CONVERSION AND CONTRIBUTION AGREEMENT BY AND AMONG CP HOLDCO, LLC AND THE PERSONS NAMED ON SCHEDULE I HERETO Dated: December 5, 2007
Exhibit 99.3
BY AND AMONG
CP
HOLDCO, LLC
AND
THE PERSONS NAMED ON SCHEDULE I HERETO
Dated: December 5, 2007
TABLE OF CONTENTS
| ARTICLE 1 CONVERSION AND CONTRIBUTION | 2 | |||||
Section 1.1 |
Conversion of Series D Preferred Stock | 2 | ||||
Section 1.2 |
Contribution of Conversion Shares for Units | 2 | ||||
Section 1.3 |
Closing; Deliveries at Closing | 3 | ||||
Section 1.4 |
No Transfer | 4 | ||||
| ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF PARENT | 4 | |||||
Section 2.1 |
Existence and Power | 4 | ||||
Section 2.2 |
Authorization, No Conflicts | 4 | ||||
Section 2.3 |
Binding Effect | 4 | ||||
Section 2.4 |
Approvals and Consents | 5 | ||||
Section 2.5 |
Issuance of Units | 5 | ||||
| ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTING SHAREHOLDERS | 5 | |||||
Section 3.1 |
Power and Authority | 5 | ||||
Section 3.2 |
Authorization, No Conflicts | 5 | ||||
Section 3.3 |
Binding Effect | 5 | ||||
Section 3.4 |
Approvals and Consents | 6 | ||||
Section 3.5 |
Status of Contributing Shareholder | 6 | ||||
Section 3.6 |
Ownership of Series D Preferred Stock | 6 | ||||
Section 3.7 |
Ownership of Conversion Shares | 6 | ||||
| ARTICLE 4 CONDITIONS TO THE OBLIGATIONS OF THE PARTIES TO CLOSE | 6 | |||||
Section 4.1 |
Conditions to the Obligations of the Contributing Shareholders to Close | 6 | ||||
Section 4.2 |
Conditions to the Obligations of Parent to Close | 7 | ||||
| ARTICLE 5 TERMINATION | 7 | |||||
Section 5.1 |
Termination | 7 | ||||
Section 5.2 |
Effect of Termination | 7 | ||||
| ARTICLE 6 MISCELLANEOUS | 7 | |||||
Section 6.1 |
Survival of Representations and Warranties | 7 | ||||
Section 6.2 |
Notices | 8 | ||||
Section 6.3 |
Successors and Assigns; Third Party Beneficiaries | 8 | ||||
Section 6.4 |
Amendment and Waiver | 8 | ||||
Section 6.5 |
Counterparts | 8 | ||||
Section 6.6 |
Headings | 9 | ||||
Section 6.7 |
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial | 9 | ||||
Section 6.8 |
Severability | 9 | ||||
Section 6.9 |
Specific Performance | 9 | ||||
Section 6.10 |
Rules of Construction | 9 | ||||
Section 6.11 |
Entire Agreement | 10 | ||||
i
SCHEDULES
Schedule I
Contributing Shareholders
Schedule II Conversion Shares
Schedule III Conversion Shares and Units
Schedule II Conversion Shares
Schedule III Conversion Shares and Units
ii
THIS CONVERSION AND CONTRIBUTION AGREEMENT, dated December 5, 2007 (this “Agreement”),
by and among the persons set forth on Schedule I attached hereto (each, a “Contributing
Shareholder” and together, the “Contributing Shareholders”) and CP Holdco, LLC, a
Delaware limited liability company (“Parent”).
