ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
February 13, 2007, is by and between DEEP FIELD TECHNOLOGIES, INC., a New Jersey
corporation (the "Seller") and IVOICE, INC., a New Jersey corporation, its
successors and assignees/nominees (the "Purchaser"). All capitalized terms used
herein and defined in Sections 1.01 are used herein as therein defined.
WITNESSETH:
WHEREAS, the Seller is engaged in the business of operating a
unified messaging business and owns certain Assets (as defined below);
WHEREAS, the Seller desires to sell the Assets and all of its rights
in and to the Assets, and the Purchaser desires to purchase the Assets and such
rights in the manner and subject to the terms and conditions hereinafter set
forth; and
WHEREAS, it is the intention of the parties hereto that, upon the
consummation of the purchase and sale of the Assets by the Purchaser pursuant to
this Agreement, the Purchaser shall own such Assets of the Seller;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.
(a) As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Agreement" has the meaning assigned to such term in the first
paragraph hereof.
"Ancillary Agreements" has the meaning assigned to such term in
Section 2.04.
"Asset Transfer" has the meaning assigned to such term in Section
2.01 hereof.
"Assets" means: (i) all inventory including all raw materials, work
in progress and finished goods, replacement and spare parts and
components, electric parts, switches, appliances, packaging
materials and operating supplies in each case owned by the Seller as
of the Closing Date used or useful in the unified messaging
business; (ii) the goodwill associated with the unified messaging
business of the Seller; (iii) all contracts, purchase orders,
customers, lists of customers, employment contracts, leases and
other agreements of Seller listed on Schedule 1.01(A) hereto (the
"Contracts"); (iv) all cash accounts of the Seller; and (v)
furniture, equipment and accounts receivable listed on the Seller's
balance sheet as of the Closing Date and thereafter, all as
described in Schedule 1.01(A).
"Business Day" means a day of the year on which banks located in New
York, New York are not required or authorized by law to be closed.
"Closing" means the closing of the transaction contemplated by this
Agreement.
"Closing Date" means the date hereof, or such other date as the
parties hereto may agree.
"Contracts" has the meaning assigned to such term in the definition
of "Assets" above.
"Liabilities" means the debt, liabilities, obligations, duties,
contracts and agreements described in Schedule 1.01(B).
"Purchaser" has the meaning assigned to such term in the first
paragraph hereof.
"Seller" has the meaning assigned to such term in the first
paragraph hereof.
"Tax" or "Taxes" means any federal, state, local or foreign income,
gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental
(including taxes under Code Section 59A), customs duties, capital
stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, recording, value
added, alternative or add-on minimum, estimated, or tax of any kind
whatsoever, including any interest, penalty or addition thereto.
"Tax Return" means any return (including any information return),
report, statement, schedule, notice, form, or other document or
information filed with or submitted to, or required to be filed with
or submitted to, any governmental authority in connection with the
determination, assessment, collection, or payment of any Tax or in
connection with the administration, implementation, or enforcement
of or compliance with any law relating to any Tax.
"Transfer Taxes" has the meaning assigned to such term in Section
7.07 hereof.
ARTICLE II
PURCHASE AND SALE OF ASSETS
SECTION 2.01. Transfer of Assets by the Seller. On and as of the Closing
Date, the Seller hereby assigns, transfers and delivers to the Purchaser on an
"AS IS, WHERE IS" basis, and the Purchaser hereby agrees to purchase from the
Seller on an "AS IS, WHERE IS" basis, all of the Assets (the "Asset Transfer"),
free and clear of all encumbrances and liens.
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SECTION 2.02. Closing.
(a) The Closing shall take place at the offices of Kramer Levin
Naftalis & Frankel LLP on the date hereof, or such earlier date as agreed
between the parties hereto but in no event later than five (5) business days
after the date upon which all of the conditions set forth in Article V hereof
have been satisfied in full.
(b) At the Closing, the Seller shall deliver a Bill of Sale
substantially in the form of Exhibit A hereto and executed copies of all of the
agreements contemplated hereby (including those agreements referred to in
Section 2.04).
t 12 (c) At the Closing, the Purchaser shall deliver the amount referred
to in Section 2.03 hereof, together executed copies of the other agreements
ancillary hereto and referred to in Section 2.04 to which it is a party.
SECTION 2.03. Purchase Price. In consideration of the sale, assignment,
transfer and delivery of the Assets to the Purchaser at the Closing, the
Purchaser shall pay to the Seller the sum of $1.00 in cash on the Closing Date.
