SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Act of 1934
Date of Report (Date of earliest event reported): July 7, 1997
QMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9348 63-0737870
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
One Magnum Pass
Mobile, Alabama 36618
(Address of principal executive offices)
(Zip Code)
(334) 633-4300
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last
report)
Item 5. Other Events
AGREEMENT
QMS, Inc. ("QMS") and James L. Busby ("Busby", "he", "his" or "him"),
intending to provide for an orderly executive management transition and to
resolve any potential claims on a mutually satisfactory and final basis,
agree as follows:
1. Resignation and Appointment.
Busby's status and responsibilities as President and Chief Executive
Officer of QMS shall automatically terminate upon the election by the QMS
Board of Directors of a replacement executive. Busby shall be entitled to
participate in the interview and selection process of his replacement.
Simultaneously with such resignation and contingent upon Busby's compliance
with sub-paragraph 4(d) of this Agreement, Busby shall assume the duties of
Chief Strategist for a term ending December 31, 1998. Busby shall be given
notice thirty (30) days prior to the date he shall be required to vacate his
office at QMS.
2. Base Salary.
Busby's compensation from the date of this Agreement through the
termination of his employment with QMS shall be at an annual rate of Five
Hundred Ten Thousand and 00/100 ($510,000.00) Dollars payable in accordance
with QMS' normal payroll practices.
3. Termination of Employment.
a. Busby's employment with QMS shall only be terminable upon the
occurrence of any of the following events:
i. 11:59 p.m. (Central Standard Time), December 31, 1998;
or
ii. Busby violates the provisions of sub-paragraph 4(d) of
this Agreement; or
iii. The voluntary resignation by Busby of his employment
with QMS; or
iv. The death of Busby.
b. If Busby's employment with QMS is terminated pursuant to either
sub-paragraphs 3(a)(i) or (ii), such termination shall be deemed
to have been "other than of his own accord" as of the date of
this Agreement for purposes of paragraph 1 of the Agreement
between QMS and Busby dated September 30, 1991. A copy of that
Agreement is attached hereto as Attachment A and incorporated
herein by reference. The Board of Directors of QMS has determined
and approved that the annual payment amount due to Busby under
paragraph 1 of Attachment A shall be fixed at $287,500.00.
4. Consulting Services.
a. If Busby remains employed by QMS through December 31, 1998, he shall
be retained as a consultant to the President of QMS for a period
of ten (10) years commencing on January 1, 1999. Busby's time
commitment obligation under this paragraph shall be as mutually
agreed to by Busby and the President of QMS, but in no event shall
it exceed ten (10) hours per month over any three (3) consecutive
months. Busby's services as a member of the Board of Directors of
QMS shall not be construed as "consulting services" under this
Agreement.
b. Busby will be compensated at an annual rate of Fifty Thousand
and 00/100 ($50,000.00) Dollars, payable monthly and in equal
installments on the first business day of each month.
c. Busby's consulting services and QMS' obligation to compensate him
for such services shall only be terminable upon the occurrence of
any of the following events:
i. December 31, 2008; or
ii. Busby violates the provisions of sub-paragraph 4(d) of
this Agreement; or
iii. The voluntary resignation of Busby from his consulting
services to QMS; or
iv. The disability of Busby to perform his consulting
services for a period of one hundred eighty (180)
cumulative days during any calendar year; or
v. The death of Busby.
d. In consideration of the compensation paid by QMS for Busby's
consulting services and QMS' continuing disclosure to him of its
trade secrets, Busby agrees that he will not during the period of
this consultancy:
i. Engage in any business in competition with QMS directly
or indirectly, except as a shareholder holding less than
five (5%) percent of the issued shares of a publicly
traded corporation; or
ii. Disclose any QMS trade secret to third-parties without
QMS' prior written consent; or
iii. Influence or attempt to influence any employee of QMS to
terminate his or her employment with QMS; or
iv. Make any publicly disseminated derogatory statement about
QMS or any of its managers, employees or subsidiaries,
either verbally or in writing; or
v. Charge expenses to QMS or commit QMS monetarily in any
way without the prior written consent of the President
of QMS.
Busby shall be given written notice of QMS' contention that a
violation of this sub-paragraph has occurred, and thereafter Busby
shall be given five (5) business days to demonstrate to QMS'
satisfaction that a violation has not occurred or shall not occur.
During such five (5) day period, the parties shall refrain from
taking any action detrimental to the legal rights of the other and
shall endeavor to resolve QMS' contention that a violation has
occurred or is about to occur. If, however, after such notice is
given Busby fails to refrain from conduct which is subject of QMS'
contention, QMS shall be permitted to immediately exercise its
rights under this Agreement including termination of Busby's
employment pursuant to paragraph 3(a)(ii) and the initiation of
any legal proceedings to enforce the provisions of this sub-
paragraph. If any legal proceedings are initiated by either party
relating to the enforcement of this sub-paragraph, the prevailing
party in such litigation shall be entitled to reimbursement from
the losing party its reasonable attorneys' fees and court costs.
