UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) February 9, 2000
Commission file Number 000-27931
INTERCONTINENTAL CAPITAL FUND, INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada 88-0439635
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1850 E Flamingo Rd #111
Las Vegas, NV 89119
(Address of principal executive offices) (Zip Code)
(702) 866-5885
(Registrant's Executive Office Telephone Number)
<PAGE>
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
Pursuant to an Acquisition Agreement and Plan of Merger (the "Merger
Agreement") dated as of January 26, 2000 between Desert Health Products, Inc.
("DHP"), a Arizona corporation, and Intercontinental Capital Fund, Inc.
("ICF"), a Nevada corporation, all the outstanding shares of common stock of
ICF were exchanged for 400,000 shares of 144 restricted common stock of DHP
in a transaction in which DHP was the successor corporation.
A copy of the Merger Agreement and Certificate of Merger are filed as
exhibits to this Form 8-K and are incorporated in their entirety herein.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
The consideration exchanged pursuant to the Merger Agreement was
negotiated between DHP and ICF
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 5. OTHER EVENTS
Not applicable.
ITEM 6. RESIGNATIONS OF DIRECTORS AND EXECUTIVE OFFICERS
The Officers and Directors of the successor corporation will remain the same.
ITEM 7. FINANCIAL STATEMENTS
No financial statements are filed herewith. The Registrant shall file
financial statements by amendment hereto not later than 60 days after the
date that this Current Report on Form 8-K must be filed.
ITEM 8. CHANGE IN FISCAL YEAR
Not applicable.
EXHIBITS
1.1* Agreement and Plan of Merger between Desert Health Products, Inc. and
Intercontinental Capital Fund, Inc.
1.2* Certificate of Merger between Desert Health Products, Inc. and
Intercontinental Capital Fund, Inc.
______
*Filed herewith
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Current Report on Form 8-K to be signed on
its behalf by the undersigned hereunto duly authorized.
INTERCONTINENTAL CAPITAL FUND, INC.
By/s/ Anthony DeMint
Anthony DeMint, President
Date: February 9, 2000
ACQUISITION AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 26th, 2000
BETWEEN
DESERT HEALTH PRODUCTS, INC.
AND
INTERCONTINENTAL CAPITAL FUND, INC.
TABLE OF CONTENTS
ARTICLE 1. The Merger
Section 1.1. The Merger
Section 1.2. Effective Time
Section 1.3. Closing of the Merger
Section 1.4. Effects of the Merger
Section 1.5. Board of Directors and Officers of DHP
Section 1.6. Conversion of Shares
Section 1.7. Exchange of Certificates
Section 1.8. Taking of Necessary Action; Further Action
ARTICLE 2. Representations and Warranties of DHP
Section 2.1. Organization and Qualification
Section 2.2. Capitalization of DHP
Section 2.3.Authority Relative to this Agreement; Recommendation.
Section 2.4. SEC Reports; Financial Statements
Section 2.5. Information Supplied
Section 2.6. Consents and Approvals; No Violations
Section 2.7. No Default
Section 2.8. No Undisclosed Liabilities; Absence of Changes
Section 2.9. Litigation
Section 2.10. Compliance with Applicable Law
Section 2.11. Employee Benefit Plans; Labor Matters
Section 2.12. Environmental Laws and Regulations
Section 2.13. Tax Matters
Section 2.14. Title To Property
Section 2.15. Intellectual Property
Section 2.16. Insurance
Section 2.17. Vote Required
Section 2.18. Tax Treatment
Section 2.19. Affiliates
Section 2.20. Certain Business Practices
Section 2.21. Insider Interests
Section 2.22. Opinion of Financial Adviser
Section 2.23. Brokers
Section 2.24. Disclosure
Section 2.25. No Existing Discussion
Section 2.26. Material Contracts
<PAGE>
ARTICLE 3. Representations and Warranties of ICF.
Section 3.1. Organization and Qualification
Section 3.2. Capitalization of ICF
Section 3.3.Authority Relative to this Agreement; Recommendation
Section 3.4. SEC Reports; Financial Statements
Section 3.5. Information Supplied
Section 3.6. Consents and Approvals; No Violations
Section 3.7. No Default
Section 3.8 No Undisclosed Liabilities; Absence of Changes
Section 3.9. Litigation
Section 3.10. Compliance with Applicable Law
Section 3.11. Employee Benefit Plans; Labor Matters
Section 3.12. Environmental Laws and Regulations
Section 3.13. Tax Matters
Section 3.14. Title to Property
Section 3.15. Intellectual Property
Section 3.16. Insurance
Section 3.17. Vote Required
Section 3.18. Tax Treatment
Section 3.19. Affiliates
Section 3.20. Certain Business Practices
Section 3.21. Insider Interests
Section 3.22. Opinion of Financial Adviser
Section 3.23. Brokers
Section 3.24. Disclosure
Section 3.25. No Existing Discussions
Section 3.26. Material Contracts
ARTICLE 4. Covenants
Section 4.1. Conduct of Business of DHP
Section 4.2. Conduct of Business of ICF
Section 4.3. Preparation of 8-K
Section 4.4. Other Potential Acquirers
Section 4.5. Meetings of Stockholders
Section 4.6. NASD OTC:BB Listing
Section 4.7. Access to Information
Section 4.8. Additional Agreements; Reasonable Efforts.
Section 4.9. Indemnification
Section 4.10. Notification of Certain Matters
ARTICLE 5. Conditions to Consummation of the Merger
Section 5.1. Conditions to each Party's Obligation to Effect the Merger
Section 5.2. Conditions to the Obligations of DHP
Section 5.3. Conditions to the Obligations of ICF
<PAGE>
ARTICLE 6. Termination; Amendment; Waiver
Section 6.1. Termination
Section 6.2. Effect of Termination
Section 6.3. Fees and Expenses
Section 6.4. Amendment
Section 6.5. Extension; Waiver
ARTICLE 7. Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties
Section 7.2. Entire Agreement; Assignment
Section 7.3. Validity
Section 7.4. Notices
Section 7.5. Governing Law
Section 7.6. Descriptive Headings
Section 7.7. Parties in Interest
Section 7.8. Certain Definitions
Section 7.9. Personal Liability
Section 7.10. Specific Performance
Section 7.11. Counterparts
<PAGE>
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of
January 26th, 2000, is between DESERT HEALTH PRODUCTS, INC., a Arizona
corporation ("DHP"), and INTERCONTINENTAL CAPITAL FUND, INC., a Nevada
corporation ("ICF").
Whereas, the Boards of Directors of DHP and ICF each have, in light of
and subject to the terms and conditions set forth herein, (i) determined that
the Merger (as defined below) is fair to their respective stockholders and in
the best interests of such stockholders and (ii) approved the Merger in
accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, DHP and ICF desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
Now, therefore, in consideration of the promises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, DHP and ICF hereby agree as follows:
ARTICLE I
The Merger
Section 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms and subject to the conditions of this Agreement and in
accordance with the General Corporation Law of the State of Nevada (the
"NGCL"), ICF shall be merged with and into DHP (as defined below) (the
''Merger`). Following the Merger, DHP shall continue as the surviving
corporation (the "Surviving Corporation"), shall continue to be governed by
the laws of the jurisdiction of its incorporation or organization and the
separate corporate existence of ICF shall cease. Prior to the Effective Time,
the parties hereto shall mutually agree as to the name of the Surviving
Corporation; however, initially the Surviving Corporation shall be named
DESERT HEALTH PRODUCTS, INC., an Arizona corporation. The Merger is intended
to qualify as a tax-free reorganization under Section 368 of the Code as
relates to the non-cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set
forth in this Agreement, a Certificate of Merger (the "Merger Certificate")
shall be duly executed and acknowledged by each of ICF and DHP, and
thereafter the Merger Certificate reflecting the Merger shall be delivered to
the Secretary of State of the State of Nevada for filing pursuant to the NGCL
on the Closing Date (as defined in Section 1.3). The Merger shall become
effective at such time as a properly executed and certified copy of the
Merger Certificate is duly filed by the Secretary of State of the State of
Nevada in accordance with the NGCL or such later time as the parties may
agree upon and set forth in the Merger Certificate (the time at which the
Merger becomes effective shall be referred to herein as the "Effective
Time"). Additionally, upon receipt of a filed copy of the Merger Certificate,
a copy of same shall be filed with the Secretary of State for the State of
Arizona.
