Exhibit 10(s)(i)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into
as of September 30, 1995, by and between QMS, Inc., a Delaware corporation
("QMS"), QMS Japan Kabushiki Kaisha, a corporation formed under the laws of
Minato-Ku, Japan ("Seller") and a new Japanese company in the process of
being established, which is being represented for the purpose of this
Agreement by its promoters and shareholders-to-be, namely, Yoji Kawai, a
Japanese national and Kabushiki Kaisha Typebank, a Japanese corporation
("Purchaser"). Purchaser, QMS and Seller are sometimes referred to
collectively as the "Parties."
WITNESSETH:
WHEREAS QMS and Seller desire to sell substantially all of the
assets of Seller located in Japan where Seller engages in the business of
light assembly and integration of computer printers and the sale of such
printers under the QMS name in Japan and elsewhere (the "Business") and
Purchaser desires to purchase the Business;
NOW THEREFORE, in consideration of the recitals and the
conditions, representations, warranties, covenants and agreements set forth
herein, the Parties agree:
Begin auto paragraph numbering 1. DEFINITIONS. Unless otherwise
stated in this Agreement, the following terms used herein shall have the
following meanings:
"Assets" shall mean
all tangible personal property of Seller used
solely in connection with the Business as set forth on Schedule 1.01(a)
hereto;
all contracts, leases, warranties, commitments,
agreements, license agreements, purchase and sales orders and other
executory commitments of Seller related to the Business (the "Contracts");
copies of all books and records of Seller located
in Japan and related to the Business in any form, including without
limitation, data, data bases, tax records, business plans and projections,
records of sales, files, advertising materials and other similar documents
(the "Books and Records");
all work in progress;
all present and past customer lists of Seller
related to the Business ("Customer Lists"); and
all goodwill of Seller related to the Business;
provided, however, that Assets shall not include any of the assets of the
Business identified as excluded assets on Schedule 1.01(f) hereto
("Excluded Assets").
"Assumption Agreement" shall mean the Assumption
Agreement from Purchaser to Seller substantially in the form of Exhibit A
hereto.
"Xxxx of Sale and Assignment" shall mean the Xxxx of
Sale and Assignment from Seller to Purchaser substantially in the form set
forth on Exhibit B hereto.
"Closing" shall mean the completion of the transactions
contemplated by this Agreement.
"Closing Date" shall mean on September 30, 1995.
"Distributor Agreement" shall mean the Master
Distributor Agreement between QMS and Purchaser substantially in the form
of Exhibit C hereto.
"Financial Statements" shall mean the balance sheet of
Seller and the Business dated as of September 29, 1995 and its related
statements of income, retained earnings and changes in financial position
for the period then ended, the related notes to such financial statements.
"Liabilities" shall mean all of the liabilities of the
Business set forth on Schedule 1.08 hereto.
"License" shall mean the Trademark and Trade Name
License Agreement between Purchaser and QMS substantially in the form of
Exhibit D hereto.
1.10 "Liens" shall mean all liens, security interests,
pledges, leases, conditional sales contracts, claims, charges, and other
encumbrances of every kind and description however described or
denominated.
1.11 "Note A" shall mean the promissory note from Purchaser
to Seller and QMS in the original principal amount in Yen equivalent to
U.S.$3,000,000, substantially in the form of Exhibit E, attached hereto.
1.12 "Note B" shall mean the promissory note from Purchaser
to Seller and QMS in the original principal amount in Yen equivalent to
U.S.$500,000, substantially in the form of Exhibit F, attached hereto.
1.13 "Pledge and Security Agreement" shall mean the
Inventory Johto-Tampo Agreement between Purchaser, Seller and QMS
substantially in the form of Exhibit G, attached hereto.
1.14 "Purchase Price" shall mean the price as specified in
Subsection 3.01 hereof to be paid by Purchaser to Seller.
resume auto paragaph numbering 2. AGREEMENT TO SELL AND
PURCHASE.
Sale and Purchase of Assets. On the Closing Date and
subject to the terms and conditions of this Agreement, Purchaser shall
purchase from Seller and Seller shall sell, assign, convey, deliver and
transfer the Assets to Purchaser.
Assignment and Assumption of Liabilities. At the
Closing, Seller shall assign and Purchaser shall assume all of the
Liabilities.
PURCHASE PRICE.
Purchase Price. For and in consideration of the sale
of the Assets by Seller to Purchaser, Purchaser shall pay to Seller an
amount in Yen equivalent to U.S. Four Million Dollars (U.S.$4,000,000.00),
to be paid as follows:
an amount in Yen equivalent to U.S.$500,000 in cash or by wire
transfer of immediately available funds to Seller on or
before December 20, 1995;
by delivery at the Closing of Note A in the original principal
amount of an amount in Yen equivalent to U.S.$3,000,000 to
Seller; and
by delivery at the Closing of Note B in the original principal
amount of an amount in Yen equivalent to U.S.$500,000 to
Seller.
For purposes of calculating the Yen equivalent amounts of
the above stated U.S. Dollar amounts, T.T.S. rates to be quoted by a
reputable bank in Tokyo, Japan on the respective payment dates shall apply.
Allocation of Purchase Price. The Purchase Price shall
be allocated as set forth on Schedule 3.02 hereto.
PRE-CLOSING COVENANTS OF QMS AND SELLER. QMS and Seller
hereby covenant and agree with Purchaser that from the date hereof until
the Closing:
Access to Information. Seller will give Purchaser
access to the offices, properties, books, contracts, commitments and
records of Seller, and will furnish Purchaser with all information
(including financial and operating data) concerning the affairs of Seller
that Purchaser may reasonably request. Without limiting the foregoing,
Seller will permit any authorized representatives or agents of Purchaser to
visit and inspect the properties and assets and to investigate the Business
at such reasonable times and as often as may be reasonably requested.
Purchaser shall be entitled to make and retain copies of all documents and
instruments examined by, or otherwise made available to, it pursuant to
this Section 4.01.
Maintaining Assets. Seller will not undertake any
course of action inconsistent with the provisions of this Agreement, and
Seller will maintain the Assets in good operating condition, ordinary wear
and tear excepted. Additionally, and without limitation of any of the
foregoing provisions of this Section 4.02, Seller shall not, without the
prior written consent of Purchaser, mortgage, pledge, or subject to any
lien or encumbrance any of the Assets.
Maintenance of Business of Seller. Seller will carry
on its business and activities diligently and in substantially the same
manner as Seller currently carries on its business. Seller will use its
best efforts to preserve the business relationship established with each
customer listed on the Customer Lists. Seller will not amend or modify any
of the Contracts without the prior written authorization of Purchaser, and,
to the extent within its control, shall not do any act or omit to do any
act, or knowingly permit any act or omission to act, that would cause a
breach of any of Contract.
