STOCK PURCHASE AGREEMENT
EXHIBIT 2
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of January 3, 2008 by and between
the individuals and entities set forth on the Schedule of Sellers, attached hereto as Schedule
I-A (the “Sellers”), and FP Tech Holdings, LLC, a Texas limited liability company (the
“Purchaser”).
2. Closing Date. The closing of the purchase and sale of the Shares and Convertible
Notes hereunder (the “Closing”) will take place at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, at 10:00 a.m., Austin, Texas time, on the date hereof, or
at such other time and place as the parties hereto shall agree. The date of the Closing is
hereinafter referred to as the “Closing Date.”
(a) Purchaser Closing Conditions. The Purchaser’s obligation to purchase the Shares
and the Convertible Notes at the Closing is subject to the satisfaction or waiver, on or prior to
the Closing Date, of the following conditions:
(b) Seller Closing Conditions. The Sellers’ obligations to sell the Shares and
Convertible Notes at the Closing is subject to the satisfaction or waiver, on or prior to the
Closing Date, of the following conditions:
(a) Authority. The Purchaser has all requisite power and authority (i) to execute and
deliver this Agreement, the Note and the Security Agreement, (ii) to purchase the Shares and the
Convertible Notes and (iii) to carry out and perform its obligations under this Agreement.
(b) Authorization, Etc. All action on the part of the Purchaser necessary for the
authorization, execution and delivery of this Agreement, the Note and the Security Agreement, the
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performance of all obligations of the Purchaser hereunder and thereunder and the purchase of
the Shares and the Convertible Notes has been taken or will be taken prior to the Closing. This
Agreement, the Note and the Security Agreement have been duly executed and delivered by the
Purchaser. This Agreement, the Note and the Security Agreement constitute a valid and binding
agreement of the Purchaser, assuming the due execution of this Agreement and the Security Agreement
by the applicable Sellers, enforceable against the Purchaser in accordance with its terms, except
that (i) such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) the
remedy of specific performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any proceeding therefore may be
brought.
(c) Information. The Purchaser is a sophisticated purchaser with respect to the
purchase of the Shares and the Convertible Notes and has independently and without reliance upon
the Sellers, and based on such public information as the Purchaser has deemed appropriate, made its
own analysis and decision to enter into this Agreement, except that the Purchaser has relied upon
the Sellers’ express representations, warranties, covenants and indemnities in this Agreement.
(a) Authority. Such Seller has all requisite power and authority (i) to execute and
deliver this Agreement and the Stock Power, (ii) to sell its Shares and Convertible Notes and
(iii) to carry out and perform its obligations under this Agreement.
(b) Authorization, Etc. All action on the part of such Seller necessary for the
authorization, execution and delivery of this Agreement and the Stock Power, the performance of all
obligations of such Seller hereunder and thereunder, the sale and delivery of the Shares and the
assignment and transfer of the Convertible Notes, has been taken or will be taken prior to the
Closing. This Agreement and the Stock Power have been duly executed and delivered by such Seller.
This Agreement and the Stock Power constitute valid and binding obligations of such Seller,
assuming the due execution of this Agreement by the Purchaser, enforceable against such Seller in
accordance with its terms, except that (i) such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought.
(c) Title to Shares and Convertible Notes. Such Seller owns and has (i) good and
marketable title to the Shares and the Convertible Notes, free and clear of any liens,
encumbrances, equities, claims, voting trust arrangements, pledges, security interests, rights to
purchase such Shares and the Convertible Notes, and restrictions whatsoever, except for
restrictions under applicable securities laws, and (ii) upon the delivery of, against payment for,
such Shares and Convertible Notes pursuant to this Agreement, the Purchaser will acquire good and
marketable title thereto, free and clear of any liens, encumbrances, equities, claims, voting
agreements or voting trust
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arrangements, pledges, security interests, rights to purchase such Shares and Convertible
Notes, and restrictions whatsoever, except for restrictions under applicable securities laws and
the security interest created by the Security Agreement.
(d) No Conflict. The execution, delivery and performance by such Seller of this
Agreement and the Stock Power, and the consummation of the transactions contemplated hereby and
thereby, will not result in any violation or be in conflict with or constitute, with or without the
passage of time or giving of notice, a default under any provision of its certificate or articles
of incorporation, bylaws, partnership agreement, certificate or articles of formation, operating
agreement, Convertible Notes or other organizational document (each as amended to date) or of any
provision of any material mortgage, indenture, agreement, instrument or contract to which it is a
party or by which it is bound.
(e) No Consent. No consent, notice, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any federal, state or local
governmental authority or other person on the part of such Seller is required in connection with
the consummation of the transactions contemplated by this Agreement.
(f) No Action. There is no action, suit, proceeding or investigation pending or, to
the actual knowledge of such Seller, currently threatened which questions the validity of this
Agreement.
(a) Survival of Representations. The representations and warranties of the Sellers
contained in or made pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Purchaser.
(b) Governing Law. This Agreement shall be governed by and construed under the laws
of the State of Texas, without regard to the conflict of law provisions thereof.
(c) Entire Agreement; Amendment. This Agreement represents the entire agreement among
the parties and supersedes all prior agreements and understandings relating to the subject matter
hereof. This Agreement may only be amended, modified or waived in a writing referencing this
Agreement signed by the Purchaser and the Sellers holding at least a majority of the Shares sold
pursuant to this Agreement.
(d) Titles and Subtitles. The titles of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be considered in construing this
Agreement.
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(e) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute one instrument. This Agreement
may be executed and delivered by facsimile transmission.
(f) Expenses. Each party hereto shall be responsible for and pay its own legal,
accounting and other professional fees and charges and all other costs and expenses incurred in
connection with the transactions contemplated herein.
(g) Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, (i) the Sellers and the Sellers’ respective legal representatives,
heirs, legatees, distributees, assigns and transfers by operation of law, and (ii) the Purchaser
and the Purchaser’s legal representatives, heirs, legatees, distributees, assigns and transfers by
operation of law, in each case whether or not any such person shall have become a party to this
Agreement and shall have agreed in writing to join herein and be bound by the terms and conditions
hereof.
(h) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
(i) Indemnification. The Sellers, without limitation as to time, assume liability for
and agree to indemnify, defend and hold harmless the Purchaser and its officers, directors,
stockholders, partners, employees, agents and affiliates (collectively, “Indemnified Persons”) from
and against, all losses, claims, damages, liabilities, obligations, fines, penalties, judgments,
settlements, costs, expenses and disbursements (including the costs of preparation and attorneys’
fees and expenses) (collectively, the “Losses”) (i) arising out of or related to any breach or
inaccuracy of any representation or warranty of the Sellers contained in this Agreement; or
(ii) any non-fulfillment or breach of any covenant or agreement of the Sellers contained in this
Agreement, other than any Losses which are finally determined in such proceeding to be primarily
and directly a result of such Indemnified Person’s (i) gross negligence or willful misconduct or
(ii) intentional misconduct or a knowing violation of law. The Purchaser and the Sellers covenant
and agree that the indemnity provided in this Section 7(i) shall be the sole and exclusive remedy
for any breach by any Seller of any of its representations or warranties or any non-fulfillment or
breach of any of its covenants or agreements in this Agreement. Notwithstanding the foregoing, in
no event shall the Sellers be liable pursuant to this Section 7(i) for any Losses in excess of the
Purchase Price. The obligations of the Sellers to each Indemnified Person under this Section 7(i)
will be separate and distinct obligations and will survive any transfer of Shares and Convertible
Notes by the Purchaser and the expiration or termination of this Agreement. THE PURCHASER AND THE
SELLERS INTEND THAT THE PURCHASER, ITS AGENTS AND REPRESENTATIVES BE INDEMNIFIED FROM LIABILITY FOR
ITS OWN NEGLIGENCE PURSUANT TO THIS SECTION 7.
(j) Joint Product. This Agreement is the joint product of the Sellers and the
Purchaser and each provision hereof and thereof has been subject to the mutual consultation,
negotiation and agreement of the Sellers and the Purchaser and shall not be construed against any
party hereto.
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(k) Waiver of Conflict. Each party to this Agreement acknowledges that Xxxxxxx Xxxxx
LLP (“AK”) is legal counsel for the Purchaser. Each party to this Agreement hereby
(a) acknowledges that they have had an opportunity to ask for and have obtained information
relevant to such representation, including disclosure of the reasonably foreseeable adverse
consequences of such representation; (b) acknowledges that with respect to the transactions
contemplated herein, AK has represented the Purchaser and not the Sellers or the Company and
(c) gives its informed consent to AK’s representation of the Purchaser in the transactions
contemplated by this Agreement. Each party hereto acknowledges that AK is counsel only to the
Purchaser and is not representing such party, regardless of whether AK has represented such party
in the past or is currently representing such party in any unrelated transactions. In deciding to
enter into and consummate the transactions contemplated by this Agreement, such party has been
represented in the preparation, negotiation, and execution of this Agreement by legal counsel of
its own choice or that it has had the opportunity to obtain legal representation and has elected
not to do so.
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IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase Agreement as of the day
and year first set forth above.
PURCHASER: | ||||||
FP TECH HOLDINGS, LLC | ||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx
|
|||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||
Title: Manager |
[Signature Page to Stock Purchase Agreement]
SELLERS: | ||||||
JAGUAR TECHNOLOGY HOLDINGS, LLC | ||||||
By: | /s/ Xxxx Xxxxxxx
|
|||||
Name: Xxxx Xxxxxxx | ||||||
Title: CEO | ||||||
XXXXXX XXXXXXX & ASSOCIATES, LLC | ||||||
By: | /s/ Xxxx Xxxxxxx
|
|||||
Name: Xxxx Xxxxxxx | ||||||
Title: CEO | ||||||
XXXX XXXXXXX, individually | ||||||
/s/ Xxxx Xxxxxxx | ||||||
Xxxx Xxxxxxx |
[Signature Page to Stock Purchase Agreement]
SCHEDULE I-A
Schedule of Sellers
Seller | Number of Shares | Portion of Purchase Price | ||||||
Jaguar Technology
Holdings, LLC |
1,927,414 | $ | 3,684,720.66 | |||||
Xxxxxx Xxxxxxx & Associates, LLC |
15,000 | $ | 28,676.15 | |||||
Xxxx Xxxxxxx |
625,000 | $ | 1,194,839.52 | |||||
Seller | Convertible Notes | Portion of Purchase Price | ||||||
Xxxxxx Xxxxxxx & Associates, LLC |
Note dated January 24, 2007, Principal Amount of $ 224,000 |
$ | 91,763.67 | |||||
Note dated January 24, 2007 Principal Amount of $ 112,000 |
||||||||
Total |
$ | 5,000,000.00 |
EXHIBIT A
The Note
EXHIBIT B
The Stock Power and Assignment Separate From Certificate
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto the individuals
and entities set forth below the number of shares of Common Stock of Firepond, Inc., as is set
forth opposite each individual’s or entity’s name. Such shares stand in the undersigned’s name on
the books of said corporation represented by Certificate No(s) . The undersigned does hereby
irrevocably constitute the secretary of said corporation as attorney-in-fact, with full power of
substitution, to transfer said stock on the books of said corporation.
Dated: January 3, 2008.
EXHIBIT C
The Convertible Notes
The Convertible Notes
EXHIBIT D
The Security Agreement