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of Sperry Young & Stoecklein, 1850 E.
Flamingo Rd., Suite 111, Las Vegas, Nevada, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers of ICF shall vest in the Surviving Corporation, and all
debts, liabilities and duties of ICF shall become the debts, liabilities and
duties of the Surviving Corporation.
<PAGE>
Section 1.5. Board of Directors and Officers of DHP. At or prior to the
Effective Time, each of ICF and DHP agrees to take such action as is
necessary (i) to cause the number of directors comprising the full Board of
Directors of DHP to remain the same
Section 1.6. Conversion of Shares. At the Effective Time, each share of
common stock, par value $.001 per share of ICF (individually a "ICF Share"
and collectively, the "ICF Shares") issued and outstanding immediately prior
to the Effective Time shall, by virtue of the Merger and without any action
on the part of ICF, DHP, or the holder thereof, be converted into and shall
become fully paid and nonassessable DHP common shares determined by issuing
one (1) share of DHP common share for every 12.5 shares of ICF.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, DHP shall enter into an agreement with,
and shall deposit with, Sperry Young & Stoecklein, or such other agent or
agents as may be satisfactory to DHP and ICF (the "Exchange Agent'), for the
benefit of the holders of ICF Shares, for exchange through the Exchange Agent
in accordance with this Article I: (i) certificates representing the
appropriate number of DHP Shares to be issued to holders of ICF Shares
issuable pursuant to Section 1.6 in exchange for outstanding ICF Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding ICF Shares (the "Certificates") whose shares were converted into
the right to receive DHP Shares pursuant to Section 1.6: (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as ICF and DHP may reasonably specify) and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for
certificates representing DHP Shares. Upon surrender of a Certificate to the
Exchange Agent, together with such letter of transmittal, duly executed, and
any other required documents, the holder of such Certificate shall be
entitled to receive in exchange therefore a certificate representing that
number of whole DHP Shares, which such holder has the right to receive
pursuant to the provisions of this Article I, and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of
ownership of ICF Shares which are not registered in the transfer records of
ICF, a certificate representing the proper number of DHP Shares may be issued
to a transferee if the Certificate representing such ICF Shares is presented
to the Exchange Agent accompanied by all documents required by the Exchange
Agent or DHP to evidence and effect such transfer and by evidence that any
applicable stock transfer or other taxes have been paid. Until surrendered as
contemplated by this Section 1.7, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the certificate representing DHP Shares as contemplated by
this Section 1.7.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to DHP Shares with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the DHP Shares represented thereby until the holder of record
of such Certificate shall surrender such Certificate.
(d) In the event that any Certificate for ICF Shares or DHP Shares shall
have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the
holder thereof such DHP Shares and cash in lieu of fractional DHP Shares, if
any, as may be required pursuant to this Agreement; provided, however, that
DHP or the Exchange Agent, may, in its respective discretion, require the
delivery of a suitable bond, opinion or indemnity.
(e) All DHP Shares issued upon the surrender for exchange of ICF Shares
in accordance with the terms hereof shall be deemed to have been issued in
full satisfaction of all rights pertaining to such ICF Shares. There shall be
no further registration of transfers on the stock transfer books of ICF of
the ICF Shares which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates of ICF are presented to DHP
for any reason, they shall be canceled and exchanged as provided in this
Article I.
<PAGE>
(f) No fractional DHP Shares shall be issued in the Merger, but in lieu
thereof each holder of ICF Shares otherwise entitled to a fractional DHP
Share shall, upon surrender of its, his or her Certificate or Certificates,
be entitled to receive an additional share to round up to the nearest round
number of shares.
Section 1.8. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, ICF or DHP reasonably determines that any deeds,
assignments, or instruments or confirmations of transfer are necessary or
desirable to carry out the purposes of this Agreement and to vest DHP with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of ICF, the officers and directors of DHP and ICF are
fully authorized in the name of their respective corporations or otherwise to
take, and will take, all such lawful and necessary or desirable action.
ARTICLE 2
Representations and Warranties of DHP
Except as set forth on the Disclosure Schedule delivered by DHP to ICF
(the "DHP Disclosure Schedule"), DHP hereby represents and warrants to ICF as
follows:
Section 2.1. Organization and Qualification.
(a) DHP is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, has 300 or
more round lot (100 or more shares) stockholders and has all requisite power
and authority to own, lease and operate its properties and to carry on its
businesses as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and authority
would not have a Material Adverse Effect (as defined below) on DHP. When used
in connection with DHP, the term "Material Adverse Effect" means any change
or effect (i) that is or is reasonably likely to be materially adverse to the
business, results of operations, condition (financial or otherwise) or
prospects of DHP, other than any change or effect arising out of general
economic conditions unrelated to any business in which DHP is engaged, or
(ii) that may impair the ability of DHP to perform its obligations hereunder
or to consummate the transactions contemplated hereby.
(b) DHP has heretofore delivered to ICF accurate and complete copies of
the Certificate of Incorporation and Bylaws (or similar governing documents),
as currently in effect, of DHP. Except as set forth on Schedule 2.1 of the
DHP Disclosure Schedule, DHP is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary, except in such jurisdictions where
the failure to be so duly qualified or licensed and in good standing would
not have a Material Adverse Effect on DHP.
Section 2.2. Capitalization of DHP.
(a) The authorized capital stock of DHP consists of: (i) Twenty-five
Million (25,000,000) Authorized Shares of Common Stock, $0.001 par value,
6,841,471 Common shares are issued and outstanding and held by 300 or more
round lot (100 or more shares) stockholders; (ii) Ten Million (10,000,000)
Authorized Shares of Preferred Stock, $.001 par value, 1,280,000 Preferred
shares are issued and outstanding. One Million of the Preferred shares
contains voting rights allowing for a 10:1 vote over common shares, in
addition to conversion rights of 1:1. (The ratios allow for the Preferred
shares to be voted, 10 votes for each share held, and conversion of 1 shares
of preferred for each shares of common. Pursuant to the Merger Agreement DHP
will issue 400,000 shares of 144 restricted common stock to the stockholder
of ICF. All of the outstanding DHP Shares have been duly authorized and
validly issued, and are fully paid, nonassessable and free of preemptive
rights. Except as set forth herein, as of the date hereof, there are no
outstanding (i) shares of capital stock or other voting securities of DHP,
(ii) securities of DHP convertible into or exchangeable for shares of capital
stock or voting securities of DHP, except for the voting, convertible
preferred shares of DHP, (iii) options or other rights to acquire from DHP
and, no obligations of DHP to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
<PAGE>
securities of DHP, and (iv) equity equivalents, interests in the ownership or
earnings of DHP or other similar rights (collectively, "DHP Securities"). As
of the date hereof, except as set forth on Schedule 2.2(a) of the DHP
Disclosure Schedule there are no outstanding obligations of DHP or its
subsidiaries to repurchase, redeem or otherwise acquire any DHP Securities or
stockholder agreements, voting trusts or other agreements or understandings
to which DHP is a party or by which it is bound relating to the voting or
registration of any shares of capital stock of DHP. For purposes of this
Agreement, ''Lien" means, with respect to any asset (including, without
limitation, any security) any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset.
(b) The DHP Shares constitute the only class of equity securities of DHP
registered or required to be registered under the Exchange Act.
(c) DHP does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement; Recommendation. DHP
has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of DHP (the "DHP Board") and no other corporate
proceedings on the part of DHP are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by DHP and constitutes a valid, legal
and binding agreement of DHP, enforceable against DHP in accordance with its
terms.
