EXHIBIT 99.4
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EXECUTION COPY
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VOTING AGREEMENT
BY AND AMONG
CP HOLDCO, LLC
AND
THE ENTITIES AND PERSONS NAMED ON SCHEDULE I HERETO
DATED AS OF DECEMBER 5, 2007
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TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS...............................................2
Section 1.1 Capitalized Terms.........................................2
Section 1.2 Other Definitions.........................................2
ARTICLE II AGREEMENT TO VOTE.................................................3
Section 2.1 Agreement to Vote.........................................3
Section 2.2 Additional Shares.........................................5
Section 2.3 Restrictions On Transfer, Etc.............................5
Section 2.4 Acknowledgement...........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS....................5
Section 3.1 Authority Relative to This Agreement......................5
Section 3.2 No Conflict...............................................6
Section 3.3 Ownership of Shares.......................................6
Section 3.4 No Finder's Fee...........................................6
Section 3.5 Reliance by the Purchaser Parties.........................7
ARTICLE IV ADDITIONAL COVENANTS OF THE SHAREHOLDERS..........................7
Section 4.1 Restriction On Conversion.................................7
Section 4.2 Waiver of Appraisal Rights................................7
Section 4.3 Disclosure................................................7
Section 4.4 No Inconsistent Agreement; Non-interference;
Further Assurances........................................7
ARTICLE V TERMINATION.......................................................8
Section 5.1 Termination...............................................8
ARTICLE VI MISCELLANEOUS.....................................................8
Section 6.1 Notices...................................................8
Section 6.2 Parties in Interest.......................................8
Section 6.3 Governing Law; Consent to Jurisdiction;
Waiver of Jury Trial......................................8
Section 6.4 Severability..............................................9
Section 6.5 Assignment; Successors and Assigns........................9
Section 6.6 Amendments; Waivers.......................................9
Section 6.7 Fees and Expenses.........................................9
Section 6.8 Entire Agreement.........................................10
Section 6.9 Remedies Cumulative......................................10
Section 6.10 Counterparts; Effectiveness; Execution...................10
Section 6.11 Specific Performance.....................................10
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Section 6.12 Additional Shareholders..................................10
SCHEDULES
Schedule I Shareholders
Schedule II Owned Shares; Company Derivatives
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is dated as of December 5, 2007,
by and among CP Holdco, LLC, a Delaware limited liability company ("PARENT")
and the entities and persons set forth on SCHEDULE I attached hereto (each, a
"SHAREHOLDER" and collectively, the "SHAREHOLDERS").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, Parent, CP
Merger Co., a California corporation and a wholly-owned subsidiary of Parent
("MERGER SUB", and, jointly with Parent, the "PURCHASER PARTIES") and Critical
Path, Inc., a California corporation (the "COMPANY") have entered into that
certain Agreement and Plan of Merger, dated as of the date hereof (as it may be
amended, supplemented, modified from time to time, the "MERGER AGREEMENT"),
which provides, among other things, for the merger of Merger Sub with and into
the Company (the "MERGER") and certain other transactions contemplated therein,
upon the terms and subject to the conditions set forth therein;
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement, the Company proposes to amend and restate its Articles of
Incorporation (the "RESTATED ARTICLES");
WHEREAS, each Shareholder is the record and Beneficial Owner (as defined
below) of, and has the sole right to vote and dispose of, that number of shares
of (i) Common Stock, par value $0.001 per share, of the Company (the "COMMON
STOCK"), (ii) Series D Cumulative Redeemable Convertible Preferred Stock, par
value $0.001 per share, of the Company (the "SERIES D PREFERRED STOCK") and/or
(iii) Series E Redeemable Convertible Preferred Stock, par value $0.001 per
share, of the Company (the "SERIES E PREFERRED STOCK"), set forth next to such
Shareholder's name on SCHEDULE II hereto; and
WHEREAS, as an inducement and condition to the Purchaser Parties entering
into the Merger Agreement and incurring the obligations therein, the Purchaser
Parties have required that each Shareholder enter into this Agreement and the
Shareholders, as an inducement to the Purchaser Parties entering into the
Merger Agreement and incurring the obligations therein, have agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 CAPITALIZED TERMS. Each capitalized term used in this
Agreement and not defined herein shall have the meaning ascribed to such term
in the Merger Agreement.
