AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER between SOMERSET INTERNATIONAL GROUP,
INC., a Delaware corporation ("Somerset Delaware"), and SOMERSET
INTERNATIONAL GROUP, INC., a New Jersey corporation ("Somerset New
Jersey"), Somerset Delaware and Somerset New Jersey being sometimes
referred to herein as the "Constituent Corporations."
WHEREAS, the board of directors of each Constituent Corporation deems it
advisable that the Constituent Corporations merge into a single corporation in a
transaction intended to qualify as a reorganization within the meaning of
Section 368 (a)(1)(A) of the Internal Revenue Code of 1986, as amended ("the
Merger");
NOW, THEREFORE, in consideration of the premises and the respective
mutual covenants, representations and warranties herein contained, the parties
agree as follows:
1. SURVIVING CORPORATION. Somerset New Jersey shall be merged with and into
Somerset Delaware, which shall be the surviving corporation in accordance with
the applicable laws of its state of incorporation.
2. MERGER DATE. The Merger shall become effective (the" Merger Date") upon
the completion of:
2.1. Adoption of this agreement by Somerset Delaware pursuant to the
General Corporation Law of Delaware and by Somerset New Jersey pursuant to
General Corporation Law of the State of New Jersey.
2.2. Execution and filing by Somerset New Jersey of Articles of Merger
with the Department of State of the State of New Jersey in accordance with the
General Corporation Law of New Jersey.
2.3. Execution and filing by Somerset Delaware of a Certificate of
Merger with the Secretary of State of the State of Delaware in accordance with
the General Corporation Law of Delaware.
2.4 The Articles of Merger shall be filed with the Department of State
of the State of New Jersey and the Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval, as required by law, of this
agreement by the Constituent Corporations and the fulfillment or waiver of the
terms and conditions herein. These filings will be completed within the earlier
of the consummation by Somerset Delaware of its initial acquisition or June 30,
2004.
3. GOVERNING LAW. The surviving corporation shall be governed by the laws
of the State of incorporation of Somerset Delaware.
4. CERTIFICATE OF INCORPORATION. The Articles of Incorporation of Somerset
Delaware shall be the Articles of Incorporation of the surviving corporation
from and after the Merger Date.
5. BYLAWS. The Bylaws of the surviving corporation shall be the Bylaws of
Somerset Delaware as in effect on the date of this agreement.
6. BOARD OF DIRECTORS AND OFFICERS. The officers and directors of Somerset
Delaware, or such other persons as shall be selected by it, shall be the
officers and directors of the surviving corporation following the Merger Date.
7. NAME OF SURVIVING CORPORATION. The name of the surviving corporation
will continue as "Somerset International Group, Inc." unless changed by Somerset
Delaware.
8. CONVERSION. The mode of carrying the Merger into effect and the manner
and basis of converting the shares of Somerset New Jersey into shares of
Somerset Delaware are as follows:
8.1 All of the shares of Somerset New Jersey Common Stock issued and
outstanding on the Merger Date shall, by virtue of the Merger and without any
action on the part of the holders thereof, be converted into 4,063,884 shares of
Somerset Delaware's Common Stock to be adjusted by any increase for fractional
shares and reduced by any Dissenting Shares (defined below) and shall be
distributed as shown opposite the Somerset New Jersey shareholder(s) names in
exhibit A.
The Somerset Delaware Common Stock to be issued hereunder ("xxx XXXX Shares")
will be issued pursuant to Section 4 (2) of the Securities Act of 1933 and/or
Rule 506 of the General Rules and Regulations of the Securities and Exchange
Commission, will be restricted as to the transferability pursuant to Rule 144
thereof, and will bear substantially the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF SOMERSET DELAWARE."
8.2. Upon completion of the Merger, there shall be approximately
5,100,000 shares of Somerset Delaware Common Stock issued and outstanding,
subject to such adjustments.
