EXHIBIT 10.37
AGREEMENT, WAIVER AND LIMITED RELEASE
THIS AGREEMENT, WAIVER AND LIMITED RELEASE (this "Agreement"), dated as
of November 30, 2007, is by and among BigString Corporation, a Delaware
corporation (the "Company"), and the parties identified on the signature pages
hereto (each a "Releasor" and collectively the "Releasors").
WHEREAS, the Company and the Releasors previously entered into that
certain Subscription Agreement, dated as of May 1, 2007 (the "Subscription
Agreement"), pursuant to which the Releasors purchased convertible notes in the
aggregate principal amount of $800,000 (the "Outstanding Convertible Notes"),
which are convertible into shares of the Company's common stock, par value
$0.0001 per share ("Common Stock"), and warrants to purchase up to 1,777,779
shares of Common Stock (collectively the "Purchased Securities");
WHEREAS, as provided for in the Subscription Agreement, the Releasors
agreed to purchase additional convertible notes in the aggregate principal
amount of $800,000 and warrants to purchase up to 1,777,779 shares of Common
Stock (collectively, the "Additional Securities"), for a total subscription of
$1,600,000, provided that the Company registered the shares of Common Stock
underlying the Purchased Securities and the Additional Securities by September
13, 2007 and met certain other closing conditions (collectively, the "Second
Closing Condition");
WHEREAS, the Company was unable to register the shares of Common Stock
underlying the Purchased Securities and the Additional Securities by September
13, 2007, and, as a result, the Releasors did not purchase the Additional
Securities;
WHEREAS, under the terms of the Outstanding Convertible Notes, the
Company is required to pay liquidated damages in the amount of $24,267 (the
"Liquidated Damages") for the period following September 13, 2007 through
November 13, 2007, the date on which the Company's registration statement (the
"Registration Statement") registering the shares underlying the Purchased
Securities, was declared effective by the Securities and Exchange Commission;
and
WHEREAS, the Company and the Releasors desire to set forth their
agreement and understanding to date regarding the above referenced matters,
including the issuance by the Company to the Releasors of 1,000,000 unregistered
shares of the Company's Common Stock as more fully provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants and other
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and the
Releasors hereby agree as follows:
1. Payment of Consideration. The Company hereby grants to each Releasor
------------------------
the number of unregistered shares of Common Stock designated on the signature
pages hereto (collectively, the "Shares"). The certificates representing the
Shares will be issued in the names of the Releasors and shall contain a
customary legend that the Shares represented by the certificates have not been
registered under the Securities Act of 1933, as amended, and therefore
are subject to certain transfer restrictions. Such legend will be substantially
similar to the one contained in Section 4(h) of the Subscription Agreement. In
consideration of the issuance of the Shares by the Company, the Releasors hereby
covenant, agree and bind themselves unto the Company as set forth below. It is
the understanding of the parties that the Company is under no duty, nor is it
obligated, to register any of the Shares for the benefit of the Releasors.
2. Waiver and Limited Release. In consideration of the covenants and
--------------------------
promises of the Company contained herein, each Releasor hereby waives, releases
and gives up any and all direct and indirect present and future claims and
rights which it may have against the Company, arising out of or related to the
Liquidated Damages, the Additional Securities and the Second Closing Condition.
This means that each Releasor waives, releases and gives up any and all claims
and rights, including those of which it is not aware, which it may have against
the Company as to the payment of the Liquidated Damages and purchase of the
Additional Securities. The Company agrees that, notwithstanding the foregoing,
the Releasors are not releasing or giving up any claims or rights they may have
against the Company under any of the Purchased Securities or the Subscription
Agreement as it relates to the Purchased Securities. The Releasors will not seek
any further consideration from the Company for making this waiver and release of
claims and rights, including, but not limited to, attorneys' fees or costs of
suit. Each Releasor is bound by this waiver and release of claims and rights.
Anyone who succeeds to the rights and responsibilities of any or all of the
Releasors is also bound.
