formerly, FP TECHNOLOGY, INC. (as successor in interest to AFG Enterprises USA, Inc.)) as Issuer and THE BANK OF NEW YORK as Trustee SUPPLEMENTAL INDENTURE No. 1 Dated as of August 2, 2007 to INDENTURE Dated as of January 24, 2007 Senior Secured...
(formerly,
FP TECHNOLOGY, INC.
(as
successor in interest to AFG Enterprises USA, Inc.))
as
Issuer
and
THE
BANK OF NEW YORK
as
Trustee
--------------
SUPPLEMENTAL
INDENTURE
No. 1
Dated
as of August 2, 2007
to
INDENTURE
Dated
as of January 24, 2007
-------------
Senior
Secured Convertible Notes Due 2009
SUPPLEMENTAL
INDENTURE No. 1, dated as of August 2, 2007 (the “Supplemental
Indenture”) to the Indenture dated as of January 24, 2007 (the
“Indenture”) between Firepond, Inc. (formerly, FP Technology,
Inc. (as successor in interest to AFG Enterprises USA, Inc.)) a corporation
duly
organized and existing under the laws of the State of Delaware, as Issuer (the
“Company”), having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Bank of New York, a New York banking
corporation, as Trustee (in such capacity the
“Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
in connection with the Master Exchange Agreement, dated as of January 24, 2007
(the “Exchange Agreement”), entered into by and among the
Company and the Initial Purchasers (as defined in the Indenture), the Initial
Purchasers acquired Senior Secured Convertible Notes Due 2009 (each a
“Note” and, collectively, the “Notes”) issued
by the Company under the Indenture in exchange for the Company’s Senior Secured
Nonconvertible Notes Due 2011 issued on March 29, 2006; and
WHEREAS,
the Company and the Noteholders (as defined in the Indenture) desire to amend
the Indenture to permit the Company to (i) incur indebtedness in a
principal amount up to $3,337,500 which indebtedness shall be junior in priority
to the Notes upon the occurrence of an Event of Default, (ii) issue up to
125,000 shares of Common Stock in connection with any Permitted Indebtedness
(as
defined in the Indenture) and (iii) issue Common Stock in a bona fide firm
commitment underwritten public offering with a nationally recognized underwriter
(including without limitation Merriman, Curhan, Ford & Co.) which generates
gross proceeds to the Company in excess of $10,000,000;
NOW,
THEREFORE, for and in consideration of the promises and undertakings made
herein, the receipt of which is hereby acknowledged, it is mutually agreed,
for
the benefit of the Company and the equal and proportionate benefit of all of
the
Noteholders, as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
Section
1.01. Definitions. For
all purposes of this Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires, the terms used herein shall
have the meanings assigned to them in the Indenture and include the plural
as
well as the singular.
ARTICLE
II
Amendments
Section
2.01. Amendments
to the Indenture. Effective as of the date hereof, the
definitions of “Excluded Securities” and “Permitted
Indebtedness” in Section 1.01 of the Indenture are hereby amended by
deleting them in their entirety and inserting the following in lieu
thereof:
“Excluded
Securities” means (a) any Common Stock issued or
issuable: (i) pursuant to any equity incentive plan or
arrangement which has been approved by the Board of Directors of the Company,
pursuant to which the Company’s securities may be issued to employees, officers,
directors or consultants for services provided to the Company or any
Subsidiaries thereof; (ii) pursuant to a bona fide firm commitment
underwritten public offering with a nationally recognized underwriter (including
without limitation Merriman, Curhan, Ford & Co.) which generates gross
proceeds to the Company in excess of $10,000,000 (other than an “at-the-market
offering” as defined in Rule 415(a)(4) under the Securities Act of 1933 and
“equity lines”); (iii) upon conversion of the Notes or exercise of any of
the Warrants; (iv) in connection with any acquisition by the Company,
whether through an acquisition of stock or a merger of any business, assets
or
technologies the primary purpose of which is not to raise equity capital in
an
amount not to exceed, in the aggregate, 10% of the outstanding shares of Common
Stock in any calendar year, or (v) upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof (provided
that the terms of such options or warrants are not amended or modified in any
manner after the date hereof) or an option or warrant issued or granted in
compliance with this paragraph, (b) any Common Stock or preferred stock in
a maximum aggregate amount of up to $10,000,000 issued in connection with the
issuance of additional Notes as contemplated by Section 3.01 occurring within
90
days of the date hereof; provided that in order to constitute an Excluded
Security for purposes of this Agreement, the per share price paid for such
Common Stock or deemed to be paid for such Common Stock upon the conversion
of
the preferred stock in accordance with the terms thereof (with such “deemed
price per share” calculated in accordance with the provisions of
Section 13.06(a)) shall not be less than 80% of the Conversion Price in
effect on the date of such issuance and (c) up to 125,000 shares of Common
Stock
issued in connection with paragraph (g) in the definition of Permitted
Indebtedness .