WHEREAS, each of the Contributing Shareholders set forth under the heading “GA Shareholders”
on Schedule I attached hereto (collectively, the “GA Shareholders”) and each of the
Contributing Shareholders set forth under the heading “CK Shareholders” on Schedule I
attached hereto (collectively, the “CK Shareholders”) owns shares of Series D Cumulative
Redeemable Convertible Preferred Stock of Critical Path, Inc., a California corporation (the
“Company”), par value $0.001 per share (the “Series D Preferred Stock”);
WHEREAS, the shares of Series D Preferred Stock are convertible into shares of common stock of
the Company, par value $0.001 per share (the “Common Stock”) pursuant to the Amended and
Restated Certificate of Determination of Preferences of Series D Cumulative Redeemable Convertible
Preferred Stock (the “Series D Certificate of Determination”);
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger, dated as of
the date hereof (the “Merger Agreement”) with Parent and CP Merger Co., a California
corporation and a wholly-owned subsidiary of Parent;
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, subject to
the satisfaction or waiver of the conditions set forth herein, (i) the GA Shareholders wish to
convert, pursuant to Section 7 of the Series D Certificate of Determination, prior to the record
date (the “Record Date”) established by the Company’s Board of Directors for the
determination of shareholders entitled to vote on the transactions contemplated by the Merger
Agreement, an aggregate number of shares of Series D Preferred Stock, which number shall not exceed
that aggregate number of shares of Series D Preferred Stock set forth opposite the GA Shareholders’
names on Schedule II hereto, which, upon conversion, will result in the GA Shareholders
owning that number of shares of Common Stock set forth opposite the GA Shareholders’ names on
Schedule II hereto, (ii) each of the CK Shareholders wishes to convert, pursuant to Section
7 of the Series D Certificate of Determination, prior to the Record Date, an aggregate number of
shares of Series D Preferred Stock, which number shall not exceed that number of shares of Series D
Preferred Stock set forth opposite such CK Shareholder’s name on Schedule II hereto, which,
upon conversion, will result in each CK Shareholder owning that number of shares of Common Stock
set forth opposite such CK Shareholder’s names on Schedule II hereto and (iii) each of the
Contributing Shareholders wishes to contribute all of the shares of Common Stock (including shares
of Common Stock issued upon conversion of the Series D Preferred Stock) (the “Conversion
Shares”) held by such Contributing Shareholders set forth opposite its name on Schedule
III hereto for the aggregate number of Units set forth opposite its name on Schedule
III; and
WHEREAS, Parent is authorized to issue an aggregate of 70,000,000 units of membership interest
(“Units”) in accordance with its Limited Liability Company Agreement, dated as of the date
hereof.
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:
CONVERSION AND CONTRIBUTION
Conversion of Series D Preferred Stock.
Subject to the terms and conditions set forth herein, the GA Shareholders hereby agree with
Parent that, no later than one (1) Business Day (as defined in the Merger Agreement) prior to the
Record Date, the GA Shareholders shall convert, pursuant to the terms and conditions of the Series
D Certificate of Determination, an aggregate number of shares of Series D Preferred Stock, which
number shall not exceed that aggregate number of shares of Series D Preferred Stock set forth
opposite the GA Shareholders’ names on Schedule II hereto, which, upon conversion, will
result in the GA Shareholders owning that number of shares of Conversion Shares set forth opposite
the GA Shareholders’ names on Schedule II hereto. The GA Shareholders may allocate in
their sole discretion the number of shares of Series D Preferred Stock to be converted pursuant to
this Section 1.1(a) among the GA Shareholders without the consent of the Parent or any other
Contributing Shareholders, provided that the aggregate number of shares of Series D
Preferred Stock converted by the GA Shareholders pursuant to this Section 1.1(a) shall, upon
conversion, result in the aggregate number of Conversion Shares set forth opposite the GA
Shareholders’ names on Schedule II hereto.
Subject to the terms and conditions set forth herein, each of the CK Shareholders hereby
agrees with Parent that, no later than one (1) Business Day prior to the Record Date, such CK
Shareholder shall convert, pursuant to the terms and conditions of the Series D Certificate of
Determination, a number of shares of Series D Preferred Stock, which number shall not exceed that
aggregate number of shares of Series D Preferred Stock set forth opposite such CK Shareholder’s
name on Schedule II hereto, which, upon conversion, will result in such CK Shareholder
owning that number of shares of Conversion Shares set forth opposite its name on Schedule
II hereto.
