Exhibit 10(v)
AGREEMENT
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QMS, Inc. ("QMS") and Xxxxxx X. Xxxxxx, Ph. D. ("Xxxxxx", "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. Termination of Employment.
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(a) Xxxxxx'x status and responsibilities as Executive Vice President and
Chief Technical Officer of QMS shall automatically terminate upon the
occurrence of any of the following events:
(i) 11:59 p.m. (Central Standard Time), January 31, 1998; or
(ii) Xxxxxx violates the provisions of paragraph 3 of this
Agreement; or
(iii)The voluntary resignation by Xxxxxx of his employment
with QMS; or
(iv) The death of Xxxxxx.
(b) If Xxxxxx'x employment with QMS is terminated pursuant to either sub-
paragraphs 1(a)(i) or (ii), such termination shall be deemed to have
been "other than of his own accord" for the purposes of paragraph 1 of
the Agreement between QMS and Xxxxxx dated September 1, 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 due to Xxxxxx under paragraph 1 of
Attachment A shall be fixed at $150,000.00 if his employment by QMS is
terminated "other than his own accord.".
2. Base Salary.
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Xxxxxx'x compensation from the date of this Agreement through the
termination of his employment with QMS shall be at an annual rate of Two Hundred
and Ninety Thousand and 00/100 ($290,000.00) Dollars payable in accordance with
QMS' normal payroll practices.
3. Noncompetition Agreement
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(a) In consideration of QMS' agreement to license certain technology
proprietary to QMS to Xxxxxx, or to a business entity of which Xxxxxx
is a principal, Xxxxxx agrees that he will not, from the date of this
Agreement through December 31, 1997:
(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 of attempt to influence any employee of QMS,
other than any of the employees employed by QMS in it "IMS
Group: as of the date of this Agreement 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 any expenses to QMS or commit QMS monetarily in any
way without the prior written consent of the Chief Financial
Officer of QMS.
4. Company Furnished Automobile.
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Xxxxxx shall continue to have the full use of the 1995 Cadillac, Vehicle
Identification No. 0X0XX0000XX000000) currently furnished to him by QMS until
such time ownership of the vehicle is transferred to Xxxxxx. In any event, the
transfer of ownership shall occur no later than January 31, 1998. QMS shall
also continue to provide gas, oil, mechanical maintenance and all current
insurance coverages for such automobile until ownership has been transferred to
Xxxxxx.
5. Miscellaneous Conveyances.
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Ownership of the property items set forth at Attachment B shall be
automatically conveyed to Xxxxxx upon his resignation as Executive Vice
President and Chief Technical Officer of QMS. All such property shall be
conveyed "as is" with no warranty rights, expressed or implied. Xxxxxx shall
remove such property from QMS' premises in a timely manner subsequent to such
conveyance, but in no event later than August 29, 1997.
6. Release.
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(a) Xxxxxx 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. (S)(S) 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 Xxxxxx and waives any claims (whether presently
known or unknown) under federal, state, or local law, ordinance, or
regulation which it may have against Xxxxxx 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.
7. Directorship.
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Nothing in this Agreement shall be construed to effect Xxxxxx'x status as a
member of the 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 Xxxxxx'x possible
renomination as a Director.
8. Insurance Benefits.
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Xxxxxx'x life and disability benefits shall terminate upon Xxxxxx'x
termination of employment as defined in Paragraph 1 of this Agreement.
9. Other Agreements.
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(a) Nothing in this Agreement shall be construed as limiting or offsetting
any rights or payments due to Xxxxxx pursuant to Attachments A or D.
(b) Xxxxxx hereby waives any rights he may have in the "Executive
Agreement" entered into by him and QMS in 1989, effective the date
Xxxxxx'x employment with QMS 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 Xxxxxx by QMS, including those
agreements attached to this Agreement as Attachments A and C, are set
forth at Attachment D and incorporated herein by reference.
10. Disclosure.
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The public disclosure of the terms of this Agreement, in whole or in part,
shall be at the sole discretion of QMS.
11. Choice of Law.
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This Agreement shall be construed in accordance with the laws of the State of
Alabama.
12. Successors and Assigns.
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This Agreement, and each provision hereof, shall be binding on the parties
hereto, their successors, assigns, heirs, and personal representatives.
13. Corporate Authorization.
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The Execution and performance of this Agreement has been duly authorized by
the QMS Board of Directors.
