EXHIBIT 4
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STOCKHOLDERS AGREEMENT
among
CRITICAL PATH, INC.,
GENERAL ATLANTIC PARTNERS 74, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAPSTAR, LLC
and
THE STOCKHOLDERS NAMED HEREIN
Dated: November 8, 2001
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TABLE OF CONTENTS
Page
----
1. Definitions...................................................... 1
2. Future Issuance of Shares; Preemptive Rights..................... 5
2.1 Offering Notice......................................... 5
2.2 Preemptive Rights; Exercise............................. 5
2.3 Closing................................................. 6
2.4 Sale to Subject Purchaser............................... 7
3. Corporate Governance............................................. 7
3.1 Board of Directors; Number and Composition.............. 7
3.2 Reimbursement of Expenses; D&O Insurance................ 8
3.3 Meetings of the Board of Directors...................... 8
3.4 Annual Budget........................................... 8
4. Standstill; Nasdaq Matters....................................... 8
4.1 Standstill.............................................. 8
4.2 Nasdaq Matters.......................................... 9
5. Miscellaneous.................................................... 10
5.1 Notices................................................. 10
5.2 Successors and Assigns; Third Party Beneficiary......... 11
5.3 Amendment and Waiver.................................... 12
5.4 Counterparts............................................ 12
5.5 Specific Performance.................................... 12
5.6 Headings................................................ 12
5.7 GOVERNING LAW........................................... 12
5.8 Severability............................................ 12
5.9 Rules of Construction................................... 13
5.10 Entire Agreement........................................ 13
5.11 Term of Agreement....................................... 13
5.12 Further Assurances...................................... 13
EXHIBITS
A Articles of Incorporation
B By-laws
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated November 8,
2001, among Critical Path, Inc., a California corporation (the "Company"),
General Atlantic Partners 74, L.P., a Delaware limited partnership ("GAP LP"),
GAP Coinvestment Partners II, L.P., a Delaware limited partnership ("GAP
Coinvestment"), GapStar, LLC, a Delaware limited liability company ("GapStar"),
and the Persons listed on Schedule 1 hereto (the "Coinvestors").
WHEREAS, pursuant to the Stock and Warrant Purchase and
Exchange Agreement, dated November 8, 2001 (the "Stock Purchase Agreement"),
among the Company, GAP LP, GAP Coinvestment, GapStar and the Coinvestors, the
Company has agreed to (i) issue and sell to GAP LP, GAP Coinvestment, GapStar
and the Coinvestors an aggregate of 708,037 shares of Series D Cumulative
Redeemable Convertible Participating Preferred Stock, par value $0.001 per
share, of the Company (the "Series D Preferred Stock"), (ii) issue and deliver
to GAP LP, GAP Coinvestment and GapStar an aggregate of 1,837,418 shares of
Series D Preferred Stock in exchange for a certain amount of convertible
subordinated notes of the Company and (iii) issue and sell to GAP LP, GAP
Coinvestment and GapStar warrants (the "Warrants") to purchase, at an exercise
price of $1.05 per share, an aggregate of 2,500,000 shares of Common Stock; and
WHEREAS, pursuant to an Escrow Agreement, dated the date
hereof, among the Company, GAP LP, GAP Coinvestment, GapStar, the Coinvestors
and Pillsbury Winthrop LLP, as Escrow Agent (the "Escrow Agreement"), the
parties have agreed to consummate the transactions contemplated by the Stock
Purchase Agreement in escrow, including the execution and delivery of this
Agreement; and
WHEREAS, the parties hereto wish to provide for, among other
things, preemptive rights, corporate governance rights and standstill
obligations and certain other rights under certain conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act.
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Board of Directors" means the Board of Directors of the
Company.
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"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York or the State of
California are authorized or required by law or executive order to close.
"Cenwell Stockholders" has the meaning set forth in Section
4.1(c) of this Agreement.
"Charter Documents" means the Articles of Incorporation and
the By-laws of the Company as in effect on the date hereof after giving effect
to the filing of the Certificate of Designation with respect to the Series D
Preferred Stock with the Secretary of State of the State of California, copies
of which are attached hereto as Exhibits A and B, respectively.
"Coinvestors" has the meaning set forth in the preamble to
this Agreement.
