-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E1hzisgda/dssYOzy/y1HOheS2/+3HwahQM/mYDC3VITfIOAb8MwsvC0ItjKJ1dG ObaSDPtC++nFeJ+K3CkeXw== 0001144204-07-014514.txt : 20070326 0001144204-07-014514.hdr.sgml : 20070326 20070326134833 ACCESSION NUMBER: 0001144204-07-014514 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070326 DATE AS OF CHANGE: 20070326 GROUP MEMBERS: DAVID F. FIRESTONE GROUP MEMBERS: MERCATOR FOCUS FUND, L.P. GROUP MEMBERS: MERCATOR MOMENTUM FUND III, L.P. GROUP MEMBERS: MERCATOR MOMENTUM FUND, L.P. GROUP MEMBERS: MONARCH POINTE FUND, LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PRESIDION CORP CENTRAL INDEX KEY: 0001123130 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 650832987 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78942 FILM NUMBER: 07717483 BUSINESS ADDRESS: STREET 1: 755 WEST BIG BEAVER ROAD STREET 2: SUITE 1700 CITY: TROY STATE: MI ZIP: 48084 BUSINESS PHONE: 248-269-9600 MAIL ADDRESS: STREET 1: 755 WEST BIG BEAVER ROAD STREET 2: SUITE 1700 CITY: TROY STATE: MI ZIP: 48084 FORMER COMPANY: FORMER CONFORMED NAME: MEDIABUS NETWORKS INC DATE OF NAME CHANGE: 20020214 FORMER COMPANY: FORMER CONFORMED NAME: BY&C MANAGEMENT INC DATE OF NAME CHANGE: 20000831 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: M.A.G. Capital, LLC CENTRAL INDEX KEY: 0001218181 IRS NUMBER: 300021359 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 555 S. FLOWER ST. STREET 2: SUITE 4500 CITY: LOS ANGELES STATE: CA ZIP: 90071 BUSINESS PHONE: 2135338288 MAIL ADDRESS: STREET 1: 555 SOUTH FLOWER ST. STREET 2: SUITE 4500 CITY: LOS ANGELES STATE: CA ZIP: 90071 FORMER COMPANY: FORMER CONFORMED NAME: MERCATOR ADVISORY GROUP LLC DATE OF NAME CHANGE: 20030210 SC 13D/A 1 v068890_sc13d-a.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
 
 
PRESIDION CORPORATION
(Name of Issuer)
 
(Title of Class of Securities)
 
58446 W 10 9
(CUSIP Number)
 
555 South Flower Street, Suite 4200
Los Angeles, CA 90071
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
 
December 21, 2006
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d- l(e), 240.13d-l(f) or 240.13d- l(g), check the following box. o
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
 
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 

 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
Mercator Momentum Fund, L.P.
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
OO
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
California
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
0
 
8.
Shared Voting Power
13,429,167 (1)
 
9.
Sole Dispositive Power
0
 
10.
Shared Dispositive Power
13,429,167 (1)
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
13,429,167 (1)
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
10.0%
  
 
14.
Type of Reporting Person (See Instructions)
 
PN
 

(1) The terms of the warrants to purchase up to 6,400,000 shares of Common Stock do not permit the holder to exercise the warrant if it would cause any of Mercator Momentum, Mercator Momentum III, Focus Fund, MPF or MAG to beneficially own more than 9.99% of the Issuer’s outstanding common stock. Since MAG and Mercator Momentum each beneficially owns 9.99% of the Issuer’s common stock with the full conversion of the Series B Preferred Stock owned by Mercator Momentum and the exercise of warrants for 515,000 shares of common stock, the remaining 5,885,000 shares of common stock issuable upon exercise of the warrants have not been included here. 

Page 2 of 10

 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
Mercator Momentum Fund III, L.P.
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
WC
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
California
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
0
 
8.
Shared Voting Power
13,200,000
 
9.
Sole Dispositive Power
0
 
10.
Shared Dispositive Power
13,200,000
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
13,200,000
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
9.8%
  
 
14.
Type of Reporting Person (See Instructions)
 
PN

Page 3 of 10

 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
Mercator Focus Fund, L.P.
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
WC
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
California
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
0
 
8.
Shared Voting Power
0
 
9.
Sole Dispositive Power
0
 
10.
Shared Dispositive Power
0
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
0
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
0%
  
 
14.
Type of Reporting Person (See Instructions)
 
PN
 
Page 4 of 10

 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
Monarch Pointe Fund, Ltd.
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
WC
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
British Virgin Islands
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
0
 
8.
Shared Voting Power
13,315,000 (1)
 
9.
Sole Dispositive Power
0
 
10.
Shared Dispositive Power
13,315,000 (1)
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
13,315,000 (1)
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
9.9%
  
 
14.
Type of Reporting Person (See Instructions)
 
CO
 

(1) The terms of the warrants to purchase up to 14,200,000 shares of common stock and the terms of the Series B Preferred Stock do not permit the holder to exercise the warrant if it would cause any of Mercator Momentum, Mercator Momentum III, Focus Fund, MPF or MAG to beneficially own more than 9.99% of the Issuer’s outstanding common stock. Since MAG beneficially owns 9.99% of the Issuer’s common stock with the 13,315,000 shares of common stock issuable upon the exercise of the warrants or the conversion of the Series B Shares, the remaining 885,000 shares of common stock issuable upon exercise of the warrants (or the remaining 15,085,000 shares of common stock issuable upon conversion of the Series B Shares) have not been included here.
 