Contribution of Conversion Shares for Units.
Subject to the terms and conditions set forth herein, the GA Shareholders hereby agree to
contribute to Parent, on the Closing Date (as defined below), all of the Conversion Shares set
forth opposite the GA Shareholders’ names on Schedule III hereto, in exchange for that
number of Units set forth opposite their names on Schedule III attached hereto, and Parent
hereby agrees to accept such Conversion
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Shares from the GA Shareholders on the Closing Date and issue such Units to the GA
Shareholders in consideration therefor on the Closing Date. The GA Shareholders may allocate in
their sole discretion the number of Conversion Shares contributed and Units issued pursuant to this
Section 1.2(a) among the GA Shareholders without the consent of the Parent or any other
Contributing Shareholders, provided that the aggregate number of such Conversion Shares
contributed and Units issued in consideration therefor are those set forth opposite the GA
Shareholders’ names on Schedule III hereto.
Subject to the terms and conditions set forth herein, each Contributing Shareholder (other
than the GA Shareholders) hereby agrees, severally but not jointly, to contribute to Parent, on the
Closing Date, all of the Conversion Shares set forth opposite its name on Schedule III
hereto, in exchange for that number of Units set forth opposite its name on Schedule III
attached hereto, and Parent hereby agrees to accept such Conversion Shares from such Contributing
Shareholder (other than the GA Shareholders) on the Closing Date and issue such Units to such
Contributing Shareholder (other than the GA Shareholders) in consideration therefor on the Closing
Date.
Notwithstanding anything to the contrary contained in this Agreement, each of Xxxxx Xxxxxxx,
Richmond I, LLC, Richmond III, LLC, the Xxxxxxx Foundation, Xxxxxx Xxxxxxx, Trust FBO Xxxxx and
Xxxxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxxxxx (collectively, the
“Current Xxxxxxx Shareholders”) and Richmond CP LLC (“Richmond CP”), hereby jointly
and severally agree that (i) as soon as practicable after the date hereof (but in any event not
more than five (5) days after the date hereof) (the “Assignment Date”), each of the Current
Xxxxxxx Shareholders shall assign, transfer, convey and deliver to Richmond CP, and Richmond CP
shall accept the assignment and transfer from such Current Xxxxxxx Shareholder, all of the right,
title and interest in and to (x) the Conversion Shares of such Current Xxxxxxx Shareholder set
forth opposite its name on Schedule III attached hereto and (y) all rights (including,
without limitation, the right to receive Units upon contribution of the Conversion Shares pursuant
to the terms hereof) and obligations (including, without limitation, the obligation to contribute
the Conversion Shares pursuant to the terms hereof) of such Current Xxxxxxx Shareholder pursuant to
or arising out of this Agreement, and (ii) upon such assignment and transfer, Richmond CP hereby
assumes and agrees to perform and discharge in full as and when due any and all liabilities and
obligations of each of the Current Xxxxxxx Shareholders, of any type whatsoever, arising out of or
relating to the Conversion Shares or this Agreement, whether accruing before, on or after the date
hereof. Upon the completion of such transfers pursuant to this Section 1.2(c), Schedule
III hereto shall be amended in accordance with the provisions of Section 6.4.
Closing; Deliveries at Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article 4 herein, the closing of the contribution of the Conversion Shares
for Units contemplated by this Agreement (the “Closing”) shall take place at the offices of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, immediately prior to the Effective Time (the date upon which such Closing occurs, the
“Closing Date”). At the Closing, each Contributing Shareholder shall deliver to Parent the
stock certificate(s) evidencing the Conversion Shares to be contributed by it under this Agreement,
in each case together
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with stock powers duly endorsed in blank or a lost stock affidavit in form and substance
reasonably acceptable to Parent, against the issuance by Parent to such Contributing Shareholder of
the Units to be acquired by such Contributing Shareholder, which issuance shall be evidenced by
appropriate notations on the membership interest ledger of Parent.