Section 2.4. SEC Reports; Financial Statements. DHP is not required to
file forms, reports and documents with the SEC.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by DHP for inclusion or incorporation by reference in
connection with the Merger will at the date presented to stockholder of ICF
and at the times of the meeting or meetings of stockholders of DHP to be held
in connection with the Merger, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Hart-Scott-Rodino Antitrust Improvements Act
of 1916, as amended (the ''HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the DHP Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by DHP of
this Agreement or the consummation by DHP of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not
have a Material Adverse Effect on DHP.
Except as set forth in Section 2.6 of the DHP Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by DHP nor
the consummation by DHP of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
DHP, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which DHP is a party or by which any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to DHP or any of its properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults
which would not have a Material Adverse Effect on DHP.
Section 2.7. No Default. Except as set forth in Section 2.7 of the DHP
Disclosure Schedule, DHP is not in breach, default or violation (and no event
has occurred which with notice or the lapse of time or both would constitute
a breach default or violation) of any term, condition or provision of (i) its
Certificate of Incorporation or Bylaws (or similar governing documents), (ii)
any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which DHP is now a party or by which any of
its respective properties or assets may be bound or (iii) any order, writ
injunction, decree, law, statute, rule or regulation applicable to DHP or any
of its respective properties or assets, except in the case of (ii) or (iii)
for violations, breaches or defaults that would not have a Material Adverse
Effect on DHP. Except as set forth in Section 2.7 of the DHP Disclosure
Schedule, each note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which DHP is now a party or by
which its respective properties or assets may be bound that is material to
DHP and that has not expired is in full force and effect and is not subject
to any material default thereunder of which DHP is aware by any party
obligated to DHP thereunder.
Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as
and to the extent disclosed by DHP of approximately $200,954 in loan
obligations, none of DHP or its subsidiaries had any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise,
that would be required by generally accepted accounting principles to be
reflected on a consolidated balance sheet of DHP and its consolidated
subsidiaries (including the notes thereto) or which would have a Material
Adverse Effect on DHP. Except as disclosed by DHP, none of DHP or its
subsidiaries has incurred any liabilities of any nature, whether or not
accrued, contingent or otherwise, which could reasonably be expected to have,
and there have been no events, changes or effects with respect to DHP or its
subsidiaries having or which could reasonably be expected to have, a Material
Adverse Effect on DHP. Except as and to the extent disclosed by DHP there has
not been (i) any material change by DHP in its accounting methods, principles
or practices (other than as required after the date hereof by concurrent
changes in generally accepted accounting principles), (ii) any revaluation by
DHP of any of its assets having a Material Adverse Effect on DHP, including,
without limitation, any write-down of the value of any assets other than in
the ordinary course of business or (iii) any other action or event that would
have required the consent of any other party hereto pursuant to Section 4.2
of this Agreement had such action or event occurred after the date of this
Agreement.
Section 2.9. Litigation. Except as set forth in Schedule 2.9 of the DHP
Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of DHP, threatened against DHP or
any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on DHP or could
reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as disclosed by DHP, none
of DHP or its subsidiaries is subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on DHP
or could reasonably be expected to prevent or delay the consummation of the
transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as disclosed by
DHP, DHP and its subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities necessary for
the lawful conduct of their respective businesses (the "DHP Permits"), except
for failures to hold such permits, licenses, variances, exemptions, orders
and approvals which would not have a Material Adverse Effect on DHP. Except
as disclosed by DHP, DHP and its subsidiaries are in compliance with the
terms of the DHP Permits, except where the failure so to comply would not
have a Material Adverse Effect on DHP. Except as disclosed by DHP, the
businesses of DHP and its subsidiaries are not being conducted in violation
of any law, ordinance or regulation of any Governmental Entity except that no
representation or warranty is made in this Section 2.10 with respect to
Environmental Laws and except for violations or possible violations which do
not, and, insofar as reasonably can be foreseen, in the future will not, have
a Material Adverse Effect on DHP. Except as disclosed by DHP no investigation
or review by any Governmental Entity with respect to DHP or its subsidiaries
is pending or, to the knowledge of DHP, threatened, nor, to the knowledge of
DHP, has any Governmental Entity indicated an intention to conduct the same,
other than, in each case, those which DHP reasonably believes will not have a
Material Adverse Effect on DHP.
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the DHP Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by DHP or any entity required to be aggregated with DHP pursuant to
Section 414 of the Code (each, a "DHP Employee Plan"), no event has occurred
and to the knowledge of DHP, no condition or set of circumstances exists in
connection with which DHP could reasonably be expected to be subject to any
liability which would have a Material Adverse Effect on DHP.
<PAGE>
(b) (i) No DHP Employee Plan is or has been subject to Title IV of ERISA
or Section 412 of the Code; and (ii) each DHP Employee Plan intended to
qualify under Section 401(a) of the Code and each trust intended to qualify
under Section 501(a) of the Code is the subject of a favorable Internal
Revenue Service determination letter, and nothing has occurred which could
reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the DHP Disclosure Schedule sets forth a true and
complete list, as of the date of this Agreement, of each person who holds any
DHP Stock Options, together with the number of DHP Shares which are subject
to such option, the date of grant of such option, the extent to which such
option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the DHP
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. DHP has furnished ICF with complete
copies of the plans pursuant to which the DHP Stock Options were issued.
Other than the automatic vesting of DHP Stock Options that may occur without
any action on the part of DHP or its officers or directors, DHP has not taken
any action that would result in any DHP Stock Options that are unvested
becoming vested in connection with or as a result of the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) DHP has made available to ICF (i) a description of the terms of
employment and compensation arrangements of all officers of DHP and a copy of
each such agreement currently in effect; (ii) copies of all agreements with
consultants who are individuals obligating DHP to make annual cash payments
in an amount exceeding $60,000; (iii) a schedule listing all officers of DHP
who have executed a non-competition agreement with DHP and a copy of each
such agreement currently in effect; (iv) copies (or descriptions) of all
severance agreements, programs and policies of DHP with or relating to its
employees, except programs and policies required to be maintained by law; and
(v) copies of all plans, programs, agreements and other arrangements of DHP
with or relating to its employees which contain change in control provisions
all of which are set forth in Section 2.11(d) of the DHP Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any DHP Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of DHP,
threatened, between DHP and any of their employees, which controversies have
or could reasonably be expected to have a Material Adverse Effect on DHP.
Neither DHP nor any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by DHP or any of its subsidiaries (and neither DHP nor any of its
subsidiaries has any outstanding material liability with respect to any
terminated collective bargaining agreement or labor union contract), nor does
DHP know of any activities or proceedings of any labor union to organize any
of its or employees. DHP has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof, by or with respect to any of its
employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as publicly disclosed by DHP in the DHP SEC Reports, (i) DHP
is in material compliance with all applicable federal, state, local and
foreign laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata)
(collectively, "Environmental Laws"), except for non-compliance that would
not have a Material Adverse Effect on DHP, which compliance includes, but is
not limited to, the possession by DHP of all material permits and other
governmental authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof; (ii) DHP has not received
written notice of, or, to the knowledge of DHP, is the subject of, any
action, cause of action, claim, investigation, demand or notice by any person
or entity alleging liability under or non-compliance with any Environmental
Law (an ''Environmental Claim") that could reasonably be expected to have a
Material Adverse Effect on DHP; and (iii) to the knowledge of DHP, there are
no circumstances that are reasonably likely to prevent or interfere with such
material compliance in the future.
<PAGE>
(b) Except as publicly disclosed by DHP, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on DHP that are pending or, to the knowledge of DHP, threatened against DHP
or, to the knowledge of DHP, against any person or entity whose liability for
any Environmental Claim DHP has or may have retained or assumed either
contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the DHP Disclosure Schedule:
(i) DHP has filed or has had filed on its behalf in a timely manner (within
any applicable extension periods) with the appropriate Governmental Entity
all income and other material Tax Returns (as defined herein) with respect to
Taxes (as defined herein) of DHP and all Tax Returns were in all material
respects true, complete and correct; (ii) all material Taxes with respect to
DHP have been paid in full or have been provided for in accordance with GAAP
on DHP's most recent balance sheet which is part of the DHP SEC Documents.
