessary to the validity of this pledge.
(b) Until the termination of this Agreement pursuant to Section 8 hereof,
---------
Pledgor covenants that Pledgor will not (i) sell, convey or otherwise dispose of
any of the Shares or any interest therein without the prior written consent of
QMS (provided, however, that Pledgor may transfer all of the stock of QMS
-------- -------
Australia to QMS Europe); (ii) incur or permit to be incurred any pledge, lien,
charge, or encumbrance or any security interest whatsoever in or with respect to
any of the Shares or the proceeds thereof, other than the security interest
created hereby and such security interests as to which QMS has given its prior
consent in writing; (iii) sell or transfer all or substantially all of the
assets of either QMS Australia or QMS Europe or (iv) sell or transfer the stock
or all or substantially of the assets of any of its subsidiaries.
(c) Until the termination of this Agreement pursuant to Section 8 hereof,
---------
Pledgor covenants that Pledgor will (i) warrant and defend at its own expense
QMS's right, title and special property and security interest in and to the
Shares against the claims of any person or entity; and (ii) promptly give notice
to QMS of any notices received by Pledgor with respect to the Shares.
3. Additional Shares. In the event that, during the term of this
-----------------
Agreement:
(a) any stock dividend, stock split, reclassification, readjustment, or
other change is declared or made in the capital structure of either QMS
Australia or QMS Europe (hereinafter referred to as an "Issuer") all new,
substituted, and additional shares, or other securities, issued by reason of any
such change with respect to the Shares and received by Pledgor or to which
Pledgor shall be entitled shall constitute Shares to be held by QMS under the
terms of this Agreement;
(b) any new additional shares or other securities issued by either Issuer
and received by Pledgor from the exercise of any options for the same shall
constitute Shares to be held by QMS under the terms of this Agreement; and
(c) any subscriptions, warrants, or any other rights or options shall be
issued in connection with the Shares, all new stock or other securities acquired
through such
2
<PAGE>
subscriptions, warrants, rights, or options by Pledgor shall be immediately
delivered to QMS and shall constitute Shares to be held by QMS under the terms
of this Agreement.
4. Default. Upon and after the occurrence of a default by Pledgor with
-------
respect to payment or performance of the Obligations, or a default by Pledgor
under the terms of this Agreement (any of such occurrences being hereinafter
referred to as a "Default"), QMS may sell or otherwise dispose of the Shares or
any portion of the Shares at a public or private sale or make other commercially
reasonable disposition of the Shares or any portion thereof after five (5) days
notice to Pledgor, all in accordance with applicable law. QMS may, in its own
name, or in the name of a designee or nominee, buy at any public sale the Shares
and, if permitted by law, buy the Shares at any private sale thereof. The
proceeds of the public or private sale or other disposition shall be applied to
the costs incurred in connection with the sale and to the other Obligations, in
such order as QMS may determine, and any remaining proceeds shall be paid over
to Pledgor or others as provided by law. In the event the proceeds of the sale
or other disposition of the Shares are insufficient to pay such expenses,
interest, principal of the Obligations, and damages, Pledgor shall remain liable
to QMS for any such deficiency. All costs and expenses, including reasonable
attorneys' fees and expenses, incurred by QMS in obtaining performance of or in
collecting any payments due under this Agreement shall be deemed part of the
Obligations hereunder.
5. Additional Rights of Secured Party. In addition to their rights and
----------------------------------
privileges under this Agreement, QMS shall have all the rights, powers, and
privileges of secured parties under applicable law. All rights of QMS shall be
cumulative and not exclusive.
6. Pledgor's Obligations Absolute. The obligations of Pledgor under this
------------------------------
Agreement shall be direct and immediate and not conditional or contingent upon
the pursuit of any remedies against any other person, nor against other security
or liens or encumbrances available to QMS or any of their successors, assigns,
or agents. Pledgor hereby waives any right to require that an action be brought
against any other person or entity or to require that resort be had to any
security or to any balance of any deposit account or credit on the books of QMS
in favor of any other person or entity prior to any exercise of rights or
remedies hereunder.
7. Voting Rights.
-------------
(a) After a Default and for so long as any of the Obligations remain
unpaid, (i) QMS may, upon one (1) day's prior written notice to Pledgor of its
intention to do so, exercise all voting rights, and all other ownership or
consensual rights of the Shares, but under no circumstances is QMS obligated by
the terms of this Agreement to exercise such rights, and (ii) Pledgor hereby
appoint QMS and its designees Pledgor's true and lawful attorney-in-fact and
IRREVOCABLE PROXY to vote the Shares in any manner QMS deems advisable for or
against all matters submitted or which may be submitted to a vote of
shareholders. The power of attorney granted hereby is coupled with an interest
and shall be irrevocable for so long as any of the Obligations remain unpaid.
3
<PAGE>
(b) For so long as Pledgor shall have the right to vote the Shares, Pledgor
covenants and agrees that it will not, without the prior written consent of QMS,
vote or take any consensual action with respect to the Shares which would
constitute a Default under or be inconsistent with the terms of this Agreement.
8. Termination. Notwithstanding anything to the contrary contained
-----------
herein, this Agreement, and the security interest hereunder granted to QMS in
the Shares, shall terminate on the date on which all Obligations of Pledgor to
QMS under the Note have been fully satisfied.
9. General.
-------
(a) Time is of the essence of this Agreement. No waiver by QMS of any
power or right hereunder or of any Default by Pledgor hereunder shall be binding
upon QMS unless in writing signed by QMS. No failure or delay by QMS to
exercise any power or right hereunder or binding waiver of any Default hereunder
shall operate as a waiver of any other or further exercise of such power or any
other Default. This Agreement, together all documents referred to herein,
constitute the entire agreement between Pledgor and QMS and may not be modified
except by a writing executed by QMS and delivered by QMS to Pledgor.
(b) If any paragraph or part thereof shall for any reason be held or
adjudged to be invalid, illegal, or unenforceable by any court of competent
jurisdiction, such paragraph or part thereof so adjudicated invalid, illegal, or
unenforceable shall be deemed separate, distinct, and independent, and the
remainder of this Agreement shall remain in full force and effect and shall not
be affected by such holding or adjudication.
(c) All representations and warranties made and given herein by Pledgor
shall survive the execution and delivery of this Agreement and shall remain in
full force and effect until such time as this Agreement is terminated as
provided in Section 8 hereof.
