exv4w6



 





Exhibit 4.6




AMENDMENT NO. 5

TO

PREFERRED STOCK RIGHTS AGREEMENT




     This Amendment No. 5 to Preferred Stock Rights Agreement (this
“Amendment”) is dated as of June 24, 2004 between Critical Path, Inc. (the
“Company”), and Computershare Trust Company, Inc. (the “Rights Agent”), with
reference to the following:



     A. The Company and the Rights Agent entered into that certain Preferred
Stock Rights Agreement dated as of March 19, 2001, as amended by that certain
Amendment No. 1 to Preferred Stock Rights Agreement dated as of November 6,
2001, that certain Amendment No. 2 to Preferred Stock Rights Agreement dated as
of November 18, 2003, that certain Amendment No. 3 to Preferred Stock Rights
Agreement dated as of January 16, 2004, and that certain Amendment No. 4 to
Preferred Stock Rights Agreement dated as of March 9, 2004 (the “Agreement”).



     B. The Company desires to amend the Agreement in certain respects in order
to permit certain investors to purchase securities being offered by the Company
without causing such investors to become Acquiring Persons (as defined in the
Agreement) and thereby trigger the occurrence of a Distribution Date (as
defined in the Agreement).



     C. Under the Agreement, the Company and the Rights Agent may amend the
Agreement, at any time prior to a Distribution Date, which has yet to occur.



     NOW, THEREFORE, pursuant to Section 27 of the Agreement, the Company and
the Rights Agent hereby amend, effective upon the date hereof, the definition
of the term “Acquiring Person” set forth in Section 1(a) of the Agreement to
read in its entirety as follows:



          “(a) “ACQUIRING PERSON” shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
15% or more of the Common Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary of the Company or any employee benefit plan
of the Company or of any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan. Notwithstanding
the foregoing, no Person shall be deemed to be an Acquiring Person as the
result of an acquisition of Common Shares or Exchangeable Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more
of the Common Shares of the Company then outstanding; provided, however, that
if a Person shall become the Beneficial Owner of 15% or more of the Common
Shares of the Company then outstanding by reason of share repurchases by the
Company and shall, after such share repurchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company (other than
pursuant to a dividend or distribution paid or made by (i) the Company on the
outstanding Common Shares in Common Shares or pursuant to a split or
subdivision of the outstanding Common Shares or (ii) Exchangeco on the
outstanding Exchangeable Shares in Exchangeable Shares or pursuant to a split
or subdivision of the outstanding Exchangeable Shares), then such Person shall
be deemed to be an Acquiring Person unless, upon becoming the Beneficial Owner
of such additional Common Shares of the Company, such Person does not
beneficially own 15% or more of the Common Shares of the Company then
outstanding. Notwithstanding the foregoing:



 









 






     (i) if the Company’s Board of Directors determines in good
faith that a Person who would otherwise be an “Acquiring Person,”
as defined pursuant to the provisions of this Section 1(a), has
become such inadvertently (including, without limitation, because
(x) such Person was unaware that such Person Beneficially Owned a
percentage of the Common Shares of the Company that would
otherwise cause such Person to be an “Acquiring Person,” as
defined pursuant to the provisions of this Section 1(a), or (y)
such Person was aware of the extent of the Common Shares of the
Company such Person Beneficially Owned but had no actual knowledge
of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing
control of the Company, and if such Person divested or divests as
promptly as practicable a sufficient number of Common Shares so
that such Person would no longer be an “Acquiring Person,” as
defined pursuant to the provisions of this Section 1(a), then such
Person shall not be deemed to be or to have become an “Acquiring
Person” for any purposes of this Agreement;




     (ii) if, as of the date of this Agreement, any Person is the
Beneficial Owner of 15% or more of the Common Shares of the
Company outstanding, such Person shall not be or become an
“Acquiring Person,” as defined pursuant to the provisions of this
Section 1(a), unless and until such time as such Person shall
become the Beneficial Owner of additional Common Shares of the
Company (other than pursuant to a dividend or distribution paid or
made by (x) the Company on the outstanding Common Shares in Common
Shares or pursuant to a split or subdivision of the outstanding
Common Shares or (y) Exchangeco on the outstanding Exchangeable
Shares in Exchangeable Shares or pursuant to a split or
subdivision of the outstanding Exchangeable Shares), unless, upon
becoming the Beneficial Owner of such additional Common Shares of
the Company, such Person is not then the Beneficial Owner of 15%
or more of the Common Shares of the Company then outstanding; and