(iii) there are no outstanding agreements or waivers extending the statutory
period of limitations applicable to any federal, state, local or foreign
income or other material Tax Returns required to be filed by or with respect
to DHP; (iv) to the knowledge of DHP none of the Tax Returns of or with
respect to DHP is currently being audited or examined by any Governmental
Entity; and (v) no deficiency for any income or other material Taxes has been
assessed with respect to DHP which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. DHP has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on DHP; and, to DHP's knowledge, all leases pursuant to which DHP
leases from others real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, to the
knowledge of DHP, under any of such leases, any existing material default or
event of default (or event which with notice of lapse of time, or both, would
constitute a default and in respect of which DHP has not taken adequate steps
to prevent such a default from occurring) except where the lack of such good
standing, validity and effectiveness, or the existence of such default or
event, would not have a Material Adverse Effect on DHP.
Section 2.15. Intellectual Property.
(a) DHP owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefore that are
material to its business as currently conducted (the "DHP Intellectual
Property Rights").
(b) The validity of the DHP Intellectual Property Rights and the title
thereto of DHP is not being questioned in any litigation to which DHP is a
party.
(c) Except as set forth in Section 2.15(c) of the DHP Disclosure
Schedule, the conduct of the business of DHP as now conducted does not, to
DHP's knowledge, infringe any valid patents, trademarks, trade names, service
marks or copyrights of others. The consummation of the transactions completed
hereby will not result in the loss or impairment of any DHP Intellectual
Property Rights.
(d) DHP has taken steps it believes appropriate to protect and maintain
its trade secrets as such, except in cases where DHP has elected to rely on
patent or copyright protection in lieu of trade secret protection.
<PAGE>
Section 2.16. Insurance. DHP currently maintains general liability and
other business insurance.
Section 2.17. Vote Required. Approval of this Agreement and Plan of
Merger by the Stockholders of DHP is not required pursuant to current Arizona
law.
Section 2.18. Tax Treatment. Neither DHP nor, to the knowledge of DHP,
any of its affiliates has taken or agreed to take action that would prevent
the Merger from constituting a reorganization qualifying under the provisions
of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for the directors and executive
officers of DHP, each of whom is listed in Section 2.19 of the DHP Disclosure
Schedule, there are no persons who, to the knowledge of DHP, may be deemed to
be affiliates of DHP under Rule 1-02(b) of Regulation S-X of the SEC (the
"DHP Affiliates").
Section 2.20. Certain Business Practices. None of DHP or any directors,
officers, agents or employees of DHP has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns or violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the DHP Disclosure Schedule, neither any officer or director of DHP has any
interest in any material property, real or personal, including without
limitation, any computer software or DHP Intellectual Property Rights, used
in or pertaining to the business of DHP, expect for the ordinary rights of a
stockholder or employee stock optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the DHP Board a written opinion to the effect that,
as of such date, the exchange ratio contemplated by the Merger is fair to the
holders of DHP Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the DHP Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to ICF) is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of DHP.
Section 2.24. Disclosure. No representation or warranty of DHP in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to ICF pursuant hereto or in connection herewith
contains, as of the date of such representation, warranty or instrument, or
will contain any untrue statement of a material fact or, at the date thereof,
omits or will omit to state a material fact necessary to make any statement
herein or therein, in light of the circumstances under which such statement
is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, DHP is not
engaged, directly or indirectly, in any discussions or negotiations with any
other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
Section 2.26. Material Contracts.
(a) DHP has delivered or otherwise made available to ICF true, correct
and complete copies of all contracts and agreements (and all amendments,
modifications and supplements thereto and all side letters to which DHP is a
party affecting the obligations of any party thereunder) to which DHP is a
party or by which any of its properties or assets are bound that are,
material to the business, properties or assets of DHP taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of DHP taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which DHP is a party involving employees of DHP); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
<PAGE>
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since December 31, 1999; (vi) contracts or agreements with any
Governmental Entity. and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 4.1 hereof, the "DHP Contracts"). DHP is not
a party to or bound by any severance, golden parachute or other agreement
with any employee or consultant pursuant to which such person would be
entitled to receive any additional compensation or an accelerated payment of
compensation as a result of the consummation of the transactions contemplated
hereby.
(b) Each of the DHP Contracts is valid and enforceable in accordance
with its terms, and there is no default under any DHP Contract so listed
either by DHP or, to the knowledge of DHP, by any other party thereto, and no
event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by DHP or, to the knowledge of
DHP, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on DHP.
(c) No party to any such DHP Contract has given notice to DHP of or made
a claim against DHP with respect to any breach or default thereunder, in any
such case in which such breach or default could reasonably be expected to
have a Material Adverse Effect on DHP.
ARTICLE 3
Representations and Warranties of ICF
Except as set forth on the Disclosure Schedule delivered by ICF to DHP
(the "ICF Disclosure Schedule"), ICF hereby represents and warrants to DHP as
follows:
Section 3.1. Organization and Qualification.
(a) Each of ICF and its subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or organization and has all requisite power and authority to own, lease and
operate its properties and to carry on its businesses as now being conducted,
except where the failure to be so organized, existing and in good standing or
to have such power and authority would not have a Material Adverse Effect (as
defined below) on ICF. When used in connection with ICF, the term "Material
Adverse Effect'' means any change or effect (i) that is or is reasonably
likely to be materially adverse to the business, results of operations,
condition (financial or otherwise) or prospects of ICF and its subsidiaries,
taken as a whole, other than any change or effect arising out of general
economic conditions unrelated to any businesses in which ICF and its
subsidiaries are engaged, or (ii) that may impair the ability of ICF to
consummate the transactions contemplated hereby.
(b) ICF has heretofore delivered to DHP accurate and complete copies of
the Certificate of Incorporation and Bylaws (or similar governing documents),
as currently in effect, of ICF. Each of ICF and its subsidiaries is duly
qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a Material Adverse
Effect on ICF.
Section 3.2. Capitalization of ICF.
(a) As of December 31, 1999, the authorized capital stock of ICF
consists of; (i) Fifteen Million (15,000,000) ICF common Shares, $.001 par
value, of which 5,000,000 common Shares are issued and outstanding, and (ii)
Ten Million (10,000,000) ICF preferred shares, $.001 par value, and no
preferred shares are issued and outstanding. All of the outstanding ICF
Shares have been duly authorized and validly issued, and are fully paid,
nonassessable and free of preemptive rights.
(b) Except as set forth in Section 3.2(b) of the ICF Disclosure
Schedule, ICF is the record and beneficial owner of all of the issued and
outstanding shares of capital stock of its subsidiaries.
<PAGE>
(c) Except as set forth in Section 3.2(c) of the ICF Disclosure
Schedule, between December 31, 1999 and the date hereof, no shares of ICF's
capital stock have been issued and no ICF Stock options have been granted.
Except as set forth in Section 3.2(a) above, as of the date hereof, there are
no outstanding (i) shares of capital stock or other voting securities of ICF,
(ii) securities of ICF or its subsidiaries convertible into or exchangeable
for shares of capital stock or voting securities of ICF, (iii) options or
other rights to acquire from ICF or its subsidiaries, or obligations of ICF
or its subsidiaries to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of ICF, or (iv) equity equivalents, interests in the ownership or
earnings of ICF or its subsidiaries or other similar rights (collectively,
"ICF Securities"). As of the date hereof, there are no outstanding
obligations of ICF or any of its subsidiaries to repurchase, redeem or
otherwise acquire any ICF Securities. There are no stockholder agreements,
voting trusts or other agreements or understandings to which ICF is a party
or by which it is bound relating to the voting or registration of any shares
of capital stock of ICF.
(d) Except as set forth in Section 3.2(d) of the ICF Disclosure
Schedule, there are no securities of ICF convertible into or exchangeable
for, no options or other rights to acquire from ICF, and no other contract,
understanding, arrangement or obligation (whether or not contingent)
providing for the issuance or sale, directly or indirectly, of any capital
stock or other ownership interests in, or any other securities of, any
subsidiary of ICF.