8.3. All outstanding Common Stock of Somerset New Jersey and all
warrants, options or other rights to its Common Stock shall be retired and
canceled as of the Merger Date.
8.4. Each share of Somerset New Jersey Common Stock that is owned by
Somerset New Jersey as treasury stock shall, by virtue of the Merger and without
any action on the part of Somerset New Jersey, be retired and canceled as of the
Merger Date.
8.5. Each certificate evidencing ownership of shares of Somerset
Delaware Common Stock issued and outstanding on the Merger Date or held by
Somerset Delaware in its treasury shall continue to evidence ownership of the
same number of shares of Somerset Delaware Common Stock.
8.6. Somerset Delaware Common Stock shall be issued to the holders of
Somerset New Jersey Common Stock in exchange for their shares on a pro rata
bases in accordance with each holder's relative ownership of the Somerset New
Jersey Common Stock that is being exchanged.
8.7. The shares of Somerset Delaware Common Stock to be issued in
exchange for Somerset New Jersey Common Stock hereunder shall be proportionately
reduced by any shares owned by Somerset New Jersey shareholders who shall have
timely objected to the Merger (the" Dissenting Shares") in accordance with the
provisions of the General Corporation Law of New Jersey, as provided therein.
8.8. Somerset Delaware Common Stock held by Somerset New Jersey shall
be transferred proportionately to the shareholders of Somerset New Jersey as set
forth on Exhibit A.
9. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing shares of Somerset New Jersey Common Stock (other than certificates
representing Dissenting Shares) shall surrender such certificate(s) for
cancellation to the party designated herein to handle such exchange (the
"Exchange Agent"), and shall receive in exchange a certificate or certificates
representing the number of full shares of Somerset Delaware Common Stock into
which the shares of Somerset New Jersey Common Stock represented by the
certificate or certificates so surrendered shall have been converted. Any
exchange of fractional shares will be rounded up to the next highest number of
full shares. Somerset Delaware may, in its discretion, require a bond in
customary form before issuing any share certificate where a corresponding share
certificate has not been delivered by a shareholder of Somerset New Jersey
because of loss or other reason.
10. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Somerset New Jersey Common
Stock (other than certificates representing Dissenting Shares) shall be deemed
for all purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Somerset Delaware Common Stock
into which it was converted. No dividend or other distribution payable to
holders of Somerset New Jersey Common Stock as of any date subsequent to the
Merger Date shall be paid to the holders of outstanding certificates of Somerset
New Jersey Common Stock; provided, however, that upon surrender and exchange of
such outstanding certificates (other than certificates representing Dissenting
Shares), there shall be paid to the record holders of the certificates issued in
exchange therefore the amount, without interest thereon, of dividends and other
distributions that would have been payable subsequent to the Merger Date with
respect to the shares of Somerset Delaware Common Stock represented thereby.
11. EFFECT OF THE MERGER. On the Merger Date, the separate existence of
Somerset New Jersey shall cease (except insofar as continued by statute), and it
shall be merged with and into Somerset Delaware. All the property, real,
personal and mixed, of each of the Constituent Corporations, and all debts due
to either of them, shall be transferred to and vested in Somerset Delaware,
without further act or deed. Somerset Delaware shall thenceforth be responsible
and liable for all the liabilities and obligations, including liabilities to
holders of Dissenting Shares, of each of the Constituent Corporations, and any
claim or judgment against either of the Constituent Corporations maybe enforced
against Somerset Delaware.
12. REPRESENTATIONS AND WARRANTIES OF SOMERSET DELAWARE. Somerset Delaware
represents and warrants that:
12.1. CORPORATE ORGANIZATION AND GOOD STANDING. Somerset Delaware is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
12.2. REPORTING COMPANY STATUS. Somerset Delaware is a reporting
company pursuant to Section (g) of the Securities Exchange Act of 1934.