     (iii) the term “Acquiring Person” shall not mean:




A. General Atlantic Partners 74, L.P., a Delaware
limited partnership, GAP Coinvestment Partners II,
L.P., a Delaware limited partnership, and GapStar,
LLC, a Delaware limited liability company (referred to
collectively with their respective Affiliates and
Associates as “GAP”) so long as GAP does not increase
(other than an increase resulting solely from a
reduction of the number of shares of outstanding
Common Stock, including by reason of repurchases of
Common Stock or Exchangeable Shares by the Company, or
a dividend or distribution paid or made by the Company
or Exchangeco on, or a split or subdivision of, any
 shares of their respective capital stock) its
Beneficial Ownership of Common Stock to a percentage
of the outstanding shares of Common Stock at any time
that is greater than: (1) the percentage of the
outstanding shares of Common Stock represented by the
sum of (x) the shares as to which GAP has Beneficial
Ownership



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as of the close of business on November 18, 2003,
assuming, for purposes of this calculation, all
warrants and other securities convertible into or
exercisable for Common Stock, or any other rights to
purchase Common Stock, in all cases where held or
enjoyed by GAP, are immediately convertible or
exercisable, plus (y) the shares as to which GAP
obtains (or is entitled to obtain) Beneficial
Ownership directly from the Company pursuant to the
consummation of the transactions described in that
certain Convertible Note Purchase and Exchange
Agreement (the “2003 Purchase Agreement”), dated
November 18, 2003, by and among the Company and the
“Coinvestors” party thereto, including, without
limitation, the Issuable Shares and the Rights Shares
(each as defined in the 2003 Purchase Agreement); or
(2) such lesser percentage as to which GAP has
Beneficial Ownership following any transfer of
securities by GAP after consummation of the
transactions described in the 2003 Purchase Agreement
(except that this clause A shall pertain only until
such time as GAP has Beneficial Ownership of less than
fifteen percent (15%) of the outstanding shares of
Common Stock); provided, that any shares of Common
Stock Beneficially Owned by one or more officers or
directors of the Company where (x) such officers or
directors are also included within the term “GAP” and
(y) such shares of Common Stock were distributed
directly by the Company to such officers or directors
as equity-based compensation, shall be excluded from
the calculation of the Beneficial Ownership of GAP for
purposes of the definition of “Acquiring Person” if
the inclusion of such shares of Common Stock in such
calculation, by itself, would otherwise cause GAP to
be an Acquiring Person;




B. Cenwell Limited, Campina Enterprises Limited, Great
Affluent Limited, Lion Cosmos Limited and Dragonfield
Limited (referred to collectively with their
respective Affiliates and Associates as “Cenwell”) so
long as Cenwell does not increase (other than an
increase resulting solely from a reduction of the
number of shares of outstanding Common Stock,
including by reason of repurchases of Common Stock or
Exchangeable Shares by the Company, or a dividend or
distribution paid or made by the Company or Exchangeco
on, or a split or subdivision of, any shares of their
respective capital stock) its Beneficial Ownership of
Common Stock to a percentage of the outstanding shares
of Common Stock at any time that is greater than: (1)
the percentage of the outstanding shares of Common
Stock represented by the sum of (x) the shares as to
which Cenwell has Beneficial Ownership as of the close
of business on November 18, 2003, assuming, for
purposes of this calculation, all warrants and other
securities convertible into or exercisable for Common
Stock, or any other rights to purchase Common Stock,
in all cases where



