Exhibit 10
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AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ROOMLINX, INC.,
ARC COMMUNICATIONS INC.
AND
RL ACQUISITION, INC.
DATED: FEBRUARY 25, 2004
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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"), dated
as of February 25, 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 (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
AMENDMENETS TO MERGER AGREEMENT
Section 1.1 The first sentence of Section 1.5 of the Merger Agreement
is hereby amended and restated in its entirety as set forth below:
"At the Effective Time, each of the directors and officers of RL and
ARC immediately prior to the Effective Time shall resign or be removed from
office and concurrently therewith the directors of the Surviving Corporation
shall be comprised of two directors designated by RoomLinX (the "RoomLinX
Designees"), one director designated by ARC (the "ARC Designee") and two
directors designated by the RoomLinX Designees and the ARC Designee (which two
directors may be designated concurrently with or subsequent to the Effective
Time, at the discretion of the RoomLinX Designees and the ARC Designee), such
directors to hold office, subject to the applicable provisions of the articles
of incorporation and bylaws of the Surviving Corporation, until the next annual
stockholders' meeting of the Surviving Corporation and until their respective
successors shall be duly elected or appointed and qualified."
Section 1.2 Section 1.7 of the Merger Agreement is hereby amended and
restated in its entirety as set forth below:
"Section 1.7 Merger Consideration.
(a) At the Effective Time, RoomLinX Shares, other than RoomLinX Shares
held in treasury (which shall be canceled pursuant to Section 1.6(b) above), by
virtue of the Merger and without any action on the part of the holders thereof
(the "RoomLinX Stockholders"), automatically shall be canceled and extinguished
and converted into the right to receive in the aggregate (a) 68,378,346 shares
of ARC Common Stock (the "ARC Merger Shares"); provided that 10,000,000 ARC
Merger Shares shall immediately be deposited in escrow for a period of six
months from the Closing Date to secure the indemnification obligations of
RoomLinX set forth herein, in accordance with the terms of an escrow agreement
to be executed by the parties on the Closing Date (the "Escrow Agreement"), and
(b) options and/or warrants to purchase 11,465,001 shares of ARC Common Stock;
provided that such options and/or warrants shall have an exercise price of not
less than $.20 per share, shall not be entitled to "cashless" exercise
provisions and shall be exercised within two years of the Closing Date. At the
Effective Time, the RoomLinX Stockholders shall deliver stock certificates
representing all of the issued and outstanding RoomLinX Shares to ARC and ARC
shall (x) issue to the RoomLinX Stockholders in exchange therefor stock
certificates representing the ARC Merger Shares, 10,000,000 of which shall be
delivered to the escrow agent in accordance with the Escrow Agreement, and (y)
authorize the issuance of the options and/or warrants referred to above.
(b) Intentionally Omitted."
Section 1.3 Section 3.10 of the Merger Agreement is hereby amended and
restated in its entirety as set forth below:
"Section 3.10 Conduct of Business. Except as expressly contemplated by
this Agreement, from the date of this Agreement until the Closing, ARC shall
operate its business in the ordinary course and in a commercially reasonable
manner and will make all reasonably necessary efforts to preserve intact its
business and its relationships with third parties, the goodwill it has accrued
and the services of its existing officers, employees and directors.
Notwithstanding the foregoing, the parties acknowledge that it is the intention
of ARC to wind down the existing ARC business model and to liquidate all Assets
of ARC (the "ARC Liquidation")."
Section 1.4 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 May 14, 2004, or at such other place and
time and on such other date, as the parties may agree upon in writing ("Closing
Date")."
Section 1.5 Each of subsections (a), (h), (i) and (o) of Article 6 is
hereby amended and restated in its entirety as set forth below:
"(a) ARC shall have complied with Regulation 14A or Regulation 14C, as
the case may be, under the Exchange Act and shall have obtained the approval of
the holders of the requisite number of shares of ARC Common Stock to (i) an
amendment to the articles of incorporation of ARC to (A) increase the number of
authorized shares of ARC Common Stock to 250,000,000 shares and (B) change the
name of ARC to RoomLinX, Inc., or such other name as RoomLinX may direct (the
"Amended Certificate"), (ii) the Merger, and (iii) the ARC Liquidation;
(h) Effective as of the Effective Time, the Board of Directors of the
Surviving Corporation shall be comprised of the RoomLinX Designees and the ARC
Designee;
(i) The ARC Liquidation shall have been completed prior to the Closing;
(o) Effective as of the Effective Time, ARC shall issue options to
purchase 250,000 shares of ARC Common Stock at an exercise price of $0.20 per
share having a three year term and "cashless exercise" provisions, and 250,000
shares of ARC Common Stock to Xxxxxx and Xxxxxxx in consideration for its
services as financial advisor to RoomLinX in connection with the Merger."
Section 1.6 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 May 14,
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
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Chief Executive Officer
ARC COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
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Chief Executive Officer
RL ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxx
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Chief Executive Officer
