Q COMM INTERNATIONAL, INC. COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
Q
COMM INTERNATIONAL, INC.
TABLE
OF CONTENTS
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SECTION
1
|
|
|
Sale
of Common Stock
|
1
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|
1.1
Sale
of Shares.
|
1
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1.2
Certificates
and Payment.
|
1
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|
SECTION
2
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|
|
Representations
and Warranties of the Company
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2
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2.1
Organization,
Good Standing and Qualification.
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2
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2.2
The
Shares.
|
2
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|
2.3
Authorization
and Enforceability.
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2
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2.4
No
Brokers or Finders.
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2
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2.5
Disclosure.
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2
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|
SECTION
3
|
|
|
Representations
and Warranties of the Purchasers
|
3
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3.1
No
Registration.
|
3
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|
3.2
Investment
Intent.
|
3
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3.3
Investment
Experience.
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3
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3.4
Speculative
Nature of Investment.
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3
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3.5
Access
to Data.
|
3
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|
3.6
Accredited
Investor.
|
3
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|
3.7
Residency
or Principal Place of Business.
|
4
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3.8
Rule
144.
|
4
|
|
3.9
Authorization.
|
4
|
|
3.10
Brokers
or Finders.
|
4
|
|
3.11
Tax
Advisors.
|
5
|
|
3.12
Legends.
|
5
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|
SECTION
4
|
|
|
Miscellaneous
|
5
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4.1
Governing
Law; Jurisdiction.
|
5
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|
4.2
Survival.
|
5
|
|
4.3
Successors
and Assigns.
|
5
|
|
4.4
Entire
Agreement; Amendment.
|
6
|
|
4.5
Notices,
etc.
|
6
|
|
4.6
Expenses.
|
6
|
|
4.7
Severability.
|
6
|
|
4.8
Counterparts.
|
6
|
|
4.9
Electronic
or Telecopy Execution and Delivery.
|
6
|
Q
COMM INTERNATIONAL, INC.
This
Common Stock Purchase Agreement (the “Agreement”)
is
entered into as of December [__], 2006 (the “Effective
Date”)
by and
among Q Comm International, Inc., a Utah corporation (the “Company”),
and
those persons or entities set forth in Schedule
A
hereto
(the “Purchasers”).
The
Company and the Purchasers are herein referred to individually as “Party”
and
collectively as the “Parties.”
WHEREAS
the Company desires to sell shares of its Common Stock (“Shares”)
to the
Purchasers, and the Purchasers desire to purchase the Shares, as more fully
described herein and as set forth in Schedule
A.
WHEREAS
the Purchasers desire to pay the Company for the Shares either in cash or
through the cancellation of outstanding indebtedness of the Company to the
Purchasers as evidenced by certain promissory notes, as more fully described
herein and as set forth in Schedule
A.
NOW
THEREFORE, in consideration of the mutual covenants, agreements, conditions,
representations, and warranties contained in this Agreement, the Company
and the
Purchasers hereby agree as follows:
SECTION
1
Sale
of Common Stock
1.1
Sale
of Shares.
Subject
to the terms and conditions of this Agreement, the Company hereby issues
and
sells to each of the Purchasers, and each of the Purchasers hereby purchases
from the Company the number of Shares set forth opposite each such Purchaser’s
name in Schedule
A
for a
purchase price of Twelve Cents ($0.12) per Share, which purchase price shall
be
paid by each such Purchaser either in cash or through the cancellation of
outstanding indebtedness of the Company to such Purchaser as evidenced by
one or
more promissory notes (in each instance, the “Indebtedness”),
as
the case may be, for an aggregate purchase price of Two Million One-Hundred
Eight Thousand Seven Hundred Thirty Dollars ($2,108,730.00), all as more
fully
set forth in Schedule
A.
1.2
Certificates
and Payment.
Upon
execution of this Agreement, the Company shall deliver to each Purchaser
a
certificate representing the number of Shares purchased by such Purchaser
hereunder against delivery to the Company by such Purchaser of (a) a check
in
the amount of the purchase price, payable to the Company’s order, or a wire
transfer to the Company’s bank account per the Company’s instructions, and/or
(b) the originally executed promissory note(s) representing the
Indebtedness.
