Exhibit 4.1
SECURITIES SUBSCRIPTION AGREEMENT
Arc Communications Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
The undersigned investor (the "Investor") hereby agrees to purchase
shares of common stock, par value $0.001 per share ("Common Stock"), of Arc
Communications Inc., a New Jersey corporation (the "Company"), together with a
warrant to purchase Common Stock of the Company (the "Warrant"), on the terms
and conditions set forth in this subscription agreement (this "Agreement").
1. Subscription. Subject to the terms and conditions hereof, the Investor hereby
irrevocably subscribes for, purchases and accepts the shares of Common Stock and
the Warrant (the Common Stock and the Warrant shall sometimes be referred to
herein together as the "Securities") as follows:
Investor's name: ______________________________________________________
(Exact name as it should appear on the stock certificate.)
Investment Amount: _____________________ ("Total Purchase Price")
Price per share of Common Stock (the "Purchase Price"): Seven and
One-Half Cents ($.075)
Number of shares of Common Stock
(Total Purchase Price divided by $.075):
_________ ("Purchased Shares")
Number of shares of Common Stock subject to
Warrant (50% multiplied by Purchased Shares):
________ ("Warrant Shares")
In consideration for the issuance of the Securities listed above, the Investor
tenders herewith to the account of Xxxxxxxxx Ball Xxxxxx Xxxxxx & Xxxxxxxxxx,
LLP, counsel for the Company ("WBEMS"), who shall act as escrow agent for the
Company, the Total Purchase Price, by certified or bank check to the order of
"WBEMS, as escrow agent for Arc Communications Inc.", or by wire transfer of the
Total Purchase Price to the account of WBEMS, each in accordance with the
instructions set forth on Exhibit A hereto. The Investor and the Company agree
that this Agreement shall be irrevocable.
2. Acceptance of Subscription.
(a) The Investor acknowledges and agrees that the Company has the right
to accept or reject this Agreement in whole or in part in its sole and absolute
discretion. This Agreement shall not bind the Company until accepted by it (the
"Acceptance Date"). Any interest earned on funds sent to the Company pursuant to
Section 1 hereof will be for the account of the Company if this Agreement is
accepted. This Agreement is made subject to the terms and conditions set forth
below.
3. Representations and Warranties of the Investor. The Investor represents,
warrants and agrees as follows, and the Investor acknowledges that the Investor
has full knowledge that the Company intends to rely on such representations,
warranties and agreements:
(a) Exempt Transaction; Unregistered Shares. The Investor understands
that the Securities are being offered and sold under one or more exemptions from
registration provided for under the Securities Act of 1933, as amended (the
"Securities Act"), and that the Company's reliance upon such exemptions is
predicated, in part, upon the Investor's representations and warranties set
forth in this Agreement; that the Securities cannot be resold or otherwise
disposed of unless subsequently registered under the Securities Act or unless an
exemption from such registration is available and the Investor agrees not to
resell or otherwise dispose of all or any part of the Securities except as
permitted by law, including, without limitation, any and all applicable
regulations under the Securities Act; that the Company does not have any present
intention of registering the Securities; that the Investor must bear the
economic risk of all or part of its investment for an indefinite period; that
the Investor is purchasing the Shares without being offered or furnished any
offering literature or prospectus concerning the Company's future plans or
business; and that neither the United States Securities and Exchange Commission,
nor any governmental agency charged with the administration of the securities
laws of any state nor any other governmental agency has passed upon or reviewed
the merits or qualifications of, or recommended or approved the offer and sale
of the Securities pursuant to the terms of this Agreement.
(b) Investment Intent; Accreditation. The Investor is acquiring the
Securities for investment for the Investor's own account, not as nominee or
agent, for investment and not with a view to, or for resale or other
distribution thereof. The Investor is an "accredited investor" within the
meaning of Rule 501 under the Securities Act and, if an entity, was not
organized for the specific purpose of acquiring the Securities.
