ex104.htm


    Exhibit
      10.4

     

     

    ADDENDUM
      TO AMENDED AND RESTATED
      PURCHASE AGREEMENT

    DATED
      AS OF AUGUST 7, 2007 (THE
“PURCHASE AGREEMENT”) BY AND AMONG SPIRALFROG, INC. (F/K/A/ MOHEN, INC.), A
      DELAWARE CORPORATION (“SPIRAL”) AND THE INVESTORS LISTED ON THE SCHEDULE OF
      BUYERS ATTACHED HERETO (INDIVIDUALLY A “BUYER” AND COLLECTIVELY THE
“BUYERS”)

    


    


    This
      Addendum is made and entered into as of the 11th
      day of December,
      2007.  Unless otherwise defined herein, capitalized terms used in this
      Addendum shall have the meaning given to them in the Purchase
      Agreement.

    


    NOW,
      THEREFORE, in consideration of the respective covenants contained herein and
      intending to be legally bound hereby, the Parties hereto agree as
      follows:

    


    1.  WHEREAS
      Clause C of the Purchase Agreement is amended to read as follows:

    


    C.           The
      Company desires to sell Notes up to a maximum aggregate principal amount of
      $13,000,000, and to issue up to 7,090,910 Warrants in connection therewith,
      and
      the Buyers desire to amend and restate the Prior Purchase Agreement to allow
      for
      the sale of such additional Notes and issuance of Warrants.

    


    2.  WHEREAS
      Clause F of the Purchase Agreement is amended to read as follows:

    


    F.           Each
      Buyer wishes to purchase, and the Company wishes to sell, upon the terms and
      conditions stated in this Agreement that aggregate principal amount of the
      Notes, in substantially the form attached hereto as Exhibit A (the "Notes"),
      set
      forth opposite such Buyer's name in column (3) on the Schedule of Buyers
      attached hereto (which aggregate amount for all Buyers shall be $13,000,000)
      (as
      exchangeable into Common Stock pursuant to the terms of the Notes, collectively,
      the “Exchange Shares”) and such number of warrants (“Warrants”) to purchase
      Common Stock (the “Warrant Shares”), in substantially the form of Exhibit G, set
      forth opposite such Buyer’s name in column (4) on the Schedule of Buyers
      attached hereto.

    


    3.  WHEREAS
      Clause G to the Purchase Agreement is amended to read as follows:

    


    G.           Contemporaneously
      with the execution and delivery of this Agreement, the Buyers that purchased
      the
      first $11,000,000 of Notes and 6,000,000 Warrants are executing and delivering
      a
      Registration Rights Termination Agreement, substantially in the form attached
      hereto as Exhibit B (the “Registration Rights Termination Agreement”) pursuant
      to which the Company has granted certain demand and piggyback registration
      rights with respect to the Exchange Shares and the Warrant Shares under the
      1933
      Act and the rules and regulations promulgated thereunder, and applicable state
      securities laws.  The Buyers that purchased the Exchange Shares and
      Warrant Shares underlying the last $2,000,000 of Notes and 1,090,910 of Warrants
      sold shall receive demand and piggyback registration rights identical to those
      provided to the other Buyers.

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    
 

    4.  Section
      1(d) of the Purchase Agreement is amended to read as follows:

    


    (d)           Subsequent
      Closing.  Subject to the terms and conditions of this
      Agreement, after the Closing and at any time on or prior to one hundred fifty
      (150) days following the Closing, at a subsequent closing (a “Subsequent
      Closing”), the Company may issue and sell to one or more individuals and
      entities approved by the Company’s Board of Directors (each an “Additional
      Buyer” and collectively, the “Additional Buyers”) an aggregate principal amount
      of Notes and Warrants up to an aggregate of $13,000,000, including all
      previously issued Notes and Warrants, at the Purchase Price.  At a
      Subsequent Closing the representations and warranties of the Company set forth
      in Section 3 hereof shall speak as of the date of the Subsequent Closing
      (subject to any updates to the Disclosure Schedules as may be made by the
      Company), and the representations and warranties of the Additional Buyers shall
      speak as of the date of the respective Subsequent Closing.  At a
      Subsequent Closing, (i) each Additional Buyer and the Company shall execute
      a
      counterpart signature page hereto and to the relevant Transaction Documents,
      (ii) the Company shall cause the Schedule of Buyers hereto to be updated to
      reflect the purchases made by the Additional Buyers, (iii) each Additional
      Buyer
      shall become a “Buyer” hereunder and the Notes purchased by such Additional
      Buyer shall be deemed “Notes”, for purposes of this Agreement and the other
      Transaction Documents, and (iv) subject to the terms and conditions hereof,
      the
      Company will deliver to each of the Additional Buyers purchasing Notes and
      Warrants at a Subsequent Closing the applicable Notes and Warrants registered
      in
      the name of such Additional Buyer, against payment to the Company of the
      Purchase Price therefor in cash by wire transfer, check or other method
      acceptable to the Company

    


    IN
      WITNESS WHEREOF, this Addendum has been executed by the Parties as of the date
      first above written:

    
      	 	SPIRALFROG,
              INC.	 
	 	 	 	 
	
               

            	
              By:
                

            	/s/ Orville
              Hagler	 
	 	 	Name: Orville
              Hagler	 
	 	 	Title;Secretary	 
	 	 	 	 




                  

    


    BUYERS:

    


    
      	 	 	
              AGAPE
                WORLD, INC.

            
	 	 	 
	/s/Scott
              A. Stagg	 	 
	
              Scott
                A. Stagg

            	 	
              By:                                                      

            
	 	 	
              Name:

            
	 	 	
              Title:

            
	/s/
              Amir Khan	 	 
	
              Amir
                Khan

            	 	 
	 	 	 
	 	 	
              Mark
                P. Stagg

            
	/s/
              Mark Focht	 	 
	
              Mark
                Focht

            	 	 
	 	 	 
	 	 	
              Michael
                Miller

            
	
              /s/
                Robert A. Noble

            	 	 
	
              Robert
                A. Noble

            	 	 
	 	 	 
	 	 	
              Derek
                A. Jerina

            
	 	 	 
	
              Paul
                Schulman

            	 	 
	 	 	 
	 	 	 
	 	 	
              Robert
                DiForio

            
	
              ANTAEUS
                CAPITAL, INC.

            	 	 
	 	 	 
	 	 	 
	
              By:                                                      

            	 	
              Kevin
                A. Stagg

            
	
              Name:

            	 	 
	
              Title:

            	 	 
	 	 	 
	 	 	
              Thomas
                E. Stagg

            
	 	 	 
	
              Lionel
                Amron

            	 	 
	 	 	
              DISTRESSED
                HIGH YIELD TRADING OPPORTUNITIES FUND, LTD.

            
	 	 	 
	
              GOLDEN
                DEN CORP.

            	 	 
	 	 	
              By:
                Scott A.
                Stagg                                                      

            
	 	 	
              Name:
                Scott A. Stagg

            
	
              By:                                                      

            	 	
              Title:
                Trading Advisor

            
	
              Name:

            	 	 
	
              Title:

            	 	 
	 	 	
              SV
                SPECIAL SITUATIONS MASTER FUND LTD.

            
	 	 	 
	 	 	 
	 	 	
              By: Scott
                A.
                Stagg                                                     

            
	 	 	
              Name:
                Scott A. Stagg

            
	 	 	
              Title:
                Director

            
	 	 	 
	 	 	 
	 	 	
              Ahmed
                Shaaban