EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
OF
FINELINE XXXXXXXXXX.XXX, INC.
(A NEVADA CORPORATION)
WITH AND INTO
FINELINE HOLDINGS, INC.
(A DELAWARE CORPORATION)
This AGREEMENT AND PLAN OF MERGER (this ?Agreement?) is
made and entered into as of December 10, 2004 between FINELINE
XXXXXXXXXX.XXX, INC., a Nevada corporation (?Fineline Nevada?),
and, FINELINE HOLDINGS, INC, a Delaware corporation (?Fineline
Delaware?).
R E C I T A L S
WHEREAS, Fineline Nevada is a corporation duly organized
and existing under the laws of the State of Nevada;
WHEREAS, Fineline Delaware is a corporation duly organized
and existing under the laws of the State of Delaware; and
WHEREAS, the Board of Directors of each of Fineline Nevada
and Fineline Delaware deem it desirable to merge Fineline Nevada
with and into Fineline Delaware so that Fineline Delaware is the
surviving corporation on the terms provided herein (the
?Merger?).
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
MERGER
1.1 The Merger. Upon the Effective Date (as defined in
Section 1.5) and subject to and upon the terms of conditions
provided in this Agreement and the applicable provisions of the
General Corporation Law of the State of Delaware (the ?DGCL?)
and the General Corporation Law of the State of Nevada (the
?NGCL?), Fineline Nevada will merge with and into Fineline
Delaware, the separate corporate existence of Fineline Nevada
shall cease, and Fineline Delaware shall be the surviving
corporation. Fineline Delaware is hereinafter sometimes
referred to as the ?Surviving Corporation.?
1.2 Constituent Corporations. The name, address,
jurisdiction of organization and governing law of each of the
constituent corporations is as follows:
(a) FINELINE XXXXXXXXXX.XXX, INC., a corporation
organized under and governed by the laws of the State of
Nevada with an address at 000 Xxxxx Xxxxx Xxxxxx, Xxxx,
Xxxx 00000 and
(b) FINELINE HOLDINGS, INC., a corporation organized
under and governed by the laws of the State of Delaware
with an address at 000 Xxxxx Xxxxx Xxxxxx, Xxxx, Xxxx
00000.
1.3 Surviving Corporation. Fineline Holdings, Delaware, a
corporation organized under the laws of the State of Delaware,
shall be the surviving corporation.
1.4 Address of Principal Office of Surviving Corporation.
The address of the principal office of Fineline Delaware as the
Surviving Corporation shall be 000 Xxxxx Xxxxx Xxxxxx, Xxxx,
Xxxx 00000..
1.5 Closing: Effective Date. The Merger shall be
effective (the ?Effective Date?), on the date upon which the
last of the following shall have been completed:
(a) This Agreement and the Merger shall have been
adopted and recommended to the stockholders of Fineline
Nevada by the board of directors of Fineline Nevada and
approved by a majority voting power of Fineline Nevada, in
accordance with the requirements of the DGCL and the NGCL;
(b) This Agreement and the Merger shall have been
adopted and approved by the board of directors of Fineline
Delaware in accordance with the requirements of the DGCL;
(c) No vote of the stockholders of Fineline Delaware
shall be necessary to approve this Agreement and authorize
the Merger because no shares of Fineline Delaware shall
have been issued prior to the adoption by the board of
directors of Fineline Delaware of the resolution approving
this Agreement;
(d) The effective date of the Merger as stated in the
executed Articles of Merger filed with the Secretary of
State of the State of Nevada; and
(e) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of
the DGCL shall have been filed with the Secretary of State
of the State of Delaware.
1.6 Effect of the Merger. The effect of the Merger shall
be as provided in this Agreement, the Certificate of Merger, and
the applicable provisions of the DGCL and the NGCL. Without
limiting the foregoing, on the Effective Date, all the property,
rights, privileges, powers and franchises of Fineline Nevada
shall vest in Fineline Delaware, as the Surviving Corporation,
and all debts, liabilities and duties of Fineline Nevada shall
become the debts, liabilities and duties of Fineline Delaware,
as the Surviving Corporation.