Section 1.2 OTHER DEFINITIONS. For the purposes of this Agreement:
(a) "AGREEMENT" has the meaning set forth in the Preamble.
(b) "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" with respect to
any securities means having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act).
(c) "CK SHAREHOLDERS" means, collectively, those Shareholders
set forth under the heading "CK Shareholders" in SCHEDULE I hereto.
(d) "COMMON STOCK" has the meaning set forth in the Recitals.
(e) "EXPIRATION TIME" has the meaning set forth in Section
2.1(a).
(f) "GA SHAREHOLDERS" means, collectively, those Shareholders
set forth under the heading "GA Shareholders" in SCHEDULE I hereto.
(g) "LEGAL ACTIONS" means any claims, actions, suits, demand
letters, judicial, administrative or regulatory proceedings, or hearings,
notices of violation, or investigations.
(h) "MERGER AGREEMENT" has the meaning set forth in the Recitals.
(i) "MERGER SUB" has the meaning set forth in the Recitals.
(j) "OWNED SHARES" has the meaning set forth in Section 2.1(a).
(k) "PARENT" has the meaning set forth in the Preamble.
(l) "PERMITS" means all authorizations, licenses, consents,
certificates, registrations, approvals, orders and other permits of any
Governmental Authority.
(m) "PURCHASER PARTIES" has the meaning set forth in the Recital.
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(n) "REPRESENTATIVE" means, with respect to any particular
Person, any director, officer, employee, agent or other representative of such
Person, including any consultant, accountant, legal counsel or investment
banker.
(o) "RESTATED ARTICLES" has the meaning set forth in the
Recitals.
(p) "SERIES D PREFERRED STOCK" has the meaning set forth in the
Recitals.
(q) "SERIES E PREFERRED STOCK" has the meaning set forth in the
Recitals.
(r) "SHAREHOLDER" has the meaning set forth in the Preamble.
(s) "SHARES" shall mean, for the purposes of this Agreement, all
the shares of Common Stock, Series D Preferred Stock, Series E Preferred Stock
and other voting securities into which such shares may be reclassified,
sub-divided, consolidated or converted and any rights and benefits arising
therefrom, including any dividends or distributions of securities which may be
declared in respect of such shares and entitled to vote in respect of the
matters contemplated by Article II and all other capital stock of the Company
entitled to vote in respect of the matters contemplated by Article II.
(t) "SHAREHOLDERS' MEETING" has the meaning set forth in Section
2.1(a).
(u) "TRANSFER" means, with respect to a security, the sale,
grant, assignment, transfer, pledge, encumbrance, hypothecation or other
disposition of such security or the Beneficial Ownership thereof (including by
operation of Law), or the entry into any Contract to effect any of the
foregoing, including, for purposes of this Agreement, the transfer or sharing
of any voting power of such security or other rights in or of such security,
the granting of any proxy with respect to such security, depositing such
security into a voting trust or entering into a voting agreement with respect
to such security.
ARTICLE II
AGREEMENT TO VOTE
Section 2.1 AGREEMENT TO VOTE.
(a) Subject to the terms and conditions hereof, each
Shareholder, severally and not jointly, hereby irrevocably and unconditionally
agrees that from and after the date hereof and until the earliest to occur of
(i) the conversion, after the Reverse Split, of all then outstanding shares of
Series D Preferred Stock and Series E Preferred Stock into shares of Common
Stock, (ii) the termination of the Merger Agreement in accordance with its
terms, and (iii) the written agreement of the Purchaser Parties, the GA
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Shareholders and the CK Shareholders to terminate this Agreement (such earliest
occurrence being the "EXPIRATION TIME"), at any meeting (whether annual or
special, and at each adjourned or postponed meeting) of the Company's
shareholders, however called, or in any other circumstances (including any
action by written consent) upon which a vote or other consent or approval is
sought (any such meeting or other circumstance, a "SHAREHOLDERS' MEETING"),
each Shareholder will (x) appear at such a meeting or otherwise cause its Owned
Shares to be counted as present thereat for purposes of calculating a quorum
and respond to any other request by the Company for written consent, if any,
and, unless otherwise expressly consented to in writing by the Purchaser
Parties, in their sole discretion, and (y) vote, or cause to be voted, all of
such Shareholder's Shares Beneficially Owned by such Shareholder as of the
relevant time ("OWNED SHARES") (A) in favor of the adoption of the Merger
Agreement (whether or not recommended by the Company Board of Directors or any
committee thereof) and the approval of the transactions contemplated thereby,
including the Merger, (B) in favor of the adoption of the Restated Articles
(whether or not recommended by the Company's Board of Directors or any
committee thereof), and (C) in favor of the approval of any other matter to be
approved by the shareholders of the Company to facilitate the transactions
contemplated by the Merger Agreement and the filing of the Restated Articles.