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held or enjoyed by Cenwell, are immediately
convertible or exercisable, plus (y) the shares as to
which Cenwell obtains (or is entitled to obtain)
Beneficial Ownership directly from the Company
pursuant to the consummation of the transactions
described in the 2003 Purchase Agreement, including,
without limitation, the Exchange Shares and the Rights
Shares (each as defined in the 2003 Purchase
Agreement); or (2) such lesser percentage as to which
Cenwell has Beneficial Ownership following any
transfer of securities by Cenwell after consummation
of the transactions described in the 2003 Purchase
Agreement (except that this clause B. shall pertain
only until such time as Cenwell has Beneficial
Ownership of less than fifteen percent (15%) of the
outstanding shares of Common Stock);




C. Vectis CP Holdings, LLC (referred to collectively
with its Affiliates and Associates as “Vectis”) so
long as Vectis does not increase (other than an
increase resulting solely from a reduction of the
number of shares of outstanding Common Stock,
including by reason of repurchases of Common Stock or
Exchangeable Shares by the Company, or a dividend or
distribution paid or made by the Company or Exchangeco
on, or a split or subdivision of, any shares of their
respective capital stock) its Beneficial Ownership of
Common Stock to a percentage of the outstanding shares
of Common Stock at any time that is greater than: (1)
the percentage of the outstanding shares of Common
Stock represented by the sum of (x) the shares as to
which Vectis has Beneficial Ownership as of the close
of business on November 7, 2001 (if any), plus (y) the shares as to which Vectis obtains Beneficial Ownership
directly from the Company pursuant to the consummation
of the transactions described in that certain Stock
and Warrant Purchase and Exchange Agreement (the “2001
Purchase Agreement”), dated November 7, 2001, by and
among the Company and the “Purchasers” named therein,
plus (z) the shares as to which Vectis obtains
Beneficial Ownership directly from the Company
pursuant to the rights offering for an aggregate
amount up to $21,000,000 of Series E Preferred Stock
of the Company pursuant to which the Company will
distribute transferable rights to certain holders of
Common Stock; or (2) such lesser percentage as to
which Vectis has Beneficial Ownership following any
transfer of securities by Vectis after consummation of
the transactions described in the 2001 Purchase
Agreement (except that this clause C. shall pertain
only until such time as Vectis has Beneficial
Ownership of less than fifteen percent (15%) of the
outstanding shares of Common Stock); provided, that
any shares of Common Stock Beneficially Owned by one
or more officers or directors of the Company where (x)
such officers or directors are also included within
the term “Vectis” and (y) such shares of Common Stock
were distributed



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directly by the Company to such officers or directors
as equity-based compensation, shall be excluded from
the calculation of the Beneficial Ownership of Vectis
for purposes of the definition of “Acquiring Person”
if the inclusion of such shares of Common Stock in
such calculation, by itself, would otherwise cause
Vectis to be an Acquiring Person;




D. Permal U.S. Opportunities Limited, Zaxis Equity
Neutral, L.P., Zaxis Institutional Partners, L.P.,
Zaxis Offshore Limited and Zaxis Partners, L.P.,
(referred to collectively with their Affiliates and
Associates as “Apex”) so long as Apex does not
increase (other than an increase resulting solely from
a reduction of the number of shares of outstanding
Common Stock, including by reason of repurchases of
Common Stock or Exchangeable Shares by the Company, or
a dividend or distribution paid or made by the Company
or Exchangeco on, or a split or subdivision of, any
 shares of their respective capital stock) its
Beneficial Ownership of Common Stock to a percentage
of the outstanding shares of Common Stock at any time
that is greater than: (1) the percentage of the
outstanding shares of Common Stock represented by the
sum of (x) the shares as to which Apex has Beneficial
Ownership as of the close of business on January 16,
2004, assuming, for purposes of this calculation, all
warrants and other securities convertible into or
exercisable for Common Stock, or any other rights to
purchase Common Stock, in all cases where held or
enjoyed by Apex, are immediately convertible or
exercisable, plus (y) the shares as to which Apex
obtains (or is entitled to obtain) Beneficial
Ownership directly from the Company pursuant to the
consummation of the transactions described in the
Convertible Note Purchase Agreement (the “January
Purchase Agreement”), dated January 16, 2004, by and
among the Company and the “Lenders” party thereto,
including, without limitation, the Issuable Shares or
the Common Shares (each as defined in the January
Purchase Agreement), plus (z) the shares as to which
Apex obtains (or is entitled to obtain) Beneficial
Ownership directly from the Company pursuant to the
consummation of the transactions described in the
Convertible Note Purchase Agreement (the “March
Purchase Agreement”), dated March 9, 2004, by and
among the Company and the “Lenders” party thereto,
including, without limitation, the Issuable Shares or
the Common Shares (each as defined in the March
Purchase Agreement); or (2) such lesser percentage as
to which Apex has Beneficial Ownership following any
transfer of securities by Apex after consummation of
the transactions described in the February Purchase
Agreement (except that this clause D. shall pertain
only until such time as Apex has Beneficial Ownership
of less than fifteen percent (15%) of the outstanding shares of Common Stock); and