12.3. REPORTING COMPANY FILINGS. Somerset Delaware has timely filed
and is current on all reports required to be filed by it pursuant to Section 13
of the Securities Exchange Act of 1934.
12.4. CAPITALIZATION. Somerset Delaware's authorized capital stock
consists of 200,000,000 shares of Common Stock, $.001 par value, of which
1,036,116 shares will be issued and outstanding after the 1-21 reverse split to
be undertaken by Somerset Delaware.
12.5. ISSUED STOCK. All the outstanding shares of its Common Stock are
duly authorized and validly issued, fully paid and non-assessable.
12.6. STOCK RIGHTS. Except as set out by attached schedule, there are
no stock grants, options, rights, warrants or other rights to purchase or obtain
Somerset Delaware Common or Preferred Stock issued or committed to be issued.
12.7. CORPORATE AUTHORITY. Somerset Delaware has all requisite
corporate power and authority to own, operate and lease its properties, to carry
on its business as it is now being conducted and to execute, deliver, perform
and conclude the transactions contemplated by this agreement and all other
agreements and instruments related to this agreement
12.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Somerset Delaware Financial Statements,
Somerset Delaware did not have at that date any liabilities or obligations
(secured, unsecured, contingent, or otherwise) of a nature customarily reflected
in a corporate balance sheet prepared in accordance with generally accepted
accounting principles.
12.9. NO MATERIAL CHANGES. There has been no material adverse change
in the business, properties or financial condition of Somerset Delaware since
the date of the Somerset Delaware Financial Statements.
12.10. LITIGATION. There is not, to the knowledge of Somerset
Delaware, any pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or contemplated
against Somerset Delaware or against any of its officers.
12.11. CONTRACTS. Somerset Delaware is not a party to any material
contract not in the ordinary course of business that is to be performed in whole
or in part at or after the date of this agreement.
12.12. TITLE. Somerset Delaware has good and marketable title tall the
real property and good and valid title to all other property included in the
Somerset Delaware Financial Statements. The properties of Somerset Delaware are
not subject to any mortgage, encumbrance or lien of any kind except minor
encumbrances that do not materially interfere with the use of the property in
the conduct of the business of Somerset Delaware.
12.13. TAX RETURNS. All required tax returns for federal, state,
county, municipal, local, foreign and other taxes and assessments have been
properly prepared and filed by Somerset Delaware for all years for which such
returns are due unless an extension for filing any such return has been filed.
Any and all federal, state, county, municipal, local, foreign and other taxes
and assessments, including any and all interest, penalties and additions imposed
with respect to such amounts have been paid or provided for. The provisions for
federal and state taxes reflected in the Somerset Delaware Financial Statements
are adequate to cover any such taxes that may be assessed against Somerset
Delaware in respect of its business and its operations during the periods
covered by the Somerset Delaware Financial Statements and all prior periods.
12.14. NO VIOLATION. Consummation of the Merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of Somerset Delaware is subject or by which
Somerset Delaware is bound.
13. REPRESENTATIONS AND WARRANTIES OF Somerset New Jersey represents and
warrants that:
13.1. CORPORATE ORGANIZATION AND GOOD STANDING. Somerset New Jersey is
a corporation duly organized, validly existing, and in good standing under the
laws of the State of New Jersey and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
13.2. CAPITALIZATION. Somerset New Jersey's authorized capital stock
consists of 2,500 shares of Common Stock, $.001 par value, of which 222.22
shares are issued and outstanding.
13.3. ISSUED STOCK. All the outstanding shares of its Common Stock are
duly authorized and validly issued fully paid and nonassessable.
13.4. STOCK RIGHTS. There are no stock grants, options, rights,
warrants or other rights to purchase or obtain Somerset New Jersey Common or
Preferred Stock issued or committed to be issued.
13.5 CORPORATE AUTHORITY. Somerset New Jersey has all Requisite
corporate power and authority to own, operate and lease its properties, to carry
on its business as it is now being conducted and to execute, deliver, perform
and conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this agreement.
