EXHIBIT 10.2
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EXHIBIT I
ASSET PURCHASE AGREEMENT
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This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
February __, 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.
W I T N E S S E T H:
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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
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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
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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,
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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.
SECTION 2.02. Closing.
(a) The Closing shall take place at the offices of Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx 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 Xxxx 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).
(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 Xxxx 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
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IS, WHERE IS" on the Closing Date, and the Purchaser shall rely upon its own
examination and evaluation thereof and of the business.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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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
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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.
(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
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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.
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(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.
ARTICLE V
TERMINATION
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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.
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ARTICLE VI
OTHER AGREEMENTS
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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.
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
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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.
000 Xx. 00
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: ______________
Attn: Xxxxx Xxxxxxx, President
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(b) if to the Seller:
Deep Field Technologies, Inc.
0 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: ______________
Attn: ______________
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.
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
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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: __________________________
Name: ________________________
Title: _______________________
IVOICE, INC., AS PURCHASER
By: __________________________
Name: ________________________
Title: _______________________
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SCHEDULE 1.01
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(A) ASSETS
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[TBC]
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(B) LIABILITIES
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[TBC]
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EXHIBIT A
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[FORM OF XXXX OF SALE]
SCHEDULE 1.01-1