Approvals. Seller will use its best efforts to obtain,
and will cooperate with Purchaser in obtaining, as promptly as practicable,
all consents and approvals which are required to be obtained of others to
authorize and permit the assignment, transfer and conveyance to Purchaser
of the Contracts (the "Contract Consents").
Possession of Assets. Seller will take all action
necessary or required to deliver the Assets and assign the Contracts to
Purchaser at the Closing.
Insurance. From and after the date hereof and through
the Closing Date, Seller shall maintain all of its insurance policies in
effect as of the date hereof, and all of the Assets shall be used,
operated, maintained and repaired in a normal business manner and in
accordance with the provisions of the insurance policies relating hereto.
Conditions Precedent. Each of QMS and Seller shall use
its best efforts to satisfy the conditions precedent to Purchaser's
obligations hereunder.
No Solicitation of Offers. Neither Seller nor QMS
will, for so long as this Agreement shall remain in effect, solicit or
consider other proposals concerning the sale or other transfer of the
Business or provide information with respect to the Business to other
parties interested in acquiring, leasing or managing the Business, or
divulge or otherwise disclose any information to such entities regarding
any terms of this Agreement.
CLOSING DELIVERIES.
Obligations of QMS and Seller. On the Closing Date,
QMS and Seller shall deliver or cause to be delivered to Purchaser the
following:
The Assets free and clear of any and all liens or
encumbrances;
The executed Xxxx of Sale and Assignment;
The executed License;
The executed Distributor Agreement; and
Any other documents that Purchaser may reasonably
request at or prior to Closing.
Obligations of Purchaser. On the Closing Date,
Purchaser shall deliver to Seller the following:
Note A;
Note B;
The executed Distributor Agreement;
The executed Assumption Agreement;
The executed License;
The executed Pledge and Security Agreement; and
Any other documents that QMS or Seller may reasonably
request at or prior to Closing
Further Assurances. The Parties agree that they will
at any time and from time to time after the date of this Agreement, upon
request of another, execute, acknowledge and deliver all such instruments
of further assurance and will do any and all acts and things as may be
reasonably necessary or appropriate in order to better evidence or to
effectuate and carry out the purpose and intent of this Agreement.
CONDITIONS TO PURCHASER'S OBLIGATIONS TO CLOSE. The obliga
tions of Purchaser to consummate the transactions provided for herein are
subject to the satisfaction of each of the following conditions on or prior
to the Closing Date:
Representations and Warranties Correct. The
representations and warranties of QMS and Seller contained herein and in
the Schedules, statements and documents delivered pursuant hereto or in
connection with the transactions contemplated hereby shall be true and
correct in all material respects on and as of the date of this Agreement
and on and as of the Closing Date as though made on and as of the Closing
Date.
Compliance by QMS and Seller. All of the terms,
covenants and conditions of this Agreement to be complied with and
performed by QMS and Seller, or any of them, on or before the Closing Date
shall have been fully complied with and performed.
Authorization. All corporate action necessary to
authorize the execution and delivery of the documents and performance of
the obligations by QMS and Seller as set forth herein shall have been duly
and validly taken and all required regulatory approvals or permits shall
have been obtained.
No Adverse Change or Proceedings. There shall not have
been any adverse change in the business, assets, liabilities or condition,
financial or otherwise, of Seller between the date of this Agreement and
the Closing Date, and no loss, casualty or other adverse change shall have
occurred between the date of this Agreement and the Closing Date with
respect to the Assets or the Business of Seller which would have an adverse
effect upon the value or use of the Assets or the Business of Seller. No
actions or proceedings shall be pending or threatened which might, in the
opinion of counsel for Purchaser, materially adversely effect any of the
transactions contemplated herein, the value or use of the Assets or the
Business of Seller.
CONDITIONS TO QMS' AND SELLER'S OBLIGATIONS TO CLOSE. The
obligation of QMS and Seller to consummate the transactions provided for
herein is subject to the satisfaction of the following conditions on or
prior to the Closing Date:
Representations and Warranties of Purchaser. The
representations and warranties of Purchaser contained herein shall be true
and correct in all material respects, on and as of the date of this
Agreement and on and as of the Closing as though made on and as of the
Closing Date.
Compliance by Purchaser. All of the terms, covenants
and conditions of this Agreement to be complied with and performed by
Purchaser on or before the Closing Date shall have been fully complied with
and performed in all material respects.
Approvals and Permits. All required regulatory
approvals or permits necessary for the execution and delivery of the
documents, and the performance of the obligations by Purchaser as set forth
herein shall have been obtained.
REPRESENTATIONS AND WARRANTIES OF QMS AND SELLER. In order
to induce Purchaser to enter into this Agreement and to purchase the
Assets, and with the knowledge and understanding that Purchaser will rely
thereon, QMS and Seller, jointly and severally, do hereby represent and
warrant to Purchaser on the date hereof, and at all times through the
Closing Date, and, to the extent such representation and warranties relate
to an earlier time, as of such earlier time, as follows:
Organization and Authority. Seller is a corporation
duly formed, validly existing and in good standing under the laws of Japan.
Seller possesses all requisite corporate power and authority to own the
Assets and operate the Business, and to enter into and perform this
Agreement.
Ownership. QMS owns all right, title and interest in
Seller.
Authority and Corporate Action. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of each of QMS and Seller. The officers of
Seller and QMS executing this Agreement have the authority to enter into
this Agreement on behalf of Purchaser.
Title to Assets. Seller has good and marketable title
to all of the Assets free and clear of any and all Liens. Seller has
complete and unrestricted power and the unqualified right to sell, convey,
assign, transfer and deliver the Assets to Purchaser and to vest in
Purchaser good, valid and marketable title to the Assets. There are no
existing agreements, commitments or rights with, of or to any person to
acquire any of the Assets. All of the Property is in good operating
condition and is in a state of good maintenance and repair, and there does
not exist any condition which interferes or which may interfere with the
economic value or use thereof.
REPRESENTATIONS AND WARRANTIES OF PURCHASER. In order to
induce QMS and Seller to enter into this Agreement and to sell the Assets
and with the knowledge and understanding that QMS and Seller will rely
thereon, Purchaser does hereby represent and warrant to QMS and Seller on
the date hereof, and at all times through the Closing Date, and, to the
extent such representations and warranties relate to an earlier time, as of
such earlier time, as follows:
Organization and Authority. Purchaser is a new company
in the process of being established under the laws of Japan, and is being
represented for the purposes of this Agreement by Yoji Kawai and Kabushiki
Kaisha Typebank, its promoters and shareholders-to-be.