"Coinvestor Stockholders" means the Coinvestors and any
Affiliate of a Coinvestor that, after the date hereof, acquires Shares, and the
term "Coinvestor Stockholder" shall mean any such person.
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Common Stock, par value $.001 per
share, of the Company and any other capital stock of the Company into which such
stock is reclassified or reconstituted and any other common stock of the
Company.
"Common Stock Equivalents" means any security or obligation
which is by its terms convertible, exchangeable or exercisable into or for
shares of Common Stock, including, without limitation the Series D Preferred
Stock, and any option, warrant or other subscription or purchase right with
respect to Common Stock or any Common Stock Equivalent.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Escrow Agreement" has the meaning set forth in the recitals
to this Agreement.
"Excess New Securities" has the meaning set forth in Section
2.2(a) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exempt Issuances" has the meaning set forth in Section 2.1 of
this Agreement.
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"GAP Coinvestment" has the meaning set forth in the preamble
to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP and the managing
member of GapStar, and any successor to such entity.
"GAP LP" has the meaning set forth in the preamble to this
Agreement.
"GapStar" has the meaning set forth in the preamble to this
Agreement.
"General Atlantic Director" has the meaning set forth in
Section 3.2(a) of this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP
Coinvestment, GapStar, GmbH Coinvestment and any Affiliate of GAP LLC that,
after the date hereof, acquires Shares, and the term "General Atlantic
Stockholder" shall mean any such Person.
"GmbH Coinvestment" means GAPCO GmbH & Co. KG, a German
limited partnership.
"Governmental Authority" means the government of any nation,
state, city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"Independent Director" means a director of the Company who is
considered an independent director for purposes of the Nasdaq Marketplace Rules
in effect from time to time.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever (excluding preferred stock and equity related
preferences).
"Nasdaq" means The Nasdaq Stock Market, Inc.
"New Issuance Notice" has the meaning set forth in Section 2.1
of this Agreement.
"New Securities" has the meaning set forth in Section 2.1 of
this Agreement.
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited
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liability company, Governmental Authority or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Preemptive Rightholder(s)" has the meaning set forth in
Section 2.1 of this Agreement.
"Proportionate Percentage" has the meaning set forth in
Section 2.2(a) of this Agreement.
"Proposed Price" has the meaning set forth in Section 2.1 of
this Agreement.
"Requirement of Law" means, as to any Person, any law,
statute, treaty, rule, regulation, right, privilege, qualification, license or
franchise or determination of an arbitrator or a court or other governmental
authority or stock exchange, in each case applicable or binding upon such Person
or any of its property or to which such Person or any of its property is subject
or pertaining to any or all of the transactions contemplated or referred to
herein.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Series D Preferred Stock" has the meaning set forth in the
recitals to this Agreement.
"Shares" means, with respect to each Stockholder, all shares,
whether now owned or hereafter acquired, of Common Stock and Series D Preferred
Stock, and any other Common Stock Equivalents owned thereby; provided, however,
for the purposes of any computation of the number of Shares pursuant to Sections
2.2 and 5.3, all outstanding Common Stock Equivalents shall be deemed converted,
exercised or exchanged as applicable and the shares of Common Stock issuable
upon such conversion, exercise or exchange shall be deemed outstanding, whether
or not such conversion, exercise or exchange has actually been effected.
"Standstill Ceiling" has the meaning set forth in Section
4.1(a) of this Agreement.
"Standstill Expiration Date" means November 8, 2008.
"Stock Option Plans" means the Company's stock option plans
and employee purchase plans pursuant to which shares of restricted stock and
options to purchase shares of Common Stock are reserved and available for grant
to officers, directors, employees and consultants of the Company.
"Stock Purchase Agreement" has the meaning set forth in the
recitals to this Agreement.
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"Stockholders" means the General Atlantic Stockholders and the
Coinvestor Stockholders.
"Stockholders Meeting" has the meaning set forth in Section
4.2 of this Agreement.
"Subject Purchaser" has the meaning set forth in Section 2.1
of this Agreement.
"Vectis Stockholders" has the meaning set forth in Section
4.1(c) of this Agreement.
"Warrants" has the meaning set forth in the recitals to this
Agreement.
"Written Consent" has the meaning set forth in Section 4.2 of
this Agreement.