(c) Authority. The Investor has all requisite right, power, authority
and capacity to enter into and perform this Agreement and the terms of this
Agreement constitute valid and binding obligations of the Investor enforceable
in accordance with their terms.
(d) Knowledge and Experience. The Investor (i) currently has, and
immediately prior to receipt of any offer regarding the Company had, such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of investment in the Company and the Securities
and of making an informed investment decisions; and (ii) has the ability to bear
the economic risks of Investor's purchase of Securities for an indefinite period
of time.
(e) Information. The Investor has had an opportunity to ask questions
of, and receive answers from, representatives of the Company concerning that
terms and conditions of this investment, and all such questions have been
answered to the full satisfaction of the Investor. The Investor understands that
no person other than the Company has been authorized to make any representation
and if made, such representation may not be relied on unless it is made in
writing and signed by the Company. The Company has not, however, rendered any
investment advice to the Investor with respect to the suitability of an
investment in the Securities acquired pursuant to this Agreement.
(d) No Obligation to Register Shares. The Investor further acknowledges
and understands that, except as provided in Section 7 hereof, the Company is
under no obligation to register the Securities.
(f) Investor Questionnaire. The Investor has executed and delivered to
the Company with this Agreement the Investor Suitability Questionnaire attached
hereto as Exhibit B, the terms of which are incorporated herein.
(g) Foreign Investor Representation. If the Investor is not a "U.S.
person" (as such term is defined in Rule 902(k) of Regulation S promulgated
under the Securities Act), such Investor hereby represents that it has satisfied
itself as to the full observance of the laws of its jurisdiction in connection
with any invitation to subscribe for the Securities or any use of this
Agreement, including (i) the legal requirements within its jurisdiction for the
purchase of the Securities, (ii) any foreign exchange restrictions applicable to
such purchase, (iii) any governmental or other consents that may need to be
obtained, and (iv) the income tax and other tax consequences, if any, that may
be relevant to the purchase, holding, redemption, sale or transfer of the
Securities. Such Investor's subscription and payment for, and its continued
beneficial ownership of the Securities, will not violate any applicable
securities or other laws of its jurisdiction.
(h) Domicile. The Investor is a bona fide resident and domiciliary (not
a temporary or transient resident) of the state indicated on Exhibit B hereto
and he, she or it has no present intention of becoming a resident of any other
state or jurisdiction.
(i) No Need for Liquidity. The Investor has no need for liquidity in
connection with its purchase of the Securities.
(j) Assurances. The Investor agrees that upon the request of the
Company, at any time prior to closing of the transactions contemplated hereby,
the Investor shall promptly execute and deliver to the Company any agreements or
instruments as it may reasonably request in order to effect the purchase and
issuance of the Securities in accordance with the terms herein.
4. Reliance. The Investor understands that the Company is relying on the
foregoing representations and warranties in determining whether to accept this
Agreement. If for any reason any representations and warranties are no longer
true and accurate prior to the Acceptance Date, the Investor will give the
Company prompt written notice of the inaccuracy. By signing below, the Investor
represents that the Investor has read and confirmed the truth and accuracy of
each of the foregoing representations and warranties.
5. Indemnification. The Investor agrees to indemnify and hold harmless the
Company and each of its directors, officers, agents, and affiliates from and
against any and all loss, damage or liability due to or arising out of a breach
of any representation, warranty or covenant of the undersigned contained in this
Agreement.
6. Restrictive Legend.
(a) Legend. The certificate representing the Securities shall bear the
following legend or similar legend (as well as any legends required by
applicable state and federal corporate and securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS IN COMPLIANCE THEREWITH.
(b) Removal of Legend. The Company agrees to remove any legend upon
registration of the Purchased Shares or the Warrant Shares or upon the
applicability of an exemption from registration with respect to such shares.
7. Registration Rights.
(a) Investor Registration Rights. The Company shall use its
commercially reasonable best efforts to register, at its own expense, the
Purchased Shares, the Warrants and the Warrant Shares, pursuant to a
registration statement on form SB-1 or SB-2 (as applicable) under the Securities
Act (the "Investor Registration"), within sixty (60) days of the closing of the
merger of the Company with RoomLinX, Inc.
