EXHIBIT 10.11
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FACILITIES AND ADMINISTRATIVE SUPPORT AGREEMENT
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THIS FACILITIES AND ADMINISTRATIVE SUPPORT AGREEMENT dated as of
____________, 1999 is made between CMGI, Inc. ("CMGI"), a Delaware corporation,
and NaviSite, Inc. ("NaviSite"), a Delaware corporation.
Preliminary Statement
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NaviSite desires to obtain administrative and other services from CMGI, and
CMGI is willing to furnish or make such services available to NaviSite.
By this Agreement, CMGI and NaviSite desire to set forth the basis for
CMGI's provision of services of the types referred to herein.
Agreements
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IT IS MUTUALLY agreed by CMGI and NaviSite (collectively the "Parties")
as follows:
1. Provision of Services. Beginning on the date of this Agreement, CMGI will
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provide or otherwise make available to NaviSite those CMGI-supplied
services and third-party-supplied services paid for by CMGI on the bases
set forth on Schedule A and Schedule B attached hereto and consistent with
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the parties' practices as of the date hereof (collectively the "Services").
2. Billing and Payment. CMGI shall submit monthly invoices to NaviSite for
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the Services, and NaviSite shall make payment within 30 days after its
receipt of such invoices. Each invoice shall be itemized by the Service
provided.
3. Term and Termination. The initial term of this Agreement shall begin on the
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date of this Agreement and continue for a period of one year. This
Agreement shall automatically renew at the end of the initial term for
successive one-year periods unless terminated or modified in accordance
with the following provisions:
(a) Entire Agreement. Either party may elect not to renew this Agreement,
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except for the Services set forth on Schedule A, upon 180 days'
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written notice the other party prior to the expiration of the initial term
or any renewal period.
(b) Individual Services. Either party may terminate an individual Service
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or Services, except for the services set forth on Schedule A, upon 90
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days' written notice to the other party.
(c) Rent and Related Services. Either party may terminate those Services
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set forth on Schedule A upon 30 days' written notice to the other
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party prior to the expiration of the end of the initial term or any
renewal period. [In addition, those services set forth on Schedule A
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shall terminate effective upon the last day of the month in which
NaviSite notifies CMGI that either (i) NaviSite's new facility at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ is ready to be occupied by
NaviSite or (ii) Navisite has vacated completely CMGI's facility at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, whichever is later.]
(d) Material Breach. Either party may terminate this Agreement in the
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event of a material breach of this Agreement by the other party that
is not cured within 30 days of written notice thereof from the other
party.
(e) Automatic Termination. This Agreement, other than the services set
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forth on Schedule A, shall automatically terminate upon the date on
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which the ownership by CMGI of the outstanding voting capital stock of
NaviSite shall first be less than 50% of the then outstanding voting
capital stock of NaviSite.
4. Limitation on Liability. Neither party shall be liable to the other for
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any amount in excess of the amount invoiced to NaviSite for the 12-month
period preceding any event giving rise to liability. Neither party shall be
liable to the other for consequential damages except for those arising out
of intentional misconduct or gross negligence.
5. Force Majeure. CMGI shall be excused for failure to provide the Services
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hereunder to the extent that such failure is directly or indirectly caused
by an occurrence commonly known as force majeure, including, without
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limitation, delays arising out of acts of God, acts or orders of a
government, agency or instrumentality thereof (whether of fact or law),
acts of public enemy, riots,
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embargoes, strikes or other concerted acts of workers (whether of CMGI or
other persons), casualties or accidents, delivery of materials,
transportation or shortage of cars, trucks, fuel, power, labor or materials
or any other causes, circumstances or contingencies within or without the
United States of America that are beyond the control of CMGI; provided,
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however, that CMGI shall use its best efforts to resume provision of the
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Services as soon as possible. Notwithstanding any events operating to
excuse performance by CMGI, this Agreement shall continue in full force for
the remainder of its term and any renewals thereof.
6. Notices. All notices, ▇▇▇▇▇▇▇▇, requests, demands, approvals, consents and
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other communications which are required or may be given under this
Agreement shall be in writing and will be deemed to have been duly given if
delivered person ally or sent by registered or certified mail, return
receipt requested, postage prepaid to the parties at their respective
addresses set forth below:
If to NaviSite: If to CMGI:
NaviSite, Inc. CMGI, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer Attn: Chief Financial Officer
7. No Assignment. This Agreement shall not be assignable except with the prior
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written consent of the other party to this Agreement.
8. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed therein.
9. Amendments. This Agreement and all attachments hereto constitute the entire
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agreement between the parties as to the subject matter hereof and supercede
all prior negotiations, undertakings, representations and agreements, if
any, of the parties hereto as to the subject matter hereof. This Agreement
may not be amended orally but may be amended only by a written instrument
signed by all of the parties hereto.
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10. Waivers. The failure of either party to require strict performance by the
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other party of any provision in this Agreement will not waive or diminish
that party's right to demand strict performance thereafter of that or any
other provision hereof.
11. Paragraph Titles. The paragraph titles used in this Agreement are for
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convenience of reference only and will not be considered in the
interpretation or construction of any of the provisions thereof.
12. Counterparts; Facsimile Signatures. This Agreement may be executed in two
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counterparts, each of which shall be deemed to be an original and both of
which together shall constitute one and the same document. This Agreement
may be executed by facsimile signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CMGI, INC. NAVISITE, INC.
