Q COMM INTERNATIONAL, INC. COMMON STOCK PURCHASE AGREEMENT
Q
COMM INTERNATIONAL, INC.
December
19, 2005
TABLE
OF CONTENTS
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SECTION
1:
|
Sale
of Common Stock
|
1
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|
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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:
|
Representations
and Warranties of the Company
|
1
|
|
|
2.1
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Organization,
Good Standing and Qualification.
|
1
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|
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2.2
|
The
Shares.
|
2
|
|
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2.3
|
Authorization
and Enforceability.
|
2
|
|
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2.4
|
No
Other Registration Rights.
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2
|
|
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2.5
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No
Brokers or Finders.
|
2
|
|
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2.6
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Disclosure.
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2
|
|
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SECTION
3:
|
Representations
and Warranties of Purchaser
|
3
|
|
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3.1
|
No
Registration.
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3
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|
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3.2
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Investment
Intent.
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3
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|
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3.3
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Investment
Experience.
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3
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|
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3.4
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Speculative
Nature of Investment.
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3
|
|
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3.5
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Access
to Data.
|
3
|
|
|
3.6
|
Accredited
Investor”.
|
3
|
|
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3.7
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Residency
or Principal Place of Business.
|
4
|
|
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3.8
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Rule
144.
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4
|
|
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3.9
|
Authorization.
|
4
|
|
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3.10
|
Brokers
or Finders.
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4
|
|
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3.11
|
Tax
Advisors.
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5
|
|
|
3.12
|
Legends.
|
5
|
|
|
SECTION
4:
|
Miscellaneous
|
5
|
|
|
4.1
|
Governing
Law.
|
5
|
|
|
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
|
|
i
Q
COMM INTERNATIONAL, INC.
This
Common Stock Purchase Agreement (the “Agreement”)
is made
as of December 19, 2005, by and among Q Comm International, Inc., a Utah
corporation (the “Company”),
and
_________________________ (the “Purchaser”).
The
Company and Purchaser 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
Purchaser, and Purchaser desires to purchase the Shares, as more fully described
herein.
WHEREAS,
in connection with the execution of this Agreement, the Parties have
simultaneously executed a Registration Rights Agreement (the “Rights
Agreement”).
The
Rights Agreements and this Agreement are herein referred to as the “Agreements.”
NOW
THEREFORE, in consideration of the mutual covenants, agreements, conditions,
representations, and warranties contained in this Agreement, the Company
and
Purchaser 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 Purchaser, and Purchaser hereby purchases from the Company
________________________ Shares for a purchase price of Three Dollars and
Zero
Cents ($3.00) per share or for an aggregate purchase price of
_________________________.
1.2 Certificates
and Payment.
Upon
execution of this Agreement, the Company will deliver to the Purchaser a
certificate or certificates representing the number of Shares purchased
hereunder against delivery to the Company by the Purchaser of a check in
the
amount of the purchase price therefor, payable to the Company’s order, or a wire
transfer to the Company’s bank account per the Company’s
instructions.
SECTION
2
Representations
and Warranties of the Company
The
Company, as of the date of this Agreement, represents and warrants to the
Purchaser 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 the Agreements, to issue and sell the Shares and to perform its
obligations pursuant to the Agreements 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.
1
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 Purchaser; 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 and in the Rights
Agreement.
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 the
Agreements by the Company, the authorization, sale, issuance and delivery
of the
Shares, and the performance of all of the Company’s obligations under the
Agreements has been taken. The Agreements, 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, (ii) as limited by rules of law governing specific performance,
injunctive relief, or other equitable remedies and by general principles
of
equity, and (iii) to the extent the indemnification provisions contained
in the
Rights Agreement may further be limited by applicable laws and principles
of
public policy.
2.4 No
Other Registration Rights.
Except
as set forth in the Rights Agreement, the Company is presently not under
any
obligation and has not granted any rights to register under the Securities
Act
of 1933 (the “Securities
Act”)
any of
its presently outstanding securities or any of its securities that may hereafter
be issued.
2.5 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.