(b) Furnish Information. It shall be a condition to the Company's
obligations to take any action under this Section 7 that the Investor shall
furnish to the Company such information regarding itself, the Purchased Shares,
the Warrants and the Warrant Shares and the intended method of disposition of
such securities as shall be required to effect the registration of their
Purchased Shares, Warrants and Warrant Shares. In that connection, each selling
Investor shall be required to represent to the Company that all such information
which is given is both complete and accurate in all material respects when made.
(c) Delay of Registration. The Investor shall have no right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 7.
8. Price Protection.
(a) Sales of Common Stock. Commencing on the Acceptance Date and
terminating on the first anniversary of the Acceptance Date, if the Company
issues or sells any shares of its Common Stock (other than Excluded Shares (as
that term is defined below)) for a consideration per share (the "Dilutive
Price") less than the Purchase Price, then the Company will issue to the
Investor a number of shares, if positive, of Common Stock determined by the
following formula:
X = (A / B) - (C + D)
Where: X = the number of shares of Common Stock to be issued to the
Investor, rounded to the nearest whole number;
A = the Total Purchase Price;
B = the Dilutive Price;
C = the number of Purchased Shares held by the Investor; and
D = the aggregate number of shares of Common Stock issued to
the Investor pursuant to this Section 8(a) prior to the date
of such determination.
Notwithstanding the foregoing, in no event will the Company be obligated to
issue to the Investor in the aggregate a number of shares of Common Stock
pursuant to this Section 8(a) in excess of the number determined by the
following formula:
X = (A / B) - C
Where: X = the maximum aggregate number of shares of Common Stock
issuable to the Investor pursuant to Section 8(a), rounded to
the nearest whole number;
A = the Total Purchase Price;
B = Three Cents ($0.03); and
C = the number of Purchased Shares initially purchased by the
Investor pursuant to the terms of this Agreement.
For purposes of this Agreement, the term "Excluded Shares" means: (i) shares of
Common Stock issuable or issued after the Acceptance Date to officers,
employees, consultants or directors of the Company directly or pursuant to a
stock purchase, stock option, restricted stock or other written compensation
plan or agreement approved by the Board of Directors of the Company (the
"Board"); (ii) shares of Common Stock issued or issuable after the Acceptance
Date, primarily for non-equity financing purposes and as approved by the Board,
to financial institutions or lessors in connection with commercial credit
arrangements, equipment financings or similar transactions or to vendors of
goods or services or customers; (iii) shares of Common Stock issuable upon (a)
exercise of outstanding warrants, options, notes or other rights to acquire
securities of the Company, (b) conversion of outstanding shares of the Company's
Preferred Stock, par value $0.01 per share or (c) exchange of outstanding
promissory notes issued by the Company; (iv) capital stock or warrants or
options to purchase capital stock issued in connection with bona fide
acquisitions, mergers or similar transactions, the terms of which are approved
by the Board; or (v) shares of Common Stock issued or issuable by way of
dividend or other distribution on Excluded Shares.
(b) Change of Control. Commencing on the Acceptance Date and
terminating on the first anniversary of the Acceptance Date, if a Change of
Control (as that term is defined below) is consummated pursuant to which the
Investor, by virtue of its ownership of shares of Common Stock, is entitled to
receive, either out of the assets and funds of the Company available for the
distribution to the holders of Common Stock or from the acquiring entity or
person, aggregate consideration (the "Acquisition Consideration") with a value
less than the product of (x) the number of shares of Common Stock held by the
Investor immediately prior to the Change of Control and (y) the Purchase Price,
then the Company will issue to the Investor, immediately prior to the
consummation of the Change of Control, a number of shares, if positive, of
Common Stock determined by the following formula:
X = (A / B * C) - (C + D)
Where: X = the number of shares of Common Stock to be issued to the
Investor, rounded to the nearest whole number;
A = the Total Purchase Price;
B = the Acquisition Consideration;
C = the number of Purchased Shares initially purchased by the
Investor pursuant to the terms of this Agreement; and
D = the aggregate number of shares of Common Stock issued to
the Investor pursuant to Section 8(a).
