Transition Services Agreement - CMGI Inc. and NaviSite Inc.
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is made as of
November 25, 2002 (the "Effective Date"), by and between CMGI, Inc., a Delaware
corporation with offices located at 100 Brickstone Square, Andover, MA 01810
("CMGI") and NaviSite, Inc. a Delaware corporation with offices located at 400
Minuteman Road, Andover, MA 01810 ("NaviSite").
R E C I T A L S
WHEREAS, this Agreement is entered into in connection with that certain
Note and Stock Purchase Agreement, dated as of September 11, 2002 (the
"Transaction Date"), by and between CMGI and ClearBlue Technologies, Inc.
("CBT") (the "Transaction Agreement");
WHEREAS, by virtue of the transactions contemplated by the Transaction
Agreement, NaviSite (formally a subsidiary of CMGI) became a subsidiary of CBT;
WHEREAS, NaviSite is interested in obtaining, and CMGI is willing to
provide to NaviSite (and since the Transaction Date, has provided), certain
services on an interim basis as set forth in this Agreement; and
WHEREAS, NaviSite and CMGI desire to terminate certain agreements and
arrangements between the parties, as more fully specified herein.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, NaviSite and CMGI hereby agree as follows:
1. Definitions. As used here, each of the following capitalized terms
shall have the following meaning ascribed to it:
1.1. "Application Services" shall mean the services and arrangements
described on Exhibit A-1 attached hereto.
1.2. "Centralized IT Support Services" shall mean the services and
arrangements described on Exhibit A-2 attached hereto.
1.3. "Employee Healthcare Benefits Services" shall mean the services
and arrangements described on Exhibit A-3 attached hereto.
1.4. An "Event of Default" shall occur when a party breaches any
material term or condition of this Agreement (including, without limitation,
NaviSite's obligation to pay fees and charges associated with one or more
Services) and such party fails to cure such breach within fifteen (15) days
after receiving written notice of such breach from the other party.
1.6. "Services" shall mean collectively, the Application Services, the
Centralized IT Services, the Employee Healthcare Benefits Services and the
Travel Agency Services.
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1.7. "Travel Agency Services" shall mean the services and arrangements
described on Exhibit A-4 attached hereto.
2. Transition Services.
2.1. Subject to, and in accordance with, the terms and conditions of
this Agreement, (i) since the Transaction Date, CMGI has provided the Services,
or caused the Services to be provided, to NaviSite, and (ii) for those Services
with respect to which the corresponding Exhibit A specifies that such Services
are to be provided beyond the Effective Date, CMGI will provide such Services,
or cause such Services to be provided, to NaviSite for the corresponding time
period. The Services have been and will be provided at the corresponding fee or
cost that is specified on the applicable Exhibit A as it pertains to such
Service (pro rated for partial months, if applicable). Where a transition plan
is specified on an Exhibit A for a particular Service, each party shall perform
its respective tasks as specified in such transition plan.
2.2. The Services shall be provided in a manner consistent, in all
material respects, with CMGI's practices with respect to CMGI's provision of the
same Services to NaviSite prior to the Transaction Date, except to the extent
otherwise specified on the applicable Exhibit A. NaviSite acknowledges that the
Services have previously been provided to NaviSite by CMGI and that, as so
provided, such Services were acceptable to NaviSite. CMGI shall have no
obligation to make available to NaviSite any customizations, improvements,
changes, enhancements or modifications to the Services that were not made
available to NaviSite prior to the Effective Date. During the course of
providing Services to NaviSite, CMGI may install new versions or updates to
software programs that are part of, or used in connection with, the Services,
provided that such new versions or updates do not have a material adverse effect
on the Services.
2.3. NaviSite acknowledges that in the course of providing certain
Services to NaviSite, CMGI personnel may need access to the facilities and/or
equipment owned or leased by NaviSite. NaviSite shall provide such personnel
with such access as is reasonably required to provide such Services to NaviSite
during normal business hours, unless required by emergency and in all cases with
reasonable prior notice.
2.4. NaviSite acknowledges that (i) some of the Services involve
NaviSite using certain software programs licensed to (or certain service
provided to) CMGI for use by CMGI and its subsidiaries, and (ii) following
December 31, 2002, NaviSite shall no longer use such software licenses (or
services, as the case may be). In the event that a vendor of any such software
programs (or services) alleges that use of such software (or services) by
NaviSite is not permitted under the terms of the applicable license agreement
(or other agreement), CMGI shall give written notice thereof to NaviSite
whereupon CMGI and NaviSite shall use commercially reasonable efforts to
negotiate with such vendor for NaviSite's continued use of such software (or
services). If such vendor imposes any fees or other charges in connection with
such vendor consenting to NaviSite's continued use of such software (or
services), then (x) CMGI shall have no obligation to pay such fees and amounts,
and (y) CMGI shall notify NaviSite of such fees and amounts and if NaviSite
agrees to such fees and amounts, NaviSite shall pay such fees and amounts
directly to such vendor. If such negotiations are unsuccessful, or if in CMGI's
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reasonable judgment such continued use by NaviSite will result in a material
potential liability to CMGI, CMGI may terminate such Service by providing prior
written notice to NaviSite, and NaviSite shall have no obligation to pay any
fees attributable to the provision of such Service from and after the effective
time of such termination.
2.5. NaviSite will use commercially reasonable efforts to promptly
discontinue its use of the Application Services and, NaviSite shall either
perform such services in-house or make alternate arrangements with third parties
whereby such third parties will provide such services to NaviSite. In
particular, and without limiting the foregoing, NaviSite will use commercially
reasonable efforts to migrate NaviSite's accounting and financial information
(e.g. Oracle Financials, Solomon) off of CMGI's systems in a timely fashion, but
in no event later than December 31, 2002. NaviSite acknowledges that its failure
to complete such migration will have severe adverse consequences to NaviSite,
and that CMGI has no obligation to provide access to the software applications
cited in the previous sentence beyond December 31, 2002 (or such shorter period
of time as contemplated by Section 2.4 above). Upon NaviSite's written request,
As part of the Application Services, CMGI will use commercially reasonable
efforts to assist NaviSite in transferring NaviSite's accounting and financial
information to a replacement system chosen by NaviSite prior to December 31,
2002. Such work shall be performed on a fee basis at a rate not to exceed $85.00
per hour.
3. Fees; Invoice and Payment.
3.1. Fees. In consideration of CMGI rendering the Services to NaviSite,
NaviSite agrees to pay to CMGI the fees and charges associated with each Service
as specified in the applicable Exhibit A (prorated for partial months, if
applicable).
3.2. Invoice and Payment. On a monthly basis, CMGI shall submit an
invoice to NaviSite for the corresponding fees and charges specified in the
applicable Exhibit A, and, if such Exhibit specifies that expenses are to also
be charged for particular Services, any associated expenses, for the Services
provided in the prior calendar month. CMGI shall submit such invoices to the
attention of NaviSite's Chief Financial Officer. Such invoices shall be
accompanied by documentation supporting the invoiced amounts. NaviSite shall pay
such invoiced amounts, less any amounts subject to a bona fide dispute by
NaviSite, no later than fifteen (15) business days following the date NaviSite
received the applicable invoice. All amounts not paid within such time period
shall accrue interest at the rate of one and one-half percent (1.5%) per month
(or the highest interest rate allowed by law, if lower) until such amounts are
paid in full. If CMGI brings suit or retains an attorney to collect any monies
overdue hereunder, and CMGI is successful in such action, CMGI shall be entitled
to recover, in addition to any other remedy, reimbursement for its actual and
reasonable attorney fees, court costs and other related expenses incurred in
connection therewith. With regard to any amounts not paid within such fifteen
(15) business day period, CMGI shall have the right to offset such amounts
against any amounts owed by CMGI to NaviSite under that certain SiteHarbor
Services Agreement, with an effective date of March 7, 2000, by and between CMGI
and NaviSite.
3.3. Miscellaneous Third-Party Charges. From time to time, NaviSite has
obtained various goods and services (other than the Services) from third party
vendors using CMGI's
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account numbers (e.g. FedEx services) or otherwise resulting in the vendor
submitting a bill to CMGI for such goods or services. NaviSite shall use
diligent efforts to cease such practice. In the event any such goods or services
are billed to CMGI, CMGI shall submit an invoice to NaviSite for such amount.
NaviSite shall pay such invoiced amount in accordance with the payment terms
specified in Section 3.2 above.