2.6 Disclosure.
The
Company has provided or made available to Purchaser all of the information
regarding the Company that such Purchaser has requested for deciding whether
to
purchase the Shares. To the Company’s knowledge, neither the Agreements 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 Purchaser.
2
SECTION
3
Representations
and Warranties of Purchaser
Purchaser
hereby represents and warrants to the Company as follows:
3.1 No
Registration.
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.
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 Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. 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.
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. Purchaser has
such
knowledge and experience in financial and business matters that Purchaser
is
capable of evaluating the merits and risks of its investment in the
Company.
3.4 Speculative
Nature of Investment.
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. Purchaser can bear the economic
risk
of Purchaser’s investment and is able, without impairing Purchaser’s financial
condition, to hold the Shares for an indefinite period of time and to suffer
a
complete loss of Purchaser’s investment.
3.5 Access
to Data.
Purchaser has had an opportunity to ask questions of, and receive answers
from,
the officers of the Company concerning the Agreements and the transaction
contemplated by the Agreements, as well as the Company’s business, management,
and financial affairs, which questions were answered to its satisfaction.
Purchaser believes that it has received all the information that Purchaser
considers to be necessary or appropriate for deciding whether to purchase
the
Shares. Purchaser has read the documents that the Company has filed with
the
Securities and Exchange Commission (the “SEC”),
including current reports on Form 8-K and periodic reports on Forms 10-KSB
and
10-QSB.
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 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.
Purchaser acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. 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, 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. 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. 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) Purchaser
has all requisite power and authority to execute and deliver the Agreements,
to
purchase the Shares hereunder and to carry out and perform its obligations
under
the terms of the Agreements. All action on the part of the Purchaser necessary
for the authorization, execution, delivery and performance of the Agreements,
and the performance of all of the Purchaser’s obligations under the Agreements,
has been taken or will be taken prior to the Closing.
(b) The
Agreements, when executed and delivered by the Purchaser, will constitute
valid
and legally binding obligations of the Purchaser, enforceable in accordance
with
their terms except: (i) to the extent that the indemnification provisions
contained in the Rights Agreement may be limited by applicable law and
principles of public policy, (ii) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, and (iii) 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.
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
the Agreement.
4
3.11 Tax
Advisors.
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 the Agreement. With respect to such matters, Purchaser relies
solely on such advisors and not on any statements or representations of the
Company or any of its agents, written or oral. 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
the
Agreements.
3.12 Legends.
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 the Rights Agreement
or under 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.
This
Agreement shall be governed and construed in all respects in accordance with
the
laws of the State of Utah as applied to agreements made and performed in
Utah by
residents of the State of Utah.
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
Purchaser to purchase the Shares shall not be assignable without the prior
written consent of the Company.
4.4 Entire
Agreement; Amendment.
The
Agreements constitute 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 in any manner by any warranties, representations or covenants 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 Purchaser.
5
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 Purchaser, at Purchaser’s postal or email address or
facsimile number set forth in the records of the Company, or at such other
postal or email address as Purchaser 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 Purchaser. 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
[Signature
Page to Follow]
7
IN
WITNESS WHEREOF,
the
parties have executed this Common Stock Purchase Agreement as of the date
first
above written.
|
“COMPANY”
|
Q
COMM INTERNATIONAL, INC.
|
|
|
By:
________________________________
|
||
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
“PURCHASER”
|
If
an entity:
|
_____________________________________________
|
|
(Name
of entity)
|
||
|
_____________________________________________
|
||
|
(State
of principal place of business)
|
||
|
|
By:
__________________________________________
|
|
|
(Signature
of authorized representative)
|
||
|
|
Name:
_______________________________________
|
|
|
(Name
of authorized representative)
|
||
|
Title:
________________________________________
|
||
|
“PURCHASER”
|
If
an individual:
|
_____________________________________________
|
|
(Name
of individual)
|
||
|
_____________________________________________
|
||
|
(State
of residency)
|
||
|
_____________________________________________
|
||
|
(Signature
of individual)
|
8
