exv10w54



 






EXHIBIT 10.54




AMENDMENT TO




CONVERTIBLE NOTE PURCHASE AND EXCHANGE AGREEMENT




               AMENDMENT, dated January 16, 2004 (this “Amendment”), among Critical Path,
Inc., a California corporation (the “Company”), General Atlantic Partners 74,
L.P., a Delaware limited partnership, GAP Coinvestment Partners II, L.P., a
Delaware limited partnership, GapStar, LLC, a Delaware limited liability
company, GAPCO GmbH & Co. KG, a German limited partnership, Campina Enterprises
Limited, Cenwell Limited, Great Affluent Limited, Dragonfield Limited and Lion
Cosmos Limited (collectively with the Company, the “Parties”),



WITNESSETH:




     WHEREAS, the Parties are each a party to that certain Convertible Note
Purchase and Exchange Agreement, dated November 18, 2003 (the “Note Exchange
Agreement”); and



     WHEREAS, the Company desires to enter into a Convertible Note Purchase
Agreement pursuant to which the Company proposes to issue and sell to Permal
U.S. Opportunities Limited, Zaxis Equity Neutral, L.P., Zaxis Institutional
Partners, L.P., Zaxis Offshore Limited, Zaxis Partners, L.P., and Passport
Master Fund, L.P. convertible notes having an aggregate principal amount of $15
million which notes will be convertible, subject to Stockholder Approval, into
shares of Series E Redeemable Convertible Preferred Stock of the Company, par
value $0.001 per share (the “Note Purchase Agreement”); and



     WHEREAS, in connection with the execution of the Note Purchase Agreement,
the Parties desire to amend the Note Exchange Agreement as set forth herein;
and



     WHEREAS, capitalized terms used in this Amendment and not defined herein
shall have the meanings ascribed to such terms in the Note Exchange Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, for the covenants and agreements set forth in the Note
Exchange Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the Parties agree as follows:



     1.1 Amendments to the Note Exchange Agreement. The Note Exchange Agreement
shall be amended as set forth below:



          (a) Section 1.1 of the Note Exchange Agreement shall be amended to add the
following:





       
   ““Note Purchase Agreement” means that certain Convertible
Note Purchase Agreement, dated January 16, 2004, among Permal U.S.
Opportunities Limited, Zaxis Equity Neutral, L.P., Zaxis
Institutional Partners, L.P., Zaxis Offshore Limited, Zaxis
Partners, L.P., Passport Master Fund, L.P. and Critical



 








 






	 	 	Path, Inc., a California corporation (the “Company”),
pursuant to which the Company shall issue and sell convertible
notes in an aggregate principal amount of up to $15 million, which
notes shall be convertible, subject to Stockholder Approval, into
Series E Preferred Stock or Common Stock, in accordance with such
agreement, concurrently with the Conversion and Exchange.”





         
 ““Subsequent Lenders” means the Lenders as defined in the Note Purchase
Agreement.”



         
 (b) Section 2.6(f) of the Note Exchange Agreement is hereby deleted and
amended and restated in its entirety to read as follows:



        
  ““(f) Subsequent Closing. The consummation of the Exchange
and Conversion (the “Subsequent Closing”) shall take place
concurrently with the Subsequent Closing under the Note Purchase
Agreement as soon as practicable following the satisfaction of the
closing conditions set forth in Article VI of this Agreement and
Article VI of the Note Purchase Agreement (the “Subsequent Closing
Date”), at the offices of Pillsbury Winthrop LLP, 50 Fremont
Street, San Francisco, California, or at such other time and place
as the Company, the Lenders, the CK Purchasers and the Subsequent
Lenders may mutually agree. At the Subsequent Closing, signature
pages transmitted by facsimile will be acceptable, with originals
to follow as soon as practicable thereafter.”



          (c) Section 2.7 of the Note Exchange Agreement is deleted in its entirety.



     1.2 Amendments to Exhibits to the Note Exchange Agreement.



          (a) The form of Amended and Restated Series D Certificate of
Determination, attached as Exhibit C to the Note Exchange Agreement, is hereby
deleted and amended and restated to read in its entirety in the form set forth
as Annex 1 attached hereto.



          (b) The form of Series E Certificate of Determination, attached as Exhibit
G to the Note Exchange Agreement, is hereby deleted and amended and restated to
read in its entirety in the form set forth as Annex 2 attached hereto.