Page 5 of 10

 
 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
M.A.G. Capital, LLC
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
AF
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
California
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
0
 
8.
Shared Voting Power
13,429,167 (1)
 
9.
Sole Dispositive Power
0
 
10.
Shared Dispositive Power
13,429,167 (1)
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
13,429,167 (1)
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
10.0%
  
 
14.
Type of Reporting Person (See Instructions)
 
IA
 

(1) The terms of the warrants to purchase shares of common stock and the terms of the Series B Preferred Stock to convert Series B Shares do not permit those shares to be exercised or converted if, following the exercise or conversion, any of Mercator Momentum, Mercator Momentum III, Focus Fund, MPF or MAG would beneficially own more than 9.99% of the Issuer’s outstanding common stock. Since MAG beneficially owns 9.99%, only 13,315,000 shares of common stock issuable upon exercise of the warrants or upon conversion of the Series B Preferred Stock have been included here.

Page 6 of 10


 
CUSIP NO.  58446 W 10 9
  
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
David F. Firestone
  
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
¨
   
(b)
ý
  
 
3.
SEC Use Only
  
 
4.
Source of Funds (See Instructions)
 
AF
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
     
 
6.
Citizenship or Place of Organization
 
USA
     
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
   
7.
Sole Voting Power
581,143
 
8.
Shared Voting Power
13,429,167 (1)
 
9.
Sole Dispositive Power
581,143
 
10.
Shared Dispositive Power
13,429,167 (1)
  
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
 
14,010,310 (1)
  
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
  
 
13.
Percent of Class Represented by Amount in Row (11)
 
10.4%
  
 
14.
Type of Reporting Person (See Instructions)
 
IN
 

(1) The terms of the warrants to purchase shares of common stock and the terms of the Series B Preferred Stock to convert Series B Shares do not permit those shares to be exercised or converted if, following the exercise or conversion, any of Mercator Momentum, Mercator Momentum III, Focus Fund, MPF or MAG would beneficially own more than 9.99% of the Issuer’s outstanding common stock. Since MAG beneficially owns 9.99%, only 13,315,000 shares of common stock issuable upon exercise of the warrants or upon conversion of the Series B Preferred Stock have been included here.

Page 7 of 10


INTRODUCTION

This Amendment No. 2 to Schedule 13D (the “Amendment”) amends and supplements the Schedule 13D filed with the Securities Exchange Commission on March 27, 2003 (as amended, the “Statement”) and Amendment No. 1 to the Statement filed on January 14, 2005 by Mercator Momentum Fund, L.P. (“Momentum Fund”), Mercator Momentum Fund III, L.P. (“Momentum Fund III”), Mercator Focus Fund, L.P. (“Focus Fund”), M.A.G. Capital, LLC (“MAG”) and David F. Firestone (“Firestone”). Capitalized terms not otherwise defined herein have the meanings ascribed thereto in the Statement. Only those Items amended are reported herein.  
 
Item 4. Purpose of Transaction.
 
Item 4 is hereby amended and supplemented by adding the following:
 
Pursuant to that certain Assignment and Assumption Agreement (the “Assignment and Assumption Agreement”) between MAG, MPF, Momentum Fund and Momentum Fund III, on December 21, 2006, MAG irrevocably assigned to MPF, Momentum Fund and Momentum Fund III all of MAG’s right, title and interest in certain of the Issuer’s securities owned by MAG, including MAG’s rights and obligations with respect to such securities. The Issuer’s securities that MAG transferred to MPF, Momentum Fund and Momentum Fund III consisted of the following:
 
·  
Warrants to purchase up to 3,200,000 shares of Common Stock were assigned to Momentum Fund;
 
·  
Warrants to purchase up to 2,200,000 shares of Common Stock were assigned to Momentum Fund III; and
 
·  
Warrants to purchase up to 7,100,000 shares of Common Stock were assigned to MPF.
 
MAG continues to retain all investment and voting powers with respect to the transferred securities. The parties to the Assignment and Assumption Agreement agreed to use their commercially reasonable efforts to deliver all certificates evidencing the assigned securities and to otherwise complete the transfer of the assigned securities as soon as is reasonably practical.
 
Item 5. Interest in Securities of the Issuer.
 
Item 5(a) is hereby amended and supplemented by adding the following:
 
The percentage of class of securities in row 13 of the cover page is based on the assumption that the Issuer had 121,112,347 shares of Common Stock outstanding, which is based on the reported 100,266,439 shares of Common Stock outstanding as of November 1, 2004, in its Report on Form 10-Q for the quarter ended September 30, 2004, increased by the sale of 20,845,903 shares of Common Stock on February 4, 2005, as reported in the Issuer’s Form 8-K filed on February 9, 2005.
 
The Reporting Persons directly own the following securities of the Issuer:
 
·  
Momentum Fund owns 114,167 shares of Common Stock, warrants to purchase up to 6,400,000 shares of Common Stock and 6,400 Series B Shares (convertible into 12,800,000 shares of Common Stock).
 
·  
Momentum Fund III owns warrants to purchase up to 4,400,000 shares of Common Stock and 4,400 Series B Shares (convertible into 8,800,000 shares of Common Stock).
 
Page 8 of 10

 
·  
MPF owns warrants to purchase up to 14,200,000 shares of Common Stock and 14,200 Series B Shares (convertible into 28,400,000 shares of Common Stock).
 
·  
Firestone owns 581,143 shares of Common Stock.
 
The 2003 February Warrants expired on February 12, 2006 and the 2003 November Warrants expired on November 13, 2006. As a result of the expiration of the 2003 February Warrants and the 2003 November Warrants, Focus Fund no longer holds any securities of the issuer.
 
As of March 23, 2007, the aggregate number and percentage of class of securities identified pursuant to Item 1 beneficially owned by each person identified in Item 2 may be found in rows 11 and 13 of the cover pages.

The powers the Reporting Persons have relative to the securities discussed herein may be found in rows 7 through 10 of the cover pages.

All of the shares of Common Stock beneficially owned by the Reporting Persons are shares of Common Stock outstanding as of the date hereof, and shares of Common Stock that may be acquired upon exercise of Warrants, conversion of Series B Stock at a conversion price of $0.05.

Item 5(b) is amended as follows:

The right to vote and the right to dispose of the shares beneficially owned by Momentum Fund are shared with both MAG and Firestone. The right to vote and the right to dispose of the shares beneficially owned by Momentum Fund III are shared with both MAG and Firestone. The right to vote and the right to dispose of the shares beneficially owned by MPF are shared with both MAG and Firestone. The right to vote and the right to dispose of the shares beneficially owned by MAG are shared by MAG and Firestone.

Item 5(c) is amended as follows:

None of the Reporting Persons have acquired or disposed securities of the Issuer during the past 60 days.
 
Item 6.
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
 
Item 6 is amended and supplemented with the following:
 
Assignment and Assumption Agreement
 
The description of the Assignment and Assumption Agreement set forth in Item 4 of this Statement is incorporated herein by this reference. 
 
Item 7.
Material to be Filed as Exhibits.
 
Attached as Exhibit 7(a) is a copy of the Assignment and Assumption Agreement dated December 21, 2006, by and among MAG, Momentum Fund, Momentum Fund III and MPF.
 
Page 9 of 10


SIGNATURES
 
After reasonable inquiry and to the best of the knowledge and belief of the undersigned, I certify that the information set forth in this statement is true, complete and correct.
 
Dated: March 23, 2007
MERCATOR MOMENTUM FUND, L.P.
     
  By:   M.A.G. Capital, LLC
    its general partner
       
    By:   /s/ Harry Aharonian
     
Harry Aharonian,
      Portfolio Manager
 
Dated: March 23, 2007
MERCATOR FOCUS FUND, L.P.
     
  By:   M.A.G. Capital, LLC
    its general partner
       
    By:   /s/ Harry Aharonian
     
Harry Aharonian,
      Portfolio Manager
 
Dated: March 23, 2007
MERCATOR MOMENTUM FUND III, L.P.
     
  By:   M.A.G. Capital, LLC
    its general partner
       
    By:   /s/ Harry Aharonian
     
Harry Aharonian,
     
Portfolio Manager
 
     
Dated: March 23, 2007
MONARCH POINTE FUND, LTD.
 
 
 
 
 
 
  By:   /s/ Harry Aharonian
 
Harry Aharonian,
 
Director
 
     
Dated: March 23, 2007
M.A.G. Capital, LLC
 
 
 
 
 
 
  By:   /s/ Harry Aharonian
 
Harry Aharonian,
 
Portfolio Manager
 
Dated: March 23, 2007
 
 
/s/ David F. Firestone 
 

David F. Firestone
 
Page 10 of 10

EX-99.1 2 v068890_ex99-1.htm
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/ David F. Firestone  
 
Name: David F. Firestone
 
  Title: Managing Member  
 
 
ACCEPTED AND AGREED:
 
     
 
Mercator Momentum Fund, LP
Mercator Momentum Fund III, LP
Monarch Pointe Fund, Ltd.
 
 
 
 
 
 
  By:   /s/ Todd Bomberg
 
Todd Bomberg
  Chief Investment Officer

     
  By:   /s/ Harry Aharonian 
 
Harry Aharonian
 
Portfolio Administrator
 
 

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