13.6. SUBSIDIARIES. Except as set out in Disclosure Schedule 13.6,
Somerset New Jersey has no subsidiaries.
13.7. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected on Schedule 13.7, Somerset New Jersey did not have at that date any
liabilities or obligations (secured, unsecured, contingent, or otherwise) of
nature customarily reflected in a corporate balance sheet prepared in accordance
with generally accepted accounting principles.
13.8. LITIGATION. Except as set out in Disclosure Schedule 13.8, there
is not, to the knowledge of Somerset New Jersey, any pending, threatened, or
existing litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Somerset New Jersey or against
any of its officers.
13.9. CONTRACTS. Except as set forth in Schedule 13.9, Somerset New
Jersey is not a party to any material contract not in the ordinary course of
business or in the course of its proposed acquisitions that is to be performed
in whole or in part at or after the date of this Agreement.
13.10. TITLE. Somerset New Jersey owns no real property.
13.11. TAX RETURNS. All required tax returns for federal, state,
county, municipal, local, foreign and other taxes and assessments have been
properly prepared and filed by Somerset New Jersey for all years for which such
returns are due unless an extension for filing any such return has been filed.
Any and all federal, state, county, municipal, local, foreign and other taxes
and assessments, including any and all interest, penalties and additions imposed
with respect to such amounts have been paid or provided for.
13.12. NO VIOLATION. Consummation of the Merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of Somerset New Jersey is subject or by
which Somerset New Jersey is bound.
14. CONDUCT OF SOMERSET DELAWARE PENDING THE MERGER DATE. Somerset Delaware
covenants that between the date of this Agreement and the Merger Date:
14.1. No change will be made in Somerset Delaware's Articles of
Incorporation or bylaws.
14.2. Somerset Delaware will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital stock other
than as provided herein.
14.3. Somerset Delaware will use its best efforts to maintain and
preserve its business organization, employee relationships and goodwill intact,
and will not enter into any material commitment except in the ordinary course of
business.
15. CONDUCT OF SOMERSET NEW JERSEY PENDING THE MERGER DATE. Somerset New
Jersey covenants that between the date of this Agreement and the Merger Date:
15.1. No change will be made in Somerset New Jersey's Articles of
incorporation or bylaws.
15.2. Somerset New Jersey will not make any change in its authorized
or issued capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital stock
otherwise than as provided herein.
15.3. Somerset New Jersey will use its best efforts to maintain and
preserve its business organization, employee relationships and goodwill intact,
and will not enter into any material commitment except in the ordinary course of
business.
16. CONDITIONS PRECEDENT TO OBLIGATION OF SOMERSET DELAWARE. Somerset
Delaware's obligation to consummate the Merger shall be subject to fulfillment
on or before the Merger Date of each of the following conditions, unless waived
in writing by Somerset Delaware:
16.1. SOMERSET NEW JERSEY'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Somerset New Jersey set forth herein shall be
true and correct at the Merger Date as though made at and as of that date,
except as affected by transactions contemplated hereby.
16.2. SOMERSET NEW JERSEY'S COVENANTS. Somerset New Jersey shall have
performed all covenants required by this agreement to be performed by it on or
before the Merger Date.
16.3. APPROVAL. Somerset New Jersey shall have approved this agreement
in such manner as is required by law including all appropriate action by
directors and, if required, by shareholders.
16.4. SUPPORTING DOCUMENTS OF Somerset New Jersey. Somerset New Jersey
shall have delivered to Somerset Delaware supporting documents in form and
substance satisfactory to Somerset Delaware to the effect that:
(i) Somerset New Jersey is a corporation duly organized, validly
existing, and in good standing.
(ii) Somerset New Jersey's authorized and issued capital stock is
asset forth herein.
(iii) The execution and adoption of this agreement have been duly
authorized by Somerset New Jersey in such manner as is required
bylaw including all appropriate action by directors and, if
required, by shareholders.
17. CONDITIONS PRECEDENT TO OBLIGATION OF SOMERSET NEW JERSEY. Somerset New
Jersey's obligation to consummate the Merger shall be subject to fulfillment by
Somerset Delaware on or before the Merger Date of each of the following
conditions, unless waived in writing by Somerset New Jersey:
17.1. SOMERSET DELAWARE'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Somerset Delaware set forth herein shall be
true and correct at the Merger Date as though made at and as of that date,
except as affected by transactions contemplated hereby.
17.2. SOMERSET DELAWARE'S COVENANTS. Somerset Delaware shall have
performed all covenants required by this agreement to be performed by it on or
before the Merger Date.
17.3. APPROVAL. Somerset Delaware shall have approved this Agreement
in such manner as is required by law including all appropriate action by
directors and, if required, by shareholders.
17.4. SUPPORTING DOCUMENTS OF SOMERSET DELAWARE. Somerset Delaware
shall have delivered to Somerset New Jersey supporting documents in form and
substance satisfactory to Somerset New Jersey to the effect that:
(i) Somerset Delaware is a corporation duly organized, validly
existing, and in good standing.
(ii) Somerset Delaware's authorized and issued capital stock is as set
forth herein.
(iii) The execution and adoption of this Agreement have been duly
authorized by Somerset Delaware in such manner as is required
bylaw including all appropriate action by directors and, if
required, by shareholders.
18. ACCESS. From the date hereof to the Merger Date, Somerset New Jersey
and Somerset Delaware shall provide each other with such information and permit
each other's officers and representatives such access to its properties and
books and records as the other may from time to time reasonably request. If the
Merger is not consummated as defined hereafter, all documents and consideration
received in connection with this agreement shall be returned to the party
furnishing such documents and consideration, and all information so received
shall be treated as confidential.
19. CLOSING.
19.1. The transfers and deliveries to be made pursuant to this
agreement (the "Closing") shall be made by and take place at the offices of the
Exchange Agent or other location designated by the Constituent Corporations
without requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have been
taken, delivered and executed simultaneously, and no proceeding shall be deemed
taken nor documents deemed executed or delivered until all have been taken,
delivered and executed.
19.2. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission required by this agreement or any
signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be complete reproduction of the entire original writing or
transmission or original signature.
19.3. At the Closing, Somerset New Jersey shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to Somerset
Delaware:
(i) A list of the holders of record of the shares of Somerset New
Jersey Common Stock being exchanged, with an itemization of the number of shares
held by each, the address of each holder, and the aggregate number of shares of
Somerset Delaware Common Stock to be issued to each holder;
(ii) Evidence of the execution and adoption of this Agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of New Jersey as of a
recent date as to the good standing of Somerset New Jersey;
(iv) Certified copies of the board of directors of Somerset New Jersey
authorizing the execution of this agreement and the consummation of the Merger;
(vi) Any document as may be specified herein or required to satisfy
the conditions, representations and warranties enumerated elsewhere herein; and
(viii) The share certificates for the outstanding Common Stock of
Somerset New Jersey to be exchanged hereunder or, where any such certificate is
not delivered, an affidavit of lost certificate or other reason for
non-delivery.
19.4. At the Closing, Somerset Delaware shall deliver to the Exchange
Agent in satisfactory form, if not already delivered to Somerset New Jersey:
(i) A list of its shareholders of record;
(ii) Evidence of the execution and adoption of this Agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of its state of
incorporation as of a recent date as to the good standing of Somerset Delaware;
(iv) Certified copies of the board of directors of Somerset Delaware
authorizing the execution of this agreement and the consummation of the Merger;
(vi) Any document as may be specified herein or required to satisfy
the conditions, representations and warranties enumerated elsewhere herein; and
(vii) The share certificates of Somerset Delaware to be delivered to
the shareholders of Somerset New Jersey hereunder, in proper names and amounts,
and bearing legends, if any, required and appropriate under applicable
securities laws.
