ASSET PURCHASE AGREEMENT (FindItAll)
Exhibit 10.4
(FindItAll)
THIS
ASSET PURCHASE AGREEMENT (this “Agreement”), dated June 11, 2008, is by and
between BigString Corporation, a corporation incorporated and organized under
the laws of the State of Delaware, with its principal executive offices at ▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Seller”), and FindItAll,
Inc., a corporation incorporated and organized under the laws of the State of
Nevada, with its principal executive offices at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (“Buyer”). Buyer and Seller shall be individually
referred to herein at times as a “Party” or together as the
“Parties.”
R E C I T A L
S
WHEREAS,
Seller owns the website, ▇▇▇▇▇▇▇▇▇.▇▇▇, an event search engine (the “Website”);
and
WHEREAS,
Buyer desires to purchase and Seller desires to sell the Website and all of the
assets of Seller used exclusively in connection with the operation of the
Website, upon the terms and subject to the conditions provided
herein.
NOW,
THEREFORE, in consideration of the premises and of the respective covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties hereto agree
as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS
1.01 Purchase and
Sale. At the Closing (as defined below), upon the terms and
subject to the conditions set forth in this Agreement, Seller shall sell to
Buyer, and Buyer shall purchase from Seller, the Website and the following
assets of Seller used to operate the Website (the “Purchased
Assets”): (i) all of Seller’s right, title and interest in the
Website and domain name “▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇” including all registrations with
respect thereto (the “Registrations”); (ii) all customer contracts, member
lists, and member files, records and other similar information relating to the
Website; (iii) all source code relating to the Website; and (iv) all warranty
rights and causes of action with respect to the Purchased Assets. The
Purchased Assets are being sold by Seller in “as is” condition.
1.02 Liabilities. Except
as otherwise provided herein, Buyer is not assuming and it shall not be held
responsible for any liabilities of Seller, of any kind or nature whatsoever,
which have accrued or arisen out of actions occurring prior to the Closing,
including, without limitation, accounts payable, notes payable, taxes payable,
judgments, awards, warranty claims, lease obligations, salaries, wages,
severance, separation or vacation pay, profit sharing, retirement, pension,
bonus or other employee benefits relating to Seller’s employees, agents and/or
consultants, or any liabilities or obligations arising out of the operation of
the Website prior to Closing.
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ARTICLE
II
PURCHASE
PRICE
2.01 Purchase
Price. The purchase price (the “Purchase Price”) for the
Purchased Assets shall be Twenty Million (20,000,000) shares (the “Shares”) of
the Buyer’s common stock, par value $.0001 per share (“Common
Stock”). The Purchase Price shall be delivered at
Closing.
ARTICLE
III
CLOSING
DELIVERIES
3.01 Closing. Subject
to the conditions set forth in this Agreement, the purchase and sale of the
Purchased Assets pursuant to this Agreement (the “Closing”) shall take place at
the offices of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ at 10:00 a.m. on June 11, 2008, or at such other time and place
as may be agreed to by the Parties hereto (the “Closing Date”).
3.02 Buyer’s
Deliveries. At the Closing, Buyer shall deliver to Seller all
of the following:
(a) a stock
certificate representing the Shares, which is issued in the name of
Seller;
(b) resolutions
of the board of directors of Buyer approving this Agreement and the transactions
contemplated hereby; and
(c) without
limitation by specific enumeration of the foregoing, all other documents
reasonably required to consummate the transactions contemplated hereby,
including any documents necessary for the Registrations to be assigned to
Buyer.
3.03 Seller’s
Deliveries. At the Closing, Seller shall deliver to Buyer all
of the following:
(a) all
customer contracts, member lists, and member files, records and other similar
information relating to the Website;
(b) all
documents evidencing Seller’s interest in the domain name relating to the
Website and all applicable passwords and source codes relating to, or required
to operate, the Website; and
(c)
without limitation by specific enumeration of the foregoing, all other documents
reasonably required to consummate the transactions contemplated hereby,
including any documents necessary for the Registrations to be assigned to
Buyer.