1
SECTION
2
Representations
and Warranties of the Company
The
Company, as of the Effective Date, represents and warrants to the Purchasers
as
follows:
2.1
Organization,
Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Utah. The Company has the requisite corporate
power and authority to own and operate its properties and assets, to carry
on
its business as presently conducted or proposed to be conducted, to execute
and
deliver this Agreement, to issue and sell the Shares and to perform its
obligations pursuant to this Agreement and the Company’s Articles of
Incorporation. The Company is presently qualified to do business as a foreign
corporation in each jurisdiction where the failure to be so qualified could
reasonably be expected to have a material adverse effect on the Company’s
financial condition or business as now conducted or proposed to be
conducted.
2.2
The
Shares.
The
Shares, when issued and delivered and paid for in compliance with the provisions
of this Agreement, will be validly issued, fully paid and non-assessable.
The
Shares will be free of any liens or encumbrances, other than any liens or
encumbrances created by or imposed upon by the Purchasers; provided,
however,
that
the Shares are subject to restrictions on transfer under U.S. state and/or
federal securities laws and as set forth herein.
2.3
Authorization and
Enforceability.
All
corporate action on the part of the Company and its directors, officers and
stockholders necessary for the authorization, execution and delivery of this
Agreement by the Company, the authorization, sale, issuance and delivery
of the
Shares, and the performance of all of the Company’s obligations under this
Agreement has been taken. This Agreement, when executed and delivered by
the
Company, shall constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except (i) as limited by laws
of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) as limited by rules of law governing specific performance,
injunctive relief, or other equitable remedies and by general principles
of
equity.
2.4
No
Brokers or Finders.
The
Company has not incurred, and will not incur, directly or indirectly, as
a
result of any action taken by the Company, any liability for brokerage or
finders’ fees or agents’ commissions or any similar charges in connection with
this Agreement or any of the transactions contemplated hereby.
2.5
Disclosure.
The
Company has provided or made available to the Purchasers all of the information
regarding the Company that the Purchasers have requested for deciding whether
to
purchase the Shares. To the Company’s knowledge, neither this Agreement nor any
other documents delivered in connection herewith, when taken as a whole,
contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein not misleading
in
light of the circumstances under which they were made. The Company does not
represent or warrant that it will achieve any financial projections provided
to
the Purchasers.
2
SECTION
3
Representations
and Warranties of the Purchasers
Each
of
the Purchasers hereby represents and warrants to the Company as
follows:
3.1
No
Registration.
The
Purchaser understands that the Shares have not been registered under the
Securities Act of 1933 (the “Securities
Act”)
by
reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends upon, among other things,
the
bona fide nature of the investment intent and the accuracy of such Purchaser’s
representations as expressed herein.
3.2
Investment
Intent.
The
Purchaser is acquiring the Shares for investment for its own account, not
as a
nominee or agent, and not with the view to, or for resale in connection with,
any distribution thereof, and the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. The Purchaser
further represents that it does not have any contract, undertaking, agreement,
or arrangement with any person or entity to sell, transfer, or grant
participation to such person or entity or to any third person or entity with
respect to any of the Shares.
3.3
Investment
Experience.
The
Purchaser has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company
and can
protect its own interests in connection with such purchase. The Purchaser
has
such knowledge and experience in financial and business matters that the
Purchaser is capable of evaluating the merits and risks of its investment
in the
Company.
3.4
Speculative
Nature of Investment.
The
Purchaser understands and acknowledges that the Company has a limited financial
and operating history and that an investment in the Company is highly
speculative and involves substantial risks. The Purchaser can bear the economic
risk of the Purchaser’s investment and is able, without impairing the
Purchaser’s financial condition, to hold the Shares for an indefinite period of
time and to suffer a complete loss of the Purchaser’s investment.
3.5
Access
to Data.
