Investor Rights Agreement [Amendment No. 2] - NaviSite Inc. and CMGI Inc.
NAVISITE, INC. INVESTOR RIGHTS AGREEMENT AMENDMENT NO. 2 In connection with the execution of the Note and Warrant Purchase Agreement, dated as of December 12, 2000, by and between NaviSite, Inc., a Delaware corporation (the "Company"), and CMGI, Inc., a Delaware corporation (the "Purchaser"), the Company and the Purchaser do hereby amend the Investor Rights Agreement between the Company and the Purchaser, dated as of October 27, 1999 and first amended on June 8, 2000 (the "Investor Rights Agreement"), by this Amendment No. 2 to the Investor Rights Agreement (this "Amendment"). The Investor Rights Agreement is hereby amended by replacing the definition of "Registrable Shares" under "Section I, Certain Definitions" in its entirety as follows: "Registrable Shares" means (a) the shares of Common Stock held by the Investor upon the closing of the Initial Public Offering; (b) the shares of Common Stock acquired by the Investor upon consum-mation of the transactions contemplated by the Common Stock Purchase Agreement between the Company and the Investor, dated as of June 8, 2000; (c) the shares of Common Stock acquired by the Investor upon any conversion of the Notes issued pursuant to the Note and Warrant Purchase Agreement between the Company and the Investor, dated as of December 12, 2000, (the "Note and Warrant Purchase Agreement"); (d) the shares of Common Stock acquired by the Investor as payment for interest accrued on the Notes issued pursuant to the Note and Warrant Purchase Agreement; (e) the shares of Common Stock acquired by the Investor upon exercise or conversion of the Warrants issued pursuant to the Note and Warrant Purchase Agreement; and (f) any other shares of Common Stock issued in respect of such shares of Common Stock referred to in clause (a), (b), (c), (d) or (e) (because of stock splits, stock dividends, reclassifications, recapitalizations or similar events); provided, however, that shares of Common Stock which are Registrable Shares shall cease to be Registrable Shares upon (i) any sale pursuant to a Registration Statement or Rule 144 under the Securities Act or (ii) any sale in any manner to a person or entity which, by virtue of Section 3.4 of this Agreement, is not entitled to the rights provided by this Agreement. <PAGE> This Amendment shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts (without reference to the conflicts of law provisions thereof). This Amendment may be executed in two counterparts, each of which shall be deemed to be an original, and both of which together shall constitute one and the same document. This Amendment may be executed by facsimile signatures. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written. NAVISITE, INC. CMGI, INC. By: /s/ Joel B. Rosen By: /s/ Andrew J. Hajducky III --------------------------- ---------------------------- Name: Joel B. Rosen Name: Andrew J. Hajducky III Title: Chief Executive Officer Title: Chief Financial Officer and Treasurer Address: Address: 400 Minuteman Road 100 Brickstone Square, 5th Floor Andover, Massachusetts 01810 Andover, Massachusetts 01810 Telephone No: (978) 682-8300 Telephone No: (978) 684-3600 Facsimile No: (978) 688-8100 Facsimile No: (978) 684-3601 with copy to: with copy to: Mark G. Borden, Esquire David T. Brewster, Esquire Hale and Dorr LLP Skadden, Arps, Slate, Meagher 60 State Street & Flom LLP Boston, Massachusetts 02109 One Beacon Street, 31 st Floor Boston, Massachusetts 02108 Telephone No: (617) 526-6000 Telephone No: (617) 573-4800 Facsimile No: (617) 526-5000 Facsimile No: (617) 573-4822 2