In addition, upon written notice from any GA Shareholder or any CK Shareholder
that such GA Shareholder or CK Shareholder is electing to convert its shares of
Series D Preferred Stock (if any) and Series E Preferred Stock into shares of
Common Stock, each other Shareholder holding any shares of Series D Preferred
Stock or Series E Preferred Stock shall immediately elect to convert all of its
shares of Series D Preferred Stock and Series E Preferred Stock into shares of
Common Stock pursuant to Section 7(aa) of Article V.C of the Restated Articles
then in effect.
(b) 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), 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 Owned Shares of such Current Xxxxxxx Shareholder set forth opposite its
name on SCHEDULE II attached hereto and (y) all rights and obligations
(including, without limitation, the obligation to vote its Owned 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 Owned
Shares or this Agreement, whether accruing before, on or after the date hereof.
Upon the completion of such transfers pursuant to this Section 2.1(b), SCHEDULE
II hereto shall be amended in accordance with the provisions of Section 6.6.
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Section 2.2 ADDITIONAL SHARES. Each Shareholder, severally and not
jointly, hereby agrees, while this Agreement is in effect, promptly to notify
the Purchaser Parties of the number of any new Shares or equivalent thereof
with respect to which Beneficial Ownership is acquired by such Shareholder, if
any, after the date hereof and before the Expiration Time. Any such Shares
shall automatically become subject to the terms of this Agreement as Owned
Shares as though owned by such Shareholder as of the date hereof.
Section 2.3 RESTRICTIONS ON TRANSFER, ETC. Except as provided for herein,
each Shareholder, severally and not jointly, agrees, from the date hereof until
the Expiration Time, not to (i) directly or indirectly Transfer, offer to
Transfer or contract to Transfer any Owned Shares or Company Derivatives (other
than (x) Transfers to Parent pursuant to that certain Conversion and
Contribution Agreement, dated the date hereof, among Parent and the
shareholders of the Company named therein and (y) Transfers by each Current
Xxxxxxx Shareholder to Richmond CP pursuant to Section 2.1(b)); (ii) tender any
Owned Shares or Company Derivatives into any tender or exchange offer; or (iii)
otherwise restrict the ability of such Shareholder freely to exercise all
voting rights with respect thereto. Any action attempted to be taken in
violation of the preceding sentence shall be deemed null and void. Each
Shareholder, severally and not jointly, further agrees to authorize and hereby
authorizes the Purchaser Parties and the Company to notify the Company's
transfer agent and the Paying Agent that there is a stop transfer order with
respect to all of the Owned Shares and that this Agreement places limits on the
voting of the Owned Shares.
Section 2.4 ACKNOWLEDGEMENT. Each Shareholder hereby acknowledges receipt
and review of a copy of the Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
The Shareholders, severally and not jointly, represent and warrant to the
Purchaser Parties as of the date of this Agreement and at all times during the
term of this Agreement, as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. (i) Each Shareholder has
the requisite capacity and authority to execute and deliver this Agreement, to
fulfill and perform such Shareholder's obligations hereunder and to consummate
the transactions contemplated hereby and (ii) the execution and delivery of
this Agreement by each Shareholder and the consummation by each Shareholder of
the transactions to be consummated by it as contemplated hereby have been duly
and validly executed and delivered by such Shareholder and, assuming the due
authorization, execution and delivery by Parent, constitutes a legal, valid and
binding agreement of such Shareholder enforceable by the Purchaser Parties
against such Shareholder in accordance with its terms and no other proceedings
on the part of such Shareholder are necessary to authorize this Agreement, to
perform such obligations or to consummate such transactions.
