|
Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
This Amendment No. 1,
dated as of February 19, 2008 (this “ Amendment
”), is to the Agreement and Plan of Merger, dated as of
December 5, 2007 (the “ Merger Agreement
”), by and among CP Holdco, LLC, a Delaware limited liability
company (“ Parent ”), CP Merger Co., a
California corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ”), and Critical Path, Inc., a
California corporation (the “ Company ” and,
collectively with Parent and Merger Sub, the “ Parties
”). Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Merger Agreement, and all
references to Articles and Sections herein are references to
Articles and Sections of the Merger Agreement.
In consideration of the
premises and mutual promises herein made, and in consideration of
the agreements herein contained, the Parties, intending to be
legally bound hereby, agree as follows:
| 1. |
Amendment to Recitals . The first recital of the
Agreement is hereby amended and restated in its entirety as
follows: |
“WHEREAS, the Board of
Directors of the Company (the “ Board of Directors
”), based on the unanimous recommendation of a special
committee thereof consisting solely of disinterested directors of
the Company (the “ Special Committee ”) has
(i) determined that (x) the merger of Merger Sub with and
into the Company (the “ Merger ”), with the
Company remaining as the surviving corporation and a Subsidiary of
Parent, whereby each share of the Common Stock of the Company, par
value $0.001 per share (the “ Common Stock ”)
(other than Excluded Shares (as defined herein) and Dissenting
Shares (as defined herein)) will, upon the terms and subject to the
conditions set forth herein, be converted into the right to receive
the following (the “ Merger Consideration ”):
(a) cash in an amount equal to $0.102 per share (subject to
adjustments upon any stock split, stock dividend, stock
distribution or reclassifications of the Common Stock pursuant to
Section 2.04), and (b) subject to Section 1.11(c),
the Contingent Litigation Recovery Right (as defined herein), and
(y) the other transactions (collectively with the Merger, the
“ Transactions ”) contemplated by this Agreement
and the Note Exchange Agreement (as defined herein) and the
provisions of the Restated Articles (as defined herein) are fair
to, and in the best interests of the shareholders of the Company
(other than the Rollover Shareholders (as defined herein)),
(ii) approved and adopted this Agreement and the Transactions,
and declared their advisability, (iii) recommended the
adoption by the shareholders of the Company, subject to the terms
and conditions set forth herein, of this Agreement and the Restated
Articles, and (iv) approved the Merger, the Transactions and
this Agreement for purposes of Section 1201 of the California
General Corporation Law (as amended from time to time, the “
CGCL ”);”
| 2. |
Amendment to Section 1.07(d). Section 1.07(d) is
hereby amended and restated in its entirety as follows: |
“(d) Series E
Preferred Stock . Each share of the Series E Preferred Stock
issued and outstanding immediately prior to the Effective Time
shall not be affected by the Merger and shall be automatically
reverse split, immediately after the Effective Time, on a 70,000 to
1 basis in accordance with the terms of the Restated Articles (the
“ Reverse Split ”). Immediately after the
Reverse Split, (i) each holder holding fractional shares of
Series E Preferred Stock (each, a “ Series E Distribution
Holder ”) shall receive, in exchange for the cancellation
of all fractional shares of Series E Preferred Stock held by such
Series E Distribution Holder, an amount in cash equal to the
product of (x) the fractional shares of the Series E Preferred
Stock held by such Series E Distribution Holder, multiplied by
(y) the quotient referred to in Section 7(a)(ii) of
Article V.C of the Restated Articles then in effect, as adjusted
pursuant to the Restated Articles after the Reverse Split,
multiplied by (z) cash in an amount equal to $0.102 (subject
to adjustment for any stock splits, combinations or
recapitalizations of the Common Stock and similar anti-dilution
events involving the Common Stock) and, subject to
Section 1.11(c), the Contingent Litigation Recovery Right
(such amount payable to each Series E Distribution Holder shall be
referred to as the “ Series E Distribution ” for
such Series E Distribution Holder), and (ii) all other shares
of Series E Preferred Stock shall remain issued and outstanding,
and shall, upon the election of holders of a majority of the then
outstanding Series E Preferred Stock, be converted into that number
of shares of common stock of the Surviving Corporation (rounded up
to the nearest whole number) in accordance with
Section 7(aa) of Article
V.C of the Restated Articles then in effect. Immediately after the
Reverse Split, all fractional shares of Series E Preferred Stock
shall no longer remain outstanding and shall automatically be
cancelled and shall cease to exist, and each Series E Distribution
Holder of a certificate that represented such fractional shares of
Series E Preferred Stock as a result of the Reverse Split (a
“ Series E Stock Certificate ”) shall cease to
have any rights with respect thereto, except the right to receive
his, her or its Series E Distribution, to be paid in consideration
therefor upon surrender of such Series E Stock Certificate in
accordance with Section 2.01(b), without
interest.”
| 3. |
Amendment to Article I . Article I is hereby amended by
adding the following Section 1.11 at the end
thereof: |
“Section 1.11
Contingent Litigation Recovery Right .
(a) The term “
Contingent Litigation Recovery Right ” shall mean a
payment equal to the quotient of (A) the excess of
(1) the aggregate amount of all payment, penalty, interest and
other damages actually recovered by the Surviving Corporation in
the action pending in the United States District Court for the
Western District of Washington captioned Vanessa Simmonds v.
Bank of America Corporation and J.P. Morgan Cha
|