The
Purchaser has had an opportunity to ask questions of, and receive answers
from,
the officers of the Company concerning this Agreement and the transaction
contemplated hereby, as well as the Company’s business, management, and
financial affairs, which questions were answered to its satisfaction. The
Purchaser believes that it has received all the information that the Purchaser
considers to be necessary or appropriate for deciding whether to purchase
the
Shares. The Purchaser has read the following documents that the Company has
filed with the Securities and Exchange Commission (the “SEC”):
(a)
Form 10-K, filed on March 31, 2006; and, (b) Form 10-Q, filed on November
13,
2006.
3.6
Accredited
Investor.
The
Purchaser is an “accredited investor” within the meaning of Regulation D, Rule
501(a), promulgated by the SEC under the Securities Act and shall submit
to the
Company such further assurances of such status as may be reasonably requested
by
the Company.
3
3.7
Residency
or Principal Place of Business.
The
residency of the Purchaser (or, in the case of a partnership or corporation,
such entity’s principal place of business) is correctly set forth on the
signature page to this Agreement.
3.8
Rule
144.
The
Purchaser acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. The Purchaser is aware of the provisions of Rule
144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, including among other things, the existence of a public market
for
the Shares, the availability of certain current public information about
the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being effected through a
“broker’s transaction” or in transactions directly with a “market maker” and the
number of Shares being sold during any three-month period not exceeding
specified limitations. Although the current public information referred to
above
is now available, the Purchaser acknowledges and understands that, the Company
may not be satisfying the current public information requirement of Rule
144 at
the time the Purchaser wishes to sell the Shares, and that, in such event,
the
Purchaser may be precluded from selling such securities under Rule 144, even
if
the other requirements of Rule 144 have been satisfied. The Purchaser
acknowledges that, in the event all of the requirements of Rule 144 are not
met,
registration under the Securities Act or an exemption from registration will
be
required for any disposition of the Shares or the underlying Common Stock.
The
Purchaser understands that, although Rule 144 is not exclusive, the SEC has
expressed its opinion that persons proposing to sell restricted securities
received in a private offering other than in a registered offering or pursuant
to Rule 144 will have a substantial burden of proof in establishing that
an
exemption from registration is available for such offers or sales and that
such
persons and the brokers who participate in the transactions do so at their
own
risk.
3.9
Authorization.
(a)
The
Purchaser has all requisite power and authority to execute and deliver this
Agreement, to purchase the Shares hereunder and to carry out and perform
its
obligations under the terms of this Agreement. All action on the part of
the
Purchaser necessary for the authorization, execution, delivery and performance
of this Agreement, and the performance of all of the Purchaser’s obligations
hereunder, has been taken or will be taken prior to the Closing.
(b)
This
Agreement, when executed and delivered by the Purchaser, will constitute
valid
and legally binding obligations of the Purchaser, enforceable in accordance
with
its terms except: (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies or by general principles of equity.
3.10 Brokers
or Finders.
The
Purchaser has not engaged any brokers, finders or agents, and neither the
Company nor any other Purchaser has, nor will, incur, directly or indirectly,
as
a result of any action taken by the Purchaser, any liability for brokerage
or
finders’ fees or agents’ commissions or any similar charges in connection with
this Agreement.
4
3.11 Tax
Advisors.
The
Purchaser has reviewed with its own tax advisors the U.S. federal, state,
local
and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. With respect to such matters, the Purchaser
relies solely on such advisors and not on any statements or representations
of
the Company or any of its agents, written or oral. The Purchaser understands
that it (and not the Company) shall be responsible for its own tax liability
that may arise as a result of this investment or the transactions contemplated
by this Agreement.
3.12 Legends.
The
Purchaser understands and agrees that the certificates evidencing the Shares,
or
any other securities issued in respect of the Shares upon any stock split,
stock
dividend, recapitalization, merger, consolidation or similar event, shall
bear
the following legend (in addition to any legend required by applicable state
securities laws):
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE,
AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS
THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.”
SECTION
4
Miscellaneous
4.1
Governing
Law; Jurisdiction.
The
validity, performance and enforcement of this Agreement shall be governed
by the
law of the State of Utah, without regard to the choice of law rules thereof.
To
the extent permitted by law, each of the Parties hereto hereby irrevocably
submits to the jurisdiction of the United States District Court for the District
of Utah or in any court of the State of Utah sitting in Salt Lake or Utah
Counties, over any suit, action or other proceeding brought by any party
arising
out of or relating to this Agreement and the transactions contemplated hereby,
and each of the Parties hereto irrevocably agrees that all claims with respect
to any such suit, action or other proceeding shall be heard and determined
in
such courts.
