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).
<PAGE>
"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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<PAGE>
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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<PAGE>
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
here
