Exhibit 10.1
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
FIRST AMENDMENT (this "Amendment") dated June __, 2006 to the
Registration Rights Agreement (the "Agreement") dated June 10, 2004, by and
between NaviSite, Inc., a Delaware corporation (the "Company"), and Waythere,
Inc., a Delaware corporation formerly known as Surebridge, Inc. ("Waythere").
All capitalized terms used herein but not otherwise defined shall have the
meanings ascribed to such terms in the Agreement. The Agreement shall continue
in full force and effect in accordance with its terms, except to the extent
amended hereby.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
agree as follows:
(1) Section 1(e) (Incidental Registration) of the Agreement is hereby
deleted in its entirety and of no further force or effect.
(2) Section 1(f) (Limitations of Subsequent Registration Rights) of
the Agreement is hereby deleted in its entirety and of no further force or
effect.
(3) Waythere hereby agrees and covenants that it shall not file, or
cause or permit to be filed, a Form 144 with the Securities and Exchange
Commission with respect to the sale or proposed sale of any shares of the
Company's common stock, $0.01 par value per share (the "Common Stock"),
during the 25 day trading period beginning on June 2, 2006.
(4) Waythere hereby agrees that it shall not sell or otherwise
transfer or dispose (collectively, the "Standstill") of any shares of
Common Stock owned or controlled by it for up to 25 trading days between
June 2, 2006 and December 31, 2006. Waythere and the Company hereby agree
that Friday, June 2, 2006 was the first of such 25 trading days, and that
Waythere shall continue to honor the Standstill after the date hereof until
the earlier of (i) receipt of written notice from the Company that the
Standstill has been suspended; or (ii) the end of the twenty-fifth trading
day after June 2, 2006. The Company shall use its best efforts to provide
at least one day's written notice to Waythere in the event an additional
Standstill is imposed by the Company under this Section 4 after the date
hereof. For the avoidance of doubt, in the event the Company suspends the
Standstill prior to the expiration of the twenty-fifth trading day, the
Company shall be permitted at any time prior to December 31, 2006 to impose
an additional Standstill for up to the number of days equal to 25 less the
number of trading days that were subject to and included within a
Standstill previously imposed by the Company pursuant to this Amendment.
The Company may impose stop-transfer instructions with respect to the
shares of Common Stock owned by it during any Standstill.
(5) The parties hereto hereby agree and acknowledge that the first day
of the 60 day period referenced in Section 1(b)(iv) occurred on June 2,
2006 and that the suspension of the effectiveness of any Registration
Statement and the use of the
Prospectus shall continue pursuant to the terms thereof until Waythere
receives written notice thereof from the Company or until such period
expires by its terms. In addition, the following words "and/or the sales of
the Registrable Securities" shall be deleted from Section 1(b)(iv) of the
Agreement and shall be of no further force or effect.
(6) The Company, or its counsel, shall provide, within five days after
receipt of a written request from Waythere, an appropriate legal opinion to
the Company's transfer agent with respect to Rule 144(K) of the Securities
Act of 1933, as amended (the "Securities Act"), provided that all
appropriate documentation that is reasonably requested by the Company or
its counsel is received on such date. In addition, the Company, or its
counsel, shall provide, within two business days after receipt of a written
request from Waythere, an appropriate legal opinion to the Company's
transfer agent with respect to sales by Waythere pursuant to Rule 144 of
the Securities Act, provided that all appropriate documentation and
representation letters that are reasonably requested by the Company or its
counsel is received on such date. Notwithstanding the foregoing, the
Company and its counsel shall have no obligations under this Section 6 in
the event (i) the Company or its counsel reasonably determines that
Waythere is not compliant with the requirements of Rule 144(K) or Rule 144;
or (ii) Waythere is then subject to a Standstill.
(7) The definition of "Initial Registrable Securities" is hereby
amended and restated in its entirety to mean (a) the "Parent Shares" under
the Purchase Agreement and (b) any shares of capital stock issued or
issuable, from time to time, upon any reclassification, share combination,
share subdivision, stock split, share dividend, merger, consolidation or
similar transaction or event or otherwise as a distribution on, in exchange
for, of or with respect to, the shares of Common Stock described in (a), in
each case held at the relevant time by an Investor. As to any particular
securities, such securities will cease to be Initial Registrable Securities
(i) when they have been transferred in a public offering registered under
the Securities Act, (ii) when they have been transferred in a sale made
through a broker, dealer or market-maker pursuant to Rule 144 under the
Securities Act, (iii) when the Investors (including for this purpose the
stockholders of Waythere) are or would be able to sell all of such
securities under Rule 144 under the Securities Act during any 90-day period
without restriction (including without limitation, as to volume by the
holder thereof), (iv) on January 1, 2007, or (v) when they have been
transferred other than as permitted by the Purchase Agreement, the Notes
and this Agreement.
(8) Section 1(a)(ii) is hereby amended to read in its entirety "The
Company shall use its reasonable best efforts to cause any such Initial
Registration Statement described in Section 1(a)(i) to remain effective (or
if required by applicable law, to cause another Registration Statement with
respect to the Initial Registrable Securities to become effective) until
the earlier of (i) such time as all of such securities have been sold by
Waythere and (ii) December 31, 2006."
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment, or caused this Amendment to be duly executed on its behalf, as of the
date first written.
NAVISITE, INC.
By: /s/ John J. Gavin, Jr.
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Name: John J. Gavin, Jr.
Title: Chief Financial Officer
WAYTHERE, INC.
By: /s/ Mathew Hills
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Name: Mathew Hills
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Title: Director
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