For purposes of this Agreement, the term "Change of Control" means (i) a sale or
disposition of all or substantially all of the assets of the Company, and (ii) a
merger or consolidation of the Company with or into any other corporation or
corporations or other entity, or any other corporate reorganization, or any
transfer of beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended), directly or indirectly, of the outstanding shares of capital
stock of the Company, in a single transaction or a series of related
transactions where the shareholders of the Company immediately prior to such
transaction or series of related transactions do not retain at least fifty
percent (50%) of the voting power in the Company or any successor or acquiring
entity (as applicable).
9. Miscellaneous.
(a) Governing Law. This Agreement, all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New York,
without giving effect to principles of choice of law applicable thereto.
(b) Jurisdiction and Venue. Any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
shall be brought or otherwise commenced in any state or federal court located in
the county of New York, New York. Each party consents to personal jurisdiction
and service and venue in any state court located within the State of New York,
County of New York, for the purpose of any claim, action, suit or proceeding
arising out of or relating to this Agreement. The prevailing party in any such
claim, action, suit or proceeding shall be entitled to reimbursement of his
costs and expenses, including without limitation, legal fees.
(c) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof.
(d) Notices. All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person or facsimile transmission (received at the
facsimile machine to which it is transmitted prior to 5:00 p.m., local time, on
a business day in the State of New York, for the party to which it is sent), by
courier or express delivery service or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section):
if to the Company: Arc Communications Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to (not to constitute notice):
Xxxxxxxxx Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to the Investor: To the address set forth in Exhibit B hereto.
(e) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(f) Waivers and Consents. The terms and provisions of this Agreement
may be waived only by an instrument in writing, signed by the party against whom
the waiver is sought to be enforced. The waiver by one party of a breach by the
other of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by such party.
(g) Assignment. This Agreement may not be transferred or assigned
without the prior written consent of the Company and any such transfer or
assignment shall be made only in accordance with applicable laws and any such
consent.
(h) Severability. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
(i) Interpretation. The parties hereto acknowledge and agree that: (i)
each party and such party's counsel has reviewed the terms and provisions of
this Agreement; (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to the parties hereto and not in favor of
or against any party, regardless of which party was generally responsible for
the preparation of this Agreement. Whenever used herein, the singular number
shall include the plural, the plural shall include the singular, the use of any
gender shall include all persons.
(j) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(k) No Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement and
no course of dealing between the parties hereto, shall operate as a waiver of
any such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(l) Survival of Representations and Warranties. All representations and
warranties made by the parties hereto in this Agreement, shall survive (i) the
execution and delivery hereof, (ii) any investigations made by or on behalf of
the parties and (iii) the closing of the transaction contemplated hereby.
(m) Expenses. Each of the parties hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Agreement and the transactions
contemplated hereby whether or not the transactions contemplated hereby are
consummated.
(n) Execution; Facsimile Delivery. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument. Any signature
page delivered by electronic facsimile shall be binding to the same extent as an
original signature page. Any party who delivers such a signature page agrees to
later deliver an original counterpart to the other party upon request.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
___ day of ______________, 2004.
INVESTOR:
By:
-----------------------------------
(signature)
Name:
----------------------------------
(please print)
Title:
---------------------------------
(if applicable)
Arc Communications Inc. hereby accepts the foregoing Agreement subject to the
terms and conditions hereof as of _________ __, 2004.
ARC COMMUNICATIONS INC.
By:
---------------------------
Xxxxx X. Xxxxxx, Xx.
Chief Executive Officer
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
___ day of ______________, 2004.
INVESTOR:
By:
-----------------------------------
(signature)
Name:
----------------------------------
(please print)
Title:
---------------------------------
(if applicable)
Arc Communications Inc. hereby accepts the foregoing Agreement subject to the
terms and conditions hereof as of _________ __, 2004
ARC COMMUNICATIONS INC.
