EXHIBIT 10.36
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of May
19, 2006, is by and between BigString Corporation, a corporation incorporated
and organized under the laws of State of Delaware, with its principal executive
offices at 0 Xxxxxxx Xxxx, Xxxxx X, Xxx Xxxx, Xxx Xxxxxx 00000 (the "Company"),
and Xxxx Xxxx, with a mailing address of X.X. Xxx 000, Xxxxxxx, Xxx Xxxxxx 00000
(the "Holder").
WHEREAS, upon the terms and subject to the conditions of the Asset
Purchase Agreement, dated as of May 19, 2006, between the Company and the Holder
(the "Asset Purchase Agreement"), the Holder received 750,000 shares (the
"Shares") of the Company's common stock, par value $.0001 per share ("Common
Stock"); and
WHEREAS, the Company agreed to provide to the Holder certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws, with respect to the Shares;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Holder hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings ascribed to them:
(a) "1933 Act" shall have the meaning set forth in the second
recital of this Agreement.
(b) "1934 Act" shall have the meaning set forth in Section 6(a) of
this Agreement.
(c) "Agreement" shall have the meaning set forth in the
introductory paragraph of this Agreement.
(d) "Asset Purchase Agreement" shall have the meaning set forth in
the first recital of this Agreement.
(e) "Claims" shall have the meaning set forth in Section 6(a) of
this Agreement.
(f) "Closing Date" shall mean the date on which the closing of the
Asset Purchase Agreement occurs.
(g) "Common Stock" shall have the meaning set forth in the first
recital of this Agreement.
(h) "Company" shall have the meaning set forth in the introductory
paragraph of this Agreement.
(i) "Holder" shall have the meaning set forth in the introductory
paragraph of this Agreement.
(j) "Indemnified Damages" shall have the meaning set forth in
Section 6(a) of this Agreement.
(k) "Indemnified Party" shall have the meaning set forth in
Section 6(b) of this Agreement.
(l) "Indemnified Person" shall have the meaning set forth in
Section 6(a) of this Agreement.
(m) "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or
a governmental agency.
(n) "Principal Market" means either The American Stock Exchange,
Inc., The New York Stock Exchange, Inc., The Nasdaq National
Market, The Nasdaq Capital Market or the National Association
of Securities Dealer's, Inc. OTC electronic bulletin board,
whichever is the principal market on which the Common Stock is
listed or quoted.
(o) "Records" and "Record" shall have the meaning set forth in
Section 3(h) of this Agreement.
(p) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing with the SEC one
or more registration statements in compliance with the 1933
Act and pursuant to Rule 415, and effectiveness of such
registration statement(s).
(q) "Registration Default" shall have the meaning set forth in
Section 3(e) of this Agreement.
(r) "Registration Period" shall have the meaning set forth in
Section 3(a) of this Agreement.
(s) "Registrable Securities" means the Shares and any shares of
capital stock issued or issuable with respect to the Shares,
if any, as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise,
which have not been (i) included in a Registration Statement
that has been declared effective by the SEC, or (ii) sold
under circumstances meeting all of the applicable conditions
of Rule 144 (or any similar provision then in force) under the
1933 Act.
(t) "Registration Statement" means a registration statement of the
Company filed under the 1933 Act.
(u) "Rule 144" shall have the meaning set forth in Section 8 of
this Agreement
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(v) "Rule 415" means Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous basis.
(w) "SEC" means the United States Securities and Exchange
Commission.
(x) "Shares" shall have the meaning set forth in the first recital
of this Agreement.
(y) "Violations" shall have the meaning set forth in Section 6(a)
of this Agreement.
2. Registration on Form SB-2 or other Registration Form. The Company shall, as
soon as practicable, but not later than 90 calendar days following the Closing
Date, file with the SEC a Registration Statement on Form SB-2, or such other
form of registration statement which may be available, covering the sale of all
of the Registrable Securities, which Registration Statement shall state that, in
accordance with Rule 416 promulgated under the 1933 Act, such Registration
Statement also covers such indeterminate number of additional shares of Common
Stock as may become issuable upon stock splits, stock dividends or similar
transactions.