3.4. Inter-Company Charges. Attached hereto as part of Exhibit D is a
summary of all invoices sent by CMGI to NaviSite between 8/1/02 and the
Effective Date relating to inter-company charges between CMGI and NaviSite
indicating the data and amount of each invoice and whether or not, as of the
date hereof, CMGI has received payment of such invoiced amount. Also attached
hereto as part of Exhibit D are copies of such invoices). NaviSite shall pay all
unpaid invoice(s) in accordance with the payment terms (including without
limitation the interest charges associated with any past due payments, and the
right of offset) specified in Section 3.2 above.
4. Termination and Transfer of Certain Arrangements.
4.1 Termination of Certain Arrangements. The parties acknowledge that
the Facilities and Administrative Support Agreement, dated as of October 27,
1999, between CMGI and NaviSite, has terminated automatically pursuant to its
terms as a result of the parties carrying out transactions contemplated by the
Transaction Agreement. In addition, prior to the Effective Date, NaviSite as a
majority-owned subsidiary of CMGI, received or was eligible to receive from CMGI
and third parties the products and services described in Exhibit B attached
hereto. NaviSite's right to receive such goods and services, as well as all
other goods and services from CMGI or through arrangements between CMGI and
third parties, except in each case for those that are part of the Services,
shall terminate as of the Effective Date. Where a transition plan is specified
on Exhibit B for a particular good or service, each party shall perform its
respective tasks as specified in such transition plan.
4.2 Transfer of Certain Existing Licenses. Prior to the Effective Date,
NaviSite purchased (or CMGI purchased at the request and on behalf of NaviSite)
certain software licenses pursuant to agreements or accounts between CMGI and
the vendor of such software. Such licenses are described or set forth on Exhibit
C attached hereto. With respect to the licenses described or set forth on
Exhibit C attached hereto, promptly after the Effective Date, CMGI shall notify
the vendor of such programs that such licenses have been transferred to
NaviSite. Each of the parties hereto agrees to use its respective commercially
reasonable efforts to assist the other party (at no cost to the other party) in
obtaining any third party consents that are required in connection with such
transfers.
5. Cooperation and Assistance.
5.1 Litigation Assistance. During the Term (as defined in Section 6.1),
each party shall, upon written request by the other party (the "Requesting
Party"), provide to the Requesting Party (and/or its subsidiaries as the case
may be) with such information and assistance as is reasonably requested by the
Requesting Party in connection with any current and future lawsuit, threatened
lawsuit, dispute, claim, governmental investigation, administrative proceeding,
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insurance claim or the like brought against or by the Requesting Party by or
against a third party and involving or otherwise related to NaviSite or its
ownership by CMGI. By way of illustration, such assistance shall include such
activities as responding to requests for production of documents and records
(e.g. paper copies, electronic copies, emails) and providing information and
assistance to outside counsel retained to handle such matters. The Requesting
Party shall reimburse the other party for the other party's actual and
reasonable out-of-pocket expenses (specifically excluding any charges for the
other party's employees' time).
5.2. Financial and Accounting Information. During the Term, each party
shall, upon written request by the other party, provide to the Requesting Party
such financial and accounting information of such party as is reasonably
required for the Requesting Party to respond to any audit (or similar action)
conducted by a governmental entity, or to perform its tax filings and reports,
end of the month, end of fiscal quarter and end of fiscal year financial closing
process, and to prepare the related financial statements and accounting reports,
or to revise any financial statements and accounting reports for any prior
periods. During the Term, each party shall reasonably cooperate with the other
in its efforts to comply with the rules and regulations affecting public
companies, including without limitation, the Sarbanes-Oxley Act of 2002.
5.3. Cooperation. Each party (at its own expense, except as otherwise
specified herein or in an Exhibit A) shall cooperate with the other party as is
reasonably necessary to carry out the transactions contemplated hereby, and any
other similar transactions resulting from NaviSite ceasing to be a subsidiary of
CMGI. However, nothing herein shall obligate CMGI to provide any Services
involving a level of service that is greater than the level of service
historically provided to NaviSite with respect to such Services.
6. Term; Termination of Services or Agreement
6.1 Term. The term of this Agreement shall commence on the Effective
Date and shall continue for a period of five (5) years unless otherwise
terminated in accordance with the provisions of this Section 6 (the "Term").