(e) The ICF Shares constitute the only class of equity securities of ICF
or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the ICF Disclosure
Schedule, ICF does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) ICF has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of ICF (the "ICF Board"), and no other corporate
proceedings on the part of ICF are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby, except, as referred to in
Section 3.17, the approval and adoption of this Agreement by the holders of
at least a majority of the then outstanding ICF Shares. This Agreement has
been duly and validly executed and delivered by ICF and constitutes a valid,
legal and binding agreement of ICF, enforceable against ICF in accordance
with its terms.
(b) The ICF Board has resolved to recommend that the stockholders of ICF
approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements.
(a) ICF has filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since December 31, 1999, each
of which has complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Exchange Act (and the rules and regulations promulgated
thereunder, respectively), each as in effect on the dates such forms, reports
and documents were filed. ICF has heretofore delivered or promptly will
deliver prior to the Effective Date to ICF, in the form filed with the SEC
(including any amendments thereto but excluding any exhibits), (i) its Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1999, (ii) all
definitive proxy statements relating to ICF's meetings of stockholders
(whether annual or special) held since December 31, 1999, if any, and (iii)
all other reports or registration statements filed by ICF with the SEC since
December 31, 1999 (all of the foregoing, collectively, the "ICF SEC
Reports"). None of such ICF SEC Reports, including, without limitation, any
financial statements or schedules included or incorporated by reference
therein, contained, when filed, any untrue statement of a material fact or
omitted to state a material fact required to be stated or incorporated by
reference therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
audited financial statements of ICF included in the ICF SEC Reports fairly
present, in conformity with generally accepted accounting principles applied
on a consistent basis (except as may be indicated in the notes thereto), the
financial position of ICF as of the dates thereof and its results of
operations and changes in financial position for the periods then ended. All
material agreements, contracts and other documents required to be filed as
exhibits to any of the ICF SEC Reports have been so filed.
<PAGE>
(b) ICF has heretofore made available or promptly will make available to
DHP a complete and correct copy of any amendments or modifications which are
required to be filed with the SEC but have not yet been filed with the SEC,
to agreements, documents or other instruments which previously had been filed
by ICF with the SEC pursuant to the Exchange Act.
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by ICF for inclusion or incorporation by reference to the 8-K
will, at the time the 8-K is filed with the SEC and at the time it becomes
effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the ICF Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
ICF of this Agreement or the consummation by ICF of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations consents or approvals or to make such filings or give such
notice would not have a Material Adverse Effect on ICF.
Neither the execution, delivery and performance of this Agreement by ICF
nor the consummation by ICF of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
ICF or any of ICF's subsidiaries, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration or Lien) under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which ICF or any of ICF's subsidiaries is a
party or by which any of them or any of their respective properties or assets
may be bound or (iii) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to ICF or any of ICF's subsidiaries or
any of their respective properties or assets, except in the case of (ii) or
(iii) for violations, breaches or defaults which would not have a Material
Adverse Effect on ICF.
Section 3.7. No Default. None of ICF or any of its subsidiaries is in
breach, default or violation (and no event has occurred which with notice or
the lapse of time or both would constitute a breach, default or violation) of
any term, condition or provision of (i) its Certificate of Incorporation or
Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which ICF or any of its subsidiaries is now a party or by which
any of them or any of their respective properties or assets may be bound or
(iii) any order, writ, injunction, decree, law, statute, rule or regulation
applicable to ICF, its subsidiaries or any of their respective properties or
assets, except in the case of (ii) or (iii) for violations, breaches or
defaults that would not have a Material Adverse Effect on ICF. Each note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which ICF or any of its subsidiaries is now a
party or by which any of them or any of their respective properties or assets
may be bound that is material to ICF and its subsidiaries taken as a whole
and that has not expired is in full force and effect and is not subject to
any material default thereunder of which ICF is aware by any party obligated
to ICF or any subsidiary thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the ICF Disclosure Schedule and except as and to
the extent publicly disclosed by ICF in the ICF SEC Reports, as of December
31, 1999, ICF does not have any liabilities or obligations of any nature,
whether or not accrued, contingent or otherwise, that would be required by
generally accepted accounting principles to be reflected on a balance sheet
of ICF (including the notes thereto) or which would have a Material Adverse
Effect on ICF. Except as publicly disclosed by ICF, since December 31, 1999,
ICF has not incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, which could reasonably be expected to have, and
there have been no events, changes or effects with respect to ICF having or
which reasonably could be expected to have, a Material Adverse Effect on ICF.
Except as and to the extent publicly disclosed by ICF in the ICF SEC Reports
and except as set forth in Section 2.8 of the ICF Disclosure Schedule, since
December 31, 1999, there has not been (i) any material change by ICF in its
accounting methods, principles or practices (other than as required after the
date hereof by concurrent changes in generally accepted accounting
principles), (ii) any revaluation by ICF of any of its assets having a
Material Adverse Effect on ICF, including, without limitation, any write-down
of the value of any assets other than in the ordinary course of business or
(iii) any other action or event that would have required the consent of any
other party hereto pursuant to Section 4.1 of this Agreement had such action
or event occurred after the date of this Agreement.
<PAGE>
Section 3.9. Litigation. Except as publicly disclosed by ICF in the ICF
SEC Reports, there is no suit, claim, action, proceeding or investigation
pending or, to the knowledge of ICF, threatened against ICF or any of its
subsidiaries or any of their respective properties or assets before any
Governmental Entity which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect on ICF or could reasonably be
expected to prevent or delay the consummation of the transactions
contemplated by this Agreement. Except as publicly disclosed by ICF in the
ICF SEC Reports, ICF is not subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on ICF
or could reasonably be expected to prevent or delay the consummation of the
transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as publicly
disclosed by ICF in the ICF SEC Reports, ICF holds all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the `'ICF
Permits"), except for failures to hold such permits, licenses, variances,
exemptions, orders and approvals which would not have a Material Adverse
Effect on ICF. Except as publicly disclosed by ICF in the ICF SEC Reports,
ICF is in compliance with the terms of the ICF Permits, except where the
failure so to comply would not have a Material Adverse Effect on ICF. Except
as publicly disclosed by ICF in the ICF SEC Reports, the business of ICF is
not being conducted in violation of any law, ordinance or regulation of any
Governmental Entity except that no representation or warranty is made in this
Section 2.10 with respect to Environmental Laws (as defined in Section 2.12
below) and except for violations or possible violations which do not, and,
insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on ICF. Except as publicly disclosed by ICF in the
ICF SEC Reports, no investigation or review by any Governmental Entity with
respect to ICF is pending or, to the knowledge of ICF, threatened, nor, to
the knowledge of ICF, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which ICF reasonably
believes will not have a Material Adverse Effect on ICF.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by ICF, any of its subsidiaries or any entity
required to be aggregated with ICF or any of its subsidiaries pursuant to
Section 414 of the Code (each, a "ICF Employee Plan"), no event has occurred
and, to the knowledge of ICF, no condition or set of circumstances exists in
connection with which ICF or any of its subsidiaries could reasonably be
expected to be subject to any liability which would have a Material Adverse
Effect on ICF.
(b) (i) No ICF Employee Plan is or has been subject to Title IV of ERISA
or Section 412 of the Code; and (ii) each ICF Employee Plan intended to
qualify under Section 401(a) of the Code and each trust intended to qualify
under Section 501(a) of the Code is the subject of a favorable Internal
Revenue Service determination letter, and nothing has occurred which could
reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the ICF Disclosure Schedule sets forth a true and
complete list, as of the date of this Agreement, of each person who holds any
ICF Stock Options, together with the number of ICF Shares which are subject
to such option, the date of grant of such option, the extent to which such
option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 3.11(c) of the ICF
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. ICF has furnished DHP with complete
copies of the plans pursuant to which the ICF Stock Options were issued.