19.5. At Closing, Somerset New Jersey shall cancel the loan of $50,000
made by it to Somerset Delaware on February 3, 2004.
20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
21. ARBITRATION.
21.1. SCOPE. The parties hereby agree that any and all claims (except
only for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the state of New Jersey.
21.2. CONSENT TO JURISDICTION, SITUS AND JUDGMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and any requests for injunctive or other
equitable relief) within the state of New Jersey. Any award in arbitration may
be entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
21.3. APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the State of New Jersey, determined without regard to
its provisions, which would otherwise apply to question of conflict of laws.
21.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the Arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
21.5. RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
21.6. FINALITY AND FEES. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically provided otherwise in this
agreement.
21.7. MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
21.8. COVENANT NOT TO XXX. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
21.9. INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
whether in regard to this Agreement or any other matter, from whatever cause,
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
Agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
22. SURVIVAL. The provisions for arbitration contained herein shall survive
the termination of this agreement for any reason.
22.1. FURTHER ASSURANCES. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this agreement.
22.2. WAIVER. Any failure on the part of either party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
22.3. BROKERS. Each party agrees to indemnify and hold harmless the
other party against any fee, loss or expense arising out of claims by brokers or
finders employed or alleged to have been employed by the indemnifying party.
22.4. NOTICES. All notices hereunder shall be in writing and shall be
deemed to have been given if delivered in person or sent by prepaid first-class
certified mail, return receipt requested, or recognized commercial courier
service, as follows:
If to Somerset Delaware, to:
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
If to Somerset New Jersey, to:
Somerset International Group, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
23. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New Jersey.
24. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
25. COUNTERPARTS. This agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
26. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be Xxxxxx &
Xxxxxx, LLP. The Closing shall take place upon the fulfillment by each party of
all the conditions of Closing required herein, but not later than 14 days
following execution of this Agreement unless extended by mutual consent of the
parties.
27. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this Agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this Agreement.
28. SCHEDULES. All schedules attached hereto, if any, shall be acknowledged
by each party by signature or initials thereon.
29. EFFECTIVE DATE. The effective date of this agreement shall be February
27, 2004.
IN WITNESS WHEREOF, the parties have executed this Agreement.
SOMERSET INTERNATIONAL GROUP, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxxx
SOMERSET INTERNATIONAL GROUP, INC., a New Jersey corporation
By: /s/ Xxxx X. Xxxxxxxx
EXCHANGE AGENT
XXXXXX & JACLIN, LLP
/s/ Xxxxx X. Xxxxxx
EXHIBIT A
SCHEDULE OF SHARES
1. ADDITIONAL SHARES TO BE ISSUED TO SOMERSET NEW JERSEY SHAREHOLDERS:
XXXX X. XXXXXXXX- 1,800,000 SHARES OF COMMON STOCK
XXXX XXXXXXXX- 1,800,000 SHARES OF COMMON STOCK
XXXXXXX XXXXXXX- 57,496 SHARES OF COMMON STOCK
XXXXXX AND XXXX
XXX XXXXX JTWROS- 406,388 SHARES OF COMMON STOCK
------------------- ---------------------------------
TOTAL: 4,063,884 SHARES OF COMMON STOCK
2. TO BE EXCHANGED FOR CERTIFICATE OF 644,107 REGISTERED SHARES OF
SOMERSET DELAWARE HELD BY SOMERSET NEW JERSEY:
XXXX X. XXXXXXXX- 289,848 SHARES OF COMMON STOCK
XXXX XXXXXXXX- 289,848 SHARES OF COMMON STOCK
XXXXXX AND XXXX
XXX XXXXX JTWROS- 64,411 SHARES OF COMMON STOCK
-------------------- --------------------------------
TOTAL: 644,107 SHARES OF COMMON STOCK