No Transfer. Prior to the earlier of the Closing and termination of this Agreement
pursuant to Section 5.1, except with the prior written consent of Parent and except for the
transfers by the Current Xxxxxxx Shareholders pursuant to Section 1.2(c), no Contributing
Shareholder shall sell, give, assign, hypothecate, pledge, encumber, grant a security interest in
or otherwise dispose of (whether by operation of law or otherwise) any shares of Series D Preferred
Stock, Series E Preferred Stock or Conversion Shares.
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to each of the Contributing Shareholders as follows:
Existence and Power. Parent (a) is a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization; (b)
has all requisite power and authority to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged; (c) is duly
qualified as a foreign entity, licensed and in good standing under the laws of each jurisdiction in
which its ownership, lease or operation of property or the conduct of its business requires such
qualification and (d) has the power and authority to execute, deliver and perform its obligations
under this Agreement.
Authorization, No Conflicts. The execution, delivery and performance by Parent of
this Agreement and the transactions contemplated hereby (a) have been duly authorized by all
necessary action of Parent; (b) do not violate or conflict with the terms of the certificate of
formation, the limited liability company agreement or other organizational documents of Parent; (c)
do not violate, conflict with or result in any breach, default or contravention of (or with due
notice or lapse of time or both would result in any breach, default or contravention of), or the
creation of any lien under, any contractual obligation of Parent or any requirement of law
applicable to Parent; and (d) do not violate any judgment, injunction, writ, award, decree or order
of any nature of any governmental authority against, or binding upon, Parent.
Binding Effect. This Agreement has been duly executed and delivered by Parent, and
constitutes the legal, valid and binding obligations of Parent, enforceable against Parent in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and by general principles of equity relating to
enforceability (regardless of whether considered in a proceeding at law or in equity).
4
Approvals and Consents. No approval, consent, compliance, exemption, authorization or
other action by, or notice to, or registration, declaration or filing with, any governmental
authority or any other person or entity, and no lapse of a waiting period under a requirement of
law, is necessary or required in connection with the execution, delivery or performance (including,
without limitation, the issuance and delivery of the Units) by, or enforcement against, the Parent
of this Agreement or the consummation of the transactions contemplated hereby.
Issuance of Units. Upon consummation of the Closing, including receipt by Parent of
the Conversion Shares to be surrendered by the Contributing Shareholders under this Agreement, the
Units to be issued to each Contributing Shareholder under this Agreement will be duly and validly
issued, fully paid and nonassessable, free and clear of any transfer restrictions or liens (other
than as provided by applicable law), and not subject to any preemptive rights, rights of first
refusal or other similar rights.
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTING
SHAREHOLDERS
Each Contributing Shareholder represents and warrants, severally and not jointly, to Parent as
follows:
Power and Authority. Such Contributing Shareholder (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization and (b) has
the power and authority to execute, deliver and perform its obligations under this Agreement.
Authorization, No Conflicts. The execution, delivery and performance by such
Contributing Shareholder of this Agreement and the transactions contemplated hereby (a) have been
duly authorized by all necessary action of such Contributing Shareholder; (b) do not violate or
conflict with the terms of the organizational or governing documents of such Contributing
Shareholder; (c) do not violate, conflict with or result in any breach, default or contravention of
(or with due notice or lapse of time or both would result in any breach, default or contravention
of), or the creation of any lien under, any contractual obligation of such Contributing Shareholder
or any requirement of law applicable to such Contributing Shareholder; and (d) do not violate any
judgment, injunction, writ, award, decree or order of any nature of any governmental authority
against, or binding upon, such Contributing Shareholder.
Binding Effect. This Agreement has been duly executed and delivered by such
Contributing Shareholder, and constitutes the legal, valid and binding obligations of such
Contributing Shareholder, enforceable against such Contributing Shareholder in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general
5
principles of equity relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
Approvals and Consents. No approval, consent, compliance, exemption, authorization or
other action by, or notice to, or registration, declaration or filing with, any governmental
authority or any other person or entity, and no lapse of a waiting period under a requirement of
law, is necessary or required in connection with the execution, delivery or performance by, or
enforcement against, the such Contributing Shareholder of this Agreement or the consummation of the
transactions contemplated hereby.