Authority and Corporate Action. Yoji Kawai and
Kabushiki Kaisha Typebank have the authority to enter into this Agreement
on behalf of Purchaser, and as soon as practicable after the establishment
of Purchaser under the laws of Japan, its board of directors shall confirm
by appropriate procedure the binding effect of this Agreement upon
Purchaser, and shall enter into an assumption agreement with QMS and Seller
confirming the assumption of all obligations of Purchaser under this
Agreement, the Distributor Agreement, the Assumption Agreement, the
License, Note A, Note B, and the Pledge and Security Agreement.
Compliance with Laws and Instruments. The execution,
delivery and performance by Purchaser of this Agreement and the other
agreements to be executed and delivered by Purchaser hereto will not result
in any violation of or be in conflict with or constitute a default under
any applicable statute, regulation, order, rule, writ, injunction or decree
of any court or governmental instrumentality or of the Articles of
Incorporation or Bylaws of Purchaser or of any material agreement or other
instrument to which Purchaser is a party or is subject, or constitute a
default thereunder. This representation is made by Purchaser as of
December 1, 1995.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in this Agreement shall be
continuing and shall be true and correct on and as of the Closing Date with
the same force and effect as if made at that time, and all such
representations and warranties shall survive the Closing and not be merged
into the Closing and shall remain in full force and effect, and except as
otherwise specified herein shall not be affected by any investigation,
verification or approval by any party hereto or by anyone on behalf of any
party hereto.
ARBITRATION. All disputes under this Agreement shall be
settled by arbitration in Honolulu, Hawaii, USA, before a single arbitrator
pursuant to the rules of the American Arbitration Association (the "AAA").
Arbitration may be commenced at any time by either party giving written
notice to the other that such dispute has been referred to arbitration
under this Section 11. Any award rendered by the arbitrator shall be
final, conclusive, non-appealable and binding upon the parties hereto and
shall be accompanied by a written opinion of the arbitrator giving the
reasons for the awards; provided, however, that the arbitrator 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 arbitrator may not make any ruling, finding or award that
does not conform with the terms and conditions of the Agreement. Each
party shall pay its own expenses of arbitration and the expenses of the
arbitrator shall be equally shared; provided, however, that the arbitrator
may assess, as part of his award, all or any part of the arbitrator's
expenses of the other party (including reasonable attorneys' fees) and of
the arbitrator against the party raising such unreasonable claim, defense
or objection.
POST-CLOSING COVENANTS OF QMS AND SELLER.
Building Renovations. QMS and Seller shall, as soon as
is reasonably practicable following the Closing Date, cause the building
renovations which are required under that certain lease agreement for the
property located at Towa Hamamatu-cho Building, 2-6-2 Hamamatsu-cho, Minato-
Ku Tokyo to be performed, provided, however, that the total cost incurred
by QMS and Seller for such renovations shall not exceed 8,000,000 yen.
Tax Indemnification. QMS and Seller shall, jointly and
severally, indemnify and hold harmless Purchaser from and against any and
all claims, demands, losses, damages, liabilities and attorney's fees, and
other costs and expenses which may be incurred by Purchaser which relate
directly to tax liabilities of Seller.
MISCELLANEOUS PROVISIONS.
Notices. Any notice or other communication required or
permitted to be given under the terms of this Agreement shall be telecopied
or delivered via Federal Express or other similar overnight courier service
and shall be deemed effective on the date delivered to the addressee at the
address set forth below:
If to Seller, to:
QMS Japan Kabushiki Kaisha
c/o QMS, Inc.
One Magnum Xxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxx, Xxxxxxx U.S.A. 36689-1250
Attn: Legal Department
with a required copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx X.X.X. 00000
Attention: G. Xxxxxxx Xxxxx
If to QMS, to:
QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama U.S.A. 36689-1250
Attention: Legal Department
with a required copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx X.X.X. 00000
Attention: G. Xxxxxxx Xxxxx
If to Purchaser, to:
QMS Japan Kabushiki Kaisha
Gotanda Metalion Xxxx. 0X
0-00-00 Xxxxxxx-Xxxxxxx
Xxxxxxxxx-Xx, Xxxxx 000, Xxxxx
Attn.: Yoji Kawai
with a required copy to:
SHOWA Law Office
Tsuruya Hachiman Xxxx. 0X
0-0 Xxxxxxxxx
Xxxxxxx-Xx, Xxxxx 000, Xxxxx
Attn: Masatomo Suzuki
Expenses. The Parties shall each bear their own legal
fees and all other costs, expenses and fees incurred by them in connection
with this Agreement and the transactions contemplated hereby whether or not
the purchase and sale of the Assets and the Business herein provided for
are effected.
Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
assigns. Neither Party, however, shall have the right to assign this
Agreement or such Party's rights and obligations hereunder without the
prior written consent of the other Party.
Entire Agreement. This Agreement, together with all
Exhibits, Schedules and other documents attached hereto or referenced
herein, constitutes the entire agreement between the Parties with respect
to the transactions contemplated hereby and supersedes and is in full
substitution for any and all prior agreements and understandings between
the Parties relating to such transactions.
Descriptive Headings. The descriptive headings of the
several Sections and subsections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
Severability. In any case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, except in those instances
where removal or elimination of such invalid, illegal, or unenforceable
provision or provisions would result in a failure of consideration under
this Agreement, such invalidity, illegality or unenforceability shall not
affect any other provision hereof, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been
contained herein.
Interpretation. Should any provision of this Agreement
require judicial interpretation, mediation or arbitration, it is agreed
that the court, mediator or arbitrator interpreting or construing the same
shall not apply a presumption that the terms hereof shall be more strictly
construed against one party by reason of the rule of construction that a
document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that all parties,
directly or through their agents, have participated in the preparation
hereof.
Amendments and Waivers. No modification, termination,
extension, renewal or waiver of any provisions of this Agreement shall be
binding upon either party unless made in writing and signed by an
authorized officer of each of the Parties.
Temporarily suspend auto paragraph numbering 13.10 Governing
Law. This Agreement shall be governed and construed as to both substantive
and procedural matters in accordance with the laws of the State of Georgia.
13.11 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.
IN WITNESS WHEREOF, the Parties each have executed this Agreement
under seal as of the day and year first above written.
QMS:
QMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
SELLER:
QMS JAPAN KABUSHIKI KAISHA
By: Xxxxxx X. Xxxxxx
Title: Representative Director
PURCHASER:
/s/ Yoji Kawai
Yoji Kawai
KABUSHIKI KAISHA TYPEBANK
By:
Title:
Exhibit 10(s)(ii)
ASSUMPTION OF LIABILITIES
THIS ASSUMPTION (the "Assumption") is executed and delivered as of
September 30, 1995, by Yoji Kawai, a Japanese national and Kabushiki Kaisha
Typebank, a Japanese corporation, on behalf of a new Japanese corporation
in the process of being formed ("Purchaser") to and in favor of QMS Japan
Kabushiki Kaisha, a corporation formed under the laws of Minato-Ku, Japan
("Seller"), pursuant to that certain Asset Purchase Agreement dated as of
September 30, 1995, by and among Purchaser, Seller and QMS, Inc. (the
"Agreement").
IN CONSIDERATION of the mutual covenants and agreements set forth in
the Agreement, the receipt and sufficiency of which are hereby
acknowledged, Purchaser does hereby assume and agree to pay, discharge or
perform, as appropriate, all of the liabilities and obligations of Seller,
including without limitation, those listed on Exhibit 1 hereto.
IN WITNESS WHEREOF, Yoji Kawai and a duly authorized officer of
Kabushiki Kaisha Typebank have executed this Assumption on behalf of
Purchaser as of the day and year first above written.
PURCHASER:
/s/ Yoji Kawai
Yoji Kawai
Kabushiki Kaisha Typebank
By:
Title:
22681994.W51
Exhibit 1
Liabilities
In thousands of U.S. Dollars
Liabilities to be Assumed: $831
Accounts Payable 2,457
Bank Notes 179
Accrued Royalty 137
Accrued Warranty 295
Accrued Expense 56
Deferred Service 215
Other Liabilities $4,170
Exhibit 10(s)(iii)
INVENTORY JOHTO-TAMPO AGREEMENT
THIS INVENTORY JOHTO-TAMPO AGREEMENT, made and entered into as of
September 30, 1995, by Yoji Kawai, a Japanese national and Kabushiki Kaisha
Typebank, a Japanese corporation, on behalf of a new Japanese corporation
in the process of being formed (hereinafter referred to as the "Pledgor"),
and QMS Japan Kabushiki Kaisha, a corporation formed under the laws of
Minato-Ku, Japan having its place of business at 0-0, Xxxxxxxxxxxx 0-xxxxx,
Xxxxxx-xx, Xxxxx, Xxxxx, (hereinafter referred to as the "Pledgee"):
WITNESSETH:
WHEREAS, the Pledgor and the Pledgee have entered into an Asset
Purchase Agreement, dated as of September 30, 1995 (hereinafter referred to
as the "Asset Purchase Agreement");
WHEREAS, pursuant to the Asset Purchase Agreement, Note A and Note B
(as defined in the Asset Purchase Agreement) issued by Pledgor thereunder,
the Pledgor is obliged to create a security interest for the due and
punctual performance and payment of all the obligations under Note A and
Note B in the inventory of the Pledgor; and
WHEREAS, the Pledgee requires the Pledgor to create a security
interest, called Johto-Tampo under the laws of Japan, in the inventory of
merchandise, semi-finished merchandise, materials and maintenance parts in
a certain warehouse as specified below in accordance with terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants as provided herein and in the Asset Purchase Agreement,
the parties hereto hereby agree as follows:
. Creation of the Johto-Tampo Security Interest
In order to secure the full and punctual payment of the Secured
Obligations as defined in the following Article, the Pledgor hereby
transfers the ownership of such merchandise, semi-finished merchandise,
materials and maintenance parts owned by the Pledgor as identified in
EXHIBIT A attached hereto and made a part hereof (hereinafter referred to
as the "Collateral") to the Pledgee for the purpose to create the Johto-
Tampo security interest in and to the Collateral under the Japanese law.
Such Johto-Tampo security interest is hereby created for the benefit of the
Pledgee.
It is acknowledged hereby by the parties hereto that any good of
the Pledgor maintained at the warehouse set forth in EXHIBIT A (hereinafter
referred to as the "Warehouse") shall constitute the Collateral hereunder
and shall be subject to the Johto-Tampo security interest created
hereunder, whether or not it falls into the descriptions of the types of
goods expressly set forth in EXHIBIT A.
. Secured Obligations
The obligations to be secured by the Johto-Tampo security interest
created hereunder (herein referred to as the "Secured Obligations") shall
be all the obligations under Note A and Note B.
. Transfer of Possession
It is acknowledged by the parties hereto that the possession
(Xxxxx-Xxx) of the Collateral is hereby transferred to the Pledgee in the
form of Senyu-Kaitei as provided in Article 183 of the Civil Code of Japan
(Law No. 89 of 1896, as amended) (hereinafter referred to as the "Civil
Code").
The Pledgor hereby acknowledges that when any good of the Pledgor
is transferred to the Warehouse, then such good shall automatically
constitute a part of the Collateral. Upon the transfer to the Warehouse,
the ownership of the good which newly constitutes a part of the Collateral
shall be deemed to be transferred to the Pledgee, and the possession (Xxxxx-
Xxx) thereof shall be deemed to be transferred to the Pledgee, in the form
of Senyu-Kaitei as provided in the preceding section.
. Maintenance of the Collateral
The Pledgor shall keep and maintain the Collateral for the
benefit of the Pledgee during the effective term of this Agreement.
The Pledgor shall be entitled to move out any goods constituting
the Collateral from the Warehouse for the purpose of assembling, selling,
distributing, marketing or otherwise disposing of such goods in the normal
course of business; provided, however, that if a Default under either Note
A or Note B (as defined in Note A and Note B, respectively) occurs, then
the Pledgor shall not move any of the Collateral out of the Warehouse
without a prior written approval of the Pledgee.
. Representations and Warranties
The Pledgor hereby represents and warrants as follows:
The Pledgor does not own, lease or otherwise hold nor does have
any plan to own, lease or otherwise hold, any warehouse other than the
Warehouse to maintain its merchandise, semi-finished merchandise, materials
or maintenance parts as of the date of this Agreement.
The merchandise, semi-finished merchandise, materials or
maintenance parts maintained at the Warehouse as of the date of this
Agreement shall consist solely of the types of the goods as expressly set
forth in EXHIBIT A.
The Collateral is owned by the Pledgor as of the date of this
Agreement free from any Teito-xxx, Shichi-xxx, Johto-Tampo-xxx, Uriwatashi-
Tampo-Xxx or any other lien or security interest, except for such Ryuchi-
xxx or Sakidori-Tokken as may have been created under Part 2, Sections 7
and 8 (Articles 295-341) of the Civil Code or other laws of Japan.
. Covenants of the Pledgor
The Pledgor covenants and agrees as follows:
The Pledgor shall not maintain its merchandise, semi-finished
merchandise, materials or maintenance parts in a warehouse other than the
Warehouse without first obtaining a prior written consent from the Pledgee,
which consent shall not be unreasonably withheld.
The Pledgor shall notify the Pledgee of any new types of the
goods to be maintained at the Warehouse and shall agree to amend EXHIBIT A,
so that EXHIBIT A shall expressly set forth all the types of goods of the
Pledgor maintained at the Warehouse at any time during the term of this
Agreement; provided, however, that a failure to amend EXHIBIT A shall not
exclude the types of goods which are not expressly set forth in EXHIBIT A
from the Johto-Tampo security interest created hereby.
