SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED
IN STATEMENTS FILED
PURSUANT TO RULE 13d-1(a)
AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
(Amendment No. 4)
NaviSite, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
63935M109
(CUSIP Number)
Greg Underwood
ClearBlue Technologies, Inc.
100 First Street, Suite 2000
San Francisco, California 94105
(415) 869-7100
(Name, address and telephone number of person authorized
to receive notices and communications)
February 19, 2003
(Date of Event which requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g) check the following box
[ ].
(Continued on following pages)
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ClearBlue Technologies, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
[X]
(b)
[
]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 1,213,037 (See Item 5)
EACH --------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH --------------------------------------------------------------
10.SHARED DISPOSITIVE POWER
1,213,037 (See Item 5)
-----------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,213,037 (See Item 5)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
51.36% (See Item 5)
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14. TYPE OF REPORTING PERSON
CO
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ClearBlue Atlantic, LLC
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
[X]
(b)
[
]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 8,678,577
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 20,240,971 (See Item 5)
EACH --------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 8,678,577
WITH --------------------------------------------------------------
10.SHARED DISPOSITIVE POWER
20,240,971 (See Item 5)
-----------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,240,971 (See Item 5)
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
85.71% (See Item 5)
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
-------------------------------------------------------------------------------
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Atlantic Investors, LLC
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
[X]
(b)
[
]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 8,678,577
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 20,240,971 (See Item 5)
EACH --------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 8,678,577
WITH --------------------------------------------------------------
10.SHARED DISPOSITIVE POWER
20,240,971 (See Item 5)
-----------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,240,971 (See Item 5)
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
85.71% (See Item 5)
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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Amendment No. 4 to Schedule 13D
This statement constitutes Amendment No. 4 to the Schedule 13D relating
to the common stock, par value $.01 per share (the "Common Stock") of NaviSite,
Inc. (the "Issuer") filed jointly by ClearBlue Technologies Equity, Inc.,
("CBTE"), ClearBlue Finance, Inc. ("CBF"), ClearBlue Technologies, Inc.
("ClearBlue"), ClearBlue Atlantic LLC ("CBA"), and Atlantic Investors LLC ("AI")
on September 18, 2002. This statement is being filed in order to amend Items 6
and 7.
Item 6. Contracts, Arrangements, Understandings or Relationships
Involving Securities of the Issuer.
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On February 19, 2003, ClearBlue Atlantic entered into a Shareholders
Agreement with Hewlett-Packard Financial Services Company ("HPFS") pursuant to
which, during the term of such agreement (i) in the event HPFS proposes to sell
any or all of its Common Stock, HPFS shall give ClearBlue Atlantic a right of
first refusal to purchase such Common Stock, (ii) in the event ClearBlue
Atlantic proposes to sell any or all of its Common Stock, HPFS shall have a
proportional right to sell any or all of its shares to the prospective
transferee of ClearBlue Atlantic and (iii) in the event ClearBlue Atlantic and
the Board of Directors of the Issuer approve a bona fide sale of all of the
Common Stock to an unaffiliated third party, HPFS shall vote for, consent to and
raise no objection against such sale.
To the best of the Filing Persons' knowledge, except as described
above, there are no contracts, arrangements, understandings or relationships
(legal or otherwise) between the Filing Persons and any other person with
respect to any securities of the Issuer, including but not limited to transfer
or voting of any such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item 7. Material To be Filed as Exhibits.
--------------------------------
Exhibit A: Officers and Directors of CBTE, CBF, ClearBlue, ClearBlue Atlantic
and Atlantic Investors.**
Exhibit B: Joint Filing Agreement dated as of September 16, 2002 between CBTE,
CBF and ClearBlue.*
Exhibit C: The Note and Stock Purchase Agreement dated as of
September 11, 2002 between CMGI and ClearBlue.*
Exhibit D: The Note and Stock Purchase Agreement dated as of
September 11, 2002 between HPFS and ClearBlue.*
Exhibit E: Joint Filing Agreement dated as of December 20, 2002 between
CBTE, CBF, ClearBlue, ClearBlue Atlantic and Atlantic
Investors.**
Exhibit F: Shareholders Agreement between ClearBlue Atlantic LLC and
Hewlett-Packard Financial Services Company dated February 19, 2003.
* Incorporated by reference to the Schedule 13D filed by ClearBlue on September
18, 2002.
** Incorporated by reference to Amendment No. 3 to the Schedule 13D filed by
ClearBlue on December 20, 2002.
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Dated: February 28, 2003
CLEARBLUE TECHNOLOGIES EQUITY, INC.
By: _/s/ Gabriel Ruhan
Name: Gabriel Ruhan
Title: Vice President
CLEARBLUE FINANCE, INC.
By:_/s/ Gabriel Ruhan
Name: Gabriel Ruhan
Title: Vice President
CLEARBLUE TECHNOLOGIES, INC.
By: _/s/ Gabriel Ruhan
Name: Gabriel Ruhan
Title: Chief Financial Officer
CLEARBLUE ATLANTIC LLC
By: Atlantic Investors, LLC, its Managing Member
By Madison Technology LLC, a Managing member
By: /s/ Arthur Becker
Name: Arthur Becker
Title: Managing Member
ATLANTIC INVESTORS LLC
By: Madison Technology LLC, a Managing Member
By: /s/ Arthur Becker
Name: Arthur Becker
Title: Managing Member
Exhibit F
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "Agreement") is entered into this 19th day of
February, 2003 by and among ClearBlue Atlantic LLC, ("ClearBlue Atlantic"), and
Hewlett-Packard Financial Services Company ("HPFS," and together with ClearBlue
Atlantic, the "Stockholders").
