EXHIBIT 10
to Schedule 13D
FIRST AMENDMENT TO
ESCROW AGREEMENT
THIS FIRST AMENDMENT TO ESCROW AGREEMENT, dated as of November 9, 2001
(this "AMENDMENT"), is entered into by and among Critical Path, Inc., a
California corporation (the "SELLER"), General Atlantic Partners 74 L.P., a
Delaware limited partnership, GAP Coinvestment Partners II, L.P., a Delaware
limited partnership, GapStar, LLC, a Delaware limited liability company, Vectis
CP Holdings, LLC, Cenwell Limited and Campina Enterprises Limited (collectively,
the "PURCHASERS") and Pillsbury Winthrop, LLP, as Escrow Agent (the "ESCROW
AGENT") and amends the Escrow Agreement, dated November 8, 2001 (the "ESCROW
AGREEMENT"), among the Seller, the Purchasers and the Escrow Agent.
WHEREAS, pursuant to the terms of the Stock and Warrant Purchase and
Exchange Agreement, dated November 8, 2001 (the "PURCHASE AGREEMENT"), among the
Seller and the Purchasers, (i) the Company agreed to issue and sell to the
Purchasers an aggregate of 4,000,000 shares, par value $0.001 per share, of
Series D Cumulative Redeemable Convertible Participating Preferred Stock of the
Company and (ii) the GAP Purchasers (as defined in the Purchase Agreement) are
acquiring from the Seller warrants to purchase, at an exercise price of $1.05
per share, an aggregate of 2,500,000 shares of common stock, par value $0.001
per share, of Seller;
WHEREAS, the Purchase Agreement provided for the establishment of an
escrow account pursuant to the Escrow Agreement; and
WHEREAS, the parties wish to amend the Escrow Agreement pursuant to
Section 8.6 thereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. SECTION 1.1.1. Section 1.1.1(i) of the Escrow Agreement is
hereby amended and restated in its entirety to read as follows:
"(i) Section 2.1 of the Purchase Agreement, the Purchasers
will deposit with the Escrow Agent $29,735,502.50 comprised of
(A) $26,985,505.00 of cash and (B) foregone fees for services
provided to the Seller under the Vectis Agreement (as such
term is defined in the Purchase Agreement) having a value of
$2,749,997.50,"
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2. SECTION 3.1.3. Section 3.1.3 of the Escrow Agreement is hereby
amended and restated in its entirety to read as follows:
"For purposes of this Agreement, the "ESCROW RELEASE
CONDITION" shall mean the execution and delivery by the
parties thereto on or before January 31, 2002 of a Stipulation
and Agreement of Settlement in the litigation entitled IN RE
CRITICAL PATH INC. SECURITIES LITIGATION (the "ACTIONS") that
(A) provides for the payment of cash by the Company and the
issuance of warrants to purchase the Common Stock to the
"Class" (as defined in paragraph 1 of the MOU) in amounts that
do not differ and otherwise contains such terms and conditions
that do not materially differ from the terms set forth in
paragraph 2 of the MOU and provides for dismissal of the
Action with prejudice as set forth in paragraph 3 of the MOU
and (B) provides for a broad form general release for the
Defendants and the other parties as provided in paragraph 3 of
the MOU."
3. SECTION 3.1.6. Section 3.1.6 of the Escrow Agreement is hereby
amended and restated in its entirety to read as follows:
"3.1.6. "CONSIDERATION HOLDBACK AMOUNT" shall mean a total of
$19,220,963.20, consisting of GAP Sub Notes having a
$49,169,828.75 aggregate face amount and purchased for an
aggregate purchase price of $19,220,963.20. The Consideration
Holdback Amount shall be allocated pro rata among the GAP
Purchasers calculated based on the allocations set forth on
Schedule 2.2 to the Purchase Agreement."
4. SECTION 3.1.7. Section 3.1.7 of the Escrow Agreement is hereby
amended and restated in its entirety to read as follows:
"3.1.7. "Purchased Shares Holdback" shall mean a total of
1,397,888 shares of Series D Preferred Stock. The Purchased
Shares Holdback shall be allocated pro rata among the GAP
Purchasers calculated based on the allocations set forth on
Schedule 2.2 to the Purchase Agreement."
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5. Except as otherwise expressly provided in this Amendment, all
of the terms and conditions of the Escrow Agreement are hereby ratified and
shall remain unchanged and continue in full force and effect.
6. This Amendment 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.
7. This Amendment 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 of any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment as of the day and year first above written.
CRITICAL PATH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
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VECTIS CP HOLDINGS, LLC
By: VECTIS GROUP, LLC,
its Managing Member
By: /s/ Xxxxxxx XxXxxxxxx
--------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Chief Executive Officer
CENWELL LIMITED
By: /s/ Xxxxxx Ip Xxx Xxxxx
--------------------------------------
Name: Xx. Xxxxxx Ip Tak Chuen
Title: Authorized Signatory
CAMPINA ENTERPRISES LIMITED
By: /s/ Xxxxxx Ip Xxx Xxxxx
--------------------------------------
Name: Xx. Xxxxxx Ip Tak Chuen
Title: Director
PILLSBURY WINTHROP LLP, Escrow Agent
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Partner