If the Pledgor should receive any notice from the court of
Sashiosae (attachment), Xxxx-Sashiosae (provisional attachment), Xxxx-
Shobun (provisional injunction), or commencement of Kei-Bai (public sale)
on or in connection with any of the Collateral, the Pledgor shall forthwith
notify the Pledgee of any of such events.
The Pledgor shall not during the effective term of this Agreement
create any Teito-Xxx, Shichi-Xxx, Johto-Tampo-Xxx, Uriwatashi-Tampo-Xxx or
any other lien or security interest on any of the Collateral for any other
third party.
The Pledgor shall bear and pay to the Japanese tax authorities
any taxes imposed or levied on the Collateral while the Collateral is
subject to the Johto-Tampo security interest pursuant hereto.
. Pledgee's Examination Right
The Pledgee or its duly authorized representative, agent or attorney
shall have the right to examine at reasonable business hours the Collateral
maintained at the Warehouse, and any books or records relating to the
Collateral, and to inquire of officers, employees or agents of the Pledgor
about the Collateral. The Pledgor shall cooperate with the Pledgee's
examination as provided in this Article.
. Pledgee's Right of Disposition
After a five (5) day notice to the Pledgor after any Default takes
place, the Pledgee shall be entitled to (i) sell or otherwise dispose of
any of the Collateral and apply any proceeds of the sale or disposition of
the Collateral to the payment of the Secured Obligations, or (ii) to take
any remedy generally available for a secured party of a Johto-Tampo
security interest under the laws of Japan.
. Termination of the Johto-Tampo Security Interest
When all the Secured Obligations are fully paid, the Johto-Tampo
security interest created hereunder shall cease to be in effect and the
ownership of the Collateral shall be returned from the Pledgee to the
Pledgor, and thereupon this Agreement shall terminate and cease to be in
effect.
. Miscellaneous
The Asset Purchase Agreement, Note A and Note B shall constitute
an integral part of this Agreement, and shall apply to the subject matter
hereof in all aspects, unless any conflicting or different terms are
expressly provided for in this Agreement.
This Agreement is the Pledge and Security Agreement (as defined
in the Asset Purchase Agreement).
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement on the day and year
first above written.
Pledgor:
/s/ Yoji Kawai
Yoji Kawai
Kabushiki Kaisha Typebank
By:
Title:
Pledgee:
QMS Japan Kabushiki Kaisha
By: /s/ Xxxxxx X. Xxxxxx
Title: Representative Director
22682010.W51
EXHIBIT A
LIST OF COLLATERAL
All merchandise, semi-finished merchandise, materials, and maintenance
parts of the types set forth below or of any other types which are owned by
the Pledgor and maintained at the warehouse leased by the Pledgor as set
forth below:
1. Types of Collateral
Merchandise:
Printers, and consumables and optional accessaries related thereto.
Semi-finished merchandise and materials:
Printer boards, network boards, engines, memories and ICs, hard disks,
manuals and any and all other component parts of printers.
Maintenance parts:
Printer engine parts and any and all other maintenance parts
maintained for the purpose of maintenance of the above.
2. Warehouse
Location: Utsunomiya Xxxxxxx Xxxxxxxx, Xxxxx #0-00
0000-00, Xxxxxxxxx, xxxxxxxxxxxxxx-xxx, Xxxxxxxxxx,
Xxxxxxx, Xxxxx
Owner: Utsunomiya-Kokusai-Kamotsu-Butsuryu-Jigyo-Kyodo-Kumiai
Size: 1,000 m2
Exhibit 10(s)(iv)
MASTER DISTRIBUTOR AGREEMENT
THIS MASTER DISTRIBUTOR AGREEMENT (the "Agreement") is made as of
September 30, 1995, between QMS, INC., a Delaware corporation ("QMS"), and
a new Japanese company in the process of being established, which is being
represented for the purpose of this Agreement by its promoters and
shareholders-to-be, namely, Yoji Kawai, a Japanese national and Kabushiki
Kaisha Typebank a Japanese corporation ("Distributor").
RECITALS:
QMS manufactures and sells QMS Products (as hereinafter defined).
QMS desires to appoint Distributor as a distributor to sell,
individually or as a component of another product, printer and printer
related products currently manufactured or sold by QMS and such related
products as may be developed, manufactured or sold by QMS from time to time
during the term of this Agreement, either individually or as a component of
another product ("QMS Products"), and Distributor 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:
. APPOINTMENT AS DISTRIBUTOR
Appointment. Distributor is appointed as QMS' authorized
distributor to resell QMS Products during the term of this Agreement to
customers located in Japan, South Korea, China, Taiwan, Cambodia, Hong
Kong, Macao, Vietnam, Laos, Myanmar, The Philippines, Malaysia, Singapore,
Mongolia and Thailand (the "Territory") and Distributor accepts such
appointment and agrees to conduct its business as a distributor of QMS
Products in accordance with the terms of this Agreement.
Exclusivity.
(a) Subject to the provisions of this Section 1.2, Distributor
shall be QMS' sole and exclusive distributor of QMS Products in the
Territory; provided, however, that if at any time during the term of
this Agreement, QMS wishes to sell any QMS Product in the Territory
which is not being purchased at such time by Distributor, QMS shall
provide Distributor with a written request to market and sell such QMS
Product in the Territory. If Distributor does not provide QMS with
written notice of its intent to market and sell such QMS Product in
the Territory within thirty (30) days of receipt of QMS' request, QMS
may market and sell such QMS Product to end users in the Territory,
either directly or through a third party.
(b) If, during the period commencing October 1, 1997 and ending
September 30, 1998, Distributor fails to generate at least U.S.
$2,000,000 in revenue in China, Distributor may lose, in the sole
discretion of QMS, its right under Section 1.2(a) hereof to be the
sole and exclusive distributor of QMS Products within China.
(c) Commencing with the 1996 calendar year, 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 terminate the exclusivity rights granted
herein and may sell QMS 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 U.S. $18,000,000 in
Sales (as defined herein) of QMS Products per full calendar year
during the term of this Agreement. As used in this Agreement, "Sales"
shall mean the total price of QMS Products sold by Distributor to its
customers as shown on Distributor's invoices, excluding value added
tax, freight and other related charges, with appropriate adjustments
made for any QMS Products returned to Distributor by its customers.
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, among other reasons, be deemed to exist by the
selling of other products that are functionally equivalent to QMS Products
and by the improper disclosure or use of proprietary information of QMS
made available to Distributor. Distributor shall promptly give notice to
QMS in such detail as QMS reasonably requests, of new lines of products and
firms at such times as Distributor undertakes to distribute and sell such
products and/or represent such companies.
