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):
September 30, 2014
PERVAIP CORP.
(Exact name of registrant as specified in its
charter)
New York |
000-04465 |
13-2511270 |
(State or other
jurisdiction of incorporation) |
(Commission File No.) |
(I.R.S. Employer Identification No.) |
430 North Street
White Plains, NY 10605
(Address of principal
executive offices)
(914) 750-9339
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13-4(e) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
Contract of Sale
On September 30, 2014, Pervasip Corp.’s
subsidiary (the “Company”) entered into a contract of sale to transfer certain assets and liabilities, including a
copy of internally developed mobile content delivery software (the “Software”) of TelcoSoftware.com Corp., a mobile
content delivery business that provides video, audio, texting and other media over fixed and mobile broadband connections (the
“Business”) to Vaxstar LLC (the “Buyer”). The Buyer simultaneously assigned the contract of sale to Valuesetters,
Inc (the “Assignee”).
Consideration
The Buyer agreed to pay
the Company 40,000,000 (Forty Million) shares of common stock, par value $0.001, (the “Common Stock”) of the Assignee.
If annual revenues in the second year of operations of the Business exceed $1,000,000, the Company will receive an additional 9,900,000
(Nine Million Nine Hundred Thousand) shares of Common Stock.
License Agreement
The Company and the Assignee signed a license
agreement that allows the Company a non-exclusive right to use the Software. In addition, the Company agreed to become a wholesale
customer of the Assignee, and the Assignee agreed to provide technical and customer support services for the Company’s customers.
The description of the above noted agreements
does not purport to be complete and is qualified in its entirety by reference to the full text of such agreements, copies of which
are attached hereto as Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K.
Item 8.01 Other Events.
On October 3, 2014, the
Company issued a press release announcing its plan with regard to mobile VoIP operations and the Assignee. A copy of the press
release is included as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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Exhibit No. |
Description of Exhibit |
10.1* |
Contract of Sale by and among TelcoSoftware.com Corp. and Vaxstar LLC |
10.2 |
Purchase and Assignment Agreement by and between Vaxstar LLC and Valuesetters, Inc. |
10.3 |
License Agreement by and between Valuesetters, Inc. and Telcosoftware.com Corp. |
99.1 |
Press release dated October 3, 2014 |
* Exhibits for this contract have been omitted pursuant
to Item 601(b)(10) of Regulation S-K. The Company undertakes to furnish supplementally copies of any of the omitted exhibits upon
request by the Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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PERVASIP CORP. |
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Date: October 6, 2014 |
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By: |
/s/ Paul H. Riss |
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Name: Paul H. Riss |
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Title: Chief Executive Officer |
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Exhibit 10.1
CONTRACT OF SALE
THIS AGREEMENT (the "Agreement")
is made effective as of the 30th day of September 2014, by and among TELCOSOFTWARE.COM CORP., a Delaware corporation
("Seller") and .VAXSTAR LLC, a Delaware corporation ("Buyer").
WHEREAS, Seller owns certain assets
operated on the Internet under the trade name VoX Communications, including various web domains and wholesale customer agreements,
cloud-based Voice over Internet Protocol (or “VoIP”) software, interconnection agreements, customers and other
assets required to operate a VoIP business (collectively, the "Business").
WHEREAS, NetCapital.com LLC purchased
stock certificates numbered 2606 and 2607, dated January 31, 2012, representing 46,673,207 and 250,000,000 shares, respectively,
of Valuesetters, Inc. (“VSTR”) and subsequently sold 271,673,207 shares of common stock of VSTR to Buyer (certificate
number 2663) on June 23, 2013.
WHEREAS, Buyer is in possession of certificate
number 2663 of VSTR and Buyer desires to use 49,900,000 shares of VSTR to buy certain assets of the Seller under the terms and
conditions as hereinafter expressed.
NOW THEREFORE, for and in consideration
of the mutual covenants as herein contained and based on the foregoing, the parties hereto agree as follows:
I.
The Total Consideration and Allocation. As used herein, the term “Assets” shall mean and include
(a) all the Business of Seller, including the web domains of www.voxcorp.net, all the customer control panels and all the private-labeled
websites to wholesale customers, all the software needed to operate the sites, all patents, trademarks, trade names, licensed names,
corporate names, intellectual property, software, customer lists, and any and all goodwill associated therewith (collectively the
"Intellectual Property"), (b) all cash, accounts receivable, and other current assets of the Business, and (c)
100% interest in and to all of the hard assets of seller not listed above, including but not limited to any computer equipment,
repair equipment, spare parts printed material and other items, it being understood that at such time such hard assets shall be
substantially the same in quality as they are on the date hereof (collectively the "Equipment"). The Assets are
recorded on the books of the Seller at a value of approximately Fifty Thousand Dollars ($50,000), and the internal software development
costs, which are not listed as an asset on the Seller’s balance sheet, are approximately $1,838,000, as noted in Exhibit
C. Buyer shall purchase the Assets for an aggregate consideration of Forty Million (40,000,000) shares of common stock,
par value $0.001, of VSTR (the “Common Stock”), plus Nine Million Nine Hundred Thousand (9,900,000) additional
shares of Common Stock if revenues in the second year exceed One Million dollars ($1,000,000), plus the assumption of a limited
number of liabilities, including accrued payroll payable, any and all payroll related liabilities, and the full amount of liabilities
owed to the venders listed in Exhibit A.
Buyer does not assume and
Seller warrants that Buyer will not be responsible for any liabilities of Seller except as specifically provided in this Agreement.
II. Bill of Sale. Attached hereto
as Exhibit B is a Bill of Sale, which transfers all of the Assets described in such Bill of Sale from Seller to Buyer.
Buyer recognizes that the source code used to run the VoIP platform and all the programs associated with the VoIP operations, including,
but not limited to billing, provisioning, E911 calling, mobile VoIP, calling cards, video calling and text messaging shall be jointly
owed. Buyer also recognizes that Seller will contract with Buyer so that Buyer’s employees can do work to support VoIP products
offered for sale by the Seller.
III. Agreements as to Closing Date.
The parties intend that the "Closing Date" as that term is used in this Agreement and the effective date of the transfer
and transactions contemplated by this Agreement shall be the date of this Agreement.
IV. Representations and Warranties of
Seller. Seller hereby represents and warrants, jointly and severally, to Buyer as follows:
A. The Seller is an incorporated business
in the state of Delaware.
B. This Agreement and all transactions
contemplated hereby will not result in any violation of any of the terms and provisions of any indenture or other agreement to
which Seller is a party or by which Seller may otherwise be bound, or of any law, rule, license, regulation, judgment, order or
decree governing or affecting the operation of the Business of Seller.
C. All authorizations, approvals and
consents necessary for execution and delivery by Seller of this Agreement and for the consummation by Seller of the transactions
contemplated hereby have been given, which if not given would have a materially adverse affect on Seller and/or the Business.
D. All personnel associated with the
Seller have agreed to supply their services to the Buyer and will be available as employees of the Buyer to continue the Business
under the same terms and conditions on which they are currently employed. Seller agrees to retain all appropriate personnel to
ensure a smooth and orderly transition of the Business from Seller to Buyer. Buyer agrees to hire all employees of the Seller and
to begin processing the payroll under its own federal tax identification number.
E. Seller has, and there shall vest
in Buyer, good, indefeasible and marketable title to the Assets free and clear of all debts, claims, liens, encumbrances, charges,
equities, restrictions, or any other imperfections of title whatsoever except for existing liens placed on the Assets by the equipment
lenders, which Buyer consents to.
F. This Agreement and the other agreements
contemplated hereby are legal, valid and binding obligations of the Seller enforceable against it in accordance with their respective
terms.
G. As of the Closing Date, all tangible
Assets listed on Exhibit “B,” the Bill of Sale, are in reasonable working condition given their age, appearance and
prior use. Buyer understands that the Seller is not a merchant of any of the Assets and that the Assets are used goods and many
of the Assets are intangible.
H. There are no actions, suits, audits,
proceedings, judgments or investigations pending or to the knowledge of Seller, threatened against or affecting Seller or the Seller's
Assets to be transferred.
I. No representation or warranty made
by Seller in this Agreement, and no statement contained in any exhibit hereto furnished by the Seller or in any certificate or
other instrument to be furnished by Seller in connection with this Agreement, or the transactions contemplated hereby, on or before
the Closing Date, contains or will contain any untrue statement of a material fact, or omits or will omit to state all material
facts which are necessary in order to make the statements contained therein not misleading.
J.
Seller’s Assets are in substantial compliance, provided that no lack of compliance has or will have any materially
adverse effect, in respect of Seller's operations, equipment, other property, practices and all other aspects of its Business,
with all laws, ordinances, regulations, orders, judgments, rules and decrees of all governmental authorities, including but not
limited to those relating to zoning, solid waste management, protection of the environment, and occupational safety and health,
which have any application to the operations of Seller, and Seller has obtained and possesses all permits and licenses necessary
for it to conduct its Business as heretofore conducted.
V. Representations and Warranties of
Buyer. The Buyer hereby represents and warrants to Seller as follows:
A. The Buyer is a corporation, duly
organized and validly existing under the laws of the State of Delaware.
B. This Agreement and all transactions
contemplated hereby will not result in any violation of any of the terms and provisions of any indenture, or other agreement to
which Buyer is a party or to which Buyer may otherwise be bound, or of any law, rule, license, regulation, judgment, order or decree
governing or affecting Buyer.
C. All authorizations, approvals and
consents necessary for the execution and delivery by Buyer of this Agreement and for the consummation by Buyer of the transactions
contemplated hereby have been given, which if not given would have a materially adverse affect on Seller and/or Buyer.
D. Buyer is satisfied with its diligence
regarding the physical and intangible assets of Seller and is satisfied with such due diligence procedures considering all relevant
information including the age, prior use and appearance of the physical assets of Seller to be transferred to Buyer. Notwithstanding
anything in this paragraph to the contrary, Buyer does not release Seller from any of Seller's representations and warranties by
reason of Buyer's due diligence.
E.
Buyer understands and agrees that Seller has made no representations or warranties regarding future profitability of the
Business, general business prospects for the Business, retention of customers, supply sources, business prospects in general or
general economic conditions relative to the Business.
F. There are no actions,
suits, audits, proceedings, judgments or investigations pending or to the knowledge of Buyer, threatened against or affecting Buyer.
VI. Prorations. In the event that
the parties hereto have not prorated all costs, expenses, and other items necessary at or before the Closing Date, the parties
hereto agree that all costs, expenses and other liability items shall be prorated to the Closing Date with Seller being responsible
for any and all costs, expenses or other liability items up including the Closing Date and Buyer being responsible for all costs,
expenses and other items from and after the Closing Date into the future, except as otherwise specifically provided for in this
Agreement to the contrary. The parties have agreed to prorate all items not handled at or before the Closing Date in accordance
with the foregoing statements outside of closing. The Seller sells all bank accounts, PayPal accounts and merchant credit card
processing accounts, and will allow Buyer to use such bank accounts, including the account at JP Morgan Chase,
which is used by Seller to collect credit card payments from Authorize.net and PayPal. Seller permits Buyer to change the name
and tax identification number of such account to that of the Buyer’s.
VII. Taxes. Each party also agrees
that Seller will remain responsible for any type of taxes or special governmental assessments accruing regarding the Business up
to the Closing Date and that the Buyer will be responsible for such taxes after the Closing Date, except that the Buyer agrees
to make payments for prior tax liabilities with the Universal Services Fund (“USF”) and will continue to make such
payments, so long as the Seller allows the Buyer to use its filer number, website logins and other identities with the USF and
that the Buyer desires to do so and is capable of doing so.
VIII. Nature and Survival of Representations,
Etc. All statements contained in any certificates or other instrument delivered on behalf of any party hereto in connection
with this Agreement, or in connection with the transactions contemplated herein shall be deemed representations and warranties
by such party. All representations, warranties, agreements and covenants in this Agreement shall be deemed restated as of, and
shall survive the Closing Date.
IX. Brokerage Commission. Seller
and Buyer acknowledges that there is no broker or other third party to which a commission is due for help in negotiating and procuring
the Buyer as is set forth in this Agreement.
X. Notices. All notices, consents,
requests, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given or delivered,
if delivered personally or mailed by registered, overnight or certified mail, return receipt requested, with the first class postage
prepaid as follows:
TO BUYER:
Vaxstar LLC
Box 277 Hingham Ma 02043
TO SELLER:
TelcoSoftware.com Corp.
430 North Street
White Plains, NY 10605
Any change in the above addresses shall be
deemed effective if made in accordance with this article.
XI. Modification. This Agreement
shall not be modified or amended except by instrument in writing signed by or on behalf of the parties hereto.
XII. Law to Govern. This Agreement
shall be governed by and construed and enforced in accordance with the laws of the State of New York. The choice of law provision
of this Agreement shall be applied with no effect given to the principles of conflicts of law, and without regard to the Choice
of Law rules of the State of New York.
XIII. Assignment. This Agreement
may not be assigned by any party without the written consent of the other parties. Nothing in this Agreement is intended to confer
upon any person, other than the parties hereto and their successors, any rights or remedies under or by reason of this Agreement.
All assignments or attempted assignments shall be deemed valid only if in writing.
XIV. Exhibits. All Exhibits to this
Agreement shall be deemed to be part of this Agreement and are hereby intended to be incorporated herein by reference as if set
out verbatim.
XV. Entire Agreement. This instrument,
including all exhibits attached hereto, contains the entire agreement of the parties. Any and all prior agreements, written or
oral are hereby superseded by this Agreement.
XVI. Attorney's Fees. Should
any party deem it necessary to obtain the services of legal counsel to assist with respect to any dispute arising between the parties
concerning this Agreement, or with respect to the resolution of any dispute pursuant to this Agreement, then the prevailing party
shall be entitled to reimbursement for any such reasonable attorney's fees, costs and expenses.
XVII. Headings. The article paragraph
headings of this Agreement are for administrative convenience only and shall not be construed in interpreting this Agreement.
XVIII. Further Assurances. The parties
to this Agreement agree that they will do any and all things reasonably necessary after the date of this Agreement in order to
effectuate all the terms and conditions of this Agreement. Each party agrees to cooperate with the other including but not limited
to signing any and all documents necessary in order to pass title to the Assets and effectuate the other terms and conditions of
this Agreement.
XIX. Assumed Name. The parties to
this Agreement acknowledge and agree that the trade name “VoX Communications” to be transferred as one of the Assets
to be sold/purchased pursuant to the terms of this Agreement.
XXI. Remedies Not Exclusive. The
remedies provided for in this Agreement are not exclusive of any other remedy available to any party, that is, they are not in
lieu of, but are in addition to any other remedy available to any party at law or in equity.
XXII. Binding Nature. This Agreement
shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties
hereto, that nothing contained in this paragraph shall be construed as a consent to any assignment of this Agreement or the duties
and obligations under this Agreement by either Buyer or Seller.
XXIII. Invalidity or Unenforceable Nature.
In the event that any provision or part thereof is deemed to be invalid, illegal or unenforceable for any reason, then the parties
to this Agreement hereby mutually acknowledge and agree that it is their intention to have any such invalid, illegal or unenforceable
provision or part thereof be deleted from this Agreement as if it had never been included in this Agreement, so that the remainder
of this Agreement is valid, binding and enforceable in accordance with its terms.
XXIV. Settlement of Disputes. The
following agreements are made with respect to the settlement of disputes arising under the terms and conditions of this Agreement:
A.
If a dispute arises out of or relates to this Agreement, including to mean any of its Exhibits, or the breach or default
of this Agreement, the parties shall first, in good faith, attempt to negotiate a settlement of that dispute, breach or default.
B. If the dispute,
breach or default cannot be settled through negotiation, the parties agree and shall proceed to binding arbitration through the
American Arbitration Association in accordance with its Commercial Arbitration Rules under the Federal Arbitration Act, and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
C. Any provisional remedy
(including injunctive relief), which a party to this Agreement may want to elect, shall be available notwithstanding the provisions
relating to arbitration of disputes. Any party may seek such provisional remedy from the appropriate court of law pending arbitration,
and such proceeding in which the provisional remedy was sought will then be stayed pending the final award of the arbitration.
D.
The expenses of arbitration conducted pursuant to this paragraph shall be born by the parties in such proportions as the
arbitrator(s) shall decide.
XXV. Selling Restrictions. Seller
agrees that it cannot sell more than 35% of the average monthly trading volume of the Common Stock in any 30 day period without
the written permission of Valuesetters, Inc. Seller also agrees to give Buyer a right of first refusal and 10 days notice before
any stock is sold. Buyer shall be able to purchase any portion of the Common Stock, directly from the Seller, at a price that is
equal to the average closing market price for the 30 days prior to the sale of the Common Stock if Buyer exercises its right of
first refusal.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, all as of the day and year first above written.
TelcoSoftware.com Corp.
By: Paul H. Riss, CEO
/s/ Paul H. Riss
Vaxstar LLC
By: Mark Richards, CEO
/s/ Mark Richards
Exhibit 10.2
Purchase and Assignment Agreement
This Purchase and Assignment Agreement (this
“Agreement”) is entered into on September 30, 2014 by and between Vaxstar LLC (the “Assignor”) and Valuesetters,
Inc. (the “Assignee”).
WHEREAS, the Assignor is the legal and beneficial owner of
certain assets associated with the operations of a Voice over IP network (the “Business”), which it purchased from
TelcoSoftware.com Corp. pursuant to a contract of sale dated September 30, 2014;
WHEREAS, Assignor desires to assign to Assignee
and Assignee desires to accept from Assignor the rights and interests to the Business on the basis of the representations, warranties
and agreements contained in this Agreement;
WHEREAS, as consideration for assignment of the Business by
Assignor, the Assignee agrees to pay $1,000,000 (the “Purchase Price”);
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows:
- Assignment
- On the Closing Date (as defined below), in exchange for a $1,000,000
increase in the amount due to the Assignor, under the Amended Loan and Security Agreement dated July 25, 2014, between Assignor
and Assignee, as full payment of the Purchase Price, the Assignor hereby absolutely, irrevocably and unconditionally sells, assigns,
conveys, contributes and transfers to the Assignee the rights and interests to the Business owned by the Assignor and all of its
rights and benefits thereunder and conferred therein and the Assignee accepts such assignment.
- The closing of the assignment contemplated hereunder shall take place
within simultaneously with the Assignor’s purchase of the Business (the “Closing Date”).
- Additional Documents. The Assignor agrees to take such further
action and to execute and deliver, or cause to be executed and delivered, any and all other documents which are, in the opinion
of the Assignee or its counsel, necessary to carry out the terms and conditions of this Agreement.
- Effective Date and Counterpart Signature. This Agreement shall
be effective as of the date first written above. This Agreement, and acceptance of same, may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Confirmation
of execution by email of a facsimile signature page shall be binding upon that party so confirming.
- Representations and Warranties of the Assignee.
- Organization; Authority. This Agreement, when executed and delivered
by the Assignee, will constitute a valid and legally binding obligation of the Assignee, enforceable against the Assignee in accordance
with its terms.
- Investment Experience: Access to Information and Preexisting Relationship.
The Assignee (a) either alone or together with its representatives has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and
- risks of this investment and make an informed decision to so invest,
and has so evaluated the risks and merits of such investment, (b) has the ability to bear the economic risks of this investment
and can afford a complete loss of such investment, (c) understands the terms of and risks associated with the acquisition of the
Business, including, without limitation, a lack of liquidity, price transparency or pricing availability and risks associated with
the industry in which the Company operates, (d) has had the opportunity to review such disclosure regarding the Company, its business,
its financial condition and its prospects as the Assignee has determined to be necessary in connection with the assignment of the
Business.
- General Solicitation. The Assignee is not accepting such assignment
as a result of any advertisement, article, notice or other communication regarding the Business published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any seminar or any general solicitation or general advertisement.
- No Conflicts: Advice. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby, does or will violate and constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court
to which the Assignee is subject or any provision of its organizational documents or other similar governing instruments, or conflict
with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which
the Assignee is a party. The Assignee has consulted such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with the assignment of the Business.
- No Litigation. There is no action, suit, proceeding, judgment,
claim or investigation pending or to the knowledge of the Assignee, threatened against the Assignee which could reasonable be expected
in any manner to challenge or seek to prevent, enjoin, alter, or materially delay any of the transactions contemplated hereby.
- Representations and Warranties of the Assignor. Assignor owns
and is conveying to Assignee all of its rights, title and interests to the Business
| 6. | Governing Law; Submissions to Jurisdiction. This Agreement shall for all purposes be deemed
to be made under and shall be construed in accordance with the laws of the State of New York. Each of the parties hereby agrees
that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall, to the fullest extent
applicable, be brought and enforced in any state court of competent jurisdiction in the State of New York, County of New York,
or any federal court of competent jurisdiction in the Southern District of New York and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. |
- Amendments. No provision hereof may be waived or modified other
than by an instrument in writing signed by the party against who enforcement is sought.
- Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereunder have executed this Agreement
as of the date first above written.
ASSIGNOR: Vaxstar LLC
By: /s/ Mark Richards
Name: Mark Richards
ASSIGNEE: Valuesetters, Inc.
By: /s/ Manuel Teixeira
Name: Manuel Teixeira
Exhibit 10.3
LICENSE
AGREEMENT
This LICENSE AGREEMENT (the "Agreement")
is made as of the Effective Date by and between VALUESETTERS, INC. (“Licensor”),
and TELCOSOFTWARE.COM CORP. ("Licensee").
WHEREAS, Licensor owns certain
Licensed Intellectual Property (as defined below); and,
WHEREAS, Licensee desires to obtain,
and Licensor is willing to grant to Licensee, a license under the Licensed Intellectual Property on the terms hereinafter set forth.
NOW, THEREFORE, for and in consideration
of the foregoing as well as the faithful performance by each party hereto of the obligations and covenants herein contained on
their part to be performed, the parties hereto agree as follows:
In addition to other terms that may be
defined elsewhere in the text of this Agreement, the following terms as used in this Agreement shall have the meanings set forth
below:
1.1.
“Confidential Information” means any and all information disclosed to one party (the "Receiving Party")
by the other party (the "Disclosing Party") hereunder, whether communicated in writing, orally, electronically,
photographically, or in recorded or any other form, including, but not limited to, all sales and operating information, existing
and potential business and marketing plans and strategies, financial information, cost and pricing information, data media, know-how,
designs, drawings, specifications, source codes, technical information and reports. For the avoidance of doubt, Confidential Information
of Licensor includes, without limitation, Licensed Know-How and any other information disclosed to Licensee hereunder that otherwise
relates to the intended or actual use of the Licensed Intellectual Property. The term “Confidential Information” does
not include information which (i) becomes generally available to the public other than as a result of disclosure by the Receiving
Party in breach of this Agreement; (ii) was available to the Receiving Party on a non-confidential basis as shown in written records
prior to Disclosing Party’s disclosure to the Receiving Party; (iii) becomes available to the Receiving Party on a non-confidential
basis from a source other than the Disclosing Party; provided that such source is not bound by a confidentiality agreement with
the Disclosing Party or is otherwise prohibited from transferring the information to the Receiving Party by a contractual, legal
or fiduciary obligation; or (iv) is independently developed by the Receiving Party without any use of or benefit from the Disclosing
Party's Confidential Information and such independent development can be documented by written records.
1.2.
"Effective Date" means SEPTEMBER 30, 2014.
1.3.
“Licensed Intellectual Property” means all now existing and hereinafter developed source code and software owned
and/or used by Licensor (or any of its subsidiaries) to run VoIP applications and all the programs associated with the VoIP operations,
including but not limited to billing, provisioning, E911 calling, mobile VoIP, calling cards, video calling, text messaging, web
site, order interface, provisioning system, international rating by city, wholesale customer sites, agent reporting functionality,
credit card processing, automated UPS printing, call statistics and data records, de-provisioning process, back office local number
portability, PDF invoicing via email, and instant delivery of a phone number and dial tone to a customer (collectively, the “Software”);
and all intellectual property and industrial property rights and assets, and all rights, interests and protections that are associated
with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the laws of any jurisdiction
throughout the world, whether registered or unregistered, including any and all:
1.3.1.
patent applications and any patents (including but not limited to any continuation, continued prosecution, continuation-in-part,
division, reissue, extension, reexamination or substitution) that issue therefrom or otherwise claims priority thereto, and all
foreign counterparts that issue therefrom or otherwise claim priority thereto (“Licensed Patent Rights”), and
shall include Foreign Patent Rights;
1.3.2.
all letters patent claiming priority from or based upon the Licensed Patent Rights
and recognized in jurisdictions
where the Licensed Patent Rights are not, without further action, recognized, and which provide the protection and benefits to
the holder thereof substantially the same as the holder of the Licensed Patent Rights enjoys in the United States (“Foreign
Patent Rights”); and,
1.3.3.
any specifications, plans, drawings, recipes, technical information, process engineering information, sketches, designs, concepts,
process sheets, supplier and sourcing information, manufacturing data and procedures, processes, techniques, operations, trade
secrets, ingredients, tolerances, formulations, computer software, databases, data collections and the like, and all intellectual
property rights pertaining thereto, in each case relating to the Licensed Patent Rights and/or applications of the Licensed Patent
Rights (“Licensed Know-How”).
2.1.
For good and valuable consideration, the receipt of which is hereby acknowledged, Licensor
hereby grants, and Licensee hereby accepts, a fully-paid NON-EXCLUSIVE right and license to use and practice the Licensed
Intellectual Property (the “License”).
3.1.
Unless otherwise terminated pursuant to this Agreement (including, without limitation, Section 3.1.1 and Section 6 hereof), the
duration of the License granted under this Agreement shall commence on the Effective Date and continue until the later to occur
of the FIFTH (5th) anniversary of the Effective Date or the expiration of the last to expire U.S. patent in the Licensed
Patent Rights.
| Section | 4.
Confidentiality |
4.1.
Use and Non-disclosure. The Receiving Party shall hold all of the Disclosing Party’s Confidential Information in confidence
and use the same degree of care it uses to keep its own similar information confidential, but in no event shall it use less than
a reasonable degree of care. The Receiving Party may disclose such Confidential Information only to those of its directors, officers,
employees, agents or representatives who actually need such material or knowledge in connection with this Agreement, provided,
however, prior to any such disclosure, each party shall inform such persons of the confidential nature of the Disclosing Party’s
Confidential Information and of their obligation to treat such Confidential Information confidential pursuant to this Agreement,
including their obligation to return such Confidential Information pursuant to Section 7.3 below. Receiving Party represents, warrants,
covenants and agrees that it shall not make any use of Disclosing Party’s Confidential Information other than in connection
with, and as contemplated by, this Agreement. The Receiving Party agrees to be responsible for any breach of the obligations of
confidentiality hereunder by its directors, officers, employees, agents or representatives.
4.2.
Compelled Disclosure. In the event that the Receiving Party is requested or required (by oral questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Disclosing
Party's Confidential Information, it is agreed that the Receiving Party will provide Disclosing Party with prompt notice of such
request(s) so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy and/or waive compliance
with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained,
or the Disclosing Party grants a waiver hereunder, the Receiving Party may furnish that portion (and only that portion) of the
Disclosing Party's Confidential Information which the Receiving Party is legally compelled to disclose and will exercise reasonable
commercial efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.
4.3.
Return of Confidential Information. Promptly following the earlier of (i) the termination of this Agreement and (ii) the
written request of the Disclosing Party, the Receiving Party will deliver to the Disclosing Party all documents or other materials
constituting or otherwise containing the Disclosing Party's Confidential Information, together with all copies thereof, including
computer disks or other data storage media in the possession of Receiving Party.
5.1.
Modifications to Agreement. This Agreement may be modified only in writing that specifically refers to this Agreement and
which is signed by an authorized representative of each party.
5.2.
Notices. Unless otherwise set forth in this Agreement, any notice required or permitted
to be given by any party herein
to another party shall be sent by facsimile or mailed by a recognized courier service such as Federal Express and addressed as
follows or addressed to the other party at such other address as such party shall hereafter furnish to the other parties in writing.
5.3.
Law Governing the Agreement; Venue. This Agreement shall be governed in all respects (including matters of construction,
validity, and performance) by the internal laws of the State of New York, without giving effect to New York principles of conflicts
of law. In the event that either party brings any action under this Agreement, the parties hereby irrevocably submit to the exclusive
jurisdiction of the federal courts of the United States located in the Southern District of New York and the state courts of New
York with regard to any action, suit, proceeding, claim or counterclaim initiated under this Agreement.