     1.3 Counterparts. 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. Signature pages
transmitted by facsimile will be acceptable, with originals to immediately
follow.



     1.4 Continuing Agreement. Except as specifically amended hereby, all of
the terms of the Note Exchange Agreement shall remain and continue in full
force and effect and are hereby confirmed in all respects.



     1.5 Headings. The headings in this Amendment are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



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     1.6 Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
principles 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 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
provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.



     1.8 Entire Agreement. This Amendment, together with the Note Exchange
Agreement and the exhibits and schedules thereto, and the other Transaction
Documents, are 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 and therein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred to herein or
therein. This Amendment and the Note Exchange Agreement, together with the
exhibits and schedules thereto, and the other Transaction Documents, supersede
all prior agreements and understandings between the parties with respect to
such subject matter.


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     IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Amendment on the date first written above.


	 	 	 	 	 
	 	CRITICAL PATH, INC.,

a California corporation

 	 
	 	By:  	/s/   William E. McGlashan, Jr.
 	 
	 	 	Name:  	William E. McGlashan, Jr. 	 
	 	 	Title:	Chairman, Chief Executive Officer 	 



Signature Page to Amendment to Convertible Note Purchase and Exchange Agreement


 









 









	 	 	 	 	 
	 	GENERAL ATLANTIC PARTNERS 74, L.P.

 	 
	 	By:  	GENERAL ATLANTIC PARTNERS, LLC,
 	 
	 	 	its General Partner 	 
	 
	 	By:  	               /s/   Matthew Nimetz
 	 
	 	 	Name:	 Matthew Nimetz 	 
	 	 	Title:	A Managing Member 	 
	 	 	 	 	 
	 	GAP COINVESTMENT PARTNERS II, L.P.

 	 
	 	By:  	/s/   Matthew Nimetz
 	 
	 	 	Name: 	Matthew Nimetz 	 
	 	 	Title: 	A General Partner 	 
	 	 	 	 	 
	 	GAPSTAR, LLC

 	 
	 	By:  	GENERAL ATLANTIC PARTNERS, LLC,
 	 
	 	 	its Managing Member 	 
	 	 	 	 	 
	 	By:  	               /s/   Matthew Nimetz
 	 
	 	 	Name: 	Matthew Nimetz 	 
	 	 	Title:  	A Managing Member 	 
	 	 	 	 	 
	 	GAPCO GMBH & CO. KG

 	 
	 	By:  	GAPCO MANAGEMENT GMBH,
 	 
	 	 	its General Partner 	 
	 	 	 	 	 
	 	By:  	               /s/   Matthew Nimetz
 	 
	 	 	Name: 	Matthew Nimetz 	 
	 	 	Title:  	A Managing Director 	 
	 



Signature Page to Amendment to Convertible Note Purchase and Exchange Agreement




 









 








	 	 	 	 	 
	 	CENWELL LIMITED

 	 
	 	By:  	/s/   Ma Lai Chee, Gerlad
 	 
	 	 	Name:  	Ma Lai Chee, Gerald 	 
	 	 	Title:  	Authorised Person 	 
	 



	 	 	 	 	 
	 	CAMPINA ENTERPRISES LIMITED

 	 
	 	By:  	/s/   Ma Lai Chee, Gerlad
 	 
	 	 	Name:  	Ma Lai Chee, Gerald 	 
	 	 	Title:  	Authorised Person 	 
	 



	 	 	 	 	 
	 	GREAT AFFLUENT LIMITED

 	 
	 	By:  	/s/   Ma Lai Chee, Gerlad
 	 
	 	 	Name:  	Ma Lai Chee, Gerald 	 
	 	 	Title:  	Authorised Person 	 
	 



	 	 	 	 	 
	 	DRAGONFIELD LIMITED

 	 
	 	By:  	/s/   Ma Lai Chee, Gerlad
 	 
	 	 	Name:  	Ma Lai Chee, Gerald 	 
	 	 	Title:  	Authorised Person 	 
	 



	 	 	 	 	 
	 	LION COSMOS LIMITED

 	 
	 	By:  	/s/   Ma Lai Chee, Gerlad
 	 
	 	 	Name:  	Ma Lai Chee, Gerald 	 
	 	 	Title:  	Authorised Person 	 
	 



Signature Page to Amendment to Convertible Note Purchase and Exchange Agreement