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ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
4.01 Seller. Seller
represents and warrants to Buyer as follows:
(a) Seller’s Authority,
Approvals and Consents. Seller has full power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby; and this Agreement constitutes the valid and binding
obligation of the Seller, enforceable in accordance with its terms, except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights and remedies of creditors and debtors, and (ii) equitable principles
generally, regardless of whether such principles are considered in a proceeding
at equity or at law.
(b) No Consents
Required. No consent of any other party is needed to enable
Seller to consummate the transactions contemplated under this Agreement,
including any consent under any agreement, note, mortgage, lease or other
contract.
(c) General Warranty of Title;
Condition of Assets. Seller has good and marketable title to
all of the Purchased Assets being transferred under this
Agreement. The Purchased Assets are free and clear of all liens,
encumbrances and restrictions of any nature.
(d) Governmental Filings; No
Violations. Except as may be contemplated herein, no notices,
reports or other filings are required to be made by Seller, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by Seller, from any governmental or regulatory authority, court,
agency, commission, body or other governmental entity (“Governmental Entity”),
in connection with the execution and delivery of this Agreement by Seller and
the consummation by Seller of the transactions contemplated hereby.
(e) Litigation and
Liabilities. There are no (i) civil, criminal or state or
federal administrative actions, suits, claims, hearings, investigations or
proceedings pending or, to the knowledge of Seller, threatened against Seller,
or (ii) obligations or liabilities, whether or not accrued, contingent or
otherwise, or any other facts or circumstances, in either such case, that are
reasonably likely to result in any claims against Seller.
(f) Compliance with
Laws. To the knowledge of Seller, the Website has not been,
and is not being, operated in violation of any law, statute, ordinance,
regulation, judgment, order, injunction, arbitration award, license or permit of
any Governmental Entity (collectively, "Laws") which has had or could reasonably
be expected to have a material adverse effect on Seller or the Purchased
Assets. No investigation or review by any Governmental Entity with
respect to Seller is pending or, to the knowledge of Seller, threatened, nor has
any Governmental Entity indicated an intention to conduct the
same. Seller has not received any written notice of any noncompliance
with any such Laws that has not been cured as of the date
hereof. Seller has all permits, licenses, variances, exemptions,
orders and other governmental authorizations, consents and approvals, necessary
to operate the Website.
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(g) No
Default. Seller is not in violation or breach of or in default
under, and no conditions exist that, with the giving of notice or the lapse of
time or both, would constitute a default under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which Seller is a party or by
which Seller or any of his properties or assets may be bound.
(h) Contracts. There
are no material contracts, notes, mortgages, indentures or leases which relate
to or affect the Website or to which the Website are subject or
bound.
(i)
Investor
Intent. Seller is acquiring the Shares for its own account,
for investment and not with a view to, or for resale in connection with, any
distribution thereof, nor with any present intention of distributing or
reselling the same or any part thereof in any transactions that would be in
violation of the Securities Act of 1933, as amended (the “Securities Act”) or
any state securities or “blue-sky” Laws.
(j)
Restricted
Securities. Seller understands that (i) the Shares currently
are not registered under the Securities Act or any state securities or
“blue-sky” Laws and have been issued in a transaction exempt from the
registration requirements of the Securities Act and any state securities or
“blue-sky” Laws, (ii) the Shares must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities Act and any state
securities or “blue-sky” Laws or is exempt from such registration, and (iii) the
certificate(s) evidencing the Shares will be imprinted with a legend that
prohibits the transfer substantially as set forth in Section 5.03(b) hereof
unless they are registered or such registration is not required.
(k) Rule
144. Seller understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to such person)
promulgated under the Securities Act (“Rule 144”) depends on the satisfaction of
various conditions and that, if applicable, Rule 144 may only afford the basis
for sales under certain circumstances and only in limited amounts.