---------
(d) The rights and obligations of the parties hereunder shall inure to the
benefit of and bind their respective heirs, executors, administrators, legal
representatives, successors, and assigns.
(e) This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia.
(f) Regardless of whether a copy of this Agreement is translated into
another language, the official version hereof shall be the English version,
which shall prevail in all cases. All correspondence and communication between
the parties shall be in the English language.
4
<PAGE>
(g) All notices and demands required or permitted hereunder or by law shall
be in writing or by telegraph and shall be mailed or delivered to the party to
whom notice is intended to be given at such address as is specified below, or
such other address as shall be subsequently designated in writing by such party
to the other party hereto for purposes of notice.
If to QMS:
QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 36689-1250
Attn: Legal Department
If to Pledgor:
Jalak Investments B.V. i.o.
c/o QMS Europe B.V.
Reactorweg 160
3542 AD Utrecht
The Netherlands
Attn: Peter Van Schaick
Each such notice or demand shall be deemed effective upon personal delivery
or upon the earlier of (i) receipt or (ii) fifteen (15) days after deposit in
the U.S. mail, first-class postage, prepaid, certified mail, and addressed as
provided above.
(h) Captions are for reference only and in no way limit the terms of this
Agreement.
(i) All references herein to any document, instrument, or agreement shall
be deemed to refer to such document, instrument, or agreement as the same may be
amended, modified, restated, supplemented, or replaced from time to time.
(j) This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
5
<PAGE>
IN WITNESS WHEREOF, Pledgor has executed this Agreement as of the day and
year first above first above written.
Pledgor:
JALAK INVESTMENTS B.V. i.o.
By: /s/ P.P. van Schaick
----------------------
Title: M. D.
-------------------
Accepted and Agreed to:
QMS, Inc.
By: /s/ James L. Busby
-------------------
Title: President
--------------
6
<PAGE>
PLEDGING OF SHARES
------------------
Today, the sixteenth day of October nineteen hundred ninety-five,
appeared before me, Mr. Dirk Jan Warmolt Kuiper, Civil Law Notary at Castricum:
1. Misses Shawn Marie Martin, attorney, born in Syracuse, New York,
(United States of America) on the twenty-third of May nineteen hundred sixty-
eight, residing in Atlanta, Georgia, 575 Rock Springs Place, American Passport
Number 015451613 not married acting for the present purpose as the attorney of
QMS INCORPORATED, (a corporation organized under the laws of the state of
- ----------------
Delaware, United States of America) residing at One Magnum Pass, Mobile Alabama,
the United States 36618, hereinafter also to be called: the pledgee; and
2. Mister PETRUS PAULUS VAN SCHAICK, ondernemer, born in Amsterdam on
-------------------------
the sixth of january nineteen hundred and fifty-five, married and living at 1186
RM Amstelveen, Logger 47, Passport Number 520007C, in this matter acting:
a. in his capacity of sole manager of the private company with limited
liability (under the laws of The Netherlands):
JALAK INVESTMENTS B.V., residing at Amstelveen, at the address Logger 47,
----------------------
1186 RM Amstelveen, hereinafter also to be called: the pledgor;
b. in his capacity of sole manager of the private company with limited
liability (under the laws of the Netherlands), QMS EUROPE B.V.,
---------------
residing at Utrecht at the address 3542 AD Utrecht, Reactorweg 160,
hereinafter also to be called: the Company.
The appearers, acting in their above-mentioned capacities, declared the
following in advance:
1. Pledgor and pledgee have entered into a guarantee and agreement to
pay, of which a copy is attached to this deed, pursuant to which guarantee and
agreement to pay pledgor has an obligation towards pledgee with a monetary
character with an maximum of four million United States dollars with an
additional coverage of one million United States dollars for (accrued) interests
an costs.
2. In the contract mentioned above under 1, the Pledgee and the Pledgor
agreed that the Pledgor would establish a first right of pledge on the shares
described below for the benefit of the Pledgee, this as further security for the
payment of the debt arising from the contract mentioned under 1 together with
interest and costs, this irrespective of the number of years in respect of which
interest is due.
3. The right of pledge shall be established by the present deed.
<PAGE>
II. IMPLEMENTATION
To implement the above-mentioned contract, the appearers under 1 and 2,
acting in their above-mentioned capacities, declared the following:
A. Establishment
-------------
1. The Pledgor establishes for the benefit of the Pledgee, who
hereby accepts, a first right of pledge on the thirty-five
shares, each with a nominal value of one-thousand guilders
(f.1.000,00), in the capital of the Company, numbered one to
thirty-five inclusive, hereinafter to be jointly referred to as:
"the Shares".
2. The Shares were acquired by the Pledgor: by delivery, which
appears from a deed of transfer, passed on today, before me,
Civil law notary.
B. Conditions and provisions regarding the establishment of the right of
---------------------------------------------------------------------
pledge
------
1. The Pledgor guarantees to the Pledgee that:
a. the Pledgor is authorized to establish the right of pledge
as the only party entitled;
b. no options or other rights exist under which anyone can
claim the transfer of one or more of the Shares or of a
restricted right on the Shares;
c. the Shares are free of attachments as well as of any right
of security or right of enjoyment of third parties and that
no depository receipts have been issued for the Shares,
while no one can require that such rights be conferred upon
him;
d. the Shares have all been paid up in full.
2. The costs of this deed shall be for account of the pledgor.
3. The parties cannot claim that the above-mentioned contract and the
present transfer be rescinded.
4. All that has been agreed upon by the parties in respect of the above-
mentioned contract or agreed otherwise in writing shall continue to
remain in force insofar as no effect has been given to same in the
present deed.
2
<PAGE>
C. Conditions for Right of Pledge
------------------------------
As for as the right of pledge established under A is concerned, the
appearers declared, acting in their above-mentioned capacities, that the
following provisions shall apply:
a. while the right of pledge exits, the Pledgee shall be entitled to
collect the dividends which are paid out in respect of the Shares as
well as other payments in cash, such as repayments of share capital
and liquidation dividends; the Pledgee shall notify the Company and
the Pledgor by registered letter that he will make use of this right.
Each net amount received by the Pledgee in respect of such payments
shall be considered as a payment to which section 44 paragraph 1 of
Book 6 of the Dutch Civil Code shall apply;
b. bonus shares paid out in respect of the Shares while the right of
pledge exists shall fall under the right of pledge and the provisions
of the present deed with regard to the Shares originally given in
pledge shall apply mutatis mutandis to such bonus shares;
c. subscription rights which have been conferred in respect of the Shares
while the right of pledge exists shall come under the right of pledge.