Recitals
WHEREAS, the Stockholders own certain shares of common stock (the "Common
Stock") of NaviSite, Inc. (the "Company"); NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties to this
Agreement hereby agree as follows: 1. Right of First Refusal.
1.1 If at any time a Minority Stockholder (as defined in Section 4 below)
proposes to sell all or any of its shares of Common Stock (the
"Minority Shares") to any person other than a Permitted Transferee, as
hereinafter defined, such stockholder (the "Offering Stockholder")
shall deliver to the Majority Stockholder (as defined in Section 4
below) written notice of such proposal (the "Notice"). The Notice shall
describe the number of Minority Shares to be sold, the price offered to
be paid for such shares (the "Offered Price") and the nature of the
transfer. The Majority Stockholder shall have ten (10) business days
from the date of receipt of the Notice to deliver to the Offering
Stockholder written notice exercising the Majority Stockholder's right
to purchase the number of Minority Shares specified in the terms of the
Notice at the Offered Price (the "Purchase Notice"). Promptly after
receipt by the Offering Stockholder of the Purchase Notice, if any, the
Majority Stockholder and the Offering Stockholder shall enter into
definitive transaction documents for the purchase of such shares by the
Majority Stockholder at the Offered Price upon the terms and conditions
stated in the Notice.
1.2 If the Majority Stockholder does not deliver the Purchase Notice to the
Offering Stockholder within the ten (10) day period, the Offering
Stockholder shall have forty-five (45) calendar days from the date on
which the Notice was delivered to the Majority Stockholder to complete
the proposed sale of shares contemplated pursuant to the terms of the
Notice. If at the end of the forty-five (45) day period the Offering
Stockholder has not completed such sale, the provisions of this Section
1 must be satisfied again before the shares subject to the Notice may
be sold.
1.3 A "Permitted Transferee" shall mean any Minority Stockholder, a
Minority Stockholder's Affiliates, or any such Minority Stockholder's
or Minority Stockholder's Affiliate's parents, spouse, children, or
grandchildren or a trust for the benefit of any of the foregoing,
provided that such Permitted Transferee agrees in writing to be bound
by the terms of this Agreement. An "Affiliate" shall mean, with respect
to a Minority Stockholder, any person that, directly or indirectly,
controls, is controlled by, or is under common control with, such
Minority Stockholder, whether by contract, through one or more
intermediaries, or otherwise.
1.4 Notwithstanding the foregoing, the provisions of Section 1 shall not
apply to the sale of any Minority Shares pursuant to Sections 4 or 5
of this Agreement.
2. [Reserved].
3. [Reserved].
4. Tag Along Rights.
4.1 If at any time ClearBlue Atlantic and any of its affiliates (the
"Majority Stockholder(s)") desire(s) to sell or transfer any or all of
the Common Stock owned by the Majority Stockholder(s) (the "Majority
Shares") pursuant to a bona fide offer from any unaffiliated third
party (the "Prospective Transferee"), the Majority Stockholder(s) shall
deliver written notice (the "Tag-Along Offer") to HPFS and any
stockholders who acquired shares directly or indirectly from HPFS and
who are parties to this Agreement (HPFS and any such person who has
acquired such shares being collectively referred to herein as the
"Minority Stockholders") giving the Minority Stockholders the right to
sell any or all of their shares of the Common Stock in accordance with
this Section 4. The Tag-Along Offer shall disclose the identity of the
Prospective Transferee, the number of Majority Shares proposed to be
sold, the total number of shares of Common Stock owned by the Majority
Stockholder(s), the terms and conditions, including price, of the
proposed sale, and any other material facts relating to the proposed
sale.
4.2 Each Minority Stockholder shall have the right, exercisable as set
forth below, to accept the Tag-Along Offer for any or all of their
shares of Common Stock on the terms set forth in the Tag-Along Offer;
provided, that no Minority Stockholder shall be obligated (x) to
provide any indemnity for the representations, warranties or covenants
of the Majority Stockholder(s) or (y) to make any representations or
warranties other than with respect to its authority and its ownership
of the Common Stock. Each Minority Stockholder shall, within ten (10)
business days after receipt of the Tag-Along Offer, provide the
Majority Stockholder(s) with an irrevocable written notice (the
"Exercise Notice") specifying the maximum number of shares of Common
Stock then held by such Minority Stockholder that the Minority
Stockholder desires to sell. Any Minority Stockholder that does not
accept the Tag-Along Offer within ten (10) business days following its
receipt thereof, by delivering an Exercise Notice in accordance with
this Section 4.2, shall be deemed to have waived any and all rights
under this Section 4 with respect to the sale pursuant to such
Tag-Along Offer. Delivery of the Exercise Notice by a Minority
Stockholder shall constitute an irrevocable acceptance of the Tag-Along
Offer by such Minority Stockholder for all of the shares specified in
the Exercise Notice. To the extent that the Prospective Transferee is
unwilling to purchase all of the shares proposed to be sold by the
Majority Stockholder(s) and the Minority Stockholders, the number of
shares to be sold by each shall be reduced pro rata such that the
aggregate amount of shares to be purchased from the Majority
Stockholder(s) and the Minority Stockholders is acceptable to the
Prospective Transferee.
4.3 Not less than ten (10) business