SECTION 2.04. Ancillary Agreements. In addition to the sale and purchase
of the Assets and the other transactions provided for in this Agreement, the
following documents shall be executed and delivered at Closing:
(a) the Bill of Sale; and
(b) the assignments and any required consents to assignments of the
Contracts listed on Schedule 1.01; (together, the "Ancillary Agreements").
SECTION 2.05. Further Assurances. Each of the Purchaser and the Seller
shall, at the request of the other and without further cost or expense to the
requesting party, at any time and from time to time after the Closing Date
hereof promptly prepare, execute, and deliver, or cause to be prepared,
executed, and delivered, to the requesting party all such further instruments
(including without limitation, additional assignments suitable for recording)
and take all such further action as may be reasonably necessary to transfer,
assign, convey, grant, and confirm to the requesting party, or to perfect and
record the requesting party's title to or interest in, or to enable the
requesting party to possess and use, the Assets, as the case may be; provided,
however, the requested party shall not be required to pay any consideration,
incur any expense, or assume any obligation to carry out the foregoing.
SECTION 2.06. No Express or Implied Warranties. The Seller makes no
warranty, express or implied, whether of merchantability, quality, or
suitability or fitness for a particular purpose, as to the Assets or as to the
business or any part thereof, or as to the condition or workmanship of any of
the Assets or as to the absence of any defects therein, whether latent or
patent, it being understood that the Assets are to be contributed and
transferred hereunder "AS IS, WHERE IS" on the Closing Date, and the Purchaser
shall rely upon its own examination and evaluation thereof and of the business.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
1= SECTION 3.01. Representations and Warranties of Seller. The Seller
hereby represents and warrants to and with the Purchaser as follows:
(a) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey. The Seller has all
requisite corporate power and authority to execute and deliver this Agreement
and the Ancillary Documents to which it is a party and perform its obligations
hereunder and thereunder.
(b) The execution and delivery of this Agreement and the Ancillary
Documents to which it is a party by the Seller, and the performance of its
obligations hereunder and thereunder, have been duly authorized by all necessary
corporate action on the part of the Seller. This Agreement and the Ancillary
Documents to which the Seller is a party has been duly executed and delivered by
the Seller and constitute the valid and binding obligation of the Seller,
enforceable against the Seller in accordance with their terms.
(c) Unless otherwise set forth in Schedule 3.01 hereto, no consent,
approval, authorization, order, notification, or declaration of, or registration
or filing with, any governmental or judicial authority or any third party is
required by or with respect to the Seller in connection with the execution and
delivery of this Agreement by the Seller and the Ancillary Documents to which it
is a party or the performance by the Seller of its obligations hereunder and
thereunder other than those required by the Contracts (if any).
(d) No finder, broker, agent or other intermediary has acted for or
on behalf of the Seller in connection with the negotiation and consummation of
this Agreement or the transactions contemplated hereby.
SECTION 3.02. Representations and Warranties of Purchaser. The Purchaser
hereby represents and warrants to and with the Seller as follows:
(a) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Jersey. The Purchaser
has all requisite corporate power and authority to execute and deliver this
Agreement and each of the Ancillary Agreements to which it is a party and
perform its obligations hereunder and thereunder and has sufficient funds
available to it to consummate the Asset Transfer and the other transactions
contemplated hereby.
(b) The execution and delivery of this Agreement and each of the
Ancillary Agreements to which it is a party by the Purchaser, and the
performance of its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action on the part of the Purchaser. This
Agreement and each of the Ancillary Agreements to which it is a party have been
duly executed and delivered by the Purchaser and constitute a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
(c) No consent, approval, authorization, order, notification or
declaration of, or registration or filing with, any governmental or judicial
authority or any third party is required by or with respect to the Purchaser in
connection with the execution and delivery of this Agreement and the Ancillary
Agreements to which it is a party by the Purchaser or the performance by the
Purchaser of its obligations hereunder and thereunder, other than those set
forth in Schedule 3.02 hereto.
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(d) No finder, broker, agent or other intermediary has acted for or
on behalf of the Purchaser in connection with the negotiation and consummation
of this Agreement or the transactions contemplated hereby.
ARTICLE IV
CONDITIONS PRECEDENT TO THE CLOSING
SECTION 4.01. Conditions to Obligations of the Seller to the Closing. The
obligations of the Seller to perform this Agreement and consummate the
transactions contemplated hereunder are subject to the satisfaction, on or prior
to the Closing Date, of the following conditions (unless any of such conditions
are expressly waived in writing by the Seller):
(a) The execution and delivery of this Agreement and Ancillary
Agreements by the Purchaser and the performance of its covenants and obligations
hereunder and thereunder shall have been duly authorized by all necessary and
corporate action.