The subscription rights may be exercised or converted into cash, at
the Pledgor's option. To the extent that they are exercised, the
provisions under b. shall apply to any shares thus acquired. To the
extent that they are converted into cash, the provision under a. shall
apply to the proceeds. If this results in payment being made too
early, the Pledgee shall reimburse the Pledgor for the loss of
interest incurred by the latter, this on the basis of the interest
payable by the Pledgor;
d. as far as stock dividends and optional dividends are concerned, the
provisions above under b. and c. shall apply mutatis mutandis;
e. the Pledgor shall have the right to vote on the Shares while the right
of pledge exists.
f. the Pledgee shall not have the rights which are conferred by law upon
holders of depositary receipts issued for shares with the cooperation
of a company;
g. if the Pledgor is in default in paying that for which the right of
pledge serves as security, the Pledgee shall be entitled to sell the
Shares forthwith, and without the intervention of the court being
required, in accordance with section 248 of Book 3 of the Dutch Civil
Code, this without prejudice to the provisions of section 251 of Book
3 of the Dutch Civil Code. The transfer restrictions contained in the
articles of association of the Company shall apply to the alienation
and transfer of the Shares by the Pledgee or to the Shares remaining
in the Pledgee, on the understanding that the Pledgee shall exercise
all the rights in respect of the alienation and transfer which the
Pledgor has as well as performing the latter's obligations;
3
<PAGE>
h. without prejudice to the provisions of section 81 of Book 3 of the Dutch
Civil Code, the right of pledge shall be extinguished:
1. upon renunciation by a written statement from the Pledgee to the
Pledgor;
2. by abandonment as laid down in section 258 of Book 3 of the Dutch
Civil Code and the recording of such abandonment by means of a
notarial deed;
3. if and as soon as the Pledgor has paid to the Pledgee all that
for which the right of pledge serves as security;
Each of the parties shall be entitled to notify the Company of the
extinction of the right of pledge while submitting the relevant documentary
evidence.
III. STATEMENTS BY THE COMPANY
The appearer under 2.b, acting as mentioned above, declared:
1. Articles of Association
-----------------------
The Articles of Association of the Company are worded as they were
last adopted by Deed, passed before on the seventh of August nineteen
hundred ninety-one. A copy of that deed will be attached to the
present deed.
2. Other provisions
----------------
The Company has taken note of the conditions on which the right of
pledge has been established and shall co-operate in the implementation
thereof.
3. Acknowledgement by the Company
------------------------------
The Company acknowledges the above pledging of the Shares.
IV. POWERS OF ATTORNEY
The power of attorney of the appearer under 1 appears from one private
instrument, which is attached to a deed of transfer, which deed of transfer has
also been passed today before me, the notary. The existence of the power of
attorney has been sufficiently shown to me, the notary. The appearers are known
to me, the notary, and the identity of the appearers has been determined by me,
the notary, by means of the above-mentioned documents, intended for this
purpose.
4
<PAGE>
WHEREOF A DEED was prepared, the original of which was passed in CASTRICM
on the date stated in the heading of this deed. After stating the substance of
this deed to the appearers they unanimously declared that they had taken note of
the contents of this deed and did not wish it to be read out in full.
Subsequently this deed was signed by the appearers and me, the notary,
immediately after a limited reading-out. (Signed by): S. M. Martin, P.P. van
Schaick, D.J.W. Kuiper.
5
<PAGE>
EXHIBIT 4
DEED OF SUBORDINATION AND PLEDGE
THE UNDERSIGNED:
1. The public limited company CREDIT LYONNAIS BANK NEDERLAND N.V. established
at Rottendam, having a branch at Utrecht,
hereinafter referred to as: "the Bank"
and
2. a. QMS Europe B.V.
Reactorweg 160
Utrecht
hereinafter to be referred to as: "the Customer"
and
3. QMS, Inc.
1 Magnum Pass
Mobile AL USA 36689
hereinafter referred to as: "the Lender"
TAKING INTO CONSIDERATION:
- - that the Customer currently owes or shall in the future owe the Bank money
arising from the granting of credit, loan agreements or on any other
business whatsoever;
- - that the Bank requires security in respect thereof to the effect that the
Lender's claims against the Customer shall be subordinated to those of the
Bank and shall not be reduced, assigned or encumbered and that they shall
serve as security for any claims the Bank might have against the Customer
now and in the future;
- - that the Lender is prepared to furnish security;
HEREBY AGREE AS FOLLOWS:
1. For as long as the Customer enjoys any form of credit facilities from the
Bank or has an/or may in the future incur any other liabilities to the
Bank, the Lender shall:
a. neither enforce any present and future claims (: vorderingen) against
the Customer ("the claims"), which currently total $4,000,000 U.S.
(say: four million U.S. $), receive either directly or indirectly any
payment in respect thereof, nor assign such claims or encumber them in
any way;
b. not enter into any agreements in respect of the claims or permit them
to be off set.
2. The Lender hereby subordinates the claims to those the Bank has against the
Customer and pledges (: verpandt) the claims to the Bank together with any
accessory and ancillary rights attaching thereto.
<PAGE>
3. The right of pledge shall cover security in respect of all present and
future claims the Bank might have against the Customer arising form the
granting of credit, loan agreements or on any other account whatsoever,
including any interest due on the Bank's claims.
4. The Lender hereby expressly declares that it is entitled to pledge the
claims and that no attachments or limited rights exist regarding to the
claims.
5. The Lender shall hereafter not be entitled to assign or pledge the claims
to third parties or to encumber them with other limited rights without
prior written approval from the Bank.
6. The Customer declares that the Lender's claims against it do exist.
7. The Bank and the Lender hereby give notice to the Customer of the pledge.
If the Bank exercises its rights as pledgee, it shall not be bound by the
provisions of Article 1.
8. The Bank shall at all times be entitled to extinguish the pledge on the
claims by way of renunciation.
9. This deed and all rights and obligations arising therefrom or in connection
therewith, shall be governed by the laws of the Netherlands.
All disputes arising from this deed or in connection therewith, shall be
submitted to the competent court in Rotterdam, The Netherlands, or to a
competent court of any other jurisdiction at the sole discretion of the
Bank.