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Section 3.2 NO CONFLICT. Other than the filing by a Shareholder of any
reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act,
none of the execution and delivery of this Agreement by a Shareholder, the
consummation by a Shareholder of the transactions contemplated hereby or
compliance by a Shareholder with any of the provisions hereof (i) requires any
consent or other permit of, or filing with or notification to, any Governmental
Authority or any other Person by such Shareholder, (ii) results in a violation
or breach of, or constitutes (with or without notice or lapse of time or both)
a default (or gives rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any organizational document or contract to which such Shareholder
is a party or by which such Shareholder or any of such Shareholder's properties
or assets (including such Shareholder's Owned Shares) may be bound, (iii)
violates any Law applicable to such Shareholder or any of such Shareholder's
properties or assets (including such Shareholder's Owned Shares), or (iv)
results in a Lien upon any of such Shareholder's properties or assets
(including such Shareholder's Owned Shares).
Section 3.3 OWNERSHIP OF SHARES. The number of Shares of the Company
constituting Owned Shares of each Shareholder as of the date hereof and the
number and type of Company Derivatives held or Beneficially Owned by such
Shareholder are set forth next to such Shareholder's name on SCHEDULE II of
this Agreement. Such Shareholder is, and in the case of Richmond CP, will be
upon transfer of the Owned Shares by the Current Xxxxxxx Shareholders as
provided in Section 2.1(b) hereof, the record and Beneficial Owner and has, and
in the case of Richmond CP, upon such transfer of the Owned Shares by the
Current Xxxxxxx Shareholders will have, good, valid and marketable title, free
and clear of any Liens (other than those arising under this Agreement), of the
Owned Shares, and, except as provided in this Agreement, has, and in the case
of Richmond CP, upon transfer of the Owned Shares by the Current Xxxxxxx
Shareholders as provided in Section 2.1(b) hereof will have, full and
unrestricted power to dispose of and vote all of such Shareholder's Owned
Shares without the consent or approval of, or any other action on the part of
any other Person, and has not granted any proxy inconsistent with this
Agreement that is still effective or entered into any voting or similar
agreement with respect to, such Shareholder's Owned Shares. The Owned Shares
set forth next to such Shareholder's name on SCHEDULE II hereto constitute all
of the capital stock of the Company that is Beneficially Owned by such
Shareholder as of the date hereof, and, except for such Shareholder's Owned
Shares and Company Derivatives and the Owned Shares and Company Derivatives
owned by the other Shareholders who are parties to this Agreement, such
Shareholder and such Shareholder's Affiliates do not Beneficially Own or have
any right to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing) any Shares or any securities convertible into
Shares.
Section 3.4 NO FINDER'S FEE. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Shareholders.
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Section 3.5 RELIANCE BY THE PURCHASER PARTIES. Each Shareholder
understands and acknowledges that Parent and Merger Sub are entering into the
Merger Agreement in reliance upon the Shareholders' execution and delivery of
this Agreement.
ARTICLE IV
ADDITIONAL COVENANTS OF THE SHAREHOLDERS
Section 4.1 RESTRICTION ON CONVERSION. Each Shareholder, severally and not
jointly, hereby agrees, from the date hereof until the Expiration Time, not to
voluntarily convert any shares of Series D Preferred Stock, Series E Preferred
Stock or any other capital stock of the Company held or Beneficially Owned by
such Shareholder into shares of Common Stock, PROVIDED that, for the avoidance
of doubt, voting in favor of the Restated Articles in accordance with Section
2.1(a) hereof shall not be deemed a violation of this Section 4.1.
Notwithstanding the foregoing restriction, Shareholders holding shares of
Series D Preferred Stock may convert that number of shares of Series D
Preferred Stock pursuant to and in satisfaction of their respective obligations
under Section 1.1 of the Conversion and Contribution Agreement, dated as of the
date hereof, by and among such Shareholders, Parent and the other Shareholders
named therein, as the same may be amended from time to time.