1.7 Certificate of Incorporation; Bylaws.
(a) From and after the Effective Date, the
Certificate of Incorporation of Fineline Delaware as in
effect immediately prior to the Effective Date, shall be
the Certificate of Incorporation of the Surviving
Corporation.
(b) From and after the Effective Date, the Bylaws of
Fineline Delaware as in effect immediately prior to the
Effective Date, shall be the Bylaws of the Surviving
Corporation.
1.8 Directors and Officers of the Surviving Corporation.
From and after the Effective Date, the directors or officers of
Fineline Delaware serving as directors or officers of Fineline
Delaware immediately prior to the Effective Date, shall be the
directors and officers of the Surviving Corporation.
ARTICLE II
CONVERSION OF SHARES
2.1 Conversion of Capital Stock. Upon the Effective Date,
by virtue of the Merger and without any action on the part of
the holders of any outstanding shares of capital stock or other
securities of Fineline Nevada, each 100 shares of common stock
of Fineline Nevada, par value $0.001 per share (?Company Common
Stock?), issued and outstanding or held in treasury immediately
prior to the Effective Date shall be converted into one (1)
fully paid and nonassessable share of Common Stock, par value
$0.001 per share, of the Surviving Corporation (?Delaware Common
Stock?), except for those shares of Company Common Stock with
respect to which the holders thereof duly exercise their
dissenters? rights under Nevada law and each share of Series A
Convertible Preferred Stock of Fineline Nevada, par value $0.001
per share (the ?Series A Preferred Stock?), and Series B
Convertible Preferred Stock of Fineline Nevada, par value $0.001
per share (the ?Series B Preferred Stock?) (collectively, the
?Company Preferred Stock?) issued and outstanding immediately
prior to the Effective Date shall be converted into , Series B
Preferred Stock and Series B Preferred Stock, par value $0.001
per share, respectively of the Surviving Corporation
(?collectively, the Delaware Preferred Stock?) except for those
shares of those shares of Series A Preferred Stock and Series B
Preferred Stock which automatically convert to Delaware Common
Stock by virtue of the Merger. Upon the Effective Date, by
virtue of the Merger and without any action on the part of the
holders of any outstanding shares of capital stock or other
securities of Fineline Nevada, each certificate which,
immediately prior to the Effective Date represented a share or
shares of Company Common Stock or a share of Company Preferred
Stock shall represent the number of shares of Delaware Common
Stock or Delaware Preferred Stock, as specified in this
paragraph 2.1.
2.2 Delaware Common Stock. Upon the Effective Date, each
share of Delaware Common Stock or Delaware Preferred Stock
issued and outstanding immediately prior to the Merger, if any,
shall, by virtue of the Merger and without any action by the
holder thereof or Fineline Delaware, cease to be outstanding,
and shall be canceled and returned to the status of authorized
but unissued shares and any holder of certificates which
immediately prior to the Effective Date represented such shares
of Delaware Common Stock or Delaware Preferred Stock shall
thereafter cease to have any rights with respect to such shares.
2.3 Fineline Nevada Employee Plans and Options.
(a) Upon the Effective Date, each outstanding and
unexercised option or other right to purchase or security
convertible into Company Common Stock, except the Company
Preferred Stock, shall become an option or right to
purchase or a security convertible into Delaware Common
Stock on the basis of one share of Delaware Common Stock
for each 100 shares of Company Common Stock issuable
pursuant to such option, stock purchase right or
convertible security, on the same terms and conditions and
at an exercise price per share equal to the exercise price
applicable to any such Fineline Nevada option, stock
purchase right or convertible security on the Effective
Date. There are no options or stock purchase rights for or
securities convertible into the preferred stock of Fineline
Nevada, par value $0.001 per share.
(b) A number of shares of Delaware Common Stock shall
be reserved for issuance upon the exercise of options,
stock purchase rights and convertible securities equal to
the number of shares of Company Common Stock so reserved
immediately prior to the Effective Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Fineline
Nevada. Fineline Nevada hereby covenants and agrees that
it:
(a) Is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada,
and has all the requisite power and authority to own, lease
and operate its properties and assets and to carry on its
business as it is now being conducted;
(b) Is duly qualified to do business as a foreign
person, and is in good standing, in each jurisdiction where
the character of its properties or the nature of its
activities make such qualification necessary;
(c) Is not in violation of any provisions of its
articles of incorporation or bylaws; and
(d) Has full corporate power and authority to execute
and deliver this Agreement and, assuming the approval of
this Agreement by the stockholders of Fineline Nevada in
accordance with the NGCL, consummate the Merger and the
other transactions contemplated by this Agreement.