10. Unless otherwise stated herein, this agreement shall be governed by the
provisions of the Bank's General Conditions, which provisions shall be
deemed repeated and inserted here.
The Customer declares that it has received a copy of the General
Conditions.
Thus agreed and signed in triplicate
at Utrecht/Mobile on October 16, 1995
1. CREDIT LYONNAIS BANK NEDERLAND N.V. 2. CUSTOMERS
a. /s/ P.P. van Schaick
---------------------------------- -------------------------
3. LENDER
/s/ Shawn Martin
-----------------------------------
-2-
<PAGE>
EXHIBIT 5
QMS, INC.
---------
MASTER DISTRIBUTOR AGREEMENT
----------------------------
THIS MASTER DISTRIBUTOR AGREEMENT (the "Agreement") is made as of October
16th, 1995, between QMS, INC., a Delaware corporation ("QMS"), and QMS Europe
B.V., a corporation organized under the laws of The Netherlands ("QMS Europe"),
and QMS Australia PTY Ltd., a corporation organized under the laws of Victoria,
Australia.
RECITALS:
--------
QMS manufactures and sells QMS Products (as hereinafter defined).
QMS desires to appoint QMS Europe, its wholly-owned subsidiaries and QMS
Australia as distributors to sell, individually or as a component of another
product, printer and printer related products currently manufactured and sold by
QMS and such products as may be developed, manufactured and sold by QMS from
time to time during the term of this Agreement ("Distributor Products"), and QMS
Europe, on its own behalf and on behalf of its wholly-owned subsidiaries, and
QMS Australia, each desires to accept such appointment in accordance with the
terms and conditions contained herein.
In consideration of the above premises and the covenants hereinafter set
forth, the parties hereby agree:
1. APPOINTMENT AS DISTRIBUTOR
--------------------------
1.1 APPOINTMENT. QMS Europe, its wholly-owned subsidiaries and QMS
-----------
Australia are appointed as QMS' authorized distributors to resell Distributor
Products, either individually or as a component of another product ("QMS
Products") to customers located in Europe (including the United Kingdom), the
Middle East, Africa, Australia and New Zealand (the "Territory") and QMS Europe,
on its own behalf and on behalf of its wholly-owned subsidiaries, and QMS
Australia, each accepts such appointment and agrees to conduct its business as a
distributor of QMS Products and, in the case of QMS Europe, agrees to cause its
wholly-owned subsidiaries to conduct their respective businesses as distributors
of QMS Products, at all times during the term of such appointment in accordance
with the terms of this Agreement. QMS Europe, its wholly-owned subsidiaries and
QMS Australia are hereinafter referred to, collectively, as the "Distributor."
1.2 EXCLUSIVITY.
-----------
(a) Distributor shall be QMS' sole and exclusive distributor of QMS
Products in the Territory; provided, however, that (i) if following written
-------- -------
request by QMS, Distributor shall decline to market and resell a particular
QMS Product, QMS may, thirty (30) days following receipt of the initial
request by Distributor, sell such QMS Product in the Territory or appoint
authorized distributors for the resale of such QMS Product in the
Territory.
<PAGE>
(b) If in any calendar year Distributor shall not comply with the
Minimum Resales Requirements (as hereinafter defined), after written notice
followed by a cure period of ninety (90) days during which period the
parties will attempt to negotiate in good faith a solution for the reasons
of the shortcomings, QMS may elect to terminate the exclusivity rights
granted herein and may sell Distributor Products or appoint additional
authorized distributors of QMS Products in the Territory in lieu of
exercising its right to terminate this Agreement pursuant to Section 5.1(b)
--------------
hereof. "Minimum Resales Requirements" shall mean $60,000,000 in sales of
QMS Products per full calendar year during the term of this Agreement.
1.3 PRODUCTS OF OTHERS. Distributor shall have the right to sell and
------------------
distribute the products of others within the Territory provided that such right
shall not conflict with the interest of QMS in maximizing sales of QMS Products
in the Territory. The existence of a conflict with the interest of QMS shall
include the selling of other products that are functionally equivalent to QMS
Products and includes the improper disclosure or use of proprietary information
of QMS made available to Distributor. Distributor shall promptly give notice to
QMS of new lines of products and firms at such times as Distributor undertakes
to distribute and sell such products and/or represent such companies.
2. PURCHASE OF QMS PRODUCTS
------------------------
2.1 PURCHASE OF QMS PRODUCTS. Distributor will purchase from QMS and QMS
------------------------
will sell to Distributor the Distributor Products in such quantities as
Distributor may determine from time to time during the term of this Agreement.
All purchases of Distributor Products by Distributor shall be made solely
pursuant to this Agreement; provided, however, that Distributor may purchase
engines, spare parts and keyed consumables directly from third parties.
2.2 PRICE, PAYMENT AND DELIVERY. The purchase prices for Distributor
---------------------------
Products shall be equal to the standard cost of production of such Distributor
Products as determined by the chief financial officer of QMS (including, but not
limited to, overhead costs, research and development costs and royalty payments
made by QMS) in accordance with United States Generally Accepted Accounting
Principles ("U.S. GAAP") consistently applied and QMS' accounting policies
("Standard Cost"). Distributor shall pay QMS the purchase price for Distributor
Products no later than thirty (30) days following the date of the invoice for
such Distributor Products. Distributor Products shall be sold hereunder F.O.B.,
QMS' facility in Mobile, Alabama. Delivery shall take place when Distributor
Products are placed in the possession of a common carrier, packed and ready for
shipment to Distributor, or when Distributor Products are stored at QMS'
facility in accordance with instructions from Distributor. The risk of loss or
damage with respect to the Distributor Products shall pass to Distributor when
the Distributor Products are duly delivered to the carrier or are stored at
Seller's facility in accordance with instructions from Distributor. In the
event of a loss subsequent to delivery, Distributor shall pay for the
Distributor Products so delivered and shall (notwithstanding the loss) assume
responsibility for promptly advising the carrier and insurer of the loss, for
filing a claim and for prosecuting the recovery of any sums owed by such parties
to QMS or to Distributor. QMS shall, upon request, cooperate with Distributor
in establishing any such claim. Any arrangement made and expenses incurred by
QMS for carriage or insurance of the Distributor Products after the Distributor
Products are tendered for delivery to Distributor shall be for the
2
<PAGE>
account of Distributor and promptly paid or reimbursed to QMS by Distributor.
At least ten (10) days prior to the confirmed shipment date, Distributor shall
give QMS written instructions regarding the destination at which the Distributor
Products are to be shipped and the choice of carrier and type of conveyance. In
the absence of such instructions, QMS shall select the carrier and type of
conveyance in conformity with QMS' standard commercial practices for such
shipments. If no ship-to location is given, then QMS will ship the Distributor
Products to Distributor's office location. To the extent not inconsistent with
the terms hereof, the terms and conditions of the invoice used by QMS in
connection with the shipment of Distributor Products hereunder are incorporated
by reference herein and shall apply as if fully recited herein.
2.3 COMMISSION. Distributor will pay a commission to QMS on all sales of
----------
QMS Products (the "Commission") in an amount equal to twelve percent (12%) of
the sale price of QMS Products sold by Distributor as shown on Distributor's
invoices excluding value added tax, freight and related charges. The Commission
shall be payable quarterly in arrears, within thirty (30) days of the end of
each quarter.
Distributor guarantees to QMS average Commissions of at least $500,000 a
month in any calendar year commencing with calendar year 1996. If in any
particular calendar year the cumulative monthly average Commissions paid by
Distributor is less than $500,000, Distributor shall make a cash payment to QMS
in an amount which, when added to the cumulative Commissions paid year-to-date,
will result in a cumulative monthly average of $500,000 (the "Shortfall").
Shortfall payments shall be made by certified or bank check or by wire transfer
within thirty (30) days of the end of the calendar month in which the Shortfall
occurred. Distributor shall receive a credit for all Shortfall payments made to
QMS during a calendar year in the amount of such Shortfall payments (the
"Credit"). If the amount of the Commission owed to QMS for any month exceeds
$500,000, Distributor may offset the amount owed to QMS in excess of $500,000
against the Credit and the Credit shall be appropriately reduced. The Credit
may only be used to offset excess Commission owed in the calendar year in which
the Shortfall related to the Credit existed.
2.4 FAILURE OF DISTRIBUTOR TO MEET OBLIGATIONS. QMS will have the right
------------------------------------------
to refuse to supply Distributor with Distributor Products in the event that
Distributor fails to comply with any of its obligations under this Agreement, or
fails to pay QMS for any purchase of Distributor Products or to make any
Commission payments when such payments are due.
2.5 DISCONTINUATION OR MODIFICATION OF DISTRIBUTOR PRODUCTS. QMS reserves
-------------------------------------------------------
the right, upon sixty (60) days prior written notice to Distributor, to
discontinue any Distributor Product. QMS also reserves the right to add, adopt
or change any Distributor Product, any QMS trademark or trade name, and any
design or specification of any Distributor Product. QMS will notify Distributor
of any material addition, adoption or change as soon as reasonably practicable.
3. OBLIGATIONS OF DISTRIBUTOR
--------------------------
3.1 CONFIDENTIALITY. From time to time, QMS may make available to
---------------
Distributor certain information, including but not limited to, information set
forth in programming, operations and service manuals, engineering and technical
data, test and analysis data, marketing, application and customer information,
and will provide Distributor schematics for new Distributor Products pursuant
3
<PAGE>
to Section 4.4 hereof. In the event this information is considered by QMS to be
-----------
proprietary and/or confidential ("Confidential Information"), it will be so
marked when transmitted to Distributor. All Confidential Information shall
remain the sole and exclusive property of QMS, and Distributor shall have no
right to use, practice or disclose the Confidential Information except for the
purpose for which it was disclosed to Distributor. Distributor agrees to
maintain the Confidential Information in confidence during the term of this
Agreement and for a period of three (3) years thereafter and further agrees not
to divulge the same to anyone except to directors, officers, employees or agents
who require access thereto to carry out the purpose for which the Confidential
Information was disclosed and who shall have been informed of the obligation of
confidentiality set forth herein. Distributor shall be responsible for any
breach of this provision by its directors, officers, employees or agents. Upon
termination or cancellation of this Agreement, all Confidential Information, and
any copies thereof, shall be immediately physically delivered to QMS at the
address set forth in Section 7.4 hereof.
-----------
3.2 FINANCIAL STATEMENTS.
--------------------
(a) Within ninety (90) days after the end of each fiscal year of
Distributor, Distributor shall furnish QMS with an audited balance sheet of
Distributor as of the end of such fiscal year and the related statements of
income, stockholders' equity and cash flows, prepared in accordance with
Dutch Generally Accepted Accounting Principles ("Dutch GAAP") and certified
by a firm of independent public accountants of recognized national standing
selected by the Board of Directors of Distributor.
(b) Within forty-five (45) days after the end of each fiscal quarter
of Distributor (other than the last quarter in each fiscal year),
Distributor shall furnish QMS with an unaudited balance sheet of
Distributor for such fiscal quarter and related statements of income,
stockholders' equity and cash flows, prepared in accordance with Dutch GAAP
and certified by Distributor's Managing Director.
3.3 INDEMNIFICATION FOR THIRD-PARTY CLAIMS. Distributor will indemnify,
--------------------------------------
defend and hold QMS harmless from and against all liabilities, losses, damages,
claims, actions, causes of action, costs and expenses (including without
limitation attorney's fees) ("Losses") arising out of or with respect to the
activities of Distributor in performing its obligations under this Agreement
claimed by third parties except for Losses arising out of product liability
claims.
4. OBLIGATIONS OF QMS
------------------
4.1 ADVERTISING MATERIALS. QMS will provide Distributor with a reasonable
---------------------
quantity of Distributor Product manuals, brochures and other materials in the
English language to assist Distributor in the promotion and sale of QMS
Products. QMS will make additional copies of these materials available to
Distributor at a reasonable cost. QMS shall not be responsible for any
translation expense or for providing Distributor Product manuals, brochures and
other materials in any language other than English.
4
<PAGE>
4.2 TECHNICAL ASSISTANCE. QMS will provide Distributor with reasonable
--------------------
technical assistance and information regarding Distributor Products and keep
Distributor apprised of material information regarding Distributor Products.
4.3 PRODUCT CUSTOMIZATION. At the request of Distributor, QMS will
---------------------
provide Distributor with a price quote, based on normal hourly rates for product
customization services, to customize any of the Distributor Products. If
Distributor then wishes to have a QMS Product customized for the quoted price,
it shall request such customization in writing to QMS. QMS will submit to
Distributor a statement for customization services provided which will be
payable by Distributor within thirty (30) days of the date of statement.