(l)
Access to Information;
Experience. Seller has been furnished with or has had access
during the course of this transaction and prior to sale of the Shares to all
information necessary to enable Seller to evaluate the merits and risks of a
prospective investment in Buyer and Seller has had an opportunity to discuss
with representatives of Buyer the business and financial affairs of Buyer and
the terms and conditions of the investment and to obtain such additional
information, to the extent that Buyer possesses such information or could
acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information to which Seller has had access and all questions
raised by Seller have been answered to the full satisfaction of
Seller. Seller has conducted his own investigation and analysis of
Buyer’s business. Seller’s officers and directors have substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to Buyer so that Seller is capable of evaluating
the merits and the risks of its investment in Buyer and has the capacity to
protect its own interests in making its investment in Buyer. Seller
can afford to suffer a complete loss of its investment in the
Shares.
(m) Speculative
Investment. Seller understands that Buyer has a limited
financial and operating history, that the Shares are a speculative investment
which involve a high degree of financial risk, and that there is no assurance of
any economic, income or tax benefit from such investment.
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(n) Review of
Agreement. Seller has carefully read and reviewed this
Agreement and, to the extent believed necessary, Seller has discussed with its
legal, accounting and other professional advisors the representations,
warranties and agreements which the Seller is making herein and the terms and
conditions of the investment contemplated hereby.
(o) Broker’s or Finder’s
Fees. No agent, broker, person or firm acting on behalf of the
Seller is, or shall be, entitled to any commission or broker’s or finder’s fees
from either Party, in connection with any of the transactions contemplated
herein.
4.02 Buyer’s
Representations. Buyer represents and warrants to Seller as
follows:
(a) Buyer’s Authority, Approval
and Consents. Buyer hereby represents and warrants to Seller
that it has all requisite power, capacity and authority to enter into this
Agreement, consummate the transactions contemplated herein and perform its
obligations contemplated herein. The Agreement has been duly executed
and delivered by, and constitutes a valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws relating to or affecting the rights and remedies of
creditors and debtors, and (ii) equitable principles generally, regardless of
whether such principles are considered in a proceeding at equity or at
law. The execution and delivery and performance of this Agreement by
Buyer and the consummation of the transactions contemplated hereby do not and
will not conflict with any agreement to which Buyer is a party.
(b) No Consents
Required. No consent of any other party or Governmental Entity
is needed to enable Buyer to consummate the transactions contemplated under this
Agreement.
(c) Broker’s or Finder’s
Fees. No agent, broker, person or firm acting on behalf of the
Seller is, or shall be, entitled to any commission or broker’s or finder’s fees
from either Party, in connection with any of the transactions contemplated
herein.
(d) Duly Authorized
Shares. The Shares being sold and issued to the Buyer pursuant
to this Agreement are duly authorized, validly issued and
non-assessable.
ARTICLE
V
COVENANTS
5.01 Additional
Agreements. Subject to the terms and conditions of this
Agreement, each of the Parties hereto agrees to use their reasonable best
efforts at their own expense to take, or cause to be taken, proper or advisable
action under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement. In case at any time
after the Closing further action is necessary or desirable to carry out the
purposes of this Agreement, the Parties shall take all such appropriate
action.
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5.02 Confidentiality. Seller
hereby agrees not to disclose or divulge any confidential, proprietary or secret
information which Seller may obtain from Buyer, including, by way of example and
not in limitation thereof, financial statements, reports and other materials
submitted by Buyer as required hereunder, unless required to be disclosed by Law
or pursuant to any judgment, order, subpoena or decree of any court having
competent jurisdiction, or unless such information is or becomes publicly known
(other than as a result of a violation of this Section 5.02), or unless Buyer
gives its written consent to Seller’s release of such information, except that
no such written consent shall be required (and Seller shall be free to release
such information) if such information is to be provided to Seller’s lawyers or
accountants who are instructed to comply with this provision. Seller
shall be responsible for making sure his lawyers and accountants
comply.
5.03 Transfer of
Securities.