Other than the automatic vesting of ICF Stock Options that may occur without
any action on the part of ICF or its officers or directors, ICF has not taken
any action that would result in any ICF Stock Options that are unvested
becoming vested in connection with or as a result of the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
<PAGE>
(d) ICF has made available to DHP (i) a description of the terms of
employment and compensation arrangements of all officers of ICF and a copy of
each such agreement currently in effect; (ii) copies of all agreements with
consultants who are individuals obligating ICF to make annual cash payments
in an amount exceeding $60,000; (iii) a schedule listing all officers of ICF
who have executed a non-competition agreement with ICF and a copy of each
such agreement currently in effect; (iv) copies (or descriptions) of all
severance agreements, programs and policies of ICF with or relating to its
employees, except programs and policies required to be maintained by law; and
(v) copies of all plans, programs, agreements and other arrangements of the
ICF with or relating to its employees which contain change in control
provisions.
(e) Except as disclosed in Section 3.11(e) of the ICF Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any ICF Employee
Plan or any agreement or arrangement disclosed under this Section 3.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of ICF
threatened, between ICF or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on ICF. Neither ICF nor any of its
subsidiaries is a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by ICF or any of its
subsidiaries (and neither ICF nor any of its subsidiaries has any outstanding
material liability with respect to any terminated collective bargaining
agreement or labor union contract), nor does ICF know of any activities or
proceedings of any labor union to organize any of its or any of its
subsidiaries' employees. ICF has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof by or with respect to any of its or any
of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by ICF, (i) each of ICF and its subsidiaries is
in material compliance with all Environmental Laws, except for non-compliance
that would not have a Material Adverse Effect on ICF, which compliance
includes, but is not limited to, the possession by ICF and its subsidiaries
of all material permits and other governmental authorizations required under
applicable Environmental Laws, and compliance with the terms and conditions
thereof; (ii) none of ICF or its subsidiaries has received written notice of,
or, to the knowledge of ICF, is the subject of, any Environmental Claim that
could reasonably be expected to have a Material Adverse Effect on ICF; and
(iii) to the knowledge of ICF, there are no circumstances that are reasonably
likely to prevent or interfere with such material compliance in the future.
(b) Except as disclosed by ICF, there are no Environmental Claims which
could reasonably be expected to have a Material Adverse Effect on ICF that
are pending or, to the knowledge of ICF, threatened against ICF or any of its
subsidiaries or, to the knowledge of ICF, against any person or entity whose
liability for any Environmental Claim ICF or its subsidiaries has or may have
retained or assumed either contractually or by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
ICF Disclosure Schedule: (i) ICF and each of its subsidiaries has filed or
has had filed on its behalf in a timely manner (within any applicable
extension periods) with the appropriate Governmental Entity all income and
other material Tax Returns with respect to Taxes of ICF and each of its
subsidiaries and all Tax Returns were in all material respects true, complete
and correct; (ii) all material Taxes with respect to ICF and each of its
subsidiaries have been paid in full or have been provided for in accordance
with GAAP on ICF's most recent balance sheet which is part of the ICF SEC
Documents; (iii) there are no outstanding agreements or waivers extending the
statutory period of limitations applicable to any federal, state, local or
foreign income or other material Tax Returns required to be filed by or with
respect to ICF or its subsidiaries; (iv) to the knowledge of ICF none of the
Tax Returns of or with respect to ICF or any of its subsidiaries is currently
being audited or examined by any Governmental Entity; and (v) no deficiency
for any income or other material Taxes has been assessed with respect to ICF
or any of its subsidiaries which has not been abated or paid in full.
Section 3.14. Title to Property. ICF and each of its subsidiaries have
good and defensible title to all of their properties and assets, free and
clear of all liens, charges and encumbrances except liens for taxes not yet
due and payable and such liens or other imperfections of title, if any, as do
not materially detract from the value of or interfere with the present use of
the property affected thereby or which, individually or in the aggregate,
would not have a Material Adverse Effect on ICF; and, to ICF's knowledge, all
<PAGE>
leases pursuant to which ICF or any of its subsidiaries lease from others
real or personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, to the knowledge of
ICF, under any of such leases, any existing material default or event of
default (or event which with notice or lapse of time, or both, would
constitute a material default and in respect of which ICF or such subsidiary
has not taken adequate steps to prevent such a default from occurring) except
where the lack of such good standing, validity and effectiveness, or the
existence of such default or event of default would not have a Material
Adverse Effect on ICF.
Section 3.15. Intellectual Property.
(a) Each of ICF and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefore that are material to its business as currently
conducted (the "ICF Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the ICF Disclosure
Schedule the validity of the ICF Intellectual Property Rights and the title
thereto of ICF or any subsidiary, as the case may be, is not being questioned
in any litigation to which ICF or any subsidiary is a party.
(c) The conduct of the business of ICF and its subsidiaries as now
conducted does not, to ICF's knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any ICF Intellectual Property Rights.
(d) Each of ICF and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where ICF has elected to rely on patent or copyright protection in lieu
of trade secret protection.
Section 3.16. Insurance. ICF currently does not maintain general
liability and other business insurance.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding ICF Shares is the only vote of the
holders of any class or series of ICF's capital stock necessary to approve
and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither ICF nor, to the knowledge of ICF,
any of its affiliates has taken or agreed to take any action that would
prevent the Merger from constituting a reorganization qualifying under the
provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of ICF, each of whom is listed in Section 3.19 of the ICF Disclosure
Schedule, there are no persons who, to the knowledge of ICF, may be deemed to
be affiliates of ICF under Rule 1-02(b) of Regulation S-X of the SEC (the
"ICF Affiliates").
Section 3.20. Certain Business Practices. None of ICF, any of its
subsidiaries or any directors, officers, agents or employees of ICF or any of
its subsidiaries has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns or
violated any provision of the FCPA, or (iii) made any other unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the ICF Disclosure Schedule, no officer or director of ICF has any interest
in any material property, real or personal, including without limitation, any
computer software or ICF Intellectual Property Rights, used in or pertaining
to the business of ICF or any subsidiary, except for the ordinary rights of a
stockholder or employee stock optionholder.
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the ICF Board a written opinion to the effect that,
as of such date, the exchange ratio contemplated by the Merger is fair to the
holders of ICF Shares.
<PAGE>
Section 3.23. Brokers. No broker, finder or investment banker (other
than the ICF Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to DHP) is entitled to any brokerage, finders or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of ICF.
Section 3.24. Disclosure. No representation or warranty of ICF in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to DHP pursuant hereto or in connection herewith
contains, as of the date of such representation, warranty or instrument, or
will contain any untrue statement of a material fact or, at the date thereof,
omits or will omit to state a material fact necessary to make any statement
herein or therein, in light of the circumstances under which such statement
is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, ICF is not
engaged, directly or indirectly, in any discussions or negotiations with any
other party with respect to any Third Party Acquisition (as defined in
Section 5.4).
Section 3.26. Material Contracts.
(a) ICF has delivered or otherwise made available to DHP true, correct
and complete copies of all contracts and agreements (and all amendments,
modifications and supplements thereto and all side letters to which ICF is a
party affecting the obligations of any party thereunder) to which ICF or any
of its subsidiaries is a party or by which any of their properties or assets
are bound that are, material to the business, properties or assets of ICF and
its subsidiaries taken as a whole, including, without limitation, to the
extent any of the following are, individually or in the aggregate, material
to the business, properties or assets of ICF and its subsidiaries taken as a
whole, all: (i) employment, product design or development, personal services,
consulting, non-competition, severance, golden parachute or indemnification
contracts (including, without limitation, any contract to which ICF is a
party involving employees of ICF); (ii) licensing, publishing, merchandising
or distribution agreements; (iii) contracts granting rights of first refusal
or first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the 'ICF Contracts"). Neither ICF
nor any of its subsidiaries is a party to or bound by any severance, golden
parachute or other agreement with any employee or consultant pursuant to
which such person would be entitled to receive any additional compensation or
an accelerated payment of compensation as a result of the consummation of the
transactions contemplated hereby.
(b) Each of the ICF Contracts is valid and enforceable in accordance
with its terms, and there is no default under any ICF Contract so listed
either by ICF or, to the knowledge of ICF, by any other party thereto, and no
event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by ICF or, to the knowledge of
ICF, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on ICF.
