EXHIBIT 10.57
AMENDMENT NO. 1 TO
CONVERTIBLE NOTE PURCHASE AGREEMENT
     AMENDMENT NO. 1, dated March 9, 2004 (this “Amendment”), among CriticalPath, Inc., a California corporation (the “Company”), Permal U.S. OpportunitiesLimited, Zaxis Equity Neutral, L.P., Zaxis Institutional Partners, L.P., ZaxisOffshore Limited, Zaxis Partners, L.P., and Passport Master Fund, L.P.(collectively with the Company, the “Parties”),
WITNESSETH:
     WHEREAS, the Parties are each a party to that certain Convertible NotePurchase Agreement, dated January 16, 2004 (the “January 2004 Note PurchaseAgreement”); and
     WHEREAS, the Company desires to enter into a Convertible Note PurchaseAgreement, pursuant to which the Company proposes to issue and sell to PermalU.S. Opportunities Limited, Zaxis Equity Neutral, L.P., Zaxis InstitutionalPartners, L.P., Zaxis Offshore Limited, Zaxis Partners, L.P., GuggenheimPortfolio Company XIII, Crosslink Crossover Fund IV, L.P., Criterion CapitalPartners, Ltd., Criterion Capital Partners, Institutional, Criterion CapitalPartners, L.P. and Capital Ventures International convertible notes having anaggregate principal amount of $18.5 million which notes will be convertible,subject to Stockholder Approval, into shares of Series E Redeemable ConvertiblePreferred Stock of the Company, par value $0.001 per share (the “March 2004Note Purchase Agreement”); and
     WHEREAS, in connection with the execution of the March 2004 Note PurchaseAgreement, the Parties desire to amend the January 2004 Note Purchase Agreementas set forth herein; and
     WHEREAS, capitalized terms used in this Amendment and not defined hereinshall have the meanings ascribed to such terms in the January 2004 NotePurchase Agreement:
     NOW, THEREFORE, in consideration of the mutual covenants and agreementsherein contained, for the covenants and agreements set forth in the January2004 Note Purchase Agreement, and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, and intending tobe legally bound hereby, the Parties hereby agree as follows:
     1.1 Amendments to the January 2004 Note Purchase Agreement. The January2004 Note Purchase Agreement shall be amended as set forth below:
          (a) Section 1.1 of the January 2004 Note Purchase Agreement shall beamended to add the following:
     ““March 2004 Note Purchase Agreement” means that certainConvertible Note Purchase Agreement, dated March 9, 2004, amongPermal U.S. Opportunities Limited, Zaxis Equity Neutral, L.P.,Zaxis Institutional Partners,
 

 

  L.P., Zaxis Offshore Limited, Zaxis Partners, L.P.,Guggenheim Portfolio Company XIII, Crosslink Crossover Fund IV,L.P., Criterion Capital Partners, Ltd., Criterion CapitalPartners, Institutional, Criterion Capital Partners, L.P., CapitalVentures International and Critical Path, Inc., a Californiacorporation (the “Company”), pursuant to which the Company shallissue and sell convertible notes in an aggregate principal amountof up to $18.5 million, which notes shall be convertible intoSeries E Preferred Stock, subject to Stockholder Approval andconcurrently with the Conversion, or Common Stock, in each case inaccordance with such agreement.”
     ““Subsequent Lenders” means the Lenders as defined in theMarch 2004 Note Purchase Agreement.”
     (b) The third sentence of Section 2.1(a) of the January 2004 Note PurchaseAgreement shall be deleted and replaced with the following:
     “If the Conversion has not occurred on or before August 15,2004, the Notes shall thereafter be convertible at the option ofeach Lender only into shares of Common Stock in accordance withthe terms thereof (all the shares of Common Stock issuabledirectly upon conversion of the Notes referred to herein as the“Common Shares”).”
     (c) Section 2.4(e) of the January 2004 Note Purchase Agreement is herebydeleted and amended and restated in its entirety to read as follows:
     “(e) Subsequent Closing. The consummation of the Conversion(the “Subsequent Closing”) shall take place concurrently with theSubsequent Closing under the Convertible Note Agreement and theSubsequent Closing under the March 2004 Note Purchase Agreement,as soon as practicable following the satisfaction of the closingconditions set forth in Article VI of this Agreement, Article VIof the Convertible Note Agreement and Article VI of the March 2004Note Purchase Agreement (the “Subsequent Closing Date”), at theoffices of Pillsbury Winthrop LLP, 50 Fremont Street, SanFrancisco, California, or at such other time and place as theCompany, the Lenders, the General Atlantic Entities, the CKPurchasers and the Subsequent Lenders may mutually agree. At theSubsequent Closing, signature pages transmitted by facsimile willbe acceptable, with originals to follow as soon as practicablethereafter.”