5. Office Allowance.
Busby shall be provided an office allowance in the amount of Two
Thousand Five Hundred and 00/100 ($2,500.00) Dollars per month, payable on
the first business day of each month for a period commencing on the day of his
resignation as President and Chief Executive Officer of QMS, and continuing
for a period of sixty (60) months unless automatically terminated earlier by
the occurrence of any of the following events:
i. Busby violates the provisions of sub-paragraph 4(d) of
this Agreement; or
ii. The death of Busby.
6. Company Furnished Automobile.
a. Busby shall continue to have the full use of the 1995 Cadillac
Fleetwood Brougham (Vehicle Identification No. 1G6DW52P6SR70133)
currently furnished to him by QMS through the term of Busby's
employment with QMS. Busby may purchase such automobile at the
then current QMS book value or return it to QMS any time prior to
the term of Busby's employment with QMS.
b. QMS shall continue to provide gas and oil and to mechanically
maintain the company funded automobile and all current insurance
coverages at no cost to Busby through the term of Busby's
employment with QMS.
7. Legal Expenses.
Busby acknowledges he has been advised by the QMS Board of Directors
that he should retain his own legal counsel for purposes of reviewing,
negotiating or drafting this Agreement. Accordingly, QMS shall reimburse
Busby for such legal expenses not to exceed Five Thousand and 00/100
($5,000.00) Dollars, and for no other purpose.
8. Miscellaneous Conveyances.
Ownership of the property items set forth at Attachment B shall be
automatically conveyed to Busby upon his resignation as President and Chief
Executive Officer of QMS. All such property shall be conveyed "as is" with
no warranty rights, expressed or implied. Busby shall remove such property
from QMS' premises in a timely manner subsequent to such conveyance.
9. Releases.
a. Busby hereby releases and waives any claims (whether presently
known or unknown) under federal, state, or local law which he may
have against QMS as of the date of this Agreement, including, but
not limited to, any claims under Title VII of Civil Rights Act of
1964, 41 U.S.C. Sections 1981 and 1985; the Equal Pay Act of 1963;
the Employee Retirement Income Security Act of 1974; the Americans
With Disabilities Act; and any other federal, state or local law,
ordinance, or regulation applying to or regulating employment.
This waiver and release also gives up all such claims against QMS'
officers, directors, agents, employees, attorneys, subsidiaries,
and affiliates. This waiver and release also gives up all such
claims against any person or entity which might be liable for the
acts or omissions of any of the parties listed in the preceding
sentence, and against the successors and assigns of all released
parties.
b. QMS hereby releases Busby and waives any claims (whether presently
known or unknown) under federal, state, or local law, ordinance,
or regulation which it may have against Busby as of the date of
this Agreement, relating to his performance as an officer and
director of QMS, except for any conduct involving any illegal or
fraudulent acts, or any conduct involving intentional misconduct,
self-dealing, gross mismanagement or a breach of a fiduciary duty.
10. Representation by QMS.
QMS represents that as of the effective date of this Agreement it has
no knowledge of any act, or failure to act, which Busby in his capacity as
Chairman of the Board of Directors, President or Chief Executive Officer has
committed or should have committed which justifies any legal action against
him by QMS, including an action or actions for any illegal or fraudulent
acts, or any conduct involving intentional misconduct, self-dealing, gross
mismanagement or a breach of fiduciary duty.
11. Taxes and Other Withholdings.
Busby acknowledges and agrees that the payment of all taxes required by
law for all sums paid by QMS to him as a consultant or in the form of an
office allowance shall be Busby's personal responsibility and obligation.
12. Directorship.
Nothing in this Agreement shall be construed to effect Busby's status
as a member of the QMS Board of Directors or his possible subsequent
renomination as a Director to such Board. Similarly, the parties acknowledge
no commitment has been made by the QMS Board of Directors regarding Busby's
possible renomination as a Director.
13. Insurance Benefits.
Busby shall be provided the same or equivalent medical and dental
benefits as he is currently receiving from QMS. Busby's life and disability
benefits shall terminate upon Busby's termination of employment as defined
in Paragraph 3 of this Agreement.
14. Other Agreements.
a. Nothing in this Agreement shall be construed as limiting or off-
setting any rights or payments due to Busby pursuant to Attachments
A or D.
b. Busby hereby waives any rights he may have in the "Executive
Agreement" entered into by him and QMS in 1989, effective the date
Busby's status as President and Chief Executive Officer terminates.
A copy of that "Executive Agreement" is attached hereto as
Attachment C for reference purposes only.
c. All agreements, stock option grants and other commitments, if any,
purporting to convey any rights to Busby by QMS, other than those
agreements attached to this Agreement as Attachments A and C, are
set forth at Attachment D and incorporated herein by reference.
15. Disclosure.
The public disclosure of the terms of this Agreement, in whole or in
part, shall be at the sole discretion of QMS.
16. Choice of Law.
This Agreement shall be construed in accordance with the laws of the
State of Alabama.
17. Successors and Assigns.
This Agreement, and each provision hereof, shall be binding on the
parties hereto, their successors, assigns, heirs, and personal representatives.
