EXHIBIT 8
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
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California corporation (the "Seller"), General Atlantic Partners 74 L.P., a
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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
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Agent") and amends the Escrow Agreement, dated November 8, 2001 (the "Escrow
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Agreement"), among the Seller, the Purchasers and the Escrow Agent.
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WHEREAS, pursuant to the terms of the Stock and Warrant Purchase and
Exchange Agreement, dated November 8, 2001 (the "Purchase Agreement"), among the
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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
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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
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amended and restated in its entirety to read as follow:
"For purposes of this Agreement, the "Escrow Release Condition" shall
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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
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(the "Actions") that (A) provides for the payment of cash by the
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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
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amended and restated in its entirety to read as follows:
"3.1.6. "Consideration Holdback Amount" shall mean a total of
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$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
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amended and restated in its entirety to read as follows:
"3.1.7. "Purchased Shares Holdback" shall mean a total of 1,397,888
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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:____________________________________
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:
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VECTIS CP HOLDINGS, LLC
By: VECTIS GROUP, LLC,
its Managing Member
By:____________________________________
Name:
Title:
CENWELL LIMITED
By:____________________________________
Name:
Title:
CAMPINA ENTERPRISES LIMITED
By:____________________________________
Name:
Title:
PILLSBURY WINTHROP LLP, Escrow Agent
By:____________________________________
Name:
Title:
