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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Q COMM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
Utah 88-4058493
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1145 South 1680 West
Orem, UT 84057
(Address of Principal Executive Offices)
Employee Stock Option Plan
(Full title of the plan)
Consulting Agreement
(Full title of the plan)
Retainer Agreement
(Full title of the plan)
Paul C. Hickey, Chief Executive Officer
1145 South 1680 West, Orem UT 84057
(Name and address of agent for service)
(801) 226-4222
(Telephone number, including area code, of agent for service)
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Copies to:
Jeffrey A. Rinde, Esq.
Bondy & Schloss LLP
6 East 43rd Street, 25th Floor
New York, New York 10017
Phone: (212) 661-3535
Fax: (212)972-1677
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Maximum Maximum
to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
---------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 2,000,000 $1.07 $ 2,140,000 $ 5,650(2)
par value $.001 shares(1)
per share
Common Stock, 800,000 $1.10 $ 880,000 $ 2,324(4)
par value $.001 shares(3)
per share
Common Stock, 230,000 $1.00 $ 230,000 $ 608(6)
par value $.001 shares(5)
per share
Common Stock, 90,000 shares(7) $1.00 $ 90,000 $ 238(8)
par value $.001
per share
3,120,000
TOTAL shares $ 3,340,000 $ 8,820
</TABLE>
(1) Represents 2,000,000 shares reserved for issuance upon the exercise of
options pursuant to the Registrant's employee stock option plan.
(2) Estimated solely for purposes of calculating the filing fees and calculated
pursuant to Rule 457(c) under the Securities Act based upon the average of the
bid and asked price as of May 30, 2000.
(3) Represents 800,000 shares of Common stock to be issued to the Chief
Executive Officer upon exercise of options granted at $1.10 per share as
compensation for services rendered pursuant to his employment agreement.
(4) Calculated pursuant to Rule 457(h)(1) under the Securities Act based upon
the exercise price for the shares of common stock underlying the option.
(5) Represents 230,000 shares of Common stock to be issued to certain
consultants and officers of the Registrant upon exercise of options granted at
$1.00 per share as compensation for services rendered pursuant to their
consulting agreements.
(6) Calculated pursuant to Rule 457(h)(1) under the Securities Act based upon
the exercise price for the shares of common stock underlying the option.
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(7) Common Stock underlying options issued to the Registrant's general counsel
for legal services rendered.
(8) Calculated pursuant to Rule 457(h)(1) under the Securities Act based upon
the exercise price for the shares of common stock underlying the option.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in the
registration statement in Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
This Registration Statement on Form S-8 (the "Registration Statement")
of Q Comm International, Inc., a Utah corporation, (the "Registrant") cover
3,120,000 shares of the Registrant's common stock, par value $.001 per share
("Common Stock"), which includes 1,120,000 shares reserved for issuance upon the
exercise of options exercisable between $1.00 and $1.10 per share.
Item 1. Plan Information
(a) General Plan Information
The Registrant has adopted an Employee Stock Option Plan (the
"Employee Plan") providing for the issuance of up to an aggregate of 2,000,000
shares of the Registrant's common stock, par value $0.001 per share, at the
exercise price of 100% of the fair market value of the Registrant's common stock
at the time the option(s) is granted. The options expire ten years after the
date of grant.
The Registrant and the Registrant's Chief Executive Officer
have entered into an employment agreement pursuant to which said officer was
granted an option to purchase 800,000 shares of the Registrant's common stock,
par value $0.001 per share, at an exercise price of $1.10 per share, of which
400,000 shares have vested and 400,000 shares vest one year from the date of
issuance. The option was granted on May 3, 2000 and expires on May 2, 2005. The
Registrant also entered into an employment agreement with an employee of the
Registrant pursuant to which said employee was granted an option to purchase
30,000 shares of the Registrant's common stock, par value $0.001 per share, at
an exercise price of $1.00 per share. The option was granted on May 3, 2000 and
expires on May 2, 2005. These employment agreements are hereinafter collectively
referred to as the "Employment Agreements Plan."
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The Registrant and Keith Hall entered into a consulting
agreement (the "Consulting Agreement Plan") the nature and purpose of which were
to compensate Keith Hall for corporate consulting services including actively
pursuing potential joint venture partners and sale opportunities for the
Registrant's prepaid cellular products. The Consulting Agreement Plan provides
for issuance of an option to Keith Hall to purchase 200,000 shares at the
exercise price of $1.00 per share. The option was granted on May 3, 2000 and
expires on May 2, 2005.
The Registrant and the Registrant's legal counsel have entered
into a retainer agreement (the "Retainer Agreement Plan") pursuant to which the
law firm was granted an option to purchase 90,000 shares of the Registrant's
common stock, par value $0.001 per share, at an exercise price of $1.00 per
share. The option was granted on May 3, 2000 and expires on May 2, 2005.
The Employee Plan, the Employment Agreements Plan, the
Consulting Agreement Plan and the Retainer Agreement Plan are sometimes
hereinafter collectively referred to as the "Plans", and the participants in the
Employee Plan, the Employment Agreements Plan, the Consulting Agreements Plan
and the Retainer Agreement Plan are collectively referred to as the
"Participants".
The Plans are not subject to any of the provisions of the
Employee Retirement Income Security Act of 1974.
The name, address and telephone number of the Registrant are
as set forth on the facing page of this Registration Statement. Additional
information about the Plans may be obtained from the Registrant by the
Participants.
(b) Securities to be Offered
(1) Shares of Common Stock, par value $0.001 per share
(c) Employees Who May Participate in the Plan
Certain employees of the Registrant who are granted options pursuant to
the Employee Plan are the only eligible participants in the Employee Plan.
Certain directors and employees of the Registrant that have entered into
employment agreements with the Registrant are the only eligible participants in
the Employment Agreements Plan. Keith Hall, a consultant (an "employee" defined
by General Instruction A.1(a) of Form S-8) to the Registrant is the only
eligible participant in the Consulting Agreement Plan. Certain attorneys at the
law firm are the only eligible participants in the Retainer Agreement Plan.
(d) Purchase of Securities Pursuant to the Plans and Payment for
Securities Offered.
(1)&(2) The Participants in the Employee Plan, the Employment
Agreement Plan, the Consulting Agreement Plan and the
Retainer Agreement Plan will be issued shares of
common stock upon the exercise of their respective
stock options.
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(3) Contributions by the Participants are not applicable.
(4) No contributions by the Registrant other than the
issuance of shares is applicable.
(5) Reports to the Participants as to the amount and
status of their account under the Plans will not be
made.
(6) The shares issuable pursuant to the Plans will be
newly issued shares of the Registrant.
(e) There are no resale restrictions on the securities offered.
(f) The Plans are not qualified under Section 401(a) of the
Internal Revenue Code and the Participants will recognize
ordinary income at the time of the issuance of their shares
measured on the date of exercise by the difference between the
aggregate exercise price and the fair market value of the
Registrant's Common Stock which is acquired by the
Participants.
(g) Investment of Funds
Not Applicable.
(h) Withdrawal from Plans; Assignment of Contract
(1) Withdrawal from Plans - Not Applicable.
(2) The Participants interest in the Plans may not be
assigned.
(i) Forfeiture and Penalties
Unexercised and non-vested options cancelled out. There are no
provisions for forfeiture or penalties under the Employee
Agreement Plan, the Consulting Agreement Plan and the Retainer
Agreement Plan. The options granted pursuant to the Employee
Plan are forfeited if non-vested and/or not exercised within
three months after termination of employment.
(j) Charges and Deductions and Liens Therefore
There are no charges or deductions that may be made against
the Participants' interests in the Plans.
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Item 2. Registrant Information and Employee Plan Annual Information.
Registrant shall provide to the Participants, without charge,
upon written or oral request, the documents incorporated by reference in Item 3
of Part II of this Registration Statement. The Registrant shall also provide to
the Participants, without charge, upon written or oral request, all of the
documents required to be delivered to the Participants pursuant to Rule 428(b).
Any and all such requests shall be directed to the Registrant at the address set
forth on the cover page hereof. Its telephone number is (801) 226-4222.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(b)(i) Current Report on Form 8-K filed on March 20, 2000.
(b)(ii) Current Report on Form 8-K filed on March 30, 2000.
(b)(iii) Current Report on Form 8-K/A filed on April 20, 2000.
(b)(iv) Quarterly Report on Form 10-QSB filed on May 22, 2000
for the quarter ended March 31, 2000.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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Item 4. Description of Securities.
The Registrant's authorized capital stock consists of 50,000,000 shares
of Common Stock, $.001 par value, of which 8,875,123 shares are issued and
outstanding.