By:__________________________ By:___________________________
Name:________________________ Name:_________________________
Title:_______________________ Title:________________________
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Schedule A
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Rent and Related Services
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Services Provided by CMGI to Allocation of Cost to NaviSite
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NaviSite
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1. Brickstone Square Rent. Provision Allocated based on headcount
of space located at the Andover for NaviSite divided by
Premises (approximately [11,000] headcount for the CMGI
square feet). Companies located at the
Andover Premises.
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2. Facilities. Salary, fringe Allocated based on: (a)
benefits payroll taxes for the entire percentage of time that the
facility department. facilities department de
votes to the Andover
Premises, and (b) headcount
for NaviSite divided by
headcount for the CMGI
Companies located at the
Andover Premises.
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3. Mass Electric. Utilities pro- Allocated based on headcount for
provided by Massachusetts Electric. NaviSite divided by headcount for
the CMGI Companies located at the
Andover Premises.
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4. Office Cleaning Plant Maintenance. Allocated based on headcount for
NaviSite divided by headcount for
the CMGI Companies located at the
Andover Premises.
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Defined Terms:
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Andover Premises - those premises located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ leased by CMGI.
CMGI Companies - those companies which are controlled by CMGI or
in which CMGI holds an equity interest.
headcount - the number of employees employed by a particular
company on the last day of a given month.
Schedule B
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Provision of Other Services
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Services Provided by CMGI to Allocation of Cost to NaviSite
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NaviSite
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1. [CMG Europe. All overhead [NaviSite is charged 50% of all costs
costs for CMGI's European office of associated with the European office.]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, his assistant and
accountant.]
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2. Internet Marketing. Salary, NaviSite is one of six CMGI Internet
fringe benefits and taxes for companies and absorbs [16]% of total
[▇▇▇▇ ▇▇▇▇▇ and his assistant costs.
(both at CMGI)].
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3. Internet Development. Salary, NaviSite is one of six CMGI Internet
fringe benefits and taxes for [▇▇▇▇ companies and absorbs [16]% of total
▇▇▇▇▇▇▇▇ and his assistant (both at costs.
CMGI)].
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4. Medical. Monthly medical insurance Allocated based on the number of
premium. employees at NaviSite enrolled in the
medical insurance plan divided by
the number of employees at the CMGI
Companies enrolled in the medical
insurance plan, offset by amounts
withheld from employees' pay .
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5. Dental. Monthly dental insurance Allocated based on the number of
premium. employees at NaviSite enrolled in the
dental insurance plan divided by the
number of employees at the CMGI
Companies enrolled in the dental
insurance plan, offset by amounts
withheld from employees' pay.
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Services Provided by CMGI to Allocation of Cost to NaviSite
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NaviSite
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6. Life and Long-term Disability. Allocated based on headcount for
Monthly insurance premium. NaviSite divided by headcount for the
CMGI Companies located at the
Andover Premises. (All employees of
the CMGI Companies receive life and
long-term disability insurance.)
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7. Federal Express United Parcel CMGI's Accounts Payable department
Service. codes each individual charge based on
the identity of the sender.
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8. Pepsi Poland Springs. Allocated based on headcount for
NaviSite divided by headcount for the
CMGI Companies located at the
Andover Premises.
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9. Telephone. Provision of com Modem, fax and 800 lines are charged
mon, modem, fax and 800 lines. to NaviSite or the individual
employee who is designated to that
particular line. Common inbound and
outbound lines are allocated based on
headcount for NaviSite divided by
headcount for the CMGI Companies
located at the Andover Premises.
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10. MobilComm Pageet Skytel Charged back to the person or
Cellular One. department which is assigned that
particular pager or cell phone.
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11. Maxout Fitness. Fitness club Allocated based on the number of
membership. employees at NaviSite who belong to
the fitness club. The cost is
offset by the fitness club dues that
are withheld from the paycheck of
each employee who is a member of
the fitness club.
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Services Provided by CMGI to Allocation of Cost to NaviSite
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NaviSite
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12. Legal Services. To the extent that legal fees and
expenses of NaviSite are paid for by
CMGI, such fees and expenses will be
allocated based upon the actual use
of the legal services.
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13. KPMG. Preparation of yearly To the extent that legal fees and
income tax returns. expenses of NaviSite are paid for by
CMGI, such fees and expenses will be
allocated based upon the actual
use of KPMG services.
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14. Funding Flex Spending. Charged for amounts reimbursed to an
employee through the flexible
spending account on a person by
person basis.
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15. The TPA Fees. Administration Allocated based on number of
of the flexible spending program. employees at NaviSite enrolled in
the program divided by the number
of employees at the CMGI Companies
enrolled in the program.
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16. 401K and 401K Match Funding. NaviSite credits the 401K
contribution and 401K matching
contribution each month from its
payroll entry to a 401K withholding
account. Upon funding the 401K, CMGI
charges back the funds to NaviSite.
NaviSite then charges those funds to
the 401K withholdings account.
There is usually a lag time of 15
days to 30 days for funding the
401K.
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Defined Terms
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Andover Premises - those premises located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ leased by CMGI.
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CMGI Companies - those companies that are controlled by CMGI or in which
CMGI holds an equity interest.
headcount - the number of employees employed by a particular
company on the last day of a given month.
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