. PURCHASE OF QMS PRODUCTS
Purchase of QMS Products. Distributor will purchase from QMS and
QMS will sell to Distributor the QMS Products in such quantities as
Distributor may determine from time to time during the term of this
Agreement. All purchases of QMS 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.
Restriction on Sale of QMS Products. Distributor shall not,
without the prior written consent of QMS, sell or market any QMS controller
boards in the Territory; provided, however, that Distributor may sell or
market printers which contain QMS controller boards as a component part.
Price, Payment and Delivery. The purchase prices ("Purchase
Price") for QMS Products purchased by Distributor (i) between October 1,
1995 and December 8, 1995 shall be equal to QMS' inventory carrying cost
minus a twenty-five percent (25%) discount, and (ii) after December 8,
1995, shall be equal to the standard cost of production of such QMS
Products as determined by the chief financial officer of QMS (including,
but not limited to, overhead costs and royalty payments made by QMS) in
accordance with QMS' accounting policies and United States Generally
Accepted Accounting Principles ("U.S. GAAP") ("Standard Cost").
Distributor shall pay QMS the Purchase Price for QMS Products no later than
sixty (60) days following the date of the invoice for such QMS Products for
purchases made from October 1, 1995 through March 31, 1996, and no later
than forty-five (45) days following the date the invoice for such QMS
Products thereafter. QMS Products shall be sold hereunder F.O.B. QMS'
facility in Mobile, Alabama. Delivery shall take place when QMS Products
are placed in the possession of a common carrier, packed and ready for
shipment to Distributor, or when QMS Products are stored at QMS' facility
in accordance with instructions from Distributor. The risk of loss or
damage with respect to the QMS Products shall pass to Distributor when the
QMS 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 QMS 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
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 QMS Products after the QMS Products
are delivered to Distributor shall be for the 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 QMS 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 QMS 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 QMS Products hereunder are incorporated by
reference herein and shall apply as if fully recited herein.
Commission. Distributor will pay a commission in an amount equal
to ten and one-half percent (10.5%) of Sales to QMS on all sales of QMS
Products, provided, however, that Distributor shall pay a commission of
seven percent (7%) on Canon toner cartridges ("Commission" or
"Commissions"), which Commission shall be payable quarterly in arrears,
within thirty (30) days of the end of each calendar quarter. No
commissions shall be payable on sales to QMS or QMS Europe B.V.
Distributor guarantees that Commissions will average at least U.S.
$495,000 each calendar quarter, commencing with calendar year 1996 (the
"Minimum Quarterly Commission"). If in any particular calendar quarter,
Commissions do not equal the Minimum Quarterly Commission, Distributor
shall make up for any shortfall; provided, however, that Distributor may
calculate the Commission owed each calendar quarter on a cumulative annual
basis, according to the formula set forth below:
CE - CP = QP; provided CP + QP 3 MQC
where
CE = the total annual Commission earned to date
CP = the total annual Commission paid to date
QP = the quarterly Commission payment owed by Distributor to
QMS
MQC = the accumulated Minimum Quarterly Commission from the
beginning
of the concerned calendar quarter to date.
Failure of Distributor to Meet Obligations. QMS will have the
right to refuse to supply Distributor with QMS 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 QMS Products or to make
any Commission payments when such payments are due.
Discontinuation or Modification of QMS Products. QMS reserves
the right, in its sole discretion at any time to discontinue, add, adopt or
change any QMS Product, any QMS trademark or trade name, and any design or
specification of any QMS Product.
. OBLIGATIONS OF DISTRIBUTOR
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 QMS Products
pursuant 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 and who have
agreed to be bound by 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 delivered to QMS at the address set forth in Section
7.4 hereof.
Financial Statements.
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 Japanese Generally Accepted Accounting Principles
("Japanese GAAP") and certified by a firm of independent public
accountants of recognized national standing selected by the Board of
Directors of Distributor.
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 Japanese GAAP and certified by Distributor's Managing Director.
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) arising out of or with
respect to the activities of Distributor in performing its obligations
under this Agreement except for Losses arising out of product liability
claims.
. OBLIGATIONS OF QMS
Confidentiality. From time to time, Distributor may make
available to QMS certain information, including but not limited to, certain
financial information. In the event this information is considered by
Distributor to be proprietary and/or confidential ("Confidential
Information"), it will be so marked when transmitted to QMS. All
Confidential Information shall remain the sole and exclusive property of
Distributor, and QMS shall have no right to use, practice or disclose the
Confidential Information except for the purpose for which it was disclosed
to QMS. QMS 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 and who have agreed to be bound by the
obligation of confidentiality set forth herein. QMS shall be responsible
for any breach of this provision by its directors, officers, employees or
agents.
Advertising Materials. QMS will provide Distributor with a
reasonable quantity of QMS 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 QMS Product manuals, brochures and
other materials in any language other than English.
Technical Assistance. QMS will provide Distributor with
reasonable technical assistance and information regarding QMS Products and
keep Distributor apprised of material information regarding QMS Products.
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 QMS Products;
provided, however, that QMS may decline to provide Distributor with a price
quote if QMS deems, in its sole discretion, that providing the requested
customization would interfere with QMS conducting its business as then
conducted. 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.
Schematics. QMS will provide Distributor, without charge, one
copy of schematics of all future QMS Products and enhancements of current
QMS Products sold by Distributor.
Product Warranties.
Each sale of QMS 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 QMS Products to Distributor in more than five percent (5%) of a
shipment lot of the QMS 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.
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.
Indemnification. QMS shall, during the term of this Agreement,
indemnify Distributor from and against any and all claims, demands, suits,
actions, causes of action, loss, liability, attorneys' fees and any other
costs and expenses incurred by Distributor for third party infringement
claims with respect to trademarks, patents or copyright rights as a result
of the sale of QMS Products by Distributor as permitted hereunder, or for
or with respect to the operation of the distributorship contemplated
hereunder.
. TERM AND TERMINATION
Term. The initial term of this Agreement will commence on the
date hereof and end on September 30, 2000, and will be automatically
renewed for separate but successive one-year terms, unless terminated by
the parties hereto as follows:
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
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 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
By QMS, in the event of (i) the sale, assignment or
conveyance by Distributor of a substantial portion of its assets
without the prior written consent of QMS, which consent shall not be
unreasonably withheld, or (ii) a stock transfer or combination of
stock transfers which result in Xx. Xxxx Xxxxx owning, directly or
indirectly, less than 51% of the aggregate voting power of all
outstanding voting securities of Distributor; or
By QMS in the event Distributor does not meet the Minimum
Resales Requirements set forth in Section 1.2 hereof, which
termination shall be effective immediately upon written notice given
by QMS within ninety (90) days after the expiration of a ninety (90)
days cure period set forth in Section 1.2 hereof.