3. Covenant Not to Xxx. Each Releasor acknowledges that this Agreement
-------------------
is a legally binding document and that by signing it, each Releasor represents
that it has not, will not, and cannot file, commence, assist in or maintain any
arbitration, grievance, charge, or complaint or other proceeding with any
governmental unit, administrative agency, or court of law or equity and any
government institution against the Company relating to any matters involving the
Company arising out of or related in any way to the Liquidated Damages, the
Additional Securities and the Second Closing Condition. Each Releasor
acknowledges that by agreeing to the terms and conditions of this Agreement, it
is expressly and knowingly giving up its rights to pursue any and all claims it
may have against the Company arising out of or related in any way to the
Liquidated Damages, the Additional Securities and the Second Closing Condition,
except for those claims and rights under any of the Purchased Securities or the
Subscription Agreement as it relates to the Purchased Securities or relating to
the enforcement of this Agreement. Each Releasor further agrees that no fact,
evidence, event or transaction currently unknown to it but which hereinafter may
become known to it shall affect in any way or manner the final and unconditional
nature of this Agreement.
4. Releasor Representations and Warranties. As to the issuance and
---------------------------------------
receipt of the Shares hereunder, each Releasor hereby reaffirms the
representations and warranties made by it in Sections 4(d), (e), (f), (h), (l)
and (m) of the Subscription Agreement. Such representations and warranties are
incorporated herein by reference and, for purposes of this Agreement, are being
made in connection with the Company's issuance of the Shares to the Releasors
hereunder, and thereby should be read and construed to that effect.
5. Delivery of Unlegended Shares. As to the Shares, the Company agrees
-----------------------------
to comply with the delivery requirements and related obligations set forth in
Section 11.7 of the Subscription Agreement.
2
6. Choice of Law and Forum. The parties agree that this Agreement is
-----------------------
made and entered into in the State of New Jersey and shall in all respects be
interpreted, enforced and governed under the laws of the State of New Jersey,
with regard to the conflict of laws principles thereof. The language of all
parts of this Agreement shall in all cases be construed as a whole, according to
its fair meaning, and not strictly for or against any party. For purposes of any
proceeding involving this Agreement or any of the obligations hereunder, the
parties hereby submit to the exclusive jurisdiction of the courts of the State
of New Jersey.
7. No Violation. This Agreement shall in no way be construed as an
------------
admission by any party of the violation of any law, regulation or prohibition or
of any duty owed to any other party.
8. Construction. Wherever herein the singular number is used, the same
------------
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and vice versa, as the context shall require.
9. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
10. Severability. Should any provision of this Agreement be declared or
------------
determined by any court of competent jurisdiction to be illegal or invalid, the
validity of the remaining provisions shall not be affected and the illegal or
invalid provisions shall be deemed not to be a part of this Agreement.
11. Entire Agreement. This Agreement contains the entire agreement and
----------------
understanding between the Parties with respect to the subject matter hereof and
fully supersedes any and all prior agreements and understandings, written or
oral, between the parties pertaining to such subject matter.
12. Section Headings. The section headings in this Agreement are
----------------
inserted only as a matter of convenience and reference and are not to be given
any effect whatsoever in construing any provision of this Agreement.
13. Notices. Any notices, requests, demands and other communications
-------
relating to this Agreement shall be in writing and shall be effective upon
delivery to any party hereto either (a) in person, (b) by reputable overnight
courier with charges prepaid, or (c) by certified or registered mail, postage
prepaid. The addresses for any such communications shall be as follows:
If to the Company: BigString Corporation
0 Xxxxxxx Xxxx
Xxxxx X
Xxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxx, President
and Chief Executive Officer
3
With a copy to: Xxxx X. Xxxxxxx, Esq.
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
U.S. Postal Service
Address: X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
or
Hand Delivery and Overnight Service Address:
000 Xxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
If to the Releasors: To the addresses indicated on the signature
pages hereto
With a copy to: Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000.
14. Review. Each party has been advised to consult with an attorney
------
prior to executing this Agreement. Each party acknowledges and agrees that it
has carefully considered this Agreement, that it is competent to execute this
Agreement, that it has carefully read and fully understands this Agreement, and
that it has executed this Agreement voluntarily and with full understanding of
its terms and consequences. Each party further represents that any waiver or
release of claims is given in return for consideration specified in this
Agreement. This Agreement shall become enforceable and effective upon the
complete execution of this Agreement by all parties hereto.