(b) Each and all of the agreements and covenants of the Purchaser to
be performed on or before the Closing Date pursuant to the terms hereof shall
have been duly performed in all material respects.
(c) The representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date.
SECTION 4.02. Conditions to Obligations of the Purchaser to the Closing.
The obligations of the Purchaser to perform this Agreement and consummate the
transactions contemplated hereunder are subject to the satisfaction, on or prior
to the Closing Date, of the following conditions (unless any of such conditions
are expressly waived in writing by the Purchaser):
(a) The execution and delivery of this Agreement and Ancillary
Agreements by the Seller and the performance of its covenants and obligations
hereunder and thereunder shall have been duly authorized by all necessary and
corporate action.
(b) Each and all of the agreements and covenants of the Seller to be
performed on or before the Closing Date pursuant to the terms hereof shall have
been duly performed in all material respects.
(c) The representations and warranties of the Seller contained in
this Agreement shall be true and correct in all respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date.
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ARTICLE V
TERMINATION
SECTION 5.01. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned prior to the Closing Date:
(a) by the mutual written consent of the Seller and the Purchaser;
(b) by the Seller if the Closing Date shall not have occurred on or
before March 30, 2007;
(c) by the Seller if (i) any of the conditions provided for in
Article IV hereof have not been met by the Purchaser and have not been waived by
the Seller, (ii) any representation made by the Purchaser shall be untrue in any
material respect or (iii) the Purchaser shall fail to perform its agreements or
covenants contained herein required to be performed by it on or prior to the
Closing Date, without liability on the part of the Seller on account of such
termination; or
(d) by the Purchaser if (i) any of the conditions provided for in
Article IV hereof have not been met by Seller and have not been waived by the
Purchaser, (ii) any representation made by the Seller shall be untrue in any
material respect or (iii) the Seller shall fail to perform its agreements
contained herein required to be performed by it on or prior to the Closing Date,
without liability on the part of the Purchaser on account of such termination.
SECTION 5.02. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 5.01 hereof, on the date of
such termination this Agreement shall forthwith become void and have no effect
(other than the provisions of this Section 5.02) without any liability on the
part of the Seller or its affiliates, directors, officers or stockholders.
Notwithstanding the foregoing, the termination of this Agreement
shall not defeat or impair the right of any party to pursue such relief as may
otherwise be available to it on account of any breach of this Agreement or any
of the representations, warranties, covenants or agreements contained herein.
ARTICLE VI
OTHER AGREEMENTS
SECTION 6.01. Investigation. The Purchaser acknowledges and agrees that it
(i) has made its own inquiry and investigation into, and based thereon has
formed an independent judgment concerning the Assets and Liabilities, (ii) has
been furnished with or given adequate access to such information about the
Assets and Liabilities as it has requested and (iii) will not assert any claim
against the Seller or any of its respective officers, employees, agents,
stockholders, affiliates, or representatives, or hold the Seller or any such
other persons liable, for any inaccuracies, misstatements, or omissions with
respect to any information furnished by the Seller or any such other persons
concerning the Assets and Liabilities.
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SECTION 6.02. Information on the Assets. The Purchaser agrees that it
shall, after Closing, provide such information on the Assets and Liabilities to
the Seller as it reasonably requires for the purpose of compliance by the Seller
with any federal, state, or local tax laws or regulations.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Expenses. Except as otherwise specifically provided in this
Agreement, the parties hereto shall pay all of their own expenses relating to
the transactions contemplated by this Agreement, including, without limitation,
the fees and expenses of their respective legal counsel and accountants.
SECTION 7.02. Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of New Jersey applicable to contracts made and to be performed entirely
within such State, without regard to the conflicts or choice of law principles
of such State.
SECTION 7.03. Captions. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 7.04. Notices. Any notice or other communications required or
permitted hereunder shall be sufficiently given if delivered in person or sent
by facsimile or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
(a) if to the Purchaser:
iVoice, Inc.
750 Rt. 34
Matawan, New Jersey 07747
Facsimile No.: 732-441-9895
Attn: Jerry Mahoney, President
(b) if to the Seller:
Deep Field Technologies, Inc.