Status of Contributing Shareholder. Such Contributing Shareholder is an “accredited
investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the
“Securities Act”).
Ownership of Series D Preferred Stock. To the extent that such Contributing
Shareholder owns shares of Series D Preferred Stock or is converting shares of Series D Preferred
Stock pursuant to this Agreement, such Contributing Stockholder is the record and beneficial owner
of all of such Series D Preferred Stock and has good and valid title to such Series D Preferred
Stock, free and clear of any and all liens, claims and encumbrances of any nature whatsoever, and
no other person or entity has any right, title or interest in or to any of those shares.
Ownership of Conversion Shares. Such Contributing Shareholder (other than Richmond
CP) is, and in the case of Richmond CP, will be effective upon the Assignment Date, the record and
beneficial owner of the Conversion Shares to be surrendered by it to Parent pursuant to this
Agreement and has, and in the case of Richmond CP, will have effective upon the Assignment Date,
good and valid title to such Conversion Shares, free and clear of any and all liens, claims and
encumbrances of any nature whatsoever, and no other person or entity has any right, title or
interest in or to any of those shares. The Conversion Shares to be surrendered to Parent pursuant
to this Agreement constitute all of the shares of Common Stock of the Company owned by such
Contributing Shareholder.
CONDITIONS TO THE OBLIGATIONS
OF THE PARTIES TO CLOSE
Conditions to the Obligations of the Contributing Shareholders to Close. The
obligations of each Contributing Shareholder to acquire the Units, to deliver the Conversion Shares
to Parent in exchange for the Units at the Closing and to perform any obligations hereunder (other
than the obligations of each GA Shareholder and CK Shareholder pursuant to Section 1.1) shall be
subject to the satisfaction as determined by, or waived by, such Contributing Shareholder in its
sole discretion, of the following conditions on or before the Closing Date:
6
Representations and Warranties; Compliance. The representations and warranties of
Parent contained in Article II hereof shall be true and correct in all respects at and on the
Closing Date as if made at and on such date. Parent shall have performed and complied in all
respects with all of its agreements set forth herein that are required to be performed by Parent on
or before the Closing Date.
Conditions to the Obligations of Parent to Close. The obligations of Parent to issue
the Units at the Closing and to perform any obligations hereunder shall be subject to the
satisfaction as determined by, or waived by, Parent in its sole discretion, of the following
conditions on or before the Closing Date:
Representations and Warranties; Compliance. The representations and warranties of
each Contributing Shareholder contained in Article 3 hereof shall be true and correct in all
respects at and on the Closing Date as if made at and on such date (other than the representations
by each of the Current Xxxxxxx Shareholders in Section 3.7, which shall be true and correct in all
respects as of the date hereof and as of the date upon which such Current Xxxxxxx Shareholders
transfers their Conversion Shares to Richmond CP). Each Contributing Shareholder shall have
performed and complied in all respects with all of its agreements set forth herein that are
required to be performed by it on or before the Closing Date.
TERMINATION
Termination. This Agreement shall terminate automatically, without any action on the
part of any party hereto, upon the termination of the Merger Agreement in accordance with its
terms.
Effect of Termination. In the event of termination of this Agreement as provided in
Section 5.1, this Agreement shall forthwith become void and have no effect; provided, that
such termination shall not relieve any party for any material breach of this Agreement by such
party prior to such termination. In no event shall any party be liable for any consequential,
speculative or punitive damages or any damages arising from lost profits.
MISCELLANEOUS
Survival of Representations and Warranties. All of the representations, warranties
and agreements in this Agreement by the Contributing Shareholders shall survive the execution and
delivery of this Agreement and the Closing. All of the representations, warranties and agreements
in this Agreement by Parent shall terminate at the Closing.