(c) No party to any such ICF Contract has given notice to ICF of or made
a claim against ICF with respect to any breach or default thereunder, in any
such case in which such breach or default could reasonably be expected to
have a Material Adverse Effect on ICF.
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of DHP. Except as contemplated by this
Agreement or as described in Section 4.1 of the DHP Disclosure Schedule,
during the period from the date hereof to the Effective Time, DHP will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.1 of the
DHP Disclosure Schedule, prior to the Effective Time, DHP will not, without
the prior written consent of ICF:
<PAGE>
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of DHP (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of DHP; or (v) mortgage or pledge any of its material assets, or create
or suffer to exist any material Lien thereupon (other than tax Liens for
taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent DHP from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 1999 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 1999 in amounts previously disclosed to ICF (to the extent that such
compensation increases and new or amended bonus arrangements do not result in
a material increase in benefits or compensation expense to DHP);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to DHP; (iii) authorize any new capital
expenditure or expenditures which, individually is in excess of $1,000 or, in
the aggregate, are in excess of $5,000; provided, however that none of the
foregoing shall limit any capital expenditure required pursuant to existing
contracts;
(k) make any tax election or settle or compromise any income tax
liability material to DHP;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
DHP;
<PAGE>
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of ICF. Except as contemplated by this
Agreement or as described in Section 4.2 of the ICF Disclosure Schedule
during the period from the date hereof to the Effective Time, ICF will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.2 of the
ICF Disclosure Schedule, prior to the Effective Time, ICF will not, without
the prior written consent of:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, recapitalization or other reorganization of ICF
(other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of ICF or its subsidiaries; or (v) mortgage or pledge any of its material
assets, or create or suffer to exist any material Lien thereupon (other than
tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent ICF or its subsidiaries from (i) entering
into employment agreements or severance agreements with employees in the
ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 1999 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 1999 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to ICF);
<PAGE>
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to ICF; (iii) authorize any new capital
expenditure or expenditures which, individually, is in excess of $1,000 or,
in the aggregate, are in excess of $5,000: provided, however that none of the
foregoing shall limit any capital expenditure required pursuant to existing
contracts;
(k) make any tax election or settle or compromise any income tax
liability material to ICF and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
ICF;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the ICF contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K. ICF and DHP shall promptly prepare
and file with the SEC an 8-K disclosing this merger.
Section 4.4. Other Potential Acquirers.
(a) ICF, its affiliates and their respective officers, directors,
employees, representatives and agents shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition.
Section 4.5. Meetings of Stockholders. ICF shall take all action
necessary, in accordance with the respective General Corporation Law of its
respective state, and its respective certificate of incorporation and bylaws,
to duly call, give notice of, convene and hold a meeting of its stockholders
as promptly as practicable, to consider and vote upon the adoption and
approval of this Agreement and the transactions contemplated hereby. The
stockholder votes required for the adoption and approval of the transactions
contemplated by this Agreement. ICF will, through its Boards of Directors,
recommend to their respective stockholders approval of such matters
Section 4.6. NASD OTC:BB Listing. The parties shall use all reasonable
efforts to cause the DHP Shares, subject to Rule 144, to be traded on the
Over-The-Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, DHP will give ICF
and its authorized representatives, and ICF will give DHP and its authorized
representatives, reasonable access to all employees, plants, offices,
warehouses and other facilities and to all books and records of itself and
its subsidiaries, will permit the other party to make such inspections as
such party may reasonably require and will cause its officers and those of
its subsidiaries to furnish the other party with such financial and operating
data and other information with respect to the business and properties of
itself and its subsidiaries as the other party may from time to time
reasonably request.
<PAGE>
(b) Between the date hereof and the Effective Time, DHP shall furnish to
ICF, and ICF will furnish to DHP, within 25 business days after the end of
each quarter, quarterly statements prepared by such party in conformity with
its past practices) as of the last day of the period then ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the 8-K, any filings that
may be required under the HSR Act, and any amendments to any thereof; (ii)
obtaining consents of all third parties and Governmental Entities necessary,
proper or advisable for the consummation of the transactions contemplated by
this Agreement; (iii) contesting any legal proceeding relating to the Merger
and (iv) the execution of any additional instruments necessary to consummate
the transactions contemplated hereby. Subject to the terms and conditions of
this Agreement, ICF and DHP agree to use all reasonable efforts to cause the
Effective Time to occur as soon as practicable after the stockholder votes
with respect to the Merger. In case at any time after the Effective Time any
further action is necessary to carry out the purposes of this Agreement, the
proper officers and directors of each party hereto shall take all such
necessary action.
Section 4.9. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, DHP shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
''Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) DHP shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to DHP, promptly after statements therefore are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its certificate of incorporation or
bylaws, (ii) DHP will cooperate in the defense of any such matter and (iii)
any determination required to be made with respect to whether an Indemnified
Party's conduct complies with the standards set forth under the NGCL and
DHP's certificate of incorporation or bylaws shall be made by independent
counsel mutually acceptable to DHP and the Indemnified Party; provided,
however, that DHP shall not be liable for any settlement effected without its
written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to
each related matter except to the extent there is, in the opinion of counsel
to an Indemnified Party, under applicable standards of professional conduct,
c conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b) In the event DHP or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of DHP shall assume the obligations set forth
in this Section 4.9.
<PAGE>
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of DHP and ICF and their subsidiaries with
respect to their activities as such prior to the Effective Time, as provided
in DHP's and ICF's certificate of incorporation or bylaws, in effect on the
date thereof or otherwise in effect on the date hereof, shall survive the
Merger and shall continue in full force and effect for a period of not less
than six years from the Effective Time.
(d) The provisions of this Section 4.9 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.10. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.10 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the stockholders of ICF;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of DHP and ICF;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
Section 5.2. Conditions to the Obligations of DHP. The obligation of DHP
to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of ICF contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on ICF) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing ICF
shall have delivered to DHP a certificate to that effect;
<PAGE>
(b) each of the covenants and obligations of ICF to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing ICF shall have delivered to DHP a certificate to that
effect;
(d) ICF shall have obtained the consent or approval of each person whose
consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of ICF under any loan or credit
agreement, note, mortgage, indenture, lease or other agreement or instrument,
except those for which failure to obtain such consents and approvals would
not, in the reasonable opinion of DHP, individually or in the aggregate, have
a Material Adverse Effect on ICF;
(e) there shall have been no events, changes or effects with respect to
ICF or its subsidiaries having or which could reasonably be expected to have
a Material Adverse Effect on ICF; and
Section 5.3. Conditions to the Obligations of ICF. The respective
obligations of ICF to effect the Merger are subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) the representations of DHP contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on DHP) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing DHP
shall have delivered to ICF a certificate to that effect;
(b) each of the covenants and obligations of DHP to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing DHP shall have delivered to ICF a certificate to that
effect;
(c) there shall have been no events, changes or effects with respect to
DHP having or which could reasonably be expected to have a Material Adverse
Effect on DHP.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by DHP's or ICF's
stockholders:
(a) by mutual written consent of DHP and ICF;
(b) by ICF or DHP if (i) any court of competent jurisdiction in the
United States or other United States Governmental Entity shall have issued a
final order, decree or ruling or taken any other final action restraining,
enjoining or otherwise prohibiting the Merger and such order, decree, ruling
or other action is or shall have become nonappealable or (ii) the Merger has
not been consummated by February 15, 2000; provided, however, that no party
may terminate this Agreement pursuant to this clause (ii) if such party's
failure to fulfill any of its obligations under this Agreement shall have
been the reason that the Effective Time shall not have occurred on or before
said date;
(c) by DHP if (i) there shall have been a breach of any representation
or warranty on the part of ICF set forth in this Agreement, or if any
representation or warranty of ICF shall have become untrue, in either case
such that the conditions set forth in Section 5.2(a) would be incapable of
being satisfied by February 26, 2000 (or as otherwise extended), (ii) there
shall have been a breach by ICF of any of their respective covenants or
agreements hereunder having a Material Adverse Effect on ICF or materially
adversely affecting (or materially delaying) the consummation of the Merger,
and ICF, as the case may be, has not cured such breach within 20 business
days after notice by DHP thereof, provided that DHP has not breached any of
its obligations hereunder, (iii) DHP shall have convened a meeting of its
stockholders to vote upon the Merger and shall have failed to obtain the
requisite vote of its stockholders; or (iv) DHP shall have convened a meeting
of its Board of Directors to vote upon the Merger and shall have failed to
obtain the requisite vote;
<PAGE>
(d) by ICF if (i) there shall have been a breach of any representation
or warranty on the part of DHP set forth in this Agreement, or if any
representation or warranty of DHP shall have become untrue, in either case
such that the conditions set forth in Section 5.3(a) would be incapable of
being satisfied by February 26, 2000 (or as otherwise extended), (ii) there
shall have been a breach by DHP of its covenants or agreements hereunder
having a Material Adverse Effect on DHP or materially adversely affecting (or
materially delaying) the consummation of the Merger, and DHP, as the case may
be, has not cured such breach within twenty business days after notice by ICF
thereof, provided that ICF has not breached any of its obligations hereunder,
(iii) the DHP Board shall have recommended to DHP's stockholders a Superior
Proposal, (iv) the DHP Board shall have withdrawn, modified or changed its
approval or recommendation of this Agreement or the Merger, or hold a
stockholders' meeting to vote upon the Merger, or shall have adopted any
resolution to effect any of the foregoing, (v) ICF shall have convened a
meeting of its stockholders to vote upon the Merger and shall have failed to
obtain the requisite vote of its stockholders.
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Except as specifically provided in this
Section 6.3, each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
DHP and ICF at any time before or after approval of the Merger by the
stockholders of DHP and ICF (if required by applicable law) but, after any
such approval, no amendment shall be made which requires the approval of such
stockholders under applicable law without such approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of the
parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
<PAGE>
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands 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, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to ICF:
Intercontinental Capital Fund, Inc.
1850 East Flamingo Rd. Suite 111
Las Vegas, Nevada 89119
with a copy to:
Donald J. Stoecklein
Sperry Young & Stoecklein
1850 East Flamingo Rd. Suite 111
Las Vegas, Nevada 89119
(702) 792-2590
(702) 794-0744
if to DHP:
Johnny Shannon
President
Desert Health Products, Inc.
8221 East Evans Rd.
Scottsdale, Arizona
(480) 951-1941
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19 and
3.19 a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
<PAGE>
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of DHP or ICF or its subsidiaries, as the
case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of DHP, ICF or any other person,
means any corporation, partnership, limited liability company, association,
trust, unincorporated association or other legal entity of which DHP, ICF or
any such other person, as the case may be (either alone or through or
together with any other subsidiary), owns, directly or indirectly, 50% or
more of the capital stock, the holders of which are generally entitled to
vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of DHP, ICF or any officer, director,
employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
DESERT HEALTH PRODUCTS, INC.
By:/s/ Johnny Shannon
Name: Johnny Shannon
Title: President
INTERCONTINENTAL CAPITAL FUND, INC.
By:/s/ Anthony DeMint
Name: Anthony N. DeMint
Title: President
<PAGE>
DHP DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended Articles/Bylaws
Schedule 2.6 Consents & Approvals None Provided
Schedule 2.7 No Default Not Applicable
Schedule 2.8 No Undisclosed Liability None Exist
Schedule 2.9 Litigation None Exist
Schedule 2.10 Compliance with Applicable Law None
Schedule 2.11 Employee Benefit Plans None Provided
Schedule 2.12 Environmental Laws and Regs Not Applicable
Schedule 2.13 Tax Matters None Exist
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property Extensive List provided
Intercontinental
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required None Required
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates Johnny Shannon
Thor Lindvaag
Georgia Aadland
Lawrence Olson
Raymond A. Quadt
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest None Exist
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business None Provided
<PAGE>
ICF DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals Provided
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10KSB
Schedule 3.11 Employee Benefit Plans Section 3.11( c)No Options Exist
Section 3.11(e) No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property None Exist
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder Meeting
Certificate
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Anthony N. DeMint
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 3.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
CERTIFICATE OF MERGER
OF
DESERT HEALTH PRODUCTS, INC.
an Arizona corporation
and
INTERCONTINENTAL CAPITAL FUND, INC.
a Nevada corporation
The undersigned corporations, DESERT HEALTH PRODUCTS, INC., an Arizona
corporation ("DHP"), and INTERCONTINENTAL CAPITAL FUND, INC., a Nevada
corporation ("ICF"), do hereby certify:
1. ICF is a corporation duly organized and validly existing under the
laws of the State of Nevada. Articles of Incorporation were originally filed
on October 13, 1999.
2. DHP is a corporation duly organized and validly existing
under the laws of the State of Arizona. Articles of Incorporation were
originally filed on June 21, 1991.
3. ICF and DHP are parties to a Merger Agreement, pursuant to which
ICF will be merged with and into DHP. Upon completion of the merger DHP will
be the surviving corporation in the merger and ICF will be dissolved.
Pursuant to the Merger Agreement the stockholders of ICF will receive stock
in DHP. For purposes of process of service, the address of DHP is 8221 East
Evans Road, Scottsdale, Arizona 85260.
4. The Articles of Incorporation and Bylaws of DHP as existing prior
to the effective date of the merger shall continue in full force as the
Articles of Incorporation and Bylaws of the surviving corporation.
5. The complete executed Agreement and Plan of Merger dated as of
January 26, 2000, which sets forth the plan of merger providing for the
merger of ICF with and into DHP is on file at the corporate offices of DHP.
6. A copy of the Merger Agreement will be furnished by DHP on request
and without cost to any stockholder of any corporation which is a party to
the merger.
7. The plan of merger as set forth in the Agreement and Plan of
Merger, has been approved by a majority of the Board of Directors of ICF at a
meeting held January 26, 2000.
8. ICF has 5,000,000 shares of common stock issued, outstanding
and entitled to vote on the merger. At a meeting of the Shareholders of ICF
held January 26, 2000 all 5,000,000 shares voted in favor of the merger.
<PAGE>
9. The plan of merger as set forth in the Agreement and Plan of
Merger, was approved by a majority of the Board of Directors of DHP at a
meeting held January 26, 2000.
10. Stockholder approval of the Agreement and Plan of Merger by the
Stockholders of DHP is not required pursuant to the provisions of Arizona
Revised Statutes, Section 10-1103(G).
11. The manner in which the exchange of issued shares of ICF shall be
affected is set forth in the Agreement and Plan of Merger.
IN WITNESS WHEREOF, the undersigned have executed these Certificate of
Merger this 8th day of February, 2000.
DESERT HEALTH PRODUCTS, INC. INTERCONTINENTAL CAPITAL FUND, INC.
a Arizona corporation a Nevada corporation
By/s/ Johnny Shannon By/s/ Anthony DeMint
JOHNNY SHANNON, President ANTHONY N. DeMINT, President
By/s/ Georgia Aadland By/s/ Anthony DeMint
GEORGIA AADLAND, Secretary ANTHONY N. DeMINT, Secretary
STATE OF ARIZONA )
) SS:
COUNTY OF Maricopa )
On 2-9-00 before me, a Notary Public, personally appeared JOHNNY
SHANNON who is the President of DESERT HEALTH PRODUCTS, INC., and who is
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacities
and that, by his signatures on the instrument, the person or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Manett M. Hasanoff
________________________________
Notary Public
STATE OF ARIZONA )
) SS:
COUNTY OF Maricopa )
On 2-9-00 before me, a Notary Public, personally appeared GEORGIA
AADLAND who is the Secretary of DESERT HEALTH PRODUCTS, INC., and who is
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that she executed the same in her authorized
capacities and that, by her signatures on the instrument, the person or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Manett M. Hasanoff
________________________________
Notary Public
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
On 2-9-00 before me, a Notary Public, personally appeared ANTHONY
N. DeMINT who is the President and Secretary of INTERCONTINENTAL CAPITAL
FUND, INC., and who is personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacities and that, by his signatures on the instrument, the
person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Debra Amigone
________________________________
Notary Public
