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...
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. | |||
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BUYERS:
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AGAPE
WORLD, INC.
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ANTAEUS
CAPITAL, INC.
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By:
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DISTRESSED
HIGH YIELD TRADING OPPORTUNITIES FUND, LTD.
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GOLDEN
DEN CORP.
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Name:
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By:
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Title:
Trading Advisor
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SV
SPECIAL SITUATIONS MASTER FUND LTD.
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Name:
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Title:
Director
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