2. Future Issuance of Shares; Preemptive Rights.
2.1 Offering Notice. Except for (a) options to
purchase Common Stock or restricted stock which may be issued pursuant to the
Stock Option Plans, (b) a subdivision of the outstanding shares of Common Stock
into a larger number of shares of Common Stock, (c) capital stock issued upon
exercise, conversion or exchange of any Common Stock Equivalent either (x)
previously issued or (y) issued in accordance with the terms of this Agreement,
(d) capital stock of the Company issued in consideration of an acquisition,
approved by the Board of Directors, by the Company of another Person, (e) shares
of Common Stock issued as a dividend on the Series D Preferred Stock and (f)
shares of Common Stock or Common Stock Equivalents issued in strategic
transactions (which may not be private equity or venture capital financing
transactions) approved by the Board of Directors to Persons that are not
principally engaged in financial investing ((a)-(f) being referred to
collectively as "Exempt Issuances"), if the Company wishes to issue any capital
stock or any other securities convertible into or exchangeable for capital stock
of the Company pursuant to a private placement exempt from registration under
the Securities Act, other than any such private placement that is made solely to
Qualified Institutional Buyers (as defined in the Securities Act) in reliance on
Rule 144A promulgated under the Securities Act (collectively, "New Securities")
to any Person (the "Subject Purchaser"), then the Company shall offer such New
Securities first to each of the General Atlantic Stockholders and the Coinvestor
Stockholders (each, a "Preemptive Rightholder" and collectively, the "Preemptive
Rightholders") by sending written notice (the "New Issuance Notice") to the
Preemptive Rightholders, which New Issuance Notice shall state (x) the number of
New Securities proposed to be issued and (y) the proposed purchase price per
security of the New Securities (the "Proposed Price"). Upon delivery of the New
Issuance Notice, such offer shall be irrevocable unless and until the rights
provided for in Section 2.2 shall have been waived or shall have expired.
2.2 Preemptive Rights; Exercise.
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(a) For a period of twenty (20) days after
the giving of the New Issuance Notice pursuant to Section 2.1, each of the
Preemptive Rightholders shall have the right to purchase its Proportionate
Percentage (as hereinafter defined) of the New Securities at a purchase price
equal to the Proposed Price and upon the same terms and conditions set forth in
the New Issuance Notice. Each Preemptive Rightholder shall have the right to
purchase that percentage of the New Securities determined by dividing (x) the
total number of Shares then owned by such Preemptive Rightholder by (y) the
total number of Shares owned by all of the Preemptive Rightholders (the
"Proportionate Percentage"). If any Preemptive Rightholder does not fully
subscribe for the number or amount of New Securities that it or he is entitled
to purchase pursuant to the preceding sentence, then each Preemptive Rightholder
which elected to purchase New Securities shall have the right for a five (5) day
period to purchase that percentage of the remaining New Securities not so
subscribed for (for the purposes of this Section 2.2(a), the "Excess New
Securities") determined by dividing (x) the total number of Shares then owned by
such fully participating Preemptive Rightholder by (y) the total number of
Shares then owned by all fully participating Preemptive Rightholders who elected
to purchase Excess New Securities. Each of the Stockholders may transfer all or
any portion of its rights to purchase New Securities under this Section 2 to any
of its Affiliates.
(b) The right of each Preemptive
Rightholder to purchase the New Securities or Excess New Securities, as the case
may be, under subsection (a) above shall be exercisable by delivering written
notice of the exercise thereof, prior to the expiration of the 20-day period
referred to in subsection (a) above with respect to New Securities or prior to
the expiration of the 5-day period referred to in subsection (a) above with
respect to Excess New Securities, to the Company, which notice shall state the
amount of New Securities that such Preemptive Rightholder elects to purchase
pursuant to Section 2.2(a). The failure of a Preemptive Rightholder to respond
within such 20-day or 5-day period shall be deemed to be a waiver of such
Preemptive Rightholder's rights under Section 2.2(a), provided that each
Preemptive Rightholder may waive its rights under Section 2.2(a) prior to the
expiration of such 20-day or 5-day period by giving written notice to the
Company.