5.4.
Specific Performance. The parties hereto recognize that any breach of the terms this Agreement may give rise to irreparable
harm for which money damages would not be an adequate remedy, and accordingly agree that any non-breaching party shall be entitled
to enforce the terms of this Agreement by a decree of specific performance without the necessity of proving the inadequacy as a
remedy of money damages. If specific performance is elected as a remedy hereunder, such remedy shall be in addition to any other
remedies available at law or equity.
5.5.
Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of
this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been part
of this Agreement.
5.6.
Force Majeure. No party hereunder shall be responsible to another party for any loss or damage caused by delay in performance
or failure to perform in whole or in part hereunder when such delay or failure is attributable to events beyond that party's control,
including, without limitation, sabotage, labor disputes, or acts of terrorism.
5.7.
Waiver. All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any
right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion.
5.8.
Further Assurances. The parties agree to execute, acknowledge and deliver all such further instruments, and to do all such
other acts as may be necessary or appropriate in order to carry out the intent and purposes of this Agreement.
5.9.
Assignment. This Agreement may not be assigned or transferred (including, without limitation, through an asset sale, stock
sale, merger or the like) in whole or in part by Licensee and any attempt to do so shall be, and hereby is void. For avoidance
of doubt, Licensor shall have the right to assign this Agreement upon written notice to Licensee of such assignment.
5.10.
Succession. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted
assigns.
5.11.
Entire Agreement. This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous
agreements between the parties, with respect to the subject of this Agreement. The parties will be bound only by a writing that
memorializes this Agreement and which is signed by an authorized representative of each party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
- SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the undersigned hereby execute this License Agreement as of the Effective Date.
VALUESETTERS, INC. |
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By: /s/ Manuel Teixeira |
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Name: Manuel Teixeira |
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Title: CEO |
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TELCOSOFTWARE.COM CORP. |
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By: /s/ Paul H. Riss |
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Name: Paul H. Riss |
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Title: CEO |
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Exhibit 99.1
FOR IMMEDIATE RELEASE
Pervasip Goes Virtual
White Plains, NY — October 3,
2014 - - Pervasip Corp. (OTC Pink: PVSP) announced that it entered into an agreement to sell and license back its award-winning
VoIP technology platform.
Pervasip’s Chief Executive Officer, Paul
Riss, stated, “We have restructured our operations by selling a copy of the software we developed to one of our customers
and exchanging fixed operating costs for variable costs, so that we can continue to be a mobile VoIP company without incurring
expensive overhead. We plan to operate in the cloud, and keep our monthly recurring costs as low as possible.”
“We believe in the power of our cloud-based
technology, but without having the financing that we needed to grow our customer base, it made more sense for us to extract value
from our software to help us move forward,” continued Riss. “Instead of paying fixed salaries and fixed costs for collocation
facilities and circuits, we are changing our business model, so that all our costs of providing mobile VoIP services, including
technical support and customer service, are a percentage of our revenue dollar.”
Pervasip agreed to receive 40 million shares
of common stock of Valuesetters, Inc. to complete this transaction. Pervasip continues to own its VoIP technology, but Valuesetters
is also an owner and is operating the software and providing technical support and customer service for Pervasip.
About Pervasip
Pervasip delivers mobile VoIP and video
telephone service anywhere in the world that has a stable broadband connection. In addition to international telephone numbers
from 57 countries for mobile phone users, with unlimited inbound calling, it offers several international outbound calling plans,
including some of the lowest rates to international mobile phones.
The information contained herein includes
forward-looking statements. These statements relate to future events or to our future financial performance, and involve known
and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance, or achievements
to be materially different from any future results, levels of activity, performance or achievements expressed or implied by these
forward-looking statements. You should not place undue reliance on forward-looking statements since they involve known and unknown
risks, uncertainties and other factors which are, in some cases, beyond our control and which could, and likely will, materially
affect actual results, levels of activity, performance or achievements. Any forward-looking statement reflects our current views
with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations,
results of operations, growth strategy and liquidity. We assume no obligation to publicly update or revise these forward-looking
statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking
statements, even if new information becomes available in the future.
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