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 elects, shall 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, Distributor and any
subsidiary of Distributor 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."
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.
. DISPUTE RESOLUTION
Disputes Relating to Cost of QMS Products.
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 QMS Products as charged by QMS to Distributor
during the most recent fiscal quarter.
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 engaged by 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 nationally recognized United States accounting firm (which may be a
firm engaged by a party), and the two firms shall, jointly, designate
the Cost Auditor.
The Cost Auditor shall review the Cost Statement and shall
issue a report with respect to the calculation of Standard Cost of QMS
Products under U.S. GAAP and QMS' accounting policies and the
applicable provisions of this Agreement.
If the Cost Auditor's report determines that the prices
charged by QMS to Distributor for QMS Products sold to Distributor
during the quarterly period under examination were, in the aggregate,
greater than 103% of the aggregate Standard Cost of QMS 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 its review and the issuance of its
report (the "Cost Audit Expenses"). Distributor shall pay the Cost
Audit Expenses in all other circumstances.
The Cost Auditor's determination shall be final, non-
appealable and binding upon the parties hereof.
Disputes Relating to Sales of QMS Products.
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.
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 Japan
and that is not engaged by 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
nationally recognized Japanese accounting firm (which may be a firm
engaged by a party) which shall, jointly, designate the Sales Auditor.
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.
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.
The Sales Auditor's determination shall be final, non-
appealable and binding upon the parties hereof.
Arbitration. All disputes under this Agreement other than those
under Section 6.1 and Section 6.2 hereof shall be settled by arbitration in
Honolulu, Hawaii, U.S.A. before a single arbitrator 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 arbitrator may be entered in any court having
jurisdiction thereof. 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 arbitrator shall be final, conclusive, non-appealable and binding upon
the parties hereto and shall be accompanied by a written opinion of the
arbitrator giving the reasons for the awards; provided, however, that the
arbitrator 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 arbitrator 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 arbitrator shall be equally shared;
provided, however, that the arbitrator may assess, as part of his award,
all or any part of the arbitration expenses of the other party (including
reasonable attorneys' fees) and of the arbitrator against the party raising
such unreasonable claim, defense or objection.
Specific Performance. The provisions for review of Cost
Statements, Sales Statements and arbitration may be specifically
enforceable by the parties.
. MISCELLANEOUS PROVISIONS
Entire Agreement; Amendments. This Agreement constitutes 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.
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.
Assignment.
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 the 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.
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.
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 00000-0000
Attn: Legal Department
with a required Powell, Goldstein, Xxxxxx & Xxxxxx
copy to: Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: G. Xxxxxxx Xxxxx, Esq.
If to Distributor: QMS Japan Kabushiki Kaisha
Gotanda Metalion Xxxx. 0X
0-00-00 Xxxxxxx-Xxxxxxx
Xxxxxxxxx-Xx, Xxxxx 000, Xxxxx
Attn: Yoji Kawai
with a required SHOWA Law Office
copy to: Tsuruya Hachiman Xxxx. 0X
0-0 Xxxxxxxxx
Xxxxxxx-Xx, Xxxxx 000, Xxxxx
Attn: Masatomo Suzuki
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.
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.
Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Georgia.
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, financial statements and financial records, other
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.
Independent Contractor. This Agreement does not constitute or
appoint Distributor as an agent of QMS and Distributor acknowledges and
agrees that Distributor has no authority to obligate QMS and that
Distributor shall make no representation, express or implied, to the
contrary. 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. /s/ Yoji Kawai
Yoji Kawai
By: /s/ Xxxxxxx X. Xxxxx Kabushiki Kaisha Typebank
Title: Vice President By:
Title:
Exhibit 10(s)(v)
PROMISSORY NOTE
Yen equivalent of U.S. $3,000,000.00 September 30, 1995
FOR VALUE RECEIVED, the undersigned, a new Japanese company in the
process of being established, which is being represented for the purpose of
this promissory note by its promoters and shareholders-to-be, namely Yoji
Kawai, a Japanese national and Kabushiki Kaisha Typebank, a Japanese
corporation ("Maker"), promises to pay to the order of QMS Japan Kabushiki
Kaisha, a corporation organized under the laws of Minato-Ku, Japan (along
with each subsequent holder of this Note, referred to as "Holder"), the
principal sum of amount in Yen equivalent to U.S. Three Million Dollars
(U.S. $3,000,000.00) to be determined as set forth herein, with interest on
the outstanding principal balance at a simple interest rate of eight
percent (8%) per annum beginning December 7, 1995 (the "Effective Date").
This Note constitutes partial payment of the purchase price for the
assets of QMS Japan which were purchased by Maker pursuant to that certain
Asset Purchase Agreement between Maker, QMS Japan and QMS, dated as of
September 30, 1995 (the "Agreement") and is secured by the pledge by Maker
of all of its inventory pursuant to that certain Inventory Johto-Tampo
Agreement dated the date hereof.
This Note shall be paid as follows:
(a) On each of the first six (6) monthly anniversaries of the
Effective Date, Maker shall pay to Holder all interest accrued during
the previous month on the outstanding principal balance of this Note;
and
(b) On each of the fifty-four (54) monthly anniversaries of the
Effective Date following the sixth monthly anniversary of the
Effective Date, Maker shall pay to Holder an amount in Yen equivalent
to U.S. fifty-five thousand five hundred fifty-five dollars and fifty-
six cents (U.S.$55,555.56), plus all interest accrued on the
outstanding principal balance of this Note at such time, until this
Note has been paid in full.
For purposes of calculating the Yen equivalent amounts of the U.S.
Dollar amounts set forth above, T.T.S. rates to be quoted by a reputable
bank in Tokyo, Japan on the respective payment dates shall apply.
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 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.
IN WITNESS WHEREOF, the undersigned Maker has executed this instrument
under seal as of the day and year first above written.
MAKER:
/s/ Yoji Kawai
YOJI KAWAI
KABUSHIKI KAISHA TYPEBANK
By:
Title:
HOLDER:
QMS JAPAN KABUSHIKI
KAISHA
By: /s/ Xxxxxx X. Xxxxxx
Title: Representative Director
Exhibit 10(s)(vi)
PROMISSORY NOTE
Yen equivalent of U.S. $500,000.00 September 30, 1995
FOR VALUE RECEIVED, the undersigned, a new Japanese company in process
of being established, which is being represented for the purpose of this
promissory note by its promoters and shareholders-to-be, namely Yoji Kawai,
a Japanese national and Kabushiki Kaisha Typebank, a Japanese corporation
("Maker"), promises to pay to the order of QMS Japan Kabushiki Kaisha, a
corporation organized under the laws of Minato-Ku, Japan (along with each
subsequent holder of this Note, referred to as "Holder"), the principal sum
of an amount in Yen equivalent to U.S. Five Hundred Thousand Dollars (U.S.
$500,000.00) to be determined as set forth herein.
This Note constitutes partial payment of the purchase price for the
assets of Holder which were purchased by Maker pursuant to that certain
Asset Purchase Agreement between Maker, QMS Japan and QMS, dated as of
September 30, 1995 (the "Agreement") and is secured by the pledge by Maker
of all of its inventory pursuant to that certain Inventory Johto-Tampo
Agreement dated the date hereof.
This Note shall be paid in full on March 31, 1996.
For purposes of calculating the Yen equivalent amount of the U.S.
Dollar amount set forth above, the T.T.S. rate to be quoted by a reputable
bank in Tokyo, Japan on the payment date shall apply.
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 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.
IN WITNESS WHEREOF, the undersigned Maker has executed this instrument
under seal as of the day and year first above written.
MAKER:
/s/ Yoji Kawai
YOJI KAWAI
KABUSHIKI KAISHA TYPEBANK
By:
Title:
HOLDER:
QMS JAPAN KABUSHIKI
KAISHA
By: /s/ Xxxxxx X. Xxxxxx
Title: Representative Director
Exhibit 10(s)(vii)
TRADEMARK AND TRADE NAME LICENSE AGREEMENT
THIS TRADEMARK AND TRADE NAME LICENSE AGREEMENT (the "Agreement") is
made as of December 7, 1995, by and between QMS, Inc., a corporation formed
under the laws
of Delaware, U.S.A. ("QMS"), and QMS Japan Kabushiki Kaisha, a corporation
formed under the laws of Shinagawa-Ku, Japan (the "Company").
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:
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: Japan, South Korea, China,
Taiwan, Cambodia, Hong Kong, Macao, Vietnam, Laos, Myanma,
Philippines, Malaysia, Singapore, Mongolia, and Thailand.
Conditions of Grant. The License is subject to the following conditions:
Licensee may only use the Marks for the purpose of advertisement,
promotion and sale of the QMS Products and for no other purposes;
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;
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
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.
Rights of QMS as a 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 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.
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:
The Distributor Agreement is terminated by either party for any
reason; or
Licensee fails to use the Marks in accordance with the terms of this
Agreement.
General Provisions.
All notices, requests, consents or other communication hereunder shall
be in writing and shall be mailed, telecopied or delivered to the
other party at 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: With a required copy to:
QMS, Inc. Powell, Goldstein, Xxxxxx & Xxxxxx
One Magnum Pass Sixteenth Floor
Post Office Box 81250 191 Peachtree Street, N.E.
Mobile, Alabama USA 00000-0000 Xxxxxxx, Xxxxxxx XXX 00000
Attn: Legal Department Attn: G. Xxxxxxx Xxxxx, Esq.
If to Licensee: With a required copy to:
QMS Japan Kabushiki Kaisha SHOWA Law Office
Gotanda Metalion Bld. 2F Tsuruya Hachiman Bld. 5F
5-21-15 Higashi-Gotanda 0-0 Xxxxxxxxx
Xxxxxxxxx-Xx, Xxxxx 000, Xxxxx Xxxxxxxx-Xx, Xxxxx 000,
Xxxxx
Attn: Yoji Kawai Attn: Masatomo Suzuki
This Agreement shall be governed by the laws of the State of Georgia.
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.
The License may not be assignable by Licensee without the express
written consent of QMS.
This Agreement may only be amended by written agreement by the parties
hereto.
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 institute.
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/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
LICENSEE:
QMS Kabushiki Kaisha
By: /s/ Yoji Kawai
Name: Yoji Kawai
Title: President
Exhibit 10(s)(viii)
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (the "Agreement") is e xecuted and delivered
as of December 7, 1995, by QMS Japan Kabushiki Kaisha, a corporation formed
under the laws of Shinagawa-Ku, Japan (the "Company") to and in favor of
QMS Japan Kabushiki Kaisha, a corporation formed under the laws of Minato-
Ku, Japan ("Seller"), and QMS, Inc., a corporation formed under the laws of
the state of Delaware, U.S.A. ("QMS").
W I T N E S S E T H:
WHEREAS, on September 30, 1995, prior to the formation of the Company,
Yoji Kawai, a Japanese national and Kabushiki Kaisha Typebank, a Japanese
corporation (the "Promoters"), entered into that certain Asset Purchase
Agreement (the "Purchase Agreement") with Seller and QMS on behalf of the
Company;
WHEREAS, on September 30, 1995, prior to the formation of the Company,
the Promoters entered into each of the Assumption Agreement, the
Distributor Agreement, Note A, Note B, and the Pledge and Security
Agreement (each as defined in the Purchase Agreement) on behalf of the
Company (the "Collateral Documents");
WHEREAS, the Company has been duly organized under the laws of Japan;
WHEREAS, the execution and delivery of the Purchase Agreement and each
of the Collateral Documents by the Promoters on behalf of the Company has
been ratified and approved by the Company by all necessary corporate
action; and
WHEREAS, in connection with the Purchase Agreement, the Promoters
agreed that upon the formation of the Company, the Company would enter into
an Assumption Agreement with Seller and QMS whereby the Company would agree
to assume all of the obligations originally consented to by the Promoters
on behalf of the Company under the Transaction Documents.
NOW, THEREFORE, in consideration of the premises and the mutual
covenant and agreements set forth in this Agreement, the Purchase Agreement
and the Collateral Documents, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
Assumption of Obligations. The Company does hereby assume, and
it shall pay, discharge or perform, as appropriate, any and all obligations
and liabilities of the Company set forth in the Purchase Agreement and in
the Collateral Documents, which obligations and liabilities were consented
to by the Promoters on behalf of the Company prior to the Company's
formation, as evidenced by the signatures of the Promoters on such
documents.
Corporate Existence. The Company does hereby represent and
warrant to Seller and QMS that it is a corporation duly organized, validly
existing and in good standing under the laws of Japan.
Corporate Power; Authorization. The Company does hereby
represent and warrant to Seller and QMS that (i) it has the power,
authority, and legal right to execute, deliver and perform this Agreement;
(ii) the execution, delivery and performance of this Agreement by the
Company has been duly authorized by all necessary corporate action;
(iii) this Agreement has been duly executed and delivered on behalf of the
Company by a duly authorized officer; and (iv) this Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable against
it in accordance with its terms.
Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of Georgia, U.S.A.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the
day and year first above written.
THE COMPANY:
QMS Japan Kabushi Kaisha, a corporation
organized under the laws of Shinagawa-Ku,
Japan
By: /s/ Yoji Kawai
Name: Yoji Kawai
Title: President
Agreed and accepted this __7__ day
of December, 1995.
QMS, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
QMS Japan Kabushiki Kaisha, a corporation
organized under the laws of Minato-Ku,
Japan
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Representative Director