2.3 Closing. The closing of the purchase of New
Securities or Excess New Securities subscribed for by the Preemptive
Rightholders under Section 2.2 shall be held at the executive office of the
Company at 11:00 a.m., local time, on (a) the 30th day after the giving of the
New Issuance Notice pursuant to Section 2.1, if the Preemptive Rightholders
elect to purchase all of the New Securities under Section 2.2, (b) the date of
the closing of the sale to the Subject Purchaser made pursuant to Section 2.4 if
the Preemptive Rightholders elect to purchase some, but not all, of the New
Securities under Section 2.2 or (c) at such other time and place as the parties
to the transaction may agree. At such closing, the Company shall deliver
certificates representing the New Securities, and such New Securities shall be
issued free and clear of all Liens (other than those attributable to actions by
the purchasers thereof) and the Company shall so represent and warrant, and
further represent and warrant (in addition to other customary representations
and warranties) that such New Securities shall be, upon
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issuance thereof to the Preemptive Rightholders and after payment therefor, duly
authorized, validly issued, fully paid and non-assessable. Each Preemptive
Rightholder purchasing the New Securities shall deliver at the closing payment
in full in immediately available funds for the New Securities purchased by him
or it. At such closing all of the parties to the transaction shall execute such
additional documents as are customary for transactions of this type.
2.4 Sale to Subject Purchaser. The Company may
sell to the Subject Purchaser all of the New Securities not purchased by the
Preemptive Rightholders pursuant to Section 2.2 on terms and conditions that are
no more favorable to the Subject Purchaser than those set forth in the New
Issuance Notice; provided, however, that such sale is bona fide and made
pursuant to a contract entered into within ninety (90) days following the
earlier to occur of (i) the waiver by the Preemptive Rightholders of their
option to purchase New Securities or Excess New Securities pursuant to Section
2.2, or (ii) the expiration of the 20-day or 5-day period referred to in Section
2.2. If such sale is not consummated within such 90-day period for any reason,
then the restrictions provided for herein shall again become effective, and no
issuance and sale of New Securities may be made thereafter by the Company
without again offering the same in accordance with this Section 2. The closing
of any issuance and sale pursuant to this Section 2.4 shall be held at a time
and place as the parties to the transaction may agree within such 90-day period.
3. Corporate Governance.
3.1 Board of Directors; Number and Composition.
(a) The Company shall take all actions
reasonably necessary to cause the nomination to the Board of Directors of one
(1) individual designated by the General Atlantic Stockholders but only if the
General Atlantic Stockholders are not entitled to elect one director of the
Company by virtue of their rights as the holders of a majority of the shares of
Series D Preferred Stock (the "General Atlantic Director").
(b) In addition, the Company shall cause
each committee of the Board of Directors to include at least one General
Atlantic Director, whether elected pursuant to this Agreement or by virtue of
the rights of the General Atlantic Stockholders as holders of Series D Preferred
Stock.
(c) In addition, the Company shall cause
one additional Independent Director to be appointed to the Board of Directors
within six (6) months of the date hereof. The initial appointment of the
Independent Director shall be approved by a majority of the Board of Directors.
(d) In addition, the Company shall cause,
as long as Cenwell Stockholders continues to own at least 750,000 shares of
Series D Preferred Stock (subject to adjustment for stock splits, stock
dividends in similar transactions) one
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(1) individual designated by the Cenwell Stockholders to serve as a non-voting
observer on the Board of Directors.
3.2 Reimbursement of Expenses; D&O Insurance.
The Company shall reimburse the General Atlantic Director for all reasonable
travel and accommodation expenses incurred by him in connection with the
performance of his duties as director of the Company upon presentation of
appropriate documentation therefor. The Company shall use reasonable commercial
efforts to maintain a directors' liability insurance policy that is reasonably
acceptable to the Board of Directors.
3.3 Meetings of the Board of Directors. The
Company agrees to take such actions as are necessary to cause the Board of
Directors to meet in person or telephonically not less frequently than once
during each calendar month.
3.4 Annual Budget. Not less than thirty (30)
days prior to the end of each fiscal year, the Company shall prepare and submit
to the Board of Directors for its approval an annual operating budget of the
Company for the next succeeding fiscal year in reasonable detail.