Notwithstanding the foregoing, the Services shall be provided only during the
applicable time period specified in the description of each Service in the
applicable Exhibit A. Each Service specified herein may be terminated earlier
(on a Service by Service basis) in accordance with the provisions of this
Section 6.
6.2 For Convenience. Except as otherwise specified in the applicable
Exhibit A, NaviSite may terminate any Service (except the Employee Healthcare
Benefits Service), individually or in combination with one or more other
Services, being provided by CMGI under this Agreement effective upon at least
ten (10) days written notice to CMGI (unless such longer notice period is
specified for such Service in the applicable Exhibit A). Upon any termination of
any individual Service, CMGI shall invoice NaviSite in accordance with its
monthly invoice schedule, and NaviSite shall pay CMGI any amounts invoiced and
owed to CMGI hereunder, for the Service(s) provided through the applicable
termination date.
6.3 Termination for Breach. Either party will have the right to
terminate this Agreement, in part (by terminating one or more Services) or in
its entirety, upon an Event of Default by the other party. If (i) CMGI
terminates this Agreement pursuant to this section as a
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result of an Event of Default by NaviSite, and (ii) CMGI continues to provide
Employee healthcare Benefit Services, CMGI shall continue to invoice NaviSite
monthly for the fees and charges associated with such Services and the
provisions of Sections 3.2 shall continue to apply with respect to such fees and
charges.
6.4 Survival. The provisions of this Section 6 and of Sections 3.2,
3.4, 5, 7, 8, and 10 shall survive any termination or the expiration of this
Agreement.
6.5 Duties Upon Termination. Upon termination of any Service being
provided by CMGI hereunder, NaviSite shall immediately cease using any software
and associated documentation provided by CMGI to NaviSite as part of, or to
enable use of, the Service, and if requested by CMGI, NaviSite shall promptly
return to CMGI all copies of such software and associated documentation,
otherwise NaviSite shall promptly destroy all such copies of such software.
7. Representations and Warranties; Disclaimer; Limitation of Liability.
7.1. CMGI REPRESENTS THAT THE SERVICES WILL BE PROVIDED AT A LEVEL AND
QUALITY CONSISTENT WITH THE LEVEL AND QUALITY OF THE COMPARABLE SERVICES
PROVIDED TO NAVISITE PRIOR TO THE TRANSACTION DATE IN ALL MATERIAL RESPECTS.
EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THE SERVICES (INCLUDING ALL
ASSOCIATED SOFTWARE) ARE PROVIDED "AS IS" AND CMGI DOES NOT MAKE ANY
REPRESENTATION OR WARRANTY REGARDING THE SAME, AND HEREBY DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE.
7.2. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE ARISING OUT OF CLAIMS
RELATING TO BREACH OF CONFIDENTIALITY OR BASED UPON WILLFUL, MALICIOUS OR
GROSSLY NEGLIGENT CONDUCT OF THE LIABLE PARTY, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING
OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID (AND
AMOUNTS DUE AND PAYABLE) BY NAVISITE UNDER THIS AGREEMENT, REGARDLESS OF WHETHER
ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. EACH
PARTY HEREBY RELEASES THE OTHER PARTY FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR
DEMAND IN EXCESS OF THIS LIMITATION. THE PARTIES ACKNOWLEDGE THAT EACH OF THEM
RELIED UPON THE INCLUSION OF THIS LIMITATION IN CONSIDERATION OF ENTERING INTO
THIS AGREEMENT.
7.3. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE ARISING OUT OF CLAIMS
RELATING TO BREACH OF CONFIDENTIALITY OR BASED UPON WILLFUL, MALICIOUS OR
GROSSLY NEGLIGENT CONDUCT OF THE LIABLE PARTY, IN NO EVENT WILL EITHER PARTY BE
LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL
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OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, REVENUES,
PROFITS OR SAVINGS, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES.
8. Confidentiality. To the extent a party receives, or is otherwise
provided access to, any confidential or proprietary information of the other
party in the course of the parties' performance of this Agreement, such party
shall treat such information in accordance with the provisions of the Mutual
Confidentiality Agreement dated November 25, 2002 by and between CMGI and
NaviSite.
9. Project Managers; Escalation. CMGI and NaviSite will each assign one
person to act as that party's project manager for the activities under this
Agreement. Such project managers shall (i) represent and act for their
respective party for matters hereunder, (ii) receive and provide all
communications between the parties relating to operational matters arising
hereunder, and (iii) meet and/or confer on a regular basis (at mutually agreed
times and locations) to review the activities under this Agreement and to
discuss the status and progress of such activities. All disputes or issues
arising hereunder shall be referred to the project managers for resolution. In
the event any such dispute or issue is not resolved in a timely manner, such
matter shall be referred to senior management representatives, with appropriate
decision making authority, from each party for prompt resolution of the matter.
10. Miscellaneous
10.1 Assignment. Neither NaviSite nor CMGI may, without the prior
written consent of the other party hereto, which consent shall not be
unreasonable withheld delayed or conditional, assign or otherwise transfer to
any third party, by operation of law or otherwise, this Agreement or the rights
and obligations hereunder, and any attempt to assign or otherwise transfer this
Agreement or the rights or obligations hereunder other than in accordance with
the provisions of this section shall be void and of no effect.
10.2 Notices. All notices under this Agreement will be deemed given
when delivered personally, sent by certified or registered U.S. mail return
receipt requested or sent by a nationally-recognized express courier, in each
case to the address shown in the preamble above or as may otherwise be specified
by either party to the other in accordance with this section. In the case of
NaviSite, all notices shall be sent to the attention of Nicholas Damiani.
10.3 Entire Agreement. This Agreement, including any Exhibits,
constitutes the entire agreement and understanding between the parties,
superseding and replacing any and all prior agreements, communications, and
understandings (both written and oral) regarding such subject matter.
10.4 Amendment; Waiver. No term or provision of this Agreement may be
amended or supplemented except by a writing signed by NaviSite and CMGI clearly
stating the parties' intention to amend or supplement this Agreement. No term or
provision of this Agreement may be waived other than by a writing signed by the
party to be bound by such waiver. No waiver by
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a party of any breach of this Agreement will be deemed to constitute a waiver of
any other breach or any succeeding breach.
10.5 No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or to give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
10.6 Execution in Counterparts. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
10.7 Force Majeure. Neither party will be deemed in default of its
performance or obligations hereunder are delayed or become impractical by reason
of any act of God, war, fire, earthquake, labor dispute, sickness, accident,
civil commotion, epidemic, act of government or governmental agency or officers,
or any other cause beyond such party's control.
10.8 Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
10.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts (excluding
application of any choice of law doctrines).
10.10 Severability. If any provision of this Agreement is for any
reason and to any extent deemed to be invalid or unenforceable, then such
provision shall not be voided but rather shall be enforced to the maximum extent
then permissible under then applicable law and so as to reasonably affect the
intent of the parties hereto, and the remainder of this Agreement will remain in
full force and effect.
10.11 Remedies Non-exclusive. Except as otherwise set forth herein, any
remedy provided for in this Agreement is deemed cumulative with, and not
exclusive of, any other remedy provided for in this Agreement or otherwise
available at law or in equity. The exercise by a party of any remedy shall not
preclude the exercise by such party of any other remedy.
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IN WITNESS WHEREOF, CMGI and NaviSite have executed and delivered this
Transition Services Agreement by their duly authorized representatives as of the
Effective Date.
CMGI, INC. NAVISITE, INC.
By: /s/ Thomas Oberdorf By: /s/ Kevin H. Lo
-------------------------------- -------------------------------
Print Name: Thomas Oberdorf Print Name: Kevin H. Lo
------------------------ -----------------------
Title: Chief Financial Officer Title: CFO
----------------------------- ----------------------------
CMGI Legal: MLB
[SIGNATURE PAGE TO TRANSITION SERVICES AGREEMENT]
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EXHIBIT A-1
APPLICATION SERVICES
1. Oracle Financials application - Since the Transaction Date, CMGI has
provided, and until the End Date for Service specified below, CMGI will provide,
NaviSite with access to CMGI's current Oracle Financials system. Access shall be
granted to ten (10) named users specified by NaviSite (if no users are
specified, CMGI will continue to grant access to the ten users who currently
have access to CMGI's Oracle Financials system).
End Date for Service - The earlier to occur of (i) 12/31/02 or (ii)
termination date requested by NaviSite by providing CMGI with at least
30 days prior written notice.
Fee - $12,129 per month. Additional fees will apply if NaviSite
requests, and CMGI agrees to provide, access for additional users in
excess of ten (10).
Transition Plan - NaviSite's migration from CMGI's Oracle Financial
application to a replacement system must be coordinated with CMGI.
CMGI's assistance with such migration activity may be provided by CMGI
on a fee basis and such charges shall be invoiced to, and paid by,
NaviSite in accordance with the invoice and payment terms specified in
this Agreement.
2. Oracle HRIS application - Since the Transaction Date, CMGI has provided, and
until the End Date for Service specified below, CMGI will provide, NaviSite with
access to CMGI's current Oracle HRIS system. Access shall be granted to one (1)
named user specified by NaviSite.
End Date for Service - Three (3) business days following the date that
CMGI provides to NaviSite a data dump, in a mutually agreeable format
(with no changes, modifications or conversions), of NaviSite's data
currently in CMGI's Oracle HRIS application. The parties currently
expect that such data shall be provided on or before October 25, 2002.
Fee - none.
Transition Plan - NaviSite's access to CMGI's Oracle HRIS application
has been reduced to one (1) named user specified by NaviSite. CMGI has
entered into the HRIS system a change to the status of each NaviSite
employee (as of 9/11/02) such that each such employee's employment
shall be recorded as terminated as of 9/11/02, notwithstanding the fact
that each such employee's employment with NaviSite continues beyond
such date. CMGI will work with NaviSite to provide NaviSite with a data
dump, in a mutually agreeable format (with no changes, modifications or
conversions), of NaviSite's data currently in CMGI's Oracle HRIS
system. If NaviSite requests any changes, modifications or conversions
of any such date, and CMGI (in its sole discretion) agrees to perform
such work as needed to provide such data with such requested changes,
modifications or conversions, then CMGI shall perform such work on a
fee basis and such charges shall be invoiced to, and paid by, NaviSite
in accordance with the invoice and payment terms specified in this
Agreement.
[end of Exhibit A-1]
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EXHIBIT A-2
CENTRALIZED IT SUPPORT SERVICES
1. IT Support Services - From the Transaction Date through September 30, 2002,
CMGI provided NaviSite with IT Support Services in the form of four (4)
full-time CMGI employees being assigned to NaviSite to provide IT support to
NaviSite. The four employees were Greg Cushing, Ed Grzasko, Nikhill Majithia and
Michael Tardiff.
End Date for Service - September 30, 2002.
Fee - $2,333 per month for DesktopSupport/Helpdesk allocations, plus
$26,659 per month for charges based on salary/benefit costs for the
four individuals, plus $15,896 representing a portion of the
salary/benefit costs during the 60-day WARN period for the 2 CMGI
employees whose employment was terminated as a result of NaviSite
discontinuing this Service.
Transition Plan - No further IT Support Services will be provided by
CMGI to NaviSite.
[end of Exhibit A-2]
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EXHIBIT A-3
EMPLOYEE HEALTHCARE BENEFITS SERVICES
1. Processing and Payment of Healthcare Benefits Claims - CMGI and its plan
providers, and where applicable, its COBRA administrators, will administer
claims submitted by Covered Individuals (as such term is defined below) with
respect to services covered by the applicable healthcare plan and provided to a
Covered Individual on or after 10/1/01 and prior to 10/1/02 and while such
Covered Individual was covered under one of the healthcare plans offered to
NaviSite employees and their dependents, all in accordance with the terms of the
applicable plans and CMGI's, its plan providers and its COBRA administrators'
policies and past practices. As used herein, "Covered Individuals" shall mean
employees of NaviSite, and their eligible dependents, who were enrolled in one
of the healthcare plans offered generally to NaviSite employees. A person shall
be considered a Covered Individual only for those periods of time during which
such person was enrolled in one of the healthcare plans offered generally to
NaviSite employees. NaviSite has full responsibility for all healthcare benefits
matters relating to healthcare services provided on or after 10/1/02 and for all
matters relating to any of the healthcare plans that, on or after 10/1/02 are
first offered generally to NaviSite employees.
End date for Service - Under the applicable healthcare plans, Covered
Individuals and providers of healthcare services have up to one (1)
year from the date of service in which to submit claims for
reimbursement/payment for such services. This Service shall end when
all claims eligible for payment have been processed.
Fee - CMGI shall submit to NaviSite an invoice for, and NaviSite shall
pay to CMGI, the "working rate" established for each plan for each
Covered Individual enrolled in the plan for each of August 2002 and
September 2002. CMGI and its plan providers, and where applicable, its
COBRA administrators, will administer and pay claims submitted by
Covered Individuals. For each calendar month (including months
preceding the Effective Date), if the sum of (x) the aggregate amount
of claims paid during such month, and (y) the aggregate amount of fees,
costs and other amounts paid to plan providers, claims administrators,
COBRA coverage administrators and the like in connection with this
Service, exceeds the total "working rate" paid by NaviSite to CMGI for
such month, CMGI shall submit to NaviSite an invoice for, and NaviSite
shall pay to CMGI, the amount of such excess. Such amounts shall be
invoiced monthly. There shall be no refund or roll-over (to a
subsequent month) with respect to "working rates" paid by NaviSite.
Transition Plan - n/a
2. Flexible Spending Accounts - CMGI will pay eligible claims submitted for
payment under a NaviSite employee's Flexible Spending Account with regard to
eligible services provided to such employee on or prior to September 11, 2002.
CMGI shall submit to NaviSite an invoice for, and NaviSite shall pay to CMGI,
the aggregate amount of such claims paid for which NaviSite has not reimbursed
CMGI.
[end of Exhibit A-3]
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EXHIBIT A-4
TRAVEL AGENCY SERVICES
1. Travel agency services: Since the Transaction Date, CMGI has provided,
and until the End Date for Service specified below, CMGI will provide NaviSite
with access to the travel agency services provided by Rosenbluth International
via CMGI's Rosenbluth office. Such Services shall consist of those travel agency
services provided to NaviSite by Rosenbluth immediately prior to the Transaction
Date. As part of the Services, NaviSite shall continue be eligible to receive
the pricing afforded under CMGI's agreements with Avis Rent-a-Car System, Inc.,
Alamo Rent A Car, LLC, American Airlines, Inc., US Airways and Northwest
Airlines, Inc.
End date for Service - October 31, 2002.
Fee - For each transaction in which a ticket is issued (e.g. new
reservation, change to existing reservations, etc.), a transaction fee
of $36.00 will be charged to the NaviSite employee's credit card. In
addition, if any NaviSite employee uses Rosenbluth's After Hours
service, CMGI shall charge NaviSite $12.00 per call (such charges shall
be billed to NaviSite monthly in arrears).
Transition Plan - None. NaviSite's usage of such Service shall cease
on 10/31/02.
[end of Exhibit A-4]
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<PAGE>
EXHIBIT B
TERMINATED ARRANGEMENTS
The following arrangements are terminated. Such termination was effective as of
the Transaction Date (unless otherwise specified below):
1. NaviSite's right to purchase products or services from the following vendors
under contracts or arrangements between each vendor and CMGI:
a. Credit card services and related car rental insurance coverage:
American Express Travel Related Services Corp.(Transition plan -
NaviSite's corporate account, and NaviSite's employees' individual
accounts issued under NaviSite's corporate accounts, were terminated on
October 1, 2002. Upon request by CMGI, NaviSite will assist CMGI in
encouraging NaviSite employees who as of the Effective Date have an
outstanding balance on their American Express account, to pay their
American Express bill in full on a timely basis. As a result of
termination of NaviSite's account with American Express, the car rental
insurance coverage previously offered by American Express has been
terminated.).
b. Hardware and software products: Art Technology Group, Inc., Brio
Technology, Inc., Compaq Computer Corporation, EMC Corporation, Discus
Data Solutions, Inc., Kintana, Inc., Microsoft Corporation; and Oracle
Corporation.
c. Payroll services: ADP (Transition plan - NaviSite has transferred such
service to a separate NaviSite account with ADP using a different
company code. No further action by CMGI is required.)
2. NaviSite's right to use certain software licenses granted to CMGI by the
following vendors:
a. Firstlogic, Inc., Hyperion Solutions Corporation, and Interwoven, Inc.
b. Solomon accounting software (Transition plan - CMGI has provided
NaviSite with a data dump of NaviSite's historical accounting
information in Solomon)
3. Coverage of current NaviSite employees under CMGI's health benefit plans
(medical, dental and vision), life insurance plans, short-term and long-term
disability plans, and flexible spending plans terminated as of 10/1/02.
Contributions to NaviSite employees' accounts under CMGI's 401(k) plan
terminated as of 9/11/02. (Transition plan - As of 10/1/02, NaviSite has
sole responsibility of offering to its employees NaviSite's (or CBT's)
health benefit plans (medical, dental and vision), life insurance plans,
short-term and long-term disability plans, and flexible spending plans to
the extent NaviSite elects to offer such benefits to its employees.
Individual's accounts under CMGI's 401(k) plan shall remain under CMGI's
plan, with no new employee or employer-match contributions being made after
9/11/02.)
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<PAGE>
4. Coverage of NaviSite under CMGI's insurance policies (including without
limitation, D&O insurance, workers compensation insurance, and general
commercial liability insurance) (Transition plan - NaviSite is solely
responsible having replacement policies in effect as of 9/12/02.)
[end of Exhibit B]
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<PAGE>
EXHIBIT C
LICENSES TO BE TRANSFERRED
1. Symantec Corporation. (Norton Antivirus software) - promptly after the
Effective Date, licenses to 360 copies of Norton Antivirus software (Corporate
Edition) shall be transferred to NaviSite. NaviSite shall be responsible for
subscribing directly with Symantec to obtain updated virus definition files for
periods of time following the Effective Date.
2. Oracle Systems database licenses - promptly after the Effective Date, the
following power units of the following types of Oracle licenses shall be
transferred to NaviSite from CMGI's account with oracle (CMG's CSI# with Oracle
is 2950452):
Description # of Power Units level
-------------------------------------------------------------------------------
PRODUCTION
Oracle Database-EE 29,020 (RISC) and Web App Spec
4,860 (Intel)
Oracle Partitioning Option 800 Web App Spec
Oracle Tuning Pack 4,400 Web App Spec
Oracle Diagnostic 5,200 Web App Spec
BACKUP
Oracle Database-EE 11,080 Web App Spec
Oracle Partitioning Option 800 Web App Spec
Oracle Diagnostic Pack 800 Web App Spec
Pursuant to Oracle's support policies, as of the Transaction Date, NaviSite's
right to obtain maintenance, service and support from Oracle Systems via CMGI's
account may have terminated. If NaviSite wishes to continue to receive
maintenance, service and support for such software, NaviSite shall be
responsible for subscribing directly with Oracle Systems to obtain maintenance,
service and support for such database licenses for periods of time following the
Effective Date. In order for CMGI to transfer the above-specified licenses to
NaviSite, NaviSite must agree in writing to be bound by the terms of the
agreement and Order Form(s) under which such licenses were originally purchased,
copies of which have been provided to NaviSite by CMGI.
[end of Exhibit C]
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<PAGE>
EXHIBIT D
INTER-COMPANY CHARGES
The following inter-company fees and charges shall be paid by NaviSite as
contemplated by Section 3.4 of this Agreement. All allocations shall be charged
for periods of time through and including the Transaction Date.
1. 401(k) plan employee contributions, employer match and employee loan
[contributions] made by CMGI on behalf of NaviSite for NaviSite's employees'
accounts for all payroll periods through and including the Transaction Date.
2. HR Operations allocation - $5,000/month
3. HR Benefits allocation - $4,333/month
4. HR Compensation allocation - $2,333/month
5. HRIS Administration allocation - $7,333/month
6. Recruiting allocation - $1,000/month
7. Network Services allocation - $5,667/month
8. Desktop Support/Helpdesk allocation - $2,333/month
9. Campus Support allocation - $2,000/month
10. Enterprise Security (Oracle Infrastructure and Support) allocation -
$4,000/month
11. Business Systems (Oracle licenses) allocation - $20,333/month
12. Enterprise Applications Services allocation - $2,000/month
13. Quality Assurance allocation - $1,333/month
14. Desktop Support/Helpdesk personnel (4) salary and benefits - $25,514/month
15. Employee health insurance charges - calculated at the "working rate" for
each plan for each NaviSite employee enrolled in the plan. NaviSite shall pay
the "working rate" through September 30, 2002.
16. Flexible Spending Account payments - calculated based on actual payments
made to NaviSite employees
17. Miscellaneous third-party charges described in Section 3.3 of this
Agreement.
[end of Exhibit D]
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