Section 4.2 WAIVER OF APPRAISAL RIGHTS. Each Shareholder, severally and
not jointly, hereby irrevocably and unconditionally waives, and agrees to
prevent the exercise of, any rights of appraisal, any dissenters' rights or any
similar rights under applicable Laws (including, without limitation, the CGCL)
relating to the Merger and the other transactions contemplated by the Merger
Agreement, the adoption of the Restated Articles or any related transaction
that such Shareholder may directly or indirectly have by virtue of the record
or Beneficial Ownership of any Shares.
Section 4.3 DISCLOSURE. Each Shareholder, severally and not jointly,
hereby authorizes the Purchaser Parties and the Company to publish and disclose
in any announcement or disclosure required by the SEC or other Governmental
Authority such Shareholder's identity and ownership of the Owned Shares and the
nature of such Shareholder's obligation under this Agreement.
Section 4.4 NO INCONSISTENT AGREEMENT; NON-INTERFERENCE; FURTHER
ASSURANCES. Each Shareholder, severally and not jointly, hereby covenants and
agrees that it shall not enter into any agreement that would restrict, limit or
interfere with the performance of its obligations hereunder or under the Merger
Agreement. Each Shareholder, severally and not jointly, agrees that, prior to
the termination of this Agreement, such Shareholder shall not take any action
that would make any representation or warranty of such Shareholder contained
herein untrue or incorrect or have the effect of preventing, impeding,
interfering with or adversely affecting the performance by such Shareholder of
its obligations under this Agreement. Each Shareholder agrees, without further
consideration, to execute and deliver such additional documents and to take
such further actions as necessary or reasonably requested by the Purchaser
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Parties to confirm and assure the rights and obligations set forth in this
Agreement or to consummate the transactions contemplated by this Agreement.
ARTICLE V
TERMINATION
Section 5.1 TERMINATION. This Agreement shall terminate without further
action at the Expiration Time; PROVIDED that, notwithstanding the foregoing,
Article VI of this Agreement shall survive any termination of this Agreement.
For the avoidance of doubt, the termination of this Agreement shall not relieve
any party of liability for any breach of this Agreement prior to the time of
termination.
ARTICLE VI
MISCELLANEOUS
Section 6.1 NOTICES. Any notice, request, instruction or other
communication under this Agreement shall be in writing and delivered by hand or
overnight courier service or by facsimile, (i) if to a Shareholder, to the
address set forth below such Shareholder's name on Schedule I hereto, and (ii)
if to the Purchaser Parties, in accordance with Section 8.3 of the Merger
Agreement, or to such other Persons, addresses or facsimile numbers as may be
designated in writing by the Person entitled to receive such communication as
provided above. Each such communication will be effective (A) if delivered by
hand or overnight courier service, when such delivery is made at the address
specified in this Section 6.1, or (B) if delivered by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section 6.1
and appropriate confirmation is received.
Section 6.2 PARTIES IN INTEREST. Other than with respect to the parties to
this Agreement, nothing in this Agreement, express or implied, is intended to
or shall confer upon any person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 6.3 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
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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.
Section 6.4 SEVERABILITY. The provisions of this Agreement are severable
and the invalidity or unenforceability of any provision will not affect the
validity or enforceability of the other provisions of this Agreement. If any
provision of this Agreement, or the application of that provision to any Person
or any circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision will be substituted for that provision in order to carry out, so far
as may be valid and enforceable, the intent and purpose of the invalid or
unenforceable provision and (ii) the remainder of this Agreement and the
application of that provision to other Persons or circumstances will not be
affected by such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of that provision, or
the application of that provision, in any other jurisdiction.
Section 6.5 ASSIGNMENT; SUCCESSORS AND ASSIGNS. Neither this Agreement nor
any right, interest or obligation hereunder may be assigned by any party
hereto, in whole or part (whether by operation of Law or otherwise), without
the prior written consent of the other parties hereto and any attempt to do so
shall be null and void; except that Merger Sub may assign, in its sole
discretion, any or all of its rights, interests and obligations under this
Agreement to Parent or any direct or indirect wholly-owned subsidiary of
Parent. This Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties and their respective successors and permitted
assigns, heirs, executors, or devises.