By:
---------------------------
Xxxxx X. Xxxxxx, Xx.
Chief Executive Officer
EXHIBIT A
WBEMS Escrow Information
Payment by Certified or Bank Check
(1) Execute the two signature pages to this Agreement, (2) complete and execute
one copy of the Investor Suitability Questionnaire and (3) send them, together
with a certified or bank check in the amount of the Total Purchase Price to the
order of "WBEMS, as escrow agent for Arc Communications, Inc." to WBEMS at the
following address:
Xxxxxxxxx Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Payment by Wire Transfer
(1) Execute the two signature page to this Purchase Agreement, (2) complete and
execute one copy of the Investor Suitability Questionnaire and (3) send them to
WBEMS at the address set forth above and wire transfer the amount of Total
Purchase Price to WBEMS in accordance with the following wire transfer
instructions:
Fleet Bank
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx
Account No. 94188-70741
Account Name: Xxxxxxxxx Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
ABA Routing No. 000000000
EXHIBIT B
INVESTOR SUITABILITY QUESTIONNNAIRE
ARC COMMUNICATIONS INC. (THE "COMPANY")
(All information will be treated confidentially)
The information contained herein is presented to the Company to
establish that the undersigned prospective investor meets the suitability
standards established for the proposed offering of the Common Stock and the
Warrants (the "Securities") which are being offered to the undersigned by the
Company pursuant to the terms and subject to the conditions set forth in the
Securities Subscription Agreement between the undersigned and the Company.
The Company will use its best efforts to keep your answers
confidential. By signing this Investor Questionnaire, however, you agree that
the Company may present this Investor Questionnaire to certain appropriate
parties if called upon to establish the availability of an exemption from
registration under the Securities Act of 1933, as amended (the "Act"), and/or
comparable state securities laws.
Individual offerees must complete Sections A and C.
Corporations, partnerships and other entities must complete Sections B and C.
(Please Print or Type Your Response)
A. INDIVIDUAL OFFEREES ONLY.
1. Name:
-----------------------------------------------------------------
2. Home Address (principal residential address):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Home Telephone Number: (___) __________________________
3. Social Security Number:
-----------------------------------------------
4. Age:
------------------------------------------------------------------
5. Employer:
-------------------------------------------------------------
Nature of Business:
--------------------------------------------------
Position:
------------------------------------------------------------
Nature of Duties:
----------------------------------------------------
Business Address:
----------------------------------------------------
Business Telephone Number: (___)___________________________
6. Spouse's Name (only if co-purchaser):
---------------------------------
7. Spouse's Social Security Number
(only if co-purchaser):
-------------------------------------------
8. Initial one or more of the following four statements, as they apply.
____ (a) I certify that I am an Accredited Investor because I have had
individual income (exclusive of any income earned by my spouse) of more than
$200,000 in each of the most recent two years and I reasonably expect to have an
individual income in excess of $200,000 for the current year;
____ (b) I certify that I am an Accredited Investor because I have had joint
income with my spouse in excess of $300,000 in each of the two most recent years
and I reasonably expect to have joint income with my spouse in excess of
$300,000 for the current year;
____ (c) I certify that I am an Accredited Investor because I have an individual
net worth, or my spouse and I have a joint net worth, in excess of $1,000,000;
or
____ (d) I certify that I am an Accredited Investor because I am a director,
executive officer, or general partner of the issuer of the securities being
offered or sold, or a director, executive officer, or general partner of a
general partner of that issuer.
B. CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, QUALIFIED PENSION
OR PROFIT SHARING PLANS OR TRUST OFFEREES ONLY.
