EXHIBIT 99.5
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EXECUTION COPY
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CONVERSION AND CONTRIBUTION AGREEMENT
BY AND AMONG
CP HOLDCO, LLC
AND
THE PERSONS NAMED ON SCHEDULE I HERETO
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DATED: DECEMBER 5, 2007
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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..........................................6
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.....................................................8
Section 6.1 Survival of Representations and Warranties..............8
Section 6.2 Notices.................................................8
Section 6.3 Successors and Assigns; Third Party Beneficiaries.......8
Section 6.4 Amendment and Waiver....................................9
Section 6.5 Counterparts............................................9
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...................................10
Section 6.10 Rules of Construction..................................10
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Section 6.11 Entire Agreement.......................................10
SCHEDULES
Schedule I Contributing Shareholders
Schedule II Conversion Shares
Schedule III Conversion Shares and Units
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CONVERSION AND CONTRIBUTION AGREEMENT
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:
ARTICLE 1
CONVERSION AND CONTRIBUTION
Section 1.1 CONVERSION OF SERIES D PREFERRED STOCK.
(a) 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.
(b) 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.
Section 1.2 CONTRIBUTION OF CONVERSION SHARES FOR UNITS.
(a) Subject to the terms and conditions set forth herein, the GA
Shareholders hereby agree to contribute to Parent, on the Closing Date (as
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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 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.
(b) 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.
(c) 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.
Section 1.3 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
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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 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.
Section 1.4 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.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to each of the Contributing Shareholders as
follows:
Section 2.1 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.
Section 2.2 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.
Section 2.3 BINDING EFFECT. This Agreement has been duly executed and
delivered by Parent, and constitutes the legal, valid and binding obligations
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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).
Section 2.4 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.
Section 2.5 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.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTING SHAREHOLDERS
Each Contributing Shareholder represents and warrants, severally and not
jointly, to Parent as follows:
Section 3.1 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.
Section 3.2 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.
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Section 3.3 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
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
Section 3.4 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
by, or enforcement against, the such Contributing Shareholder of this Agreement
or the consummation of the transactions contemplated hereby.
Section 3.5 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").
Section 3.6 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.
Section 3.7 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.
ARTICLE 4
CONDITIONS TO THE OBLIGATIONS
OF THE PARTIES TO CLOSE
Section 4.1 CONDITIONS TO THE OBLIGATIONS OF THE CONTRIBUTING SHAREHOLDERS
TO CLOSE. The obligations of each Contributing Shareholder to acquire the
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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:
(a) 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.
Section 4.2 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:
(a) 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.
ARTICLE 5
TERMINATION
Section 5.1 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.
Section 5.2 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.
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ARTICLE 6
MISCELLANEOUS
Section 6.1 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.
Section 6.2 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.
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.
If to any Contributing Shareholder, at the addresses
of such Contributing 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.
Section 6.3 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.
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Section 6.4 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.
Section 6.5 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.
Section 6.6 HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
Section 6.7 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.
Section 6.8 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
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provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.
Section 6.9 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.
Section 6.10 RULES OF CONSTRUCTION. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
Section 6.11 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.
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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/ Xxx X. Xxxxxxx
------------------------------
Name: Xxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO CONVERSION AND CONTRIBUTION 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
SIGNATURE PAGE TO CONVERSION AND CONTRIBUTION AGREEMENT
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
SIGNATURE PAGE TO CONVERSION AND CONTRIBUTION AGREEMENT
CONTRIBUTING SHAREHOLDER:
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 CONVERSION AND CONTRIBUTION 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 CONVERSION AND CONTRIBUTION AGREEMENT
CONTRIBUTING SHAREHOLDER:
VECTIS-CP HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO CONVERSION AND CONTRIBUTION AGREEMENT
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
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
XX. CK SHAREHOLDERS:
Campina Enterprises Limited
x/x 0xx Xxxxx, Xxxxxx Xxxx Center
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
Telecopier: (000) 0000-0000
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
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
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
SCHEDULE II
CONVERSION SHARES
--------------------------------------------------------------------------------
Contributing Shareholder Shares of Series D Shares of
Preferred Stock Common Stock
To Be Converted To Be Held Upon
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
--------------------------------------------------------------------------------
Contributing Shareholder Conversion Shares Units to be
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
--------------------------------------------------------------------------------
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(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.