14. Entire Agreement.
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This Agreement constitutes the final, complete and exclusive agreement between
QMS and Xxxxxx, and all prior agreements, representations, negotiations,
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 5th day of August, 1997.
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QMS, INC.
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxx, Ph.D.
Chief Operating Officer
Attest:
By : /s/ X. X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Secretary
SCHEDULE OF ATTACHMENTS
Attachment A Supplemental Executive Retirement Plan Agreement
(dated September 30, 1991)
Attachment B Inventory of Miscellaneous Conveyances
Attachment C Executive Agreement (dated April 6, 1989)
Attachment D List of Agreements, Stock Option Grants
and Other Agreements
ATTACHMENT A
Senior Executive Retirement Plan
(September 30, 1991)
Incorporated by reference to Exhibit 10(d) of the Registrant's annual report on
Form 10-K for the fiscal year ended October 1, 1993 (Commission File No. 1-
9348).
ATTACHMENT B
Inventory of Miscellaneous Conveyances
Omnibook 800CT (portable computer - QMS Asset # 18255)
Kodak digital camera (serial number EKB70800548)
QMS 2060 WX printer
Fujitsu Scan Partner 600 scanner
Fluke ScopeMaster (serial number DM6738068)
Personal office and private conference room furniture and equipment
Continued "dialup" Internet/email usage through QMS wile serving as a member of
the QMS Board of Directors
Continued receipt of publications (Xxxxxx will endeavor to submit change of
address notifications to such publications with six months)
ATTACHMENT C
Executive Agreement
(April 6, 1989)
Incorporated by reference to Exhibit 10(h) of the Registrant's annual report on
Form 10-K for the fiscal year ended September 29, 1989 (Commission File No. 1-
9348).
ATTACHMENT D
List of Agreements, Stock Option Grants and Other Agreements
Agreements
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Senior Executive Plan (see Attachment A)
Executive Agreement (see Attachment C)
Stock Option Grants
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See attached listing
Other Agreements
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None
QMS, Inc.
Stock Option Personnel Summary As of 7/25/97
QMS, Inc.
Stock Option Personnel Summary As of 7/25/97
Xxxxxx X. Xxxxxx ID: ###-##-####
0000 Xxxxxxxx Xxxxx Location: Mobile
Xxxxxx Xx 00000 Department: Executive
Last Sale: 11/07/91
Last Buy: 07/29/92
Xxxxx Xxxxx Plan/
Number Date Type Granted Price Exercised Vested Cancelled Unvested Outstanding Exercisable
--------------- -------- ------- -------- ----------- ----------- --------- --------- -------- ----------- -----------
000031 07/09/82 81/ISO 30,000 $ 2.0000 30,000 30,000 0 0 0 0
000078 11/03/83 81/ISO 10,000 $ 8.0000 10,000 10,000 0 0 0 0
000149 04/23/87 84A/ISO 10,000 $12.3750 8,000 8,000 2,000 0 0 0
000098 08/24/88 87/NQ 50,000 $ 7.5000 25,000 50,000 0 0 25,000 25,000
000239 09/14/88 84B/NQ 10,000 $ 7.7500 6,000 10,000 0 0 4,000 4,000
000432 01/20/89 87/ISO 5,000 $ 8.2500 2,000 5,000 0 0 3,000 3,000
000551 10/11/89 87/ISO 10,000 $11.2500 4,000 10,000 0 0 6,000 6,000
000720 07/25/90 87/NQ 30,000 $17.8750 6,000 30,000 0 0 24,000 24,000
000788 01/23/92 87/NQ 10,000 $15.0000 0 10,000 0 0 10,000 10,000
000934 11/12/92 84B/NQ 5,000 $ 8.8750 0 4,000 0 1,000 5,000 4,000
001136 01/25/94 87/ISO 5,000 $ 8.7500 0 4,000 0 1,000 5,000 4,000
001396 01/24/95 87/ISO 5,000 $ 8.8750 0 3,000 0 2,000 5,000 3,000
002049 01/23/96 87/ISO 10,000 $ 5.6250 0 4,000 0 6,000 10,000 4,000
002334 01/20/97 87/ISO 20,000 $ 5.6250 0 4,000 0 16,000 20,000 4,000
------- -------- ------ -------- ----- ------ ------- ------
TOTALS 210,000 [$ 8.8452] 91,000 182,000 2,000 26,000 117,000 91,000
