ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated as of
December 21, 2006, by and among M.A.G. Capital, LLC ("MAG" or the "Assignor"),
and its managed funds, Mercator Momentum Fund, LP, Mercator Momentum Fund III,
LP, and Monarch Pointe Fund, Ltd. (collectively, the "MAG Funds" or the
"Assignees").
WHEREAS, MAG is the beneficial owner of the warrants (the "Warrants") and
common stock (the "Common Stock," and together with the Warrants, the
"Securities") set forth on Exhibit A hereto; and
WHEREAS, MAG desires to transfer the beneficial ownership of the
Securities to the MAG Funds in the respective amounts set forth on Exhibit A and
to assign to the MAG Funds the benefit of any and all rights it has with respect
to the Securities, including, but not limited to, rights it may have pursuant to
certain subscription agreements (the "Subscription Agreements") with respect to
the Securities and certain registration rights with respect to the Common Stock
or the shares of common stock issuable upon the exercise of the Warrants (the
"Conversion Shares") pursuant to certain registration rights agreements entered
into with the various issuers of the Securities (the "Registration Rights
Agreements").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto mutually agree
as follows:
1. Assignment and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Assignor hereby irrevocably assigns to the
Assignees without recourse to the Assignor, and the Assignee hereby irrevocably
assumes from the Assignor without recourse to the Assignor, as of the date
hereof, all of the Assignor's right, title and interest in the Securities and
Assignor's rights and obligations with respect to the Securities, including any
rights and obligations pursuant to the Subscription Agreements and the
Registration Rights Agreements.
(b) As soon as reasonably practicable following the date
hereof, the Assignor shall deliver any certificates evidencing the Securities to
the respective issuers thereof and shall use its commercially reasonable efforts
to cause such issuers to, in exchange for the certificates delivered to them by
the Assignor, deliver new certificates to the Assignees registered in the names
of the Assignees evidencing the Assignees ownership of the Securities in the
respective amounts as set forth on Exhibit A. With respect to any Common Stock
not held in certificated form, the Assignor shall cause the Depository Trust
Company to transfer beneficial ownership of such Common Stock to the Assignees.
(c) Effective as of the date hereof, the parties hereto agree
that the Assignees shall have all rights and obligations of the Assignor under
the Subscription Agreements and the Registration Rights Agreements as if the
Assignees were parties to such documents.
2. Assignor as Agent. Until such time as new certificates are
delivered to the Assignees registered in the name of the Assignees evidencing
their ownership of the Securities, each Assignee (i) acknowledges that Assignor,
as General Partner of the MAG Funds, is authorized to take such action, and to
the extent not authorized is hereby appointed as agent with such authority to
act, on behalf of Assignee to exercise such powers under the Subscription
Agreements, the Registration Rights Agreements or any other instrument or
document furnished pursuant thereto; and (ii) agrees it will be bound by the
provisions of the Subscription Agreements, the Registration Rights Agreements
and will perform in accordance with their respective terms all the obligations
which by the terms of the Subscription Agreements or the Registration Rights
Agreements are required to be performed by it. MAG hereby accepts any such
appointment as Assignees' agent and covenants to take all actions as reasonably
directed by Assignees.
3. Successors. This Agreement shall inure to the benefit of and be
binding upon the Assignor and each of the Assignees and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person. No party may
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the other party.
4. Severability. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby.
5. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PROVISIONS RELATING TO CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6. Counterparts. This Agreement 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
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed as of the date first above written by their
respective duly authorized officer's signatories below.
M.A.G. CAPITAL, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
ACCEPTED AND AGREED:
MERCATOR MOMENTUM FUND, LP
MERCATOR MOMENTUM FUND III, LP
MONARCH POINTE FUND, LTD.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
Chief Investment Officer
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxx
Portfolio Administrator