4. Standstill; Nasdaq Matters.
4.1 Standstill. Without the approval or written
consent of the Board of Directors, none of the General Atlantic Stockholders or
any of their Affiliates, and none of the Coinvestor Stockholders or any of their
respective Affiliates shall, severally and not jointly, at any time prior to the
Standstill Expiration Date:
(a) purchase or otherwise acquire, or
propose or offer to purchase or acquire, any shares of the Company's capital
stock, whether by tender offer, market purchase, privately negotiated purchase,
merger or otherwise, any shares of the Company's capital stock or any Common
Stock Equivalents in excess of the number of shares of the Company's capital
stock and Common Stock Equivalents purchased pursuant to the Stock Purchase
Agreement (subject to adjustments and issuances of additional Common Stock
Equivalents pursuant to the Series D Preferred Stock Certificate of Designation)
with respect to each such Stockholder and its Affiliates considered severally
and not jointly with any other Stockholder and its Affiliates (the "Standstill
Ceiling"); provided, however, that in no event shall any such Stockholder
acquire any Shares in a transaction in such an amount that when aggregated with
the shares of the Company's capital stock already owned by such Stockholder, the
acquisition of such shares of the Company's capital stock would require
stockholder approval under applicable Nasdaq rules and policies; and provided,
further, that the dividends that accrue on the shares of Series D Preferred
Stock pursuant to the terms thereof shall be excluded for purposes of
calculating whether or not a Stockholder and its Affiliates have exceeded the
Standstill Ceiling;
(b) except as specified in this Agreement,
make, or in any way participate, directly or indirectly, in any "solicitation"
of "proxy" (as such terms are defined or used in Regulation 14A of the Exchange
Act) to vote, or seek to advise or
9
influence any Person with respect to the voting of, any shares of the Company's
capital stock, or become a "participant" in any "election contest" (as such
terms are used or defined in Regulation 14A of the Exchange Act) relating to the
election of directors of the Company; provided, however, that none of the
General Atlantic Stockholders, the Coinvestor Stockholders or any of their
respective Affiliates shall be deemed to have engaged in a "solicitation" or to
have become a "participant" by reason of the membership of designees of the
General Atlantic Stockholders, the Coinvestor Stockholders or any of their
respective Affiliates on the Board of Directors;
(c) form, join or in any way participate
in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or
otherwise act in concert with any Person for the purpose of acquiring, holding,
voting or disposing of any shares of the Company's capital stock; provided,
however, that (i) the General Atlantic Stockholders may act as a group for the
purpose of acquiring, holding, voting or disposing of any shares of the
Company's capital stock, (ii) Vectis CP Holdings, LLC and any Affiliate thereof
that acquires shares of the Company's capital stock (the "Vectis Stockholders")
may act as a group for the purpose of acquiring, holding, voting or disposing of
any shares of the Company's capital stock and (iii) Cenwell Limited, Campina
Enterprises Limited and any Affiliate thereof that acquires shares of the
Company's capital stock (the "Cenwell Stockholders") may act as a group for the
purpose of acquiring, holding, voting or disposing of any shares of the
Company's capital stock; and provided further, that, for the avoidance of doubt,
the General Atlantic Stockholders, the Vectis Stockholders and the Cenwell
Stockholders may not together act as a group for all purpose of acquiring,
holding, voting or disposing of any shares of the Company's capital stock; or
(d) request the Company (or its directors,
officers, employees or agents), to take any action which would reasonably be
expected to require pursuant to law the Company to make a public announcement or
proposal or offer with respect to (i) any form of business combination or
transaction involving the Company including, without limitation, a merger,
consolidation, tender or exchange offer, sale or purchase of assets, or
dissolution or liquidation of the Company or (ii) instigate, encourage or assist
any Person to do any of the foregoing.
4.2 Nasdaq Matters. The Company shall use all
commercially reasonable efforts to maintain the quotation and listing on Nasdaq
of all of the shares of Common Stock issuable upon conversion of the Series D
Preferred Stock and all of the shares of Common Stock issuable upon exercise of
the Warrants. In addition, each of the General Atlantic Stockholders agree that
as long as it is required to do so by Nasdaq, at any regular or special meeting
of shareholders of the Company ("Stockholders Meeting") or in any written
consent executed in lieu of such a Stockholders Meeting (a "Written Consent"),
it will cause all voting securities owned in the aggregate by the General
Atlantic Stockholders that would at any such Stockholders Meeting or in
connection with any Written Consent constitute more than 19.99% of the
outstanding voting power of the Company entitled to vote at such Stockholders
Meeting or via such Written Consent to be
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voted in the same proportion as the other shares of the Company's Common Stock
(other than any held by the General Atlantic Stockholder) are voted.
