EXHIBIT 10.3
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ROOMLINX, INC.,
ARC COMMUNICATIONS INC.
AND
RL ACQUISITION, INC.
DATED: MAY 14, 2004
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT"),
dated as of May 14, 2004, is made and entered into by and among ROOMLINX, INC.,
a Nevada corporation ("ROOMLINX"), ARC COMMUNICATIONS INC., a New Jersey
corporation ("ARC"), and RL ACQUISITION, INC., a Nevada corporation and
wholly-owned subsidiary of ARC ("RL"). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Merger Agreement (as
hereinafter defined).
BACKGROUND
WHEREAS, the parties have executed an Agreement and Plan of Merger, dated
as of December 8, 2003, and an Amendment to Agreement and Plan of Merger, dated
as of February 28, 2004 (together, the "MERGER AGREEMENT"), pursuant to which
they have agreed to effect the merger of RoomLinX with and into RL, with RL the
surviving entity, and, immediately thereafter, to effect the merger of RL with
and into ARC, with RL the surviving entity; and
WHEREAS, the parties hereto desire to make certain amendments to the
Merger Agreement upon the terms and subject to the conditions more fully set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
AMENDMENTS TO MERGER AGREEMENT
SECTION 1.1 Article 5 of the Merger Agreement is hereby amended and
restated in its entirety as set forth below:
"The closing ("CLOSING") of the Merger and any other transactions
contemplated by this Agreement shall take place at the law offices of Xxxxxxxxx
Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP, 000 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx
00000 within ten (10) days after satisfaction of the conditions set forth in
Article 6 hereof, but no later than June 15, 2004, or at such other place and
time and on such other date, as the parties may agree upon in writing ("CLOSING
DATE")."
SECTION 1.2 Subsection (b) of Article 9 is hereby amended and restated in
its entirety as set forth below:
"(b) by RoomLinX or ARC (on behalf of RL), if the Effective Time shall not
have occurred as soon as reasonably practicable but no later than June 15, 2004;
provided, however, that the right to terminate this Agreement under this Section
9(b) shall not be available if the reason the Effective Time has not occurred is
the intentional failure by the party seeking termination to fulfill any
obligation under this Agreement."
ARTICLE II
MISCELLANEOUS
SECTION 2.1 FULL FORCE AND EFFECT. Except as amended hereby, the terms of
the Merger Agreement remain in full force and effect.
SECTION 2.2 COUNTERPARTS. This Amendment may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 2.3 GOVERNING LAW; VENUE. This Amendment shall be construed in
accordance with, and governed by, the law of the State of New York without
regard to any principles of conflicts of law. The parties hereby agree that any
action, suit, arbitration or other proceeding arising out of or related to this
Amendment shall be brought, maintained and conducted only in New York, and each
party hereby irrevocably consents and submits to the personal jurisdiction of
and venue in the United States District Court for the Eastern District of New
York and the New York State Courts in any such proceeding.
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IN WITNESS WHEREOF, the parties to this Amendment have duly executed it as
of the day and year first set forth above.
ROOMLINX, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
Chief Executive Officer
ARC COMMUNICATIONS INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Chief Executive Officer
RL ACQUISITION, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Chief Executive Officer
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