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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
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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
<page>
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
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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 Sue. Each Releasor acknowledges that this
Agreement
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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 Agre
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