7
Notices. All notices, demands and 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:
If to Parent,
CP Holdco, LLC
c/o General Atlantic Service Company, LLC
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
c/o General Atlantic Service Company, LLC
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxxx Xxxxx, Esq.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxxx Xxxxx, Esq.
If to any Contributing Shareholder, at the addresses of such Contributing
Shareholder set forth on Schedule I attached hereto
Shareholder set forth on Schedule I attached hereto
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.
Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the successors of the parties hereto. No Person other than the
parties hereto and their successors are intended to be a beneficiary of this Agreement.
Amendment and Waiver. 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 Parent or the Contributing Shareholders from the terms of any provision of this
Agreement, shall be effective (i) only if it is made or given in writing and signed by Parent, the
GA Shareholders and the CK Shareholders and (ii) only in the specific instance and for the specific
purpose for which it is made or given. Any such amendment, supplement, modification, waiver or
consent shall be binding upon all of the Contributing Shareholders.
Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so
8
executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be
construed, and the rights and obligations of the parties hereunder determined, in accordance with
and governed by the law of the state of Delaware. The parties hereto irrevocably submit to the
exclusive jurisdiction of any state or federal court sitting in the State of Delaware over any
suit, action or proceeding arising out of or relating to this Agreement. To the fullest extent
they may effectively do so under applicable law, the parties hereto irrevocably waive and agree not
to assert, by way of motion, as a defense or otherwise, any claim that they are not subject to the
jurisdiction of any such court, any objection that they may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an inconvenient
forum. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO TRIAL BY JURY IN CONNECTION WITH ANY MATTER RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AS
APPLICABLE, AMONG OTHER THINGS, BY THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION.
Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or 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.
Specific Performance. The parties to this Agreement agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement, this being in addition to any
other remedy to which the parties are entitled at law or in equity.
Rules of Construction. Unless the context otherwise requires, references to sections
or subsections refer to sections or subsections of this Agreement.
9
Entire Agreement. This Agreement 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. There are
no restrictions, promises, representations, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
10
IN WITNESS WHEREOF, the parties hereto have caused this Conversion and Contribution Agreement
to be executed and delivered by their respective officers hereunto duly authorized on the date
first above written.
| CP HOLDCO, LLC | ||||||
| By: | /s/s Xxx X. Xxxxxxx | |||||
| Name: Xxx X. Xxxxxxx Title: President |
||||||
| GA SHAREHOLDERS: | ||||||
| GENERAL ATLANTIC PARTNERS 74, L.P. | ||||||
| By: | General Atlantic LLC, | |||||
| Its general partner | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: Xxxxxxx Xxxxxx | ||||||
| Title: Managing Director | ||||||
| GAPSTAR, LLC | ||||||
| By: | General Atlantic LLC, | |||||
| Its sole member | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: Xxxxxxx Xxxxxx | ||||||
| Title: Managing Director | ||||||
| GAP COINVESTMENT PARTNERS II, L.P. | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: Xxxxxxx Xxxxxx | ||||||
| Title: A General Partner | ||||||
| CK SHAREHOLDERS: | ||||||
| CAMPINA ENTERPRISES LIMITED | ||||||
| By: | /s/ Ip Tak Xxxxx, Xxxxxx | |||||
| Name: Ip Tak Xxxxx, Xxxxxx | ||||||
| Title: Director | ||||||
| CENWELL LIMITED | ||||||
| By: | /s/ Ip Tak Xxxxx, Xxxxxx | |||||
| Name: Ip Tak Xxxxx, Xxxxxx | ||||||
| Title: Authorised Person | ||||||
| CONTRIBUTING SHAREHOLDER: | ||||||
| RICHMOND CP LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Managing Member | ||||||
| /s/ Xxxxx X. Xxxxxxx | ||||||
| Xxxxx Xxxxxxx | ||||||
| RICHMOND I, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Managing Director | ||||||
| RICHMOND III, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Managing Director | ||||||
| /s/ Xxxxxx Xxxxxxx | ||||||
| Xxxxxx Xxxxxxx | ||||||
| THE XXXXXXX FOUNDATION | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| TRUST FBO XXXXX AND XXXXXXXXX XXXXXXX | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Trustee | ||||||
| /s/ Xxxxxxxxx Xxxxxxx | ||||||
| Xxxxxxxxx Xxxxxxx | ||||||
| /s/ Xxxxx Xxxxxxx | ||||||
| Xxxxx Xxxxxxx | ||||||
| /s/ Xxxx Xxxxxxx | ||||||
| Xxxx Xxxxxxx | ||||||
| CONTRIBUTING SHAREHOLDER: | ||||||
| VECTIS-CP HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: Xxxxxxx Xxxxxx | ||||||
| Title: Managing Director | ||||||
SCHEDULE I
CONTRIBUTING SHAREHOLDERS
I. GA SHAREHOLDERS:
General Atlantic Partners 74, L.P.