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E. Peter Kellner (referred to collectively with his
Affiliates and Associates as “Kellner”) so long as
Kellner does not increase (other than an increase
resulting solely from a reduction of the number of shares of outstanding Common Shares, including by
reason of repurchases of Common Shares or Exchangeable
Shares by the Company, or a dividend or distribution
paid or made by the Company or Exchangeco on, or a
split or subdivision of, any shares of their
respective capital stock) his Beneficial Ownership of
Common Shares to a percentage of the outstanding
Common Shares at any time that is greater than the
lesser of: (1) the percentage of the outstanding
Common Shares represented by the sum of (x) the shares
as to which Kellner has Beneficial Ownership as of the
close of business on the date set by the Company’s
Board of Directors for determining the rights of
holders of Common Shares to participate in that
certain rights offering for an aggregate amount of up
to $21,000,000 of Series E Preferred Stock of the
Company as described in the Company’s Registration
Statement on Form S-3 filed with the Securities and
Exchange Commission on December 24, 2003, as amended
or supplemented (the “Rights Offering”), plus (y) the shares as to which Kellner obtains (or is entitled to
obtain) Beneficial Ownership directly from the Company
pursuant to consummation of the Rights Offering; or
(2) such percentage as to which Kellner has Beneficial
Ownership following any transfer of securities by
Kellner after consummation of the Rights Offering;
provided, however, that (i) so long as Kellner is not
obligated, pursuant to the provisions of Section 13(d)
of the Exchange Act or Regulation 13D-G promulgated
thereunder, to include any Common Shares Beneficially
Owned by Vectis CP Holdings, LLC or any Affiliate or
Associate thereof (other than Kellner himself) on any
Schedule 13D or Schedule 13G required to be filed by
Kellner, any such Common Shares shall be excluded from
the calculation of the Beneficial Ownership of Kellner
for purposes of the definition of “Acquiring Person”
if the inclusion of such Common Shares, by itself,
would otherwise cause Kellner to be an Acquiring
Person, and (ii) the provisions of this clause E.
shall pertain only until such time after consummation
of the Rights Offering as Kellner first has Beneficial
Ownership of less than fifteen percent (15%) of the
outstanding Common Shares (excluding, for this
purpose, the operation of the foregoing clause (i)).”



     The undersigned officer of the Company, being an appropriate officer of
the Company and authorized to do so by resolution of the board of directors of
the Company, hereby certifies to the Rights Agent that this Amendment is in
compliance with the terms of Section 27 of the Agreement.



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     This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one instrument.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.



	 	 	 
	

	 	By: /s/ Michael J. Zukerman
	

	 	
 
	

	 	Name: Michael J. Zukerman

Title: Executive Vice President and General Counsel
	 
	 	 
	

	 	COMPUTERSHARE TRUST COMPANY, INC.
	 
	 	 
	

	 	By: /s/ Kellie Gwinn
	

	 	
 
	

	 	Name: Kellie Gwinn

Title: Vice President
	 
	 	 
	

	 	COMPUTERSHARE TRUST COMPANY, INC.
	 
	 	 
	

	 	By: /s/ John M. Mahl

	

	 	
 
	

	 	Name: John M. Wahl

Title: Corporate Trust Officer