[Signature Pages Follow.]
4
SIGNATURE PAGE TO AGREEMENT, WAIVER AND LIMITED RELEASE
-------------------------------------------------------
Please acknowledge your acceptance of the foregoing Agreement, Waiver
and Limited Release by signing and returning a copy to the undersigned whereupon
it shall become a binding agreement between us.
BIGSTRING CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Dated: As of November 30, 2007
-----------------------------------------------------------
RELEASOR NUMBER OF
UNREGISTERED
SHARES OF
COMMON STOCK
-----------------------------------------------------------
ALPHA CAPITAL ANSTALT 312,500
Xxxxxxxxx 0
0000 Xxxxxxxxxxx
Vaduz, Lichtenstein
Fax: 000-00-00000000
/s/ Xxxxxx Xxxxxxxx
--------------------------------
(Signature)
By: Xxxxxx Xxxxxxxx
-----------------------------------------------------------
SIGNATURE PAGE TO AGREEMENT, WAIVER AND LIMITED RELEASE
-------------------------------------------------------
Please acknowledge your acceptance of the foregoing Agreement, Waiver
and Limited Release by signing and returning a copy to the undersigned whereupon
it shall become a binding agreement between us.
BIGSTRING CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Dated: As of November 30, 2007
-----------------------------------------------------------
RELEASOR NUMBER OF
UNREGISTERED
SHARES OF
COMMON STOCK
-----------------------------------------------------------
WHALEHAVEN CAPITAL FUND LIMITED 312,500
c/o FWS Capital Ltd.
0xx Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Fax: (000) 000-0000
/s/ Xxxxx Xxxxxxxx
--------------------------------
(Signature)
By: Xxxxx Xxxxxxxx, C.F.O.
-----------------------------------------------------------
SIGNATURE PAGE TO AGREEMENT, WAIVER AND LIMITED RELEASE
-------------------------------------------------------
Please acknowledge your acceptance of the foregoing Agreement, Waiver
and Limited Release by signing and returning a copy to the undersigned whereupon
it shall become a binding agreement between us.
BIGSTRING CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Dated: As of November 30, 2007
-----------------------------------------------------------
RELEASOR NUMBER OF
UNREGISTERED
SHARES OF
COMMON STOCK
-----------------------------------------------------------
CHESTNUT RIDGE PARTNERS LP 156,250
00 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
/s/ Xxxxxxx Xxxx
--------------------------------
(Signature)
By: Xxxxxxx Xxxx, C.F.O.
-----------------------------------------------------------
SIGNATURE PAGE TO AGREEMENT, WAIVER AND LIMITED RELEASE
-------------------------------------------------------
Please acknowledge your acceptance of the foregoing Agreement, Waiver
and Limited Release by signing and returning a copy to the undersigned whereupon
it shall become a binding agreement between us.
BIGSTRING CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Dated: As of November 30, 2007
-----------------------------------------------------------
RELEASOR NUMBER OF
UNREGISTERED
SHARES OF
COMMON STOCK
-----------------------------------------------------------
IROQUOIS MASTER FUND LTD. 156,250
c/o Iroquois Capital Management, LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
(Signature)
By: Xxxxxx Xxxxxxxxx
-----------------------------------------------------------
SIGNATURE PAGE TO AGREEMENT, WAIVER AND LIMITED RELEASE
-------------------------------------------------------
Please acknowledge your acceptance of the foregoing Agreement, Waiver
and Limited Release by signing and returning a copy to the undersigned whereupon
it shall become a binding agreement between us.
BIGSTRING CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Dated: As of November 30, 2007
-----------------------------------------------------------
RELEASOR NUMBER OF
UNREGISTERED
SHARES OF
COMMON STOCK
-----------------------------------------------------------
PENN FOOTWEAR 62,500
Line and Xxxxx Xxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx, President
Fax: (000) 000-0000
/s/ Xxxx Xxxxxxxxxx
--------------------------------
(Signature)
By: Xxxx Xxxxxxxxxx, President
-----------------------------------------------------------