(a) Restrictions on
Transfer. Seller acknowledges that the Shares to be issued to
Seller pursuant to this Agreement have not been registered under the Securities
Act, that such Shares are being or will be issued pursuant to an exemption from
registration under the Securities Act and that such Shares constitute
“restricted securities” under Rule 144. Accordingly, the Shares shall
not be sold, transferred, assigned, pledged, encumbered or otherwise disposed of
by Seller (each, a “Transfer”) except upon the conditions specified in this
Section 5.03, which conditions are intended to ensure compliance with the
provisions of the Securities Act and this Agreement.
(b) Restrictive
Legend. Each certificate representing the Shares which are
issued to the Seller and each certificate for any such Shares issued to
subsequent transferees of any such certificate shall (unless otherwise permitted
by the provisions of Sections 5.03(c) and 5.03(d)) be stamped or otherwise
imprinted with a legend in substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS,
AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER
THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
(c) Notice of
Transfer. Seller agrees, prior to any Transfer of Shares, to
give written notice to Buyer of Seller’s intention to effect such Transfer and
to comply in all other respects with the provisions of this Section
5.03. Each such notice shall describe the manner and circumstances of
the proposed Transfer and shall be accompanied by the written opinion, addressed
to Buyer, of counsel for the holder of such Shares, stating that in the opinion
of
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such
counsel (which opinion shall be reasonably satisfactory to Buyer), the proposed
Transfer does not involve any transaction requiring registration or
qualification of such Shares under the Securities Act or the securities or blue
sky Laws of any relevant state of the United States. The Seller shall
thereupon be entitled to Transfer such Shares in accordance with the terms of
the notice delivered by it to Buyer. Each certificate or other
instrument evidencing the securities issued upon the Transfer of any Shares (and
each certificate or other instrument evidencing any untransferred balance of
such Shares) shall bear the legend set forth in Section 5.03(b) unless, (i) in
the opinion of counsel to the holder of such Shares, registration of any future
Transfer is not required by the applicable provisions of the Securities Act and
applicable state securities Laws, or (ii) Buyer shall have waived the
requirement of such legends. Seller shall not Transfer any Shares
until such opinion of counsel has been given (unless waived by Buyer or unless
such opinion is not required in accordance with the provisions of this Section
5.03).
(d) Removal of Legends,
Etc. Notwithstanding the foregoing provisions of this Section
5.03, the restrictions imposed by this Section 5.03 upon the transferability of
any Shares held by Seller shall cease and terminate when (i) any such Shares are
sold or otherwise disposed of pursuant to an effective registration statement
under the Securities Act, or as otherwise contemplated by Section 5.03(c) and,
pursuant to Section 5.03(c), the securities so transferred are not required to
bear the legend set forth in Section 5.03(b), or (ii) the holder of such Shares
has met the requirements for Transfer of the Shares pursuant to subparagraph
b(1) of Rule 144. The Buyer, at its expense, shall deliver and shall
cause legal counsel selected by the Buyer to deliver to its transfer agent an
appropriate instruction and opinion of such counsel directing the delivery of
shares of Common Stock without any legends in connection with any proposed
Transfer by the holder(s) of such Shares pursuant to (d)(ii), provided Seller or
its permitted transferees are not Affiliates (as defined in Section 5.04(c)) of
the Buyer. Whenever the restrictions imposed by this Section
5.03 shall terminate, as herein provided, Seller shall be entitled to receive
from Buyer, without expense, a new certificate representing such Shares (or the
balance of such Shares as the case may be) not bearing the restrictive legend
set forth in Section 5.03(b), and not containing any other reference to the
restrictions imposed by this Section 5.03.
5.04 Dilution.
(a) Following
the Closing, Buyer agrees that until the earliest of (i) Seller no longer owns
the Shares, (ii) Buyer is obligated to file periodic reports pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or (iii) June
30, 2011, that in the event Buyer issues shares of its Common Stock, or rights
to receive or otherwise purchase shares of Common Stock (including by way of
conversion of any instrument of debt or class of capital stock or exercise of
any warrant or option), to a person or entity not deemed to be an Affiliate (as
defined below) for less than the book value of the Common Stock at the time of
such issuance (each a “Dilutive Issue”), then Buyer shall automatically issue to
Seller, for no additional consideration, such additional shares of Common Stock
so that the aggregate book value of the Shares and such additional shares issued
to Seller after such Dilutive Issue, equals the book value of the Shares prior
to the Dilutive Issue.