5. Miscellaneous.
5.1 Notices. All notices, demands or other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first class mail, return receipt requested,
telecopier, courier service or personal delivery:
(a) if to the Company:
Critical Path, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to, which shall not
constitute notice:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: 415-983-1200
Attention: Xxxxx X. Xxxxxx, Esq.
(b) if to any of the General Atlantic
Stockholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to, which shall not
constitute notice:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
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(c) if to the Coinvestor Stockholders:
(i) if to Vectis CP Holdings, LLC:
c/o Vectis Group, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to, which shall not
constitute notice:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: 212-446-4900
Attention: Xxxxxxx Xxxxxxxxx, Esq.
(ii) if to Cenwell Limited
x/x 0xx Xxxxx
Xxxxxx Xxxx Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopy: (000) 0000-0000
Attention: Xx. Xxxxxx lp
(iii) if to Campina Enterprises Limited
x/x 00xx Xxxxx
Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Telecopy: (000) 0000-0000
Attention: Company Secretary
All such notices, demands and other communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 5.1 designate another address or Person for receipt
of notices hereunder.
5.2 Successors and Assigns; Third Party
Beneficiary. This Agreement shall inure to the benefit of and be binding upon
successors and permitted
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assigns of the parties hereto. No person other than the parties hereto and their
successors and permitted assigns is intended to be a beneficiary of this
Agreement.
5.3 Amendment and Waiver.
(a) No failure or delay on the part of any
party hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by any party from
the terms of any provision of this Agreement, shall be effective only if it is
made or given in writing and signed by (i) the Company, (ii) the General
Atlantic Stockholders and (iii) the Coinvestor Stockholders holding a majority
of the voting power of the Shares held by the Coinvestor Stockholders; provided,
however, that to the extent that any such amendment or waiver adversely affects
any of the Stockholders, such amendment or waiver shall require the prior
written consent of each Stockholder so adversely affected; provided further,
that any Stockholder may waive in writing any right that inures to such
Stockholder. Any such amendment, supplement, modification, waiver or consent
shall be binding upon the Company and all of the Stockholders.
5.4 Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
5.5 Specific Performance. The parties hereto
intend that each of the parties have the right to seek damages or specific
performance in the event that any other party hereto fails to perform such
party's obligations hereunder. Therefore, if any party shall institute any
action or proceeding to enforce the provisions hereof, any party against whom
such action or proceeding is brought hereby waives any claim or defense therein
that the plaintiff party has an adequate remedy at law.
5.6 Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.7 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
5.8 Severability. If any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or
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unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
5.9 Rules of Construction. Unless the context
otherwise requires, references to sections or subsections refer to sections or
subsections of this Agreement.
5.10 Entire Agreement. This Agreement, together
with the exhibits hereto, is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
representations, warranties or undertakings, other than those set forth herein
or therein or set forth in the Stock Purchase Agreement. This Agreement,
together with the exhibits hereto, supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
5.11 Term of Agreement. Unless the Escrow
Termination Date (as defined in the Escrow Agreement) shall have occurred, in
which case this Agreement shall terminate and be void and of no further force or
effect, this Agreement shall become effective upon the Escrow Release Date (as
defined in the Escrow Agreement) and shall thereafter terminate upon the earlier
of (a) with respect to a particular Stockholder, on the date that such
Stockholder and its Affiliates beneficially own less than 5% of the actual
outstanding shares of Common Stock (assuming conversion of the shares of Series
D Preferred Stock) or (b) the twentieth anniversary of the date hereof.
5.12 Further Assurances. Each of the parties
shall, and shall cause their respective Affiliates to, execute such documents
and perform such further acts as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Stockholders Agreement on the date first written
above.
CRITICAL PATH, INC.
By: ________________________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: ________________________________________
Name:
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: ________________________________________
Name:
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: ________________________________________
Name:
Title: A Managing Member
VECTIS CP HOLDINGS, LLC,
a Delaware limited liability company
By: VECTIS GROUP, LLC,
its Managing Member
By: ________________________________________
Name:
Title:
CENWELL LIMITED
By: ________________________________________
Name:
Title:
CAMPINA ENTERPRISES LIMITED
By: ________________________________________
Name:
Title:
Schedule I
Coinvestors
Vectis CP Holdings, LLC
Cenwell Limited
Campina Enterprises Limited