3. Related Obligations. The Company shall have the following further
obligations:
(a) Continued Effectiveness. The Company shall keep such Registration
Statement effective pursuant to Rule 415 until the earlier of (i) one year from
the date the Registration Statement becomes effective and (ii) the date on which
the Holder shall have sold all the Registrable Securities (the "Registration
Period"), which Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(b) Amendments. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to keep such Registration Statement
effective during the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of the
Registrable Securities of the Company covered by such Registration Statement.
(c) Information. The Company shall furnish to the Holder and its legal
counsel without charge (i), promptly after the same is prepared and filed with
the SEC, at least one copy of any Registration Statement and any amendment(s)
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits, the prospectus included in
such Registration Statement and, with respect to such Registration Statement,
any correspondence by or on behalf of the Company to the SEC or the staff of the
SEC and any correspondence from the SEC or the staff of the SEC to the Company
or its representatives, (ii) upon the effectiveness of any Registration
Statement, a reasonable number of copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto, and (iii)
such other documents, including copies of any prospectus, as the Holder may
reasonably request from time to time in order to facilitate the disposition of
the Registrable Securities.
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(d) Blue Sky. The Company shall use reasonable efforts to (i) register
and qualify the Registrable Securities covered by a Registration Statement under
the applicable securities or "blue sky" laws of such states of the United States
as specified by the Holder, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Holder of the receipt by the
Company of any notification with respect to the suspension of the registration
or qualification of any of the Registrable Securities for sale under the
securities or "blue sky" laws of any jurisdiction in the United States or its
receipt of actual notice of the initiation or threatening of any proceeding for
such purpose.
(e) Certain Events. As promptly as practicable after becoming aware of
such event, the Company shall notify the Holder in writing of the happening of
any event as a result of which the prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading ("Registration Default"), and use all diligent efforts to
promptly prepare a supplement or amendment to such Registration Statement and
take any other necessary steps to cure the Registration Default and deliver a
reasonable number of copies of such supplement or amendment to the Holder. The
Company shall also promptly notify the Holder in writing (i) when a prospectus
or any prospectus supplement or post-effective amendment has been filed, and
when a Registration Statement or any post-effective amendment has become
effective (notification of such effectiveness shall be delivered to the Holder
by facsimile on the same day of such effectiveness and by overnight mail), (ii)
of any request by the SEC for amendments or supplements to a Registration
Statement or related prospectus or related information, (iii) of the Company's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate, (iv) in the event the Registration Statement is
no longer effective, or (v) the Registration Statement is stale for a period of
more than five (5) trading days as a result of the Company's failure to timely
file its financials.
(f) Stop Orders. The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify the Holder who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(g) Review and Comment. The Company shall permit the Holder and a
single firm of counsel, as designated by it, to review and comment upon a
Registration Statement and all
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amendments and supplements thereto at least three (3) business days prior to
their filing with the SEC, and not file any document in a form to which such
counsel reasonably objects. The Company shall not submit to the SEC a request
for acceleration of the effectiveness of a Registration Statement or file with
the SEC a Registration Statement or any amendment or supplement thereto without
the prior approval of such counsel, which approval shall not be unreasonably
withheld.
(h) Availability of Information. The Company shall make available for
inspection by (i) any Holder and (ii) one firm of attorneys and one firm of
accountants or other agents retained by the Holder (collectively, the
"Inspectors") all pertinent financial and other records, and pertinent corporate
documents and properties of the Company (collectively, the "Records" and
individually a "Record"), as shall be reasonably deemed necessary by each
Inspector, and cause the Company's officers, directors and employees to supply
all information which any Inspector may reasonably request; provided, however,
that each Inspector shall hold in strict confidence and shall not make any
disclosure (except to the Holder) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (A) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the 1933 Act, (B) the
release of such Records is ordered pursuant to a final, non-appealable subpoena
or order from a court or government body of competent jurisdiction, or (C) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement of which
the Inspector has knowledge. The Holder agrees that he shall, upon learning that
disclosure of such Records is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the Company
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential.
