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