c/o General Atlantic Service Company, LLC
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
GapStar, LLC
c/o General Atlantic Service Company, LLC
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Company, LLC
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
XX. CK SHAREHOLDERS:
Campina Enterprises Limited
c/o 7th Floor, Xxxxxx Kong Center
0 Xxxxx’x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
0 Xxxxx’x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
Cenwell Limited
x/x 00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
Attention: Company Secretary
III. Other Contributing Shareholders:
Richmond CP LLC
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Richmond I, LLC
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
The Xxxxxxx Foundation
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Trust FBO Xxxxx and Xxxxxxxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxx Xxxxxxx
c/o Richmond Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Vectis-CP Holdings, LLC
000 Xxxxxxxxxx Xx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SCHEDULE II
CONVERSION SHARES
| Shares of Series D | Shares of Common Stock | |||||||
| Preferred Stock To Be | To Be Held Upon | |||||||
| Contributing Shareholder | Converted | Conversion | ||||||
GA Shareholders |
1,293,561 | 1 | 17,316,848 | |||||
General Atlantic Partners 74, L.P.
|
||||||||
GapStar, LLC |
||||||||
GAP Coinvestment Partners II, L.P. |
||||||||
Campina Enterprises Limited |
436,363 | 5,841,576 | ||||||
Cenwell Limited |
436,364 | 5,841,576 | ||||||
| 1 | To be allocated among the GA Shareholders pursuant to Section 1.1(a) hereof. |
SCHEDULE III
CONVERSION SHARES AND UNITS
| Units to be | ||||||||
| Contributing Shareholder | Conversion Shares | Acquired | ||||||
GA Shareholders |
17,316,848 | 2 | 17,316,848 | 3 | ||||
General Atlantic Partners 74, L.P. |
||||||||
GapStar, LLC |
||||||||
GAP Coinvestment Partners II, L.P. |
||||||||
Campina Enterprises Limited |
5,841,576 | 5,841,576 | ||||||
Cenwell Limited |
5,841,576 | 5,841,576 | ||||||
Richmond CP LLC |
0 | 0 | ||||||
Xxxxx Xxxxxxx |
1,454,203 | 1,454,203 | ||||||
Richmond III, LLC |
0 | 0 | ||||||
Richmond I, LLC |
525,807 | 525,807 | ||||||
The Xxxxxxx Foundation |
498,700 | 498,700 | ||||||
Xxxxxx Xxxxxxx |
455,568 | 455,568 | ||||||
Trust FBO Xxxxx and Xxxxxxxxx Xxxxxxx |
111,100 | 111,100 | ||||||
Xxxxxxxxx Xxxxxxx |
106,800 | 106,800 | ||||||
Xxxxx Xxxxxxx |
50,000 | 50,000 | ||||||
Xxxx Xxxxxxx |
47,300 | 47,300 | ||||||
Vectis-CP Holdings, LLC |
5,672,378 | 5,672,378 | ||||||
| 2 | To be allocated among the GA Shareholders pursuant to Section 1.2(a) hereof. | |
| 3 | To be allocated among the GA Shareholders pursuant to Section 1.2(a) hereof. |