          (d) In the first sentence of Section 2.5 of the January 2004 Note PurchaseAgreement, the words “April 30” shall be deleted and replaced with the words“August 15”.
          (e) Section 8.6 of the January 2004 Note Purchase Agreement shall bedeleted and replaced with the following:
          “8.6 Purchases and Sales. In the event any Lender has becomeaware of or becomes aware of any material non-public informationabout the Company (which the parties hereby agree will include(but not be limited to) any
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  information labeled by the Company to be material non-publicinformation) (“Material Non-Public Information”), such Lendershall not purchase or sell any shares of the Company’s capitalstock (or securities exercisable or convertible for shares of theCompany’s capital stock) until the earlier of (a) such time as theinformation is no longer material as a matter of law (which theparties agree shall be a period of at least three months afterbecoming aware of such material non-public information), and (b)the time at which such information has been disseminated publiclyby the Company, and in any event not in violation of the federalsecurities laws. Except as set forth in this Agreement, theCompany covenants and agrees that neither it nor any other Personacting on its behalf will provide any Lender or its agents orcounsel with any information that the Company believes constitutesMaterial Non-Public Information, unless prior thereto such Lendershall have executed a written agreement regarding theconfidentiality and use of such information. The Companyunderstands and confirms that each Lender shall be relying on theforegoing representations in effecting transactions in securitiesof the Company.”
     (f) Article VIII of the January 2004 Note Purchase Agreement shall beamended to add a new Section 8.7 which shall read as follows:
     “8.7 Proxy Matters. Notwithstanding anything herein to thecontrary, but subject to the provisions of Section 9.1 of thisAgreement, if the Registration Statement (as defined in theConvertible Note Agreement) has not been declared effective by theCommission on or prior to May 15, 2004, subject to approval by theBoard of Directors, the Company will promptly take all suchactions as may be necessary to withdraw the RegistrationStatement, and the Company shall continue to have an obligationunder Section 8.4 of this Agreement to seek Stockholder Approval.If the Company withdraws the Registration Statement pursuant tothis Section 8.7 and receives Stockholder Approval, the Companymay, subject to approval by the Board of Directors, file asubsequent registration statement with the Commission and providethe Company’s shareholders the opportunity to participate in asubsequent rights offering.”
     (g) In the first sentence of Section 9.1 of the January 2004 Note PurchaseAgreement, the words “April 30” shall be deleted and replaced with the words“August 15”.
     1.2 Amendments to Schedules to the January 2004 Note Purchase Agreement.Schedule 8.5 of the January 2004 Note Purchase Agreement is hereby deleted andamended and restated to read in its entirety in the form set forth as Annex 1attached hereto.
     1.3 Counterparts. This Amendment may be executed in any number ofcounterparts and by the Parties in separate counterparts, each of which when soexecuted shall be deemed to be an original and all of which taken togethershall constitute one and the same agreement. Signature pages transmitted byfacsimile will be acceptable, with originals to immediately follow.
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     1.4 Continuing Agreement. Except as specifically amended hereby, all ofthe terms of the January 2004 Note Purchase Agreement shall remain and continuein full force and effect and are hereby confirmed in all respects.
     1.5 Headings. The headings in this Amendment are for convenience ofreference only and shall not limit or otherwise affect the meaning hereof.
     1.6 Governing Law. This Amendment shall be governed by and construed inaccordance with the laws of the State of California, without regard to theprinciples of conflicts of law thereof.
     1.7 Severability. If any one or more of the provisions contained herein,or the application thereof in any circumstance, is held invalid, illegal orunenforceable in any respect for any reason, the validity, legality andenforceability of any such provision in every other respect and of theremaining provisions hereof shall not be in any way impaired, unless theprovisions held invalid, illegal or unenforceable shall substantially impairthe benefits of the remaining provisions hereof.
     1.8 Entire Agreement. This Amendment, together with the January 2004 NotePurchase Agreement and the exhibits and schedules thereto, and the otherTransaction Documents, are intended by the parties as a final expression oftheir agreement and intended to be a complete and exclusive statement of theagreement and understanding of the parties hereto in respect of the subjectmatter contained herein and therein. There are no restrictions, promises,representations, warranties or undertakings, other than those set forth orreferred to herein or therein. This Amendment and the January 2004 NotePurchase Agreement, together with the exhibits and schedules thereto, and theother Transaction Documents, supersede all prior agreements and understandingsbetween the parties with respect to such subject matter.
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          IN WITNESS WHEREOF, the undersigned have executed, or have caused to beexecuted, this Amendment on the date first written above.      CRITICAL PATH, INC.,