4.4 SCHEMATICS. QMS will provide Distributor, without charge, schematics
----------
of all future Distributor Products and enhancements of current Distributor
Products sold by Distributor.
4.5 PRODUCT WARRANTIES.
------------------
(a) Each sale of Distributor Products to Distributor shall be
warranted to provide that if there exists a product failure due to a
specific defect in workmanship or materials of the same cause and in the
same part, repetitively occurring during ninety (90) days from delivery of
the Distributor Products to Distributor in more than five percent (5%) of a
shipment lot of the Distributor Products, such failure shall be deemed an
"Epidemic Failure." Distributor will advise QMS in writing if Distributor
believes an Epidemic Failure condition exists and shall provide evidence
satisfactory to QMS, including Distributor's service log. If both parties
agree an Epidemic Failure condition exists QMS shall, at its discretion,
repair or replace the defective QMS Products.
(b) THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE MADE IN LIEU OF AND
TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
5. TERM AND TERMINATION
--------------------
5.1 TERM. The initial term of this Agreement will commence on the
----
effective date hereof and end on December 31, 2000, and will be automatically
renewed for separate but successive one-year terms, unless terminated by the
parties hereto as follows:
(a) At the end of the initial term or any subsequent one-year term
hereof by either party upon written notice to the other party received not
less than six (6) months prior to the expiration of any such term; or
(b) By either party at any time after the occurrence of any one or
more of the following events of default: (i) failure of the other party to
perform any material obligation or covenant of the other party under this
Agreement; (ii) the material breach of any warranty or representation made
by the other party in this Agreement that is not remedied as provided
herein; (iii) the entering into or filing by or against the other party of
a petition, arrangement
5
<PAGE>
or proceeding seeking an order for relief under the bankruptcy laws of the
United States, a receivership for any of the assets of the other party, a
composition with or assignment for the benefit of its creditors, a
readjustment of debt, or the dissolution or liquidation of the other party;
or (iv) the insolvency of the other party; or
(c) By QMS, in the event of (i) the conveyance by Distributor of a
substantial portion of its assets without the prior written consent of QMS,
or (ii) a stock transfer or combination of stock transfers which result in
Jalak Investments B.V., Peter van Schaick and QMS collectively owning,
directly or indirectly, less than 51% of the aggregate voting power of all
outstanding voting securities of either QMS Europe or QMS Australia; or
(d) By QMS in the event Distributor does not meet the Minimum Resales
Requirements set forth in Section 1.2 hereof by written notice given within
-----------
ninety (90) days after the expiration of a ninety (90) days cure period set
forth in Section 1.2 hereof.
-----------
5.2 EFFECT OF TERMINATION.
---------------------
(a) Upon termination of this Agreement, all rights granted under this
Agreement will immediately cease and terminate. Further, Distributor will
cease all sales and distribution of QMS Products and remove from each of
its location(s) and return to QMS or destroy all promotional and other
material identifying Distributor as an authorized distributor of QMS
Products; provided, however, that Distributor will have the right to sell
-------- -------
its remaining inventory of QMS Products in accordance with the terms and
conditions of this Agreement, unless QMS will exercise its option by
written notice to Distributor on or before the effective date of such
termination, to repurchase Distributor's remaining inventory at the
price(s) paid by Distributor to QMS for such inventory (it being understood
that no Commission will be payable by Distributor on repurchases of
inventory by QMS under this Section 5.2).
-----------
(b) Upon termination of this Agreement, QMS Europe, QMS Australia and
any subsidiary of QMS Europe that has a corporate name containing the term
"QMS" shall, as soon as is reasonably practicable, take all necessary
steps, including without limitation making any necessary filings and
registrations with the appropriate governmental authorities, to change
their corporate names to remove the term "QMS," and shall choose new
corporate names which do not contain an acronym which is confusingly
similar to "QMS."
5.3 LIABILITY UPON TERMINATION. Neither party hereto will be liable to
--------------------------
the other party hereto for damages, losses, costs or expenses of any kind or
character whatsoever arising from the termination or expiration of this
Agreement, whether such damages, losses, costs or expenses arise from the loss
of prospective sales or expenses incurred or investments made in connection with
the establishment, development or maintenance of Distributor's business, or any
other reason whatsoever; provided, however, that such termination or expiration
-------- -------
will not affect any claim, demand, liability or right of either party hereto
arising pursuant to this Agreement prior to the termination or expiration, or
arising after termination or expiration in connection with sale by Distributor
of its remaining inventory of QMS Products or Distributor's obligations under
Section 3.1 of this Agreement.
- -----------
6
<PAGE>
6. DISPUTE RESOLUTION
------------------
6.1 DISPUTES RELATING TO COST OF QMS PRODUCTS.
-----------------------------------------
(a) QMS shall provide Distributor, within forty-five (45) days of the
end of each fiscal quarter, a statement signed by its Chief Financial
Officer (the "Cost Statement") detailing the calculation of the Standard
Cost of Distributor Products as charged by QMS to Distributor during the
most recent fiscal quarter.
(b) Distributor shall have the right, upon written notice to QMS
within fifteen (15) days of receipt of the Cost Statement, to request a
review of the Cost Statement. The Cost Statement shall be reviewed by an
accounting firm that is nationally recognized in the United States and that
is not affiliated with either party ("Cost Auditor"). The Cost Auditor
shall be chosen by agreement of the parties hereto. If the parties hereto
cannot agree on a Cost Auditor in a 15-day period following Distributor's
request for review, each party shall designate a U.S. nationally recognized
accounting firm, and the two firms shall, jointly, designate the Cost
Auditor.
(c) The Cost Auditor shall review the Cost Statement and shall issue a
report with respect to the calculation of Standard Cost of Distributor
Products under U.S. GAAP consistently applied and QMS' accounting policies
and the applicable provisions of this Agreement.
(d) If the Cost Auditor's report determines that the prices charged by
QMS to Distributor for Distributor Products sold to Distributor during the
quarterly period under examination were, in the aggregate, greater than
103% of the aggregate Standard Cost of such Distributor Products as
determined by the Cost Auditor, then QMS (i) shall within forty-five (45)
days of Cost Auditor's final report, repay the actual amount of the
overcharge, and (ii) shall pay all costs and expenses of selecting the Cost
Auditor and all costs and expenses and other fees charged by the Cost
Auditor in connection with it review and the issuance of its report (the
"Cost Audit Expenses"). Distributor shall pay the Cost Audit Expenses in
all other circumstances.
(e) The Cost Auditor's determination shall be final, non-appealable
and binding upon the parties hereof.
6.2 DISPUTES RELATING TO SALES OF QMS PRODUCTS.
------------------------------------------
(a) Distributor shall provide QMS, within forty-five (45) days of the
end of each fiscal quarter, a statement signed by its managing director
(the "Sales Statement") detailing the calculation of the unit volume and
dollar value of sales of QMS Products made by Distributor during the most
recent quarterly period.
(b) QMS shall have the right upon written notice to Distributor within
fifteen (15) days of receipt of the Sales Statement to request a review of
the Sales Statement. The Sales Statement shall be reviewed by an
accounting firm that is nationally recognized in The
7
<PAGE>
Netherlands and that is not affiliated with either party ("Sales Auditor").
The Sales Auditor shall be chosen by agreement of the parties hereto. If
the parties hereto cannot agree on a Sales Auditor in a 15-day period
following QMS' request for review, each party shall designate a Dutch
nationally recognized accounting firm which shall, jointly, designate the
Sales Auditor.
(c) The Sales Auditor shall review the Sales Statement and shall issue
a report with respect to the calculation of Commissions paid on sales of
QMS Products during the fiscal quarter under the terms of this Agreement.
(d) If the Sales Auditor's report determines that the Commissions paid
by Distributor for QMS Products sold during the quarterly period under
examination were, in the aggregate, less than 97% of the aggregate
Commissions payable as determined by the Sales Auditor, then Distributor
(i) shall, within forty-five (45) days of Sales Auditor's final report, pay
the additional Commissions, and (ii) shall pay all costs and expenses of
selecting the Sales Auditor and certain expenses and other fees charged by
the Sales Auditor in connection with the Sales Audit (the "Sales Audit
Expenses"); QMS shall pay the Sales Audit Expenses in all other
circumstances.
(e) The Sales Auditor's determination shall be final, non-appealable
and binding upon the parties hereof.
6.3 ARBITRATION.
-----------
(a) All disputes under this Agreement other than those under Section
-------
6.1 and Section 6.2 hereof shall be settled by arbitration in Atlanta, Georgia,
- --- -----------
U.S.A. pursuant to the American Arbitration Association Commercial Arbitration
Rules which rules are deemed to be incorporated by reference herein, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(b) The number of arbitrators shall be three (3), each of whom shall
be disinterested in the dispute or controversy, shall have no connection with
any party hereto and shall be a person experienced in international trade and
business matters. Each party shall nominate one arbitrator and the two
arbitrators so appointed shall select a third arbitrator.
(c) Arbitration may be commenced at any time by either QMS or
Distributor giving written notice to the other that such dispute has been
referred to arbitration under this Section 6.3. Any award rendered by the
-----------
arbitrators, shall be final, conclusive, non-appealable and binding upon the
parties hereto and shall be accompanied by a written opinion of the arbitrators
giving the reasons for the awards; provided, however, that the arbitrators shall
-------- -------
have no authority to award any special indirect, incidental, consequential,
punitive or other damages not measured by the prevailing party's actual damages
and the arbitrators may not make any ruling, finding or award that does not
conform with the terms and conditions of this Agreement. Each party shall pay
its own expenses of arbitration and the expenses of the arbitrators shall be
equally shared; provided, however, that the arbitrators may assess, as part of
-------- -------
their award, all or any part of the arbitration
8
<PAGE>
expenses of the other party (including reasonable attorneys' fees) and of the
arbitrators against the party raising such unreasonable claim, defense or
objection.
6.4 SPECIFIC PERFORMANCE. The provisions for review of Cost Statements,
--------------------
Sales Statements and arbitration shall be specifically enforceable by the
parties.
7. MISCELLANEOUS PROVISIONS
------------------------
7.1 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits
----------------------------
attached hereto constitute the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersede all prior oral or written
agreements. This Agreement may not be amended or modified, except by a further
written agreement signed by the parties hereto.
7.2 WAIVER. No failure or delay on the part of a party hereto in
------
exercising any right or remedy hereunder will operate as a waiver thereof; nor
will any single or partial exercise of any such right or remedy preclude any
other or further exercise thereof or of any other right or remedy. No provision
of this Agreement may be waived except in a writing signed by the party granting
such waiver.
7.3 ASSIGNMENT.
----------
(a) In the event of a sale or transfer by QMS of its business (by
merger, sale of stock, sale of substantially all of its assets or
otherwise)("Sale of Business"), QMS may, without the consent of
Distributor, assign its rights and obligations under this Agreement to the
ultimate successor in interest to the business of QMS (the "Successor"),
provided that the Successor agrees, in writing, to abide by the terms of
this Agreement. Failure of QMS to assign its rights and obligations under
this Agreement to the Successor in the case of a Sale of the Business, or
failure to obtain a written agreement from the Successor to such an
assignment shall constitute a breach of this Agreement.
(b) Except as set forth in paragraph (a) above, neither QMS nor
Distributor shall have the right to assign its rights and obligations under
this Agreement without the prior written consent of the other.
7.4 NOTICE. Except as otherwise specified herein, all notices,
------
communications and reports required or permitted pursuant to this Agreement will
be in writing and will be mailed, telecopied, or delivered to the other party at
the address shown below (or at such other address as may be specified hereafter
in writing by either party hereto to the other party in accordance with this
Section 7.4) and will be effective and deemed received upon the earlier of (i)
delivery or (ii) fifteen (15) days after placed in the mail.
If to QMS: QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 36689-1250
Attn: Legal Department
9
<PAGE>
with a required Powell, Goldstein, Frazer & Murphy
copy to: Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: G. William Speer, Esq.
If to Distributor: Jalak Investments B.V. i.o.
c/o QMS Europe B.V.
Reactorweg 160
3542 AD Utrecht
P. O. Box 8540
3503 RM Utrecht
The Netherlands
Attn: Peter van Schaick
with a required Meijer c.s.
copy to: Scheveningseweg 50
2517 KW 's - Gravenhage
The Netherlands
Attn: Georg Werger
7.5 SEVERABILITY. In the event that any one or more of the provisions, or
------------
parts of any provisions, contained in this Agreement will for any reason be held
to be invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the same will not invalidate or otherwise affect any other
provision hereof, and this Agreement will be construed as if such invalid,
illegal or unenforceable provision, or part of any provision, had never been
contained herein.