18. Corporate Authorization.
The Execution and performance of this Agreement has been duly
authorized by the QMS Board of Directors.
19. Entire Agreement.
This Agreement constitutes the final, complete and exclusive agreement
between QMS and Busby, and all prior agreements, representations, negotia-
tions, statements, explanations, assurances and promises (whether oral or
written) are merged herein. Should any provision of this Agreement be held
by a court of competent jurisdiction to be void, unenforceable, or otherwise
invalid, that provision shall be deemed severed from this Agreement and the
remaining provisions shall continue in full force and effect. Any amendment
or waiver of any provision of this Agreement will not be effective unless
done in writing and executed by both parties.
This Agreement is made effective on the 30 day of June, 1997.
QMS, INC.
By: /s/ R. A. Wiggins /s/ James L. Busby
------------------ ------------------
Name: Richard A. Wiggins James L. Busby
Title: Sr. Vice President
Attest:
By : /s/ Lloyd Adams
------------------
Item 7. Exhibits
Attachment A - Supplemental Executive Retirement Plan Agreement dated
September 30, 1991./1
Attachment B - Property Item.
Attachment C - Executive Agreement./2
Attachment D - Stock Option Grants
_________________
/1 Incorporated herein by reference to Exhibit 10(d) in Registrant's
annual report on Form 10-K for the fiscal year ended October 1, 1993
(Commission File No. 1-9348).
/2 Incorporated herein by reference to Exhibit 10(h) in Registrant's
annual report on Form 10-K for the fiscal year ended September 29,
1989 (Commission File No. 1-9348).
SIGNATURES
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.
/s/ Richard A. Wiggins
-----------------------
By: Richard A. Wiggins
Date: July 7, 1997
<TABLE>
ATTACHMENT B
<CAPTION>
COMPUTER EQUIPMENT:
<S> <C> <C>
QMS FIXED QMS BOOK
DESCRIPTION ASSET NUMBER VALUE
- ----------- ------------ --------
Gateway 386 Computer 12058 -0-
Gateway 386 Computer 12061 -0-
Gateway (JLB's office) 16502 -0-
IBM Thinkpad w/ Docking Station 17624 -0- as of 11/97
QMS Magicolor LX 17820 -0- as of 04/98
Kiss Printer No Tag -0-
QMS 410 Printer No Tag -0-
(Gift from Eng.)
Tektronix Logic Analyzer 7603 000395 -0-
Tektronix Analyzer 1240 No Tag
FURNITURE:
QMS FIXED QMS BOOK
DESCRIPTION ASSET NUMBER VALUE
- ----------- ------------ --------
Desk w/ Bordered Top 3196 -0-
Credenza 3194 -0-
Bookcase No Tag -0-
10 yr. Anniversary Gift
& Cabinet 3565 -0-
Printer Stand -0-
Work Station -0-
Chairs (desk chair, 3 guest chairs, 2 sofas)
OFFICE EQUIPMENT/SUPPLIES:
DESCRIPTION
- -----------
Consumables for Magicolor LX - (supply maintained in office closet)
Office Supplies - (supplies maintained in office closet)
File Cabinets - (personal files are stored in 6 file cabinets)
Plaques/Awards/Gifts given to James L. Busby
Airplane life raft
PERSONAL
- --------
All personal items including VCR, magazines, books, artwork, etc.
</TABLE>
ATTACHMENT D
<TABLE>
<CAPTION>
QMS, Inc.
Stock Option Personnel Summary As of 5/23/97
James L. Busby ID: ###-##-#### (Officer)
6106 Cottage Hill Rd. Location: Mobile
Mobile AL 36609 Department: Executive
Last Sale: 02/14/91
Last Buy: 10/01/92
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Grant Grant Plan/
Number Date Type Granted Price Exercised Vested Cancelled Unvested Outstanding Exercisable
- ------ -------- ------ ------- -------- --------- -------- --------- -------- ----------- -----------
000242 11/30/88 87/ISO 50,000 $ 6.7500 0 50,000 0 0 50,000 50,000
000513 10/11/89 87/ISO 20,000 $11.2500 0 20,000 0 0 20,000 20,000
000713 07/25/90 87/NQ 50,000 $17.8750 0 50,000 0 0 50,000 50,000
000781 01/23/92 87/NQ 10,000 $15.0000 0 10,000 0 0 10,000 10,000
000930 11/12/92 84B/ISO 5,000 $ 8.8750 0 4,000 0 1,000 5,000 4,000
001134 01/25/94 87/ISO 10,000 $ 8.7500 0 8,000 0 2,000 10,000 8,000
001394 01/24/95 87/ISO 10,000 $ 8.8750 0 6,000 0 4,000 10,000 6,000
001872 01/23/96 87/ISO 10,000 $ 5.6250 0 4,000 0 6,000 10,000 4,000
002248 01/20/97 87/ISO 20,000 $ 5.6250 0 4,000 0 16,000 20,000 4,000
------- ---------- ----- ------- ----- ------ ------- -------
TOTALS 185,000 [$10.7872] 0 156,000 0 29,000 185,000 156,000
</TABLE>