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(b) Following
the Closing, Buyer agrees that until the earlier of (i) Seller no longer owns
the Shares, (ii) Buyer is obligated to file periodic reports pursuant to the
Exchange Act, or (iii) June 30, 2011, that in the event Buyer issues shares of
its Common Stock, or rights to receive or otherwise purchase shares of Common
Stock (including by way of conversion of any instrument of debt or class of
capital stock or exercise of any warrant or option), to any Affiliates of Buyer
(an “Affiliate Issue”), which issuance(s) in the aggregate during any twelve
(12) month period commencing on the date of this Agreement, exceed
fifteen percent (15%) of the Buyer’s Common Stock outstanding on the first day
of each such twelve (12) month period, then Buyer shall automatically issue to
Seller, for no additional consideration, such additional shares of Common Stock
so that Seller’s percentage ownership of Buyer immediately following such
Affiliate Issue is made to equal Seller’s percentage ownership of Buyer
immediately prior to such Affiliate Issue.
(c) For purposes
of this Section 5.04, an “Affiliate” of the Buyer shall mean any person or
entity that directly, or through one or more intermediaries, controls, is
controlled by, or is under common control with the Buyer. The term
“control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the Buyer, whether
through the ownership of voting securities, by contract or
otherwise. For purposes of clarity, an Affiliate shall include, but
not be limited to, all officers, directors, representatives, agents and
employees of Buyer, the immediate family members of such persons (not more
remote than first cousins), any entity controlled by such person(s), and/or any
subsidiary of Buyer.
5.05 Non-Competition. Buyer
agrees that from and after the date of this Agreement, and for a period ending
on the fifth (5th) anniversary hereof, Buyer shall not directly or indirectly
(through or on behalf of any other person or entity), (i) acquire, finance, own
any interest in, manage, control, participate in, consult with, render services
for, operate or in any manner engage in any business which (A) engages or
proposes to engage in the recallable, erasable, self-destructing email and/or
instant messaging market, or (B) is substantially similar to, or
competitive with, the business of the Seller as now conducted (a “Competing
Activity”), or (ii) for the purpose of conducting or engaging in a
Competing Activity, call upon, solicit, advise or otherwise do, or attempt to
do, business with any clients, suppliers, customers or accounts of Seller or any
of its affiliates. Buyer acknowledges that given the nature of
Seller’s business, Seller operates worldwide and, as such, agrees that the
territory for purposes of this restrictive covenant shall be
worldwide.
ARTICLE
VI
ASSIGNMENT
OF REGISTRATIONS
6.01 Assignment. At
Closing, Seller shall hereby transfer and assign to Buyer, free and clear of all
known claims, liens and encumbrances, any and all of Seller’s right, title and
interest in and to the Registrations and any other rights associated with such
Registrations, including, without limitation, any intellectual property rights
and associated goodwill.
6.02 Further
Actions. Seller will cooperate in good faith with Buyer and
take any and all actions reasonably necessary to transfer ownership of the
Registrations to Buyer, including, without limitation, preparing any and all
necessary transfer authorizations with any applicable Internet domain name
registration authority.
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ARTICLE
VII
INDEMNIFICATION
7.01 Indemnification by
Seller. Seller covenants and agrees to defend, indemnify and
hold harmless Buyer and its respective officers, directors, employees,
shareholders, agents, advisers and representatives (collectively, the “Buyer
Indemnitees”) from and against, and pay or reimburse Buyer Indemnitees for, any
and all claims, demands, liabilities, obligations, losses, fines, costs,
expenses, royalties, litigation, deficiencies or damages (whether absolute,
accrued, contingent or otherwise and whether or not resulting from third party
claims), including interest and penalties with respect thereto and out-of-pocket
expenses and reasonable attorneys’ and accountants’ fees and expenses incurred
in the investigation or defense of any of the same or in asserting, preserving
or enforcing any of their respective rights hereunder, resulting from or arising
out of:
(a) any
breach of any representation or warranty made by Seller herein;
(b) any
failure of Seller to perform any covenant or agreement hereunder;
(c) any
failure by Seller to pay any taxes, whether federal, state or local, owed by
Seller; or
(d) the
operation of the Website or the use of the Purchased Assets by Seller prior to
the Closing.