7.6 FORCE MAJEURE. Except for the obligation of Distributor to pay for
-------------
any and all QMS Products purchased pursuant to this Agreement, neither party
hereto shall be liable for the failure to perform any of its obligations under
this Agreement if such failure is caused by the occurrence of any contingency
beyond the reasonable control of such party, including without limitation, fire,
flood, strikes and other industrial disturbances, failure of raw material
suppliers, failure of transport, accidents, wars, riots, insurrections, acts of
God or orders of governmental agencies. In the event that any such contingency
occurs which affects QMS's performance, QMS may allocate production and delivery
among its customers as it sees fit in its sole discretion and without liability
to Distributor.
7.7 GOVERNING LAW. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
7.8 GOVERNING LANGUAGE. Regardless of whether a copy of this Agreement is
------------------
translated into another language, the official version hereof shall be the
English version, which shall prevail in all cases. All correspondence and
communication between the parties, all reports, orders, instructions,
literature, records and other written materials pertaining to this Agreement
shall be maintained and delivered in the English language. All monetary amounts
shall be in U.S. Dollars.
10
<PAGE>
7.9 INDEPENDENT CONTRACTOR. This Agreement does not constitute or appoint
----------------------
Distributor as an agent of QMS. Distributor is an independent contractor
hereunder, and QMS will not be liable for the debts, accounts, obligations or
other liabilities of Distributor or of its agents, employees or independent
contractors, including without limitation any costs for salaries, overhead,
transportation or communication.
The parties hereto have executed this Agreement, effective as of the day
and year first above written.
QMS: DISTRIBUTOR:
QMS, INC. QMS Europe B.V.
By: /s/ James L. Busby By: /s/ P.P. van Schaick
------------------ ---------------------
Title: President Title: M.D.
--------------- ------------------
QMS Australia Pty Ltd.
By: /s/ P.P. van Schaick
----------------------
Title: M.D.
--------------------
11
<PAGE>
EXHIBIT 6
TRADEMARK AND TRADE NAME LICENSE AGREEMENT
------------------------------------------
THIS TRADEMARK AND TRADE NAME LICENSE AGREEMENT (the "Agreement") is made
as of October 16th, 1995, by and between QMS, INC., a Delaware corporation
("QMS"), and QMS Europe B.V., a corporation organized under the laws of The
Netherlands ("Licensee").
RECITALS:
WHEREAS, QMS is the owner of certain trademarks and trade names (the
"Marks") used in connection with the manufacture and sale of its products (the
"QMS Products"); and
WHEREAS, QMS and Licensee have entered into that certain Master Distributor
Agreement of even date herewith (the "Distributor Agreement"), under which
Licensee will act as a distributor for the QMS Products within the Territory (as
defined herein); and
WHEREAS, Licensee desires to use the Marks in connection with its
distribution of the QMS Products under the Distributor Agreement, and QMS
desires to provide a license for such use under the terms and conditions set
forth herein (the "License").
NOW, THEREFORE, the parties have agreed as follows:
1. Grant of License. QMS hereby grants to Licensee and Licensee's
----------------
subsidiaries an exclusive, royalty-free right to utilize the now or
hereafter existing trademarks, trade names, copyrighted materials, logos,
slogans, designs and distinctive advertising of QMS in connection with the
sale and distribution of the QMS Products by Licensee in the following
territories: Europe (including the United Kingdom), Middle East, Africa,
Australia and New Zealand (the "Territory").
2. Conditions of Grant. The License is subject to the following conditions:
-------------------
a. Licensee may only use the Marks for the purpose of advertisement,
promotion and sale of the QMS Products and for no other purposes;
b. Licensee may only use the Marks in the form in which they are used by
QMS and may not alter or modify them or add material to them so as to
diminish their distinctiveness;
c. Licensee will not use the Marks in any manner likely to confuse,
mislead or deceive the public, or to be injurious or inimical to the
best interests of QMS; and
d. Licensee will not allow use of the Marks by its subsidiaries unless
and until they agree in writing to be bound by the terms of this
Agreement.
3. Rights of QMS as Licensor. QMS retains the right to monitor Licensee's
-------------------------
usage of the Marks and to inspect any advertising or marketing materials
developed by Licensee which
<PAGE>
use the Marks, and Licensee may not distribute, display or otherwise
utilize any such materials which QMS determines to be unacceptable.
Licensee agrees that it will not acquire any right or interest in any of
the Marks, whether by use, operation of law, or otherwise.
4. Term and Termination. This Agreement and the License granted hereunder
--------------------
shall be effective upon the date hereof, and shall continue in effect until
either of the following shall occur:
a. The Distributor Agreement is terminated by either party for any
reason; or
b. Licensee fails to use the Marks in accordance with the terms of this
Agreement.
5. General Provisions.
------------------
a. All notices, requests, consents or other communication hereunder shall
be in writing and shall be mailed, telecopied or delivered to the
other party and the address shown below (or at such address as may be
specified hereafter in writing by either party hereto to the other
party in accordance with this Section) and will be effective and
deemed received upon the earlier of (i) receipt or (ii) fifteen days
after placed in the mail:
If to QMS:
QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 36689-1250
Attn: Legal Department
If to Licensee:
Jalak Investments B.V. i.o.
40 QMS Europe B.V.
Reactorweq 160
P.O. Box 8540
3503 RM Utrecht
The Netherlands
Attn: Peter van Schaick
b. This Agreement shall be governed by the laws of the State of Georgia.
c. Regardless of whether a copy of this Agreement is translated into
another language, the official version hereof shall be the English
version, which shall
2
<PAGE>
prevail in all cases. All correspondence and communication between
the parties shall be in the English language.
d. The License may not be assignable by Licensee without the express
written consent of QMS.
e. This Agreement may only be amended by written agreement by the parties
hereto.
f. This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
QMS:
QMS, Inc.
By: /s/ James L. Busby
-----------------------------------------
Name: James L. Busby
Title: President
LICENSEE:
QMS Europe B.V.
By: /s/ P.P. van Schaick
-----------------------------------------
Name: P.P. van Schaick
Title: J.M.D.
3