(i) Confidentiality. The Company shall hold in confidence and not make
any disclosure of information concerning the Holder provided to the Company
unless (i) disclosure of such information is necessary to comply with federal or
state securities laws, (ii) the disclosure of such information is necessary to
avoid or correct a misstatement or omission in any Registration Statement, (iii)
the release of such information is ordered pursuant to a subpoena or other
final, non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning the Holder is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to the Holder and allow the Holder, at the Holder's expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(j) Listing or Quotation. The Company shall use its best efforts to
secure designation and quotation of all the Registrable Securities covered by
any Registration Statement on the Principal Market. If, despite the Company's
best efforts, the Company is unsuccessful in satisfying the preceding sentence,
it shall use its best efforts to cause all the Registrable Securities covered by
any Registration Statement to be listed or quoted on each other national
securities exchange and automated quotation system, if any, on which securities
of the same
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class or series issued by the Company are then listed or quoted, if any, if the
listing or quoting of such Registrable Securities is then permitted under the
rules of such exchange or system. If, despite the Company's best efforts, the
Company is unsuccessful in satisfying the two preceding sentences, it will use
its best efforts to secure the inclusion for quotation with Pink Sheets, LLC.
The Company shall pay all fees and expenses in connection with satisfying its
obligation under this Section 3(j).
(k) Amendment of Registration Statement. If requested by the Holder,
the Company shall (i) as soon as reasonably practical incorporate in a
prospectus supplement or post-effective amendment such information as the Holder
reasonably determine should be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation,
information with respect to the offering of the Registrable Securities to be
sold in such offering, (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to any Registration Statement if reasonably
requested by the Holder.
(l) Other Approvals. The Company shall use its best efforts to cause
the Registrable Securities covered by the applicable Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of such
Registrable Securities.
(m) Compliance with SEC Regulations. The Company shall otherwise use
its best efforts to comply with all applicable rules and regulations of the SEC
in connection with any registration hereunder.
(n) Other Actions. The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Holder of Registrable
Securities pursuant to a Registration Statement.
4. Obligations of the Holder.
(a) Required Information. At least 5 calendar days prior to the first
anticipated filing date of a Registration Statement, the Company shall notify
the Holder in writing of the information the Company requires from the Holder if
the Holder elects to have any of the Holder's Registrable Securities included in
such Registration Statement. It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of the Holder that the
Holder shall furnish in writing to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall reasonably be
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request The Holder covenants and agrees that, in connection with any
resale of Registrable Securities by it pursuant to a Registration Statement, it
shall comply with the "Plan of Distribution" section of the current prospectus
relating to such Registration Statement.
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(b) Further Cooperation. The Holder shall cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of any Registration Statement hereunder, unless the Holder has notified
the Company in writing of the Holder's election to exclude all of the Holder's
Registrable Securities from such Registration Statement.
(c) Discontinuance of Disposition in Certain Events. Upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3(f) or the first sentence of 3(e), the Holder will immediately
discontinue disposition of Registrable Securities pursuant to any Registration
Statement covering such Registrable Securities until the Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3(f) or
the first sentence of 3(e).
5. Expenses of Registration. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printing and accounting fees, and
fees and disbursements of counsel for the Company, shall be paid by the Company.