2222 Second Street
Fort Myers, Florida 33901
Facsimile No.: (239) 437-5257
Attn: Fred Griffin, Chief Financial Officer
or in any case to such other address or telecopy number as shall be furnished in
writing by any party to the other party, and such notice or communication shall
be deemed to have been given as of the date so delivered or sent by telecopy or
five days after deposited in the mails, as applicable.
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SECTION 7.05. Counterparts. This Agreement may be executed in two (2) or
more counterparts, all of which taken together shall constitute one instrument.
SECTION 7.06. Entire Agreement. This Agreement, including the other
documents referred to herein which form a part hereof, contain the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. Except as otherwise specifically set forth herein, this
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
SECTION 7.07. Transfer, Etc.; Taxes. All stamp, transfer, documentary,
sales, use, registration and other similar Taxes and all conveyance fees,
recording fees, recording charges and other fees and charges (including any
penalties and interest) incurred in connection with the execution or delivery of
this Agreement or the consummation of the transactions contemplated hereby
(collectively, the "Transfer Taxes") shall be paid by the Purchaser, and the
Purchaser shall, at its own expense, procure any stock transfer stamps required
and properly file, with the cooperation of the Seller, on a timely basis all
necessary Tax Returns, reports, forms, and other documentation with respect to
any Transfer Taxes and provide to the Seller evidence of payment of all Transfer
Taxes.
SECTION 7.08. Amendments; No Waivers. This Agreement may not be changed
orally, but only by an agreement in writing signed by the parties hereto. Any
provision of this Agreement may be waived, amended, supplemented or modified by
written agreement of the parties hereto. No waiver or failure to insist upon
strict compliance with any provision of this Agreement shall operate as a waiver
of, or estoppel with respect to, any subsequent or other failure to comply
strictly with each of the provisions of this Agreement.
SECTION 7.09. Severability. In case any provision in this Agreement shall
be held invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
SECTION 7.10. Benefit and Assignment.
(a) Nothing in this Agreement, whether expressed or implied, is
intended or shall be construed to confer any right or remedy under or by reason
of this Agreement upon any person other than the parties hereto and their
respective successors and assigns nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any person to any party to
this Agreement.
(b) This Agreement shall be binding on, and accrue to the benefit
of, the parties hereto and their respective successors and permitted assigns.
This Agreement may not be assigned by the Purchaser without the prior written
consent of the Seller.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Asset Purchase Agreement as of the date first written above.
DEEP FIELD TECHNOLOGIES, INC.,
as Seller
By: /s/ Fred Griffin
---------------------------
Name: Fred Griffin
Title: Chief Financial Officer
IVOICE, INC., as Purchaser
By: /s/ Jerry Mahoney
---------------------------
Name: Jerry Mahoney
Title: President
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SCHEDULE 1.01
(A) ASSETS
Unified Messaging Software
(B) LIABILITIES
None.
EXHIBIT A
FORM OF BILL OF SALE
This BILL OF SALE, dated as of February 13, 2007, is given by Deep
Field Technologies, Inc., a New Jersey corporation (the "Seller") to iVoice,
Inc., a New Jersey corporation (the "Purchaser"), pursuant to that certain Asset
Purchase Agreement, dated as of the date hereof (the "Agreement"), by and
between the Seller and the Purchaser. All capitalized words and terms used in
this Bill of Sale and not defined herein have the respective meanings ascribed
to them in the Agreement.
In consideration of the premises and the other valuable
consideration given by the Purchaser to the Seller, the receipt and sufficiency
of which is hereby acknowledged, the Seller hereby sells, transfers, conveys,
assigns and delivers to the Purchaser, its successors and assigns, all of its
right, title and interest to and in the Assets and Liabilities (as such terms
are defined in the Agreement).
t 12 The Seller hereby constitutes and appoints the Purchaser its true and
lawful attorney to do every act and thing whatsoever which the Seller could
lawfully do in connection with the collection of all accounts and notes
receivable, trade notes and trade accounts, including, without limitation, the
endorsement in any manner of checks and drafts payable to the Seller or in the
tradename of the Seller on account of the Assets.
The Seller, by its execution of this Bill of Sale, and the
Purchaser, by its acceptance of this Bill of Sale, hereby acknowledge and agree
that neither the representations and warranties nor the rights and remedies of
any party under the Agreement shall be deemed to be enlarged, modified or
altered in any way by this instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be
executed by a duly authorized officer as of the date first above written.
DEEP FIELD TECHNOLOGIES, INC.
By: /s/ Fred Griffin
-----------------------------
Name: Fred Griffin
Title: Chief Financial Officer