Section 6.6 AMENDMENTS; WAIVERS. This Agreement may not be amended, and no
provision hereof may be waived, except by the express written agreement signed
by Parent, the GA Shareholders and the CK Shareholders, which agreement shall
be binding upon all of the Shareholders. The failure of any party to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights.
Section 6.7 FEES AND EXPENSES. Except as expressly provided in this
Agreement, each party is responsible for its own fees and expenses (including
the fees and expenses of financial consultants, investment bankers, accountants
and counsel) in connection with the entry into of this Agreement and the
consummation of the transactions contemplated hereby.
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Section 6.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, among the parties to
this Agreement with respect to the subject matter of this Agreement.
Section 6.9 REMEDIES CUMULATIVE. Except as otherwise provided in this
Agreement, any and all remedies expressly conferred upon a party to this
Agreement will be cumulative with, and not exclusive of, any other remedy
contained in this Agreement, at law or in equity. The exercise by a party to
this Agreement of any one remedy will not preclude the exercise by it of any
other remedy.
Section 6.10 COUNTERPARTS; EFFECTIVENESS; EXECUTION. This Agreement may be
executed in any number of counterparts, all of which are one and the same
agreement. This Agreement will become effective and binding upon each
Shareholder when executed by such Shareholder and the Purchaser Parties. This
Agreement may be executed by facsimile signature by any party and such
signature is deemed binding for all purposes hereof, without delivery of an
original signature being thereafter required.
Section 6.11 SPECIFIC PERFORMANCE. The parties to this Agreement agree
that irreparable damage would occur to Parent 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 prior
to the termination of this Agreement in accordance with Article V, Parent 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 in any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which Parent is entitled at law
or in equity.
Section 6.12 ADDITIONAL SHAREHOLDERS. Additional Shareholders shall become
a party to this Agreement upon their execution of this Agreement. Any such
additional Shareholders who become parties to this Agreement shall not affect
the rights and obligations of any other party hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed as of the date first above written.
CP HOLDCO, LLC
By: /s/ Xxx X. Xxxxxxx
------------------------------
Name: Xxx X. Xxxxxxx
Title: President
CP MERGER CO.
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO VOTING AGREEMENT
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
GAPCO GMBH & CO. KG
By: GAPCO Management GmbH,
Its general partner
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO VOTING AGREEMENT
CK SHAREHOLDERS
CAMPINA ENTERPRISES LIMITED
By: /s/ Ip Tak Xxxxx, Xxxxxx
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Name: Ip Tak Xxxxx, Xxxxxx
Title: Director
CENWELL LIMITED
By: /s/ Ip Tak Xxxxx, Xxxxxx
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Name: Ip Tak Xxxxx, Xxxxxx
Title: Authorised Person
DRAGONFIELD LIMITED
By: /s/ Li Tzar Kuoi, Xxxxxx
------------------------------
Name: Li Tzar Kuoi, Xxxxxx
Title: Director
LION COSMOS LIMITED
By: /s/ Xxx Xxx Xxx, Xxxx
------------------------------
Name: Xxx Xxx Wan, Ezra
Title: Director
SIGNATURE PAGE TO VOTING AGREEMENT
ACE PARAGON HOLDINGS LIMITED
By: /s/ Xxxx Xxxx /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxx Xxxx Name: Xxxxxxx Xxx
Title: CEO Title: Senior Director
SIGNATURE PAGE TO VOTING AGREEMENT
RICHMOND CP LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
RICHMOND I, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
RICHMOND III, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
SIGNATURE PAGE TO VOTING AGREEMENT
/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
SIGNATURE PAGE TO VOTING AGREEMENT
VECTIS-CP HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO VOTING AGREEMENT
CROSSLINK CROSSOVER FUND IV, LP
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
SIGNATURE PAGE TO VOTING AGREEMENT
SCHEDULE I
SHAREHOLDERS
1. 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
GapStar, LLC
c/o General Atlantic Service Company, LLC
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
GAPCO GmbH & Co. KG
Xxxxxxxxxxxx 00
00000 Xxxxxxxxxxx
Xxxxxxx
Telecopier: 49 211 602 888-57
Attention: Xxxxx X. Xxxxxxxxxx