6. Indemnification. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) Indemnification by Company. To the fullest extent permitted by law,
the Company will, and hereby does, indemnify, hold harmless and defend the
Holder and any agents or representatives thereof, and each Person, if any, who
controls, the Holder within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act") (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, attorneys' fees, amounts paid in settlement or
expenses, joint or several (collectively, "Claims"), incurred in investigating,
preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC,
whether pending or threatened, whether or not an indemnified party is or may be
a party thereto ("Indemnified Damages"), to which it may become subject insofar
as such Claims (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement or any
post-effective amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other "blue sky" laws of
any jurisdiction in which Registrable Securities are offered, or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which the statements therein were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company
of the 1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to a
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Registration Statement (the matters in the foregoing clauses (i) through (iii)
being, collectively, "Violations"). Subject to the restrictions set forth in
Section 6(c) with respect to the number of legal counsel, the Company shall
reimburse the Indemnified Party, promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable expenses
incurred by him, her or it in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply to
a Claim arising out of or based upon a Violation which occurs in reliance upon
and in conformity with information furnished in writing to the Company by any
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, if
such prospectus were timely made available by the Company pursuant to Section
3(c); (ii) shall not be available to the extent such Claim is based on (A) a
failure of the Holder to deliver or to cause to be delivered the prospectus made
available by the Company or (B) the Indemnified Person's use of an incorrect
prospectus despite being promptly advised in advance by the Company in writing
not to use such incorrect prospectus; and (iii) shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the resale of the Registrable Securities by the Holder pursuant to the
Registration Statement.
(b) Indemnification by Holder. In connection with any Registration
Statement in which the Holder is participating, the Holder agrees to indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (collectively and
together with an Indemnified Person, an "Indemnified Party"), against any Claim
or Indemnified Damages to which any of them may become subject, under the 1933
Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case to the extent, and
only to the extent, that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by the Holder or
its agents or representatives expressly for use in connection with such
Registration Statement; and, subject to Section 6(c), the Holder will reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Holder, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the resale of
the Registrable Securities by the Holder pursuant to the Registration Statement.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
were corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Indemnification Procedure. Promptly after receipt by an Indemnified
Person or Indemnified Party under this Section 6 of notice of the commencement
of any action or
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proceeding (including any governmental action or proceeding) involving a Claim,
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding. The indemnifying
party shall pay for only one separate legal counsel for the Indemnified Persons
or the Indemnified Parties, as applicable, and such counsel shall be selected by
the Holder if the Holder is entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as applicable.
The Indemnified Party or Indemnified Person shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any such
action or Claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim. The indemnifying party
shall keep the Indemnified Party or Indemnified Person fully appraised at all
times as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its written consent; provided,
however, that the indemnifying party shall not unreasonably withhold, delay or
condition its or his consent. No indemnifying party shall, without the consent
of the Indemnified Party or Indemnified Person, consent to entry of any judgment
or enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim. Following indemnification as provided for hereunder, the
indemnifying party shall be surrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action.
(d) Payment of Indemnification. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
(e) Non-exclusivity. The indemnity agreements contained herein shall be
in addition to (i) any cause of action or similar right of the Indemnified Party
or Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
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7. Contribution. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(a) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6; and (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of fraudulent misrepresentation.
8. Reports Under the 1934 Act. With a view to making available to the Holder the
benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the Holder to sell securities
of the Company to the public without registration ("Rule 144"), the Company
shall:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act so long as
the Company remains subject to such requirements and the filing of such reports
and other documents is required for the applicable provisions of Rule 144; and
(c) furnish to the Holder, promptly upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of
Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
to permit the Holder to sell such securities pursuant to Rule 144 without
registration.
9. No Assignment of Registration Rights. The rights under this Agreement shall
not be assignable.
10. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holder. Any amendment or waiver effected
in accordance with this Section 10 shall be binding upon the Holder and the
Company.
11. Miscellaneous.
(a) Waivers and Communications. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided a confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) day after
deposit with a nationally recognized overnight delivery service, in each case
properly
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addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
BigString Corporation
0 Xxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder:
Xxxx Xxxx
X.X. Xxx 000
Xxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each party shall provide five (5) business days prior notice to the
other party of any change in address, phone number or facsimile number.
(b) Non-waiver. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(c) Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in the State
of New Jersey, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it or he is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it or
him under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. 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.
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(d) Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein.
(e) Integration. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Counterparts. This Agreement may be executed in two or more
identical counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement. This Agreement, once executed
by a party, may be delivered to the other party hereto by facsimile transmission
of a copy of this Agreement bearing the signature of the party so delivering
this Agreement.
(h) Further Actions. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
BigString Corporation
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
Xxxx Xxxx
/s/ Xxxx Xxxx
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