3.2 Representations and Warranties of Fineline Delaware.
Fineline Delaware hereby covenants and agrees that it:
(a) Is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, and has all the requisite power and authority to
own, lease and operate its properties and assets and to
carry on its business as it is now being conducted;
(b) Is duly qualified to do business as a foreign
person, and is in good standing, in each jurisdiction where
the character of its properties or the nature of its
activities make such qualification necessary;
(c) Is not in violation of any provisions of its
certificate of incorporation or bylaws; and
(d) Has full corporate power and authority to execute
and deliver this Agreement and, assuming, prior to the
issuance of shares of stock of Fineline Delaware, the
approval of the board of directors of Fineline Delaware in
accordance with the DGCL, consummate the Merger and the
other transactions contemplated by this Agreement.
ARTICLE IV
TERMINATION
4.1 Termination. At any time prior to the Effective Date,
this Agreement may be terminated and the Merger abandoned for
any reason whatsoever by the Board of Directors of either
Fineline Nevada or Fineline Delaware, or both of them,
notwithstanding the approval of this Agreement and the Merger by
a majority of the voting power of Fineline Nevada.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances as to Fineline Nevada. From time
to time, as and when required by Fineline Delaware or by its
successors or assigns, there shall be executed and delivered on
behalf of Fineline Nevada such deeds and other instruments, and
there shall be taken or caused to be taken by Fineline Delaware
such further and other actions as shall be appropriate or
necessary in order to vest or perfect in or conform of record or
otherwise by Fineline Delaware the title to and possession of
all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Fineline Nevada
and otherwise to carry out the purposes of this Agreement, the
officers and directors of Fineline Delaware are fully authorized
in the name and on behalf of Fineline Nevada or otherwise to
take any and all such action and to execute and deliver any and
all such deeds and other instruments.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. Subject to applicable law, at any time
prior to the Effective Date, this Agreement may be amended,
modified or supplemented only by the written agreement of
Fineline Nevada and Fineline Delaware.
6.2 Assignment; Third Party Beneficiaries. Neither this
Agreement, nor any right, interest or obligation hereunder shall
be assigned by any of the parties hereto without the prior
written consent of the other parties. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement is not
intended to confer any rights or benefits upon any person other
than the parties hereto.
6.3 Registered Office. The registered office of the
Surviving Corporation in the State of Delaware shall be 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle,
19801 and CT Corporation System shall be the registered agent of
the Surviving Corporation at such address.
6.4 Executed Agreement. Executed copies of this Agreement
will be on file at the principal place of business of the
Surviving Corporation at FINELINE HOLDINGS, INC. at 000 Xxxxx
Xxxxx Xxxxxx, Xxxx, Xxxx 00000,. and copies of this Agreement
will be furnished to any stockholder of any of the parties
hereto, upon request and without cost.
6.5 Governing Law. This Agreement shall in all respects
be interpreted by, and construed, interpreted and enforced in
accordance with and pursuant to the laws of the State of
Delaware and, so far as applicable, by the provisions of the
NGCL.
6.6 Counterparts. This Agreement may be executed 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.
6.7 Entire Agreement; Modification. This Agreement and
the documents referred to herein are intended by the parties as
a final expression of their agreement with respect to the
subject matter hereof, and are intended as a complete and
exclusive statement of the terms and conditions of that
agreement, and there are not other agreements or understandings,
written or oral, among the parties, relating to the subject
matter hereof. This Agreement supercedes all prior agreements
and understandings, written or oral, among the parties with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned, intending to be
legally bound hereby, have duly executed this Agreement as of
the date first stated above.
FINELINE XXXXXXXXXX.XXX, INC.
(a Nevada corporation)
By:
Xxxxxx Xxxxx, President
FINELINE XXXXXXXXXX.XXX, INC.
(a Delaware corporation)
By:
Xxxxxx Xxxxx, President