Subject to the rights of the holders of any series of preferred stock,
the holders of Common Stock are entitled to receive dividends, if any, as may be
declared from time to time by the Board of Directors in its discretion from
funds legally available therefor. Upon liquidation or dissolution of the
Registrant, the holders of Common Stock are entitled to receive a pro rata share
of all assets available for distribution to stockholders after payment of all
obligations of the Registrant including dividends and preferences attributed to
any series of preferred stock. The shares of Common Stock have no cumulative
voting rights or preemptive or other subscription rights and there are no
conversion rights or redemption provisions with respect to such shares. The
shares of Common Stock presently outstanding are validly issued, fully paid and
non-assessable. Authorized Common Stock may be issued at any time and from time
to time, in such amounts, and for such consideration as may be fixed by the
Board of Directors of the Registrant.
Item 5. Interests of Named Experts and Counsel.
Bondy & Schloss LLP serves as general counsel to the Registrant and
currently owns an option to purchase 90,000 shares of common stock of the
Registrant, at an exercise price of $1.00 per share. The shares of common stock
underlying said option are being registered herein.
Item 6. Indemnification of Directors and Officers.
The Utah Business Corporation Act (the "UBCA"), in general, allows
corporations to indemnify their directors and officers against expenses actual
and reasonable incurred in connection with a proceeding, if the person acted in
good faith and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the corporation. In the case of a criminal
action or proceeding, the director or officer must have had no reasonable cause
to believe that the person's conduct was unlawful. A corporation may not
indemnify a director (a) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation, or
(b) in connection with any other proceeding charging that the director derived
an improper personal benefit, whether or not involving action in his official
capacity, in which proceeding he was adjudged liable on the basis that he
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit No. Description
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4.1 Specimen Common Stock Certificate
4.2 *Options issued to Keith Hall dated May 3, 2000.
4.3 *Options issued to Paul C. Hickey dated May 3, 2000.
4.4 *Options issued to John Hickey dated May 3, 2000.
4.5 *Options issued to Bondy & Schloss dated May 3, 2000.
4.6 *Stock Option Plan
5.1 * Opinion of Bondy & Schloss LLP as to the legality of the
securities being offered.
23 * Consent of Bondy & Schloss LLP (included in Exhibit 5.1).
23.1 * Consent of Pritchett, Siler & Hardy, P.C.
24 * Powers of Attorney (included on p. II-4 of this
Registration Statement).
99 *Consulting Agreement between the Registrant and Keith Hall
dated may 3, 2000.
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* Filed herewith.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement; (2) That, for the
purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof; and (3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that, in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Orem, Utah on the 31st day of May, 2000.
Q COMM INTERNATIONAL, INC.
By: /s/ Paul C. Hickey
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Paul C. Hickey, Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 31st day of May, 2000.
Signature Title
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/s/ Paul C. Hickey Chief Executive Officer, Chairman
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Paul C. Hickey and Director
/s/ Stephen C. Flaherty President
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Stephen C. Flaherty
/s/ Brent T. Bingham Director
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Brent T. Bingham
/s/ KC Holmes Director
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KC Holmes
/s/ Katie Benioni Secretary
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Katie Benioni
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul C. Hickey, his true and lawful
attorneys-in-fact and agent with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) of and supplements to
this Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, to all intents and purposes and as fully
as they might or could do in person, hereby ratifying and confirming all that
such attorneys-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities indicated on the 31st of May, 2000.
Signature Title
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/s/ Paul C. Hickey Chief Executive Officer, Chairman
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Paul C. Hickey and Director
/s/ Stephen C. Flaherty President
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Stephen C. Flaherty
/s/ Brent T. Bingham Director
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Brent T. Bingham
/s/ KC Holmes Director
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KC Holmes
/s/ Katie Benioni Secretary
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Katie Benioni
II-4
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EXHIBIT INDEX
Index and Description of Exhibits.
Exhibit No. Description
4.1 Specimen Common Stock Certificate
4.2 * Options issued to Keith Hall dated May 3, 2000.
4.3 * Options issued to Paul C. Hickey dated May 3, 2000.
4.4 * Options issued to John Hickey dated May 3, 2000.
4.5 * Options issued to Bondy & Schloss dated May 3, 2000.
4.6 * Stock Option Plan
5.1 * Opinion of Bondy & Schloss LLP as to the legality of the
securities being offered.
23.1 * Consent of Bondy & Schloss LLP (included in Exhibit 5.1).
23.2 * Consent of Pritchett, Siler & Hardy, P.C.
24 * Powers of Attorney (included on p. II-4 of this
Registration Statement).
99 * Consulting Agreement between the Registrant and Keith Hall
dated May 3, 2000.
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* Filed herewith.