7.02 Indemnification by
Buyer. Buyer covenants and agrees to defend, indemnify and
hold harmless Seller and its respective officers, directors, employees,
shareholders, agents, advisers and representatives (collectively, the “Seller
Indemnitees”), from and against, and pay or reimburse Seller Indemnitees for,
any and all claims, demands, liabilities, obligations, losses, fines, costs,
expenses, royalties, litigation, deficiencies or damages (whether absolute,
accrued, contingent or otherwise and whether or not resulting from third party
claims), including interest and penalties with respect thereto and out-of-pocket
expenses and reasonable attorneys’ and accountants’ fees and expenses incurred
in the investigation or defense of any of the same or in asserting, preserving
or enforcing any of their respective rights hereunder, resulting from or arising
out of:
(a) any
breach of any representation or warranty made by Buyer herein;
(b) any
failure of Buyer to perform any covenant or agreement hereunder;
(c) the
operation of the Website or the use of the Purchased Assets by Buyer after the
Closing; and/or
(d) any
failure of Buyer to comply with applicable state and federal securities laws and
regulations.
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ARTICLE
VIII
MISCELLANEOUS
8.01 Survival. All
representations, warranties and covenants contained in this Agreement shall
survive Closing for a period of four (4) years.
8.02 Expenses. Each
of the Parties hereto shall pay its own fees and expenses (including the fees of
any attorneys, accountants, or others engaged by such Party) in connection with
this Agreement and the transactions contemplated hereby whether or not the
transactions contemplated hereby are consummated.
8.03 Assignments. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors, legal
representatives and assigns.
8.04 Entire
Agreement. This Agreement (including any exhibits hereto)
embodies the entire agreement and understanding of the Parties with respect to
the transactions contemplated hereby and supercedes all prior written or oral
commitments, arrangements or understandings with respect thereto.
8.05 Headings. The
headings contained in this Agreement are for purposes of convenience only and
shall not affect the meaning or interpretation of this Agreement.
8.06 Modifications, Amendments
and Waivers. The Parties may, by written agreement, modify,
amend or supplement any term or provision of this Agreement and any term or
provision of this Agreement may be waived in writing by the Party which is
entitled to the benefits thereof.
8.07 Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and each of which shall be deemed an
original. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
Party executing same (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile signature page were an original
thereof.
8.08 Governing
Law. This Agreement shall be governed by the laws of the State
of New Jersey (regardless of the laws that might be applicable under principles
of conflicts of law) as to all matters including, but not limited to, matters of
validity, construction, effect and performance. The Parties consent
to the exclusive jurisdiction of the state or federal courts sitting in the
State of New Jersey to resolve any disputes which may arise under this
Agreement.
8.09 Severability. If
any one or more of the provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remaining provisions of this Agreement shall not be affected
thereby. To the extent permitted by applicable law, each Party waives
any provision of law which renders any provision of this Agreement invalid,
illegal or unenforceable in any respect.
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8.10 Notices. All
notices or other communications required or permitted hereunder shall be given
in writing and shall be deemed sufficient if delivered by hand, mailed by
registered or certified mail, postage prepaid (return receipt requested), or
delivered by overnight delivery service with proof of delivery to a Party at the
address first provided above for such Party or such other address as shall be
furnished in writing by such Party, and any such notice or communication shall
be effective and be deemed to have been given as of the date so delivered if
delivered by hand, three (3) calendar days after the date so mailed, or one (1)
business day following deposit with an overnight delivery service.
[Signature
Page Follows.]
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IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.
BIGSTRING
CORPORATION
By: /s/ ▇▇▇▇▇
▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇
Title:President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇▇
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Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:President and Chief Executive
Officer