1. Name of corporation, limited liability company, partnership, qualified
pension or profit sharing plan or trust:
--------------------------------------------------------------------------------
2. Name and title of executive officer, member, partner, trustee or other
authorized fiduciary executing this Investor Questionnaire:
--------------------------------------------------------------------------------
3. Business Address:
--------------------------------------------------------------------------------
4. Telephone Number: (__)
--------------------------------------------------------------------------------
5. Tax Identification Number:
--------------------------------------------
6. Date of incorporation of corporation or date of formation of limited
liability company, partnership, qualified plan, or trust and the state where
incorporated or formed:
7. Investor Suitability Requirements. For purposes of determining whether
the undersigned meets the financial suitability requirements. Please indicate
one or more of the following criteria which is satisfied by checking the
appropriate answer:
____ (a) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act whether acting in its individual or fiduciary capacity;
____ (b) a broker dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended;
____ (c) an insurance company as defined in Section 2(13) of the Securities Act;
____ (d) an investment company registered under the Investment Company Act of
1940 (the "Company Act") or a business development company as defined in Section
2(a)(48) of the Company Act;
____ (e) a Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958;
____ (f) a plan, established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, whose total assets exceed
$5,000,000;
____ (g) an employee benefit plan, within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, whose investment decisions are made by
a plan fiduciary, as defined in Section 3(21) of such Act, which is either a
bank, savings and loan association or an insurance company (as defined in
Section 3(a) of the Securities Act) or an investment adviser registered as such
under the Investment Advisers Acts of 1940 (the "Advisers Act"), or whose total
assets are in excess of $5,000,000;
____ (h) a self-directed employee benefit plan, including an Individual
Retirement Account, with investment decisions made solely by persons that are
accredited investors by reason other than this paragraph;
____ (i) a private business development company as defined in Section 202(a)(22)
of the Advisers Act;
____ (j) an organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended (the "IRS"), not formed for the specific purpose of
acquiring the Shares, with total assets in excess of $5,000,000;
____ (k) a corporation, partnership or Massachusetts or similar business trust,
not formed for the specific purpose of acquiring the Shares, with total assets
in excess of $5,000,000; or
____ (l) a trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Shares, whose purchase is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of an investment in the Shares.
9. The undersigned represents and warrants as follows:
(a) The corporation, limited liability company, partnership, qualified
plan, or trust, as the case may be, is duly organized and is validly existing as
a corporation, limited liability company, partnership, qualified pension or
profit sharing plan or trust in good standing under the laws of the jurisdiction
of its incorporation or formation, with full power and authority to purchase the
Shares.
(b) The officers, members, partners or trustees of the undersigned who,
on behalf of the undersigned, have considered the purchase of the Shares, and
the advisers, if any, of the corporation, limited liability company,
partnership, qualified plan or trust, as the case may be, in connection with
such consideration are named below in this Investor Questionnaire, and such
officers, members, partners, trustees, and advisers, if any, were duly
authorized to act for the corporation, limited liability company, partnership,
qualified plan or trust in reviewing this investment.
(c) The officers and/or advisers of the corporation or the partners
and/or advisers of the partnership, or the members and/or advisers of the
limited liability company, or the trustees and/or advisers of the qualified plan
or trust, who, on its behalf, have considered the purchase of the Shares,
together have such knowledge and experience in financial and business matters
that they are capable of evaluating the merits and risks of a purchase of the
Shares and of making an informed investment decision.
C. TO BE COMPLETED BY ALL OFFEREES.
IN WITNESS WHEREOF, the undersigned has duly executed this Investor
Questionnaire relating to Arc Communications Inc., this ____day of _________,
2004.
FOR INDIVIDUALS: FOR CORPORATIONS:
---------------------------------
(Print Name of Corporation)
By:
----------------------------------- -----------------------------
Name of Purchaser Name:
Title:
-----------------------------------
Name of Co-Purchaser, if any
FOR PARTNERSHIPS: FOR LIMITED LIABILITY COMPANIES:
----------------------------------- ---------------------------------
(Print Name of Partnership) (Print Name of LLC)
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
FOR TRUSTS:
-----------------------------------
(Print Name of Trust)
By:
-------------------------------
Name:
Title:
