EXHIBIT 99.2
INTER-COMPANY AGREEMENT
THIS INTER-COMPANY AGREEMENT (the "Agreement") is made and entered into as
of February 22, 2000 between CMGI Inc., a Delaware corporation ("CMGI"), and
NaviSite, Inc., a Delaware corporation and a majority-owned subsidiary of CMGI
("NaviSite").
WHEREAS, pursuant to the Stock Purchase Agreement (the "Purchase
Agreement") entered into as of February 16, 2000 by and among CMGI, NaviSite,
ClickHear Inc., a Nevada corporation (the "Company"), and the Stockholders of
Company (the "Stockholders"), the Stockholders will acquire shares of the common
stock, $.01 par value per share, of CMGI ("CMGI Common Stock") and CMGI will
acquire all of the issued and outstanding shares of the Company (the "Company
Shares"). Capitalized terms used herein but not defined herein shall have the
meaning set forth in the Purchase Agreement.
WHEREAS, pursuant to the Purchase Agreement, CMGI has agreed to contribute
to NaviSite all of the Company Shares and NaviSite has agreed to issue and
deliver to CMGI shares of common stock, $.01 par value per share, of NaviSite
("NaviSite Common Stock")
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. Purchase Agreement Transactions.
(a) Contribution. On the date hereof, CMGI hereby agrees to contribute
to NaviSite, and NaviSite hereby agrees to accept from CMGI, all of the Company
Shares held by CMGI in the consideration for a number of shares of NaviSite
Common Stock determined in accordance with the Purchase Agreement.
(b) Returned Escrow Shares. If any cash amounts are paid by a
Stockholder to CMGI pursuant to any indemnification obligations in the Purchase
Agreement, CMGI shall promptly deliver such cash amount to NaviSite. If any
shares of CMGI Common Stock are surrendered by a Stockholder to CMGI in payment
of any indemnification obligation in the Purchase Agreement, pursuant to
Sections 5.6 or 5.7 of the Purchase Agreement or as a result of forfeiture under
a Stock Restriction Agreement, CMGI shall transfer to NaviSite a number of
shares of NaviSite Common Stock equal to the number of such shares of CMGI
Common Stock multiplied by the ratio of the average closing price of the CMGI
Common Stock to that of the NaviSite Common Stock over the five (5) consecutive
trading days ending on the trading day that is three (3) trading days prior to
the Closing Date of the Purchase Agreement, each as adjusted for any subsequent
stock splits, stock dividends or similar events. In the event the shares of
NaviSite Common Stock received by CMGI pursuant to Section 1(a) are exchanged
for cash, securities or other property pursuant to a merger, consolidation or
other acquisition of NaviSite, CMGI may, in lieu of transferring shares of
NaviSite Common Stock to NaviSite pursuant to this Section 1(c), transfer the
cash, securities or other property received by CMGI with respect to the number
of shares of NaviSite Common Stock otherwise required to be transferred by CMGI
to NaviSite hereunder.
(c) Indemnity. NaviSite shall have primary authority to enforce
indemnification provisions of the Purchase Agreement. NaviSite and CMGI shall
use commercially reasonable efforts to enforce the indemnification rights of
CMGI and NaviSite under Article IV of the Purchase Agreement, and any rights of
CMGI to recover shares of CMGI Common Stock under Sections 5.6 or 5.7 of the
Purchase Agreement and under the Stock Restriction Agreements; provided that
NaviSite shall reimburse CMGI for any fees and expenses incurred by CMGI in
enforcing such rights.
(d) No Remedy. NaviSite agrees and acknowledges that it shall have no
remedies under Article III of the Purchase Agreement against CMGI for any
indemnification claim which it may have under such Article III and that it shall
not seek to assert any right to indemnification under such Article III against
CMGI.
(e) Responsibility for Representations. As between CMGI and NaviSite,
any liability arising from a breach of any representation in Article III of the
Purchase Agreement relating to CMGI shall be the responsibility of CMGI.
(f) Responsibility for Covenants. As between CMGI and NaviSite, any
liability arising from a breach of any covenant in Article V of the Purchase
Agreement relating to CMGI shall be the responsibility of CMGI and any liability
arising from a breach of any covenant in Article V relating to NaviSite shall be
the responsibility of NaviSite.
2. NaviSite Representations.
(a) Organization. NaviSite is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
(b) Authorization of Transaction. NaviSite has all requisite power and
authority to execute and deliver this Agreement, the Escrow Agreement and the
Purchase Agreement and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Escrow Agreement and the Purchase
Agreement and the consummation of the transactions contemplated hereby and
thereby by NaviSite have been duly and validly authorized by all necessary
corporate action on the part of NaviSite. This Agreement, Escrow Agreement and
the Purchase Agreement have been duly and validly executed and delivered by the
Buyer and constitute valid and binding obligations of NaviSite, enforceable
against it in accordance with their terms.
(c) Reports and Financial Statements. NaviSite has previously furnished
to the CMGI complete and accurate copies, as amended or supplemented, of all
reports filed by the Buyer under Section 13 of the Exchange Act with the SEC
(such reports are collectively referred to herein as the "NaviSite Reports").
The NaviSite Reports constitute all of the documents required to be filed by
NaviSite under Section 13 of the Exchange Act with the SEC. As of their
respective dates, the NaviSite Reports did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of NaviSite
included in the NaviSite Reports (i) comply as to form in all material respects
with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, (ii) have been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods covered thereby (except as may be indicated therein or in the notes
thereto, and in the case of quarterly financial statements, as permitted by Form
10-Q under the Exchange Act), (iii) fairly present the consolidated financial
condition, results of operations and cash flows of NaviSite as of the respective
dates thereof and for the periods referred to therein, and (iv) are consistent
with the books and records of the NaviSite.
(d) Absence of Material Adverse Changes. Since October 31, 1999, there
has not been any material adverse change in the assets, business, financial
condition or results of operations of the NaviSite, other than those that are
disclosed in the NaviSite Reports.
(e) Brokers' Fees. NaviSite has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
3. Miscellaneous.
(a) No Third Party Beneficiaries. The purpose of this Agreement is to
provide for the equitable adjustment of amounts due NaviSite and CMGI with
respect to the acquisition of the Company by NaviSite as set forth above and
shall not under any circumstances be deemed to create any rights in, or confer
any benefits upon, any third party or parties (including, without limitation,
the former Company Shareholders) in any respect. Nothing herein shall be
construed as waiving or affecting any respective rights of the parties hereto
with respect to any amounts held in the Escrow or with respect to any
indemnification obligations or otherwise.
(b) Entire Agreement. This Agreement and the Purchase Agreement and the
documents referred to herein and therein constitute the entire agreement among
CMGI and NaviSite and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, with respect to the
subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval of
the other party.
(d) Counterparts and Facsimile Signature. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signature.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered as provided
in the Purchase Agreement.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the Commonwealth of
Massachusetts.
(h) Amendments and Waivers. The parties may mutually amend any
provision of this Agreement at any time. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by both
of the parties. No waiver of any right or remedy hereunder shall be valid unless
the same shall be in writing and signed by the party giving such waiver. No
waiver by any party with respect to any default, misrepresentation or breach of
warranty or covenant hereunder shall be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified.
(j) Construction. The language used in this Agreement shall be deemed
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise.
(k) Capitalized terms. Capitalized terms used herein which are defined
in the Purchase Agreement have the same meanings herein as therein, except to
the extent that such meanings are amended hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CMGI, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President, Corporate Development
NAVISITE, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