“Permitted
Indebtedness” means (a) Indebtedness incurred by the Company or any
Guarantor to finance acquisitions from time to time that is approved in advance
by the Majority Holders and made expressly subordinate in right of payment
to
the Indebtedness evidenced by the Notes, as reflected in a written agreement
acceptable to the Trustee and approved by the Trustee in writing, and which
Indebtedness does not provide at any time for the payment, prepayment,
repayment, repurchase or defeasance, directly or indirectly, of any principal
or
premium, if any, thereon until ninety-one (91) or more days after the Maturity
Date; (b) that certain 12% Senior Secured Convertible Debenture issued September
13, 2005 by FP Technology Holdings, Inc. to Trident Growth Fund, L.P. in the
principal amount not to exceed $2,000,000 (as amended by the Master Amendment,
dated March 29, 2006 and the First Amendment dated September 13, 2006 between
the Company and Trident Growth Fund, L.P., the “Trident Loan”),
(c) that certain amended and restated unsecured promissory note made September
13, 2005 by the Company in favor of General Motors Corporation in an amount
not
to exceed that in effect on the date hereof, (d) secured purchase money
Indebtedness incurred in connection with the purchase of equipment in an
aggregate maximum amount equal to $250,000 at any time outstanding to be used
in
the operations of the Company, (e) any Indebtedness in an amount of up to
$5,000,000 in the aggregate at any time outstanding of one or more Special
Purpose Acquisition Subsidiaries of the Company incurred to finance
acquisitions, which Indebtedness is without recourse to the Company or any
Guarantor, (f) Indebtedness under any reimbursement agreement related to the
Letter of Credit and (g) Indebtedness incurred by the Company in a principal
amount of up to $3,337,500 in the aggregate at any time outstanding which
Indebtedness will be expressly subordinate in right of payment to the
Indebtedness evidenced by the Notes upon the occurrence of an Event of Default,
but which Indebtedness may mature prior to the Maturity Date.
ARTICLE
III
Miscellaneous
Section
3.01. Continued
Effect. Except as hereby expressly amended, the Indenture is in
all respect ratified and confirmed and all terms, provisions and conditions
thereof shall be and remain in full force and effect.
Section
3.02. Effectiveness. This
Supplemental Indenture shall become effective immediately upon the execution
hereof by all of the parties identified on the signature pages
hereto.
Section
3.03. Governing
Law. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section
3.04. Counterparts. This
Supplemental Indenture may be executed in multiple counterparts, each of which
when so executed shall be deemed to be original, but all such counterparts
shall
together constitute but one and the same instrument.
[Signature
page follows.]
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
No.
1 to be duly executed as of the day and year first above written.
|
By:
|
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief
Financial Officer
|
||
|
THE
BANK OF NEW YORK, as Trustee
|
||
|
By:
|
/s/▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Assistant Treasurer
|
||