4.2
Survival.
The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by any Purchaser.
4.3
Successors
and Assigns.
Except
as otherwise provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the Parties hereto, provided,
however,
that
the rights of the Purchasers to purchase the Shares shall not be assignable
without the prior written consent of the Company.
5
4.4
Entire
Agreement; Amendment.
This
Agreement, together with Schedule
A
to this
Agreement (which shall be deemed to be part of this Agreement), constitutes
the
entire agreement between the Parties with regard to the subject matter hereof,
and no Party shall be liable or bound to any other Party with respect to
the
subject matter hereof in any manner by any warranties, representations,
agreements or covenants, whether written or oral, except as specifically
set
forth herein. Except as expressly provided, no term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed
by
the Company and the Purchasers.
4.5
Notices,
etc.
All
notices and other communications required or permitted hereunder shall be
in
writing and shall be sent by email, facsimile or mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to the Purchasers, at the Purchasers’ postal or email addresses
or facsimile numbers set forth in the records of the Company, or at such
other
postal or email address as the Purchasers shall have furnished to the Company
in
writing, or (b) if to any other holder of any Shares, at such postal or email
address or facsimile number as such holder shall have furnished the Company
in
writing, or, until any such holder so furnishes a postal or email address
or
facsimile number to the Company, then to and at the postal or email address
or
facsimile number of the last holder of such Shares who has so furnished an
address to the Company, or (c) if to the Company, at its principal executive
office and addressed to the attention of the Corporate Secretary, or at such
other postal or email address or facsimile number as the Company shall have
furnished to the Purchasers. Each such notice or other communication shall
for
all purposes of this Agreement be treated as effective or having been given
when
delivered if delivered personally, or, if sent by email or facsimile upon
confirmation of the transmission, or, if sent by mail, at the earlier of
its
receipt or five days after the same has been deposited in a regularly maintained
receptacle for the deposit of the United States mail, addressed and mailed
as
aforesaid.
4.6
Expenses.
Each
Party shall bear its own expenses incurred on its behalf with respect to
this
Agreement and the transactions contemplated hereby.
4.7
Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without such provision; provided
that no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any Party.
4.8
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the Parties actually executing such counterparts, and
all of
which together shall constitute one instrument.
4.9
Electronic
or Telecopy Execution and Delivery.
An
electronic version or a facsimile, telecopy or other reproduction of this
Agreement may be executed by one or more Parties hereto, and an executed
copy of
this Agreement may be delivered by one or more Parties hereto by email,
facsimile or electronic transmission pursuant to which the signature of or
on
behalf of such Party is evident, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request
of any
Party hereto, all Parties hereto agree to execute an original of this Agreement
as well as any electronic, facsimile, telecopy or other reproduction
hereof.
6
IN
WITNESS WHEREOF, the Parties have executed this Common Stock Purchase Agreement
as of the Effective Date.
THE
COMPANY:
Q
COMM
INTERNATIONAL, INC.
By:
____________________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer and President
THE
PURCHASERS:
|
[____]
By:
________________________________
Name:
[____]
Title:
[____]
|
[____]
By:
________________________________
Name:
[____]
Title:
[____]
|
|
[____]
By:
________________________________
Name:
[____]
Title:
[____]
|
7
Schedule
A
Purchase
Price and Shares
|
Name
of the
Purchaser:
|
Cash
Paid by
the
Purchaser:
|
Indebtedness
Cancelled
by the
Purchaser:
|
Aggregate
Consideration
Paid by
the
Purchaser:
|
Number
of
Shares:
|
|
[____]
|
$[____]
|
$[____]1
|
$[____]
|
[____]
|
|
[____]
|
$[____]
|
$[____]2
|
$[____]
|
[____]
|
|
[____]
|
$[____]
|
$[____]3
|
$[____]
|
[____]
|
_____________________________
1
Pursuant to [____].
2
Pursuant
to [____].
3 Pursuant
to [____].