2. CK SHAREHOLDERS
Campina Enterprises Limited
7th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
Cenwell Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
Dragonfield Limited
7th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
Lion Cosmos Limited
7th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopier: (000) 0000-0000
Attention: Company Secretary
3. OTHER 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
Xxxxx Xxxxxxx
c/o Richmond Management LLC
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
Richmond III, LLC
c/o Richmond Management LLC
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
Xxxxxx Xxxxxxx
c/o Richmond Management LLC
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
Xxxxxxxxx Xxxxxxx
c/o Richmond Management LLC
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
Xxxx Xxxxxxx
c/o Richmond Management LLC
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
Ace Paragon Holdings Limited
00 Xxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxx 000000
Crosslink Crossover Fund IV, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SCHEDULE II
OWNED SHARES; COMPANY DERIVATIVES
---------------------------------------------------------------------------------------------
SHAREHOLDER OWNED SHARES COMPANY DERIVATIVE
---------------------------------------------------------------------------------------------
GENERAL ATLANTIC PARTNERS 74, L.P. SERIES D: 2,091,218 SERIES F WARRANTS: 146,615
SERIES E: 6,070,185
---------------------------------------------------------------------------------------------
GAPSTAR, LLC SERIES D: 159,091 SERIES F WARRANTS: 11,358
SERIES E: 466,928
---------------------------------------------------------------------------------------------
GAP COINVESTMENT PARTNERS II, L.P. SERIES D: 295,146 SERIES F WARRANTS: 18,526
SERIES E: 783,036
---------------------------------------------------------------------------------------------
GAPCO GMBH & CO. KG SERIES E: 13,183 SERIES F WARRANTS: 285
---------------------------------------------------------------------------------------------
CAMPINA ENTERPRISES LIMITED SERIES D: 436,363 SERIES F WARRANTS: 176,784
SERIES E: 3,390,000
---------------------------------------------------------------------------------------------
CENWELL LIMITED SERIES D: 436,364 0
SERIES E: 3,113,333
---------------------------------------------------------------------------------------------
DRAGONFIELD LIMITED SERIES E: 666,667 0
---------------------------------------------------------------------------------------------
LION COSMOS LIMITED SERIES E: 1,776,667 0
---------------------------------------------------------------------------------------------
ACE PARAGON HOLDINGS LIMITED SERIES E: 12,916,667 0
---------------------------------------------------------------------------------------------
RICHMOND CP LLC 0 SERIES F WARRANTS: 32,142
---------------------------------------------------------------------------------------------
XXXXX XXXXXXX COMMON: 1,454,203 0
---------------------------------------------------------------------------------------------
RICHMOND I, LLC COMMON: 525,807 0
---------------------------------------------------------------------------------------------
RICHMOND III, LLC SERIES E: 1,666,666 0
---------------------------------------------------------------------------------------------
THE XXXXXXX FOUNDATION COMMON: 498,700 0
SERIES E: 254,800
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
SHAREHOLDER OWNED SHARES COMPANY DERIVATIVE
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
XXXXXX XXXXXXX COMMON: 455,568 0
SERIES E: 220,719
---------------------------------------------------------------------------------------------
TRUST FBO XXXXX AND XXXXXXXXX COMMON: 111,100 0
XXXXXXX SERIES E: 49,855
---------------------------------------------------------------------------------------------
XXXXXXXXX XXXXXXX COMMON: 106,800 0
SERIES E: 48,815
---------------------------------------------------------------------------------------------
XXXXX XXXXXXX COMMON: 50,000 0
SERIES E: 13,795
---------------------------------------------------------------------------------------------
XXXX XXXXXXX COMMON: 47,300 0
SERIES E: 12,025
---------------------------------------------------------------------------------------------
VECTIS-CP HOLDINGS, LLC COMMON: 5,672,378 0
---------------------------------------------------------------------------------------------
CROSSLINK CROSSOVER FUND IV, L.P. SERIES E: 3,445,370 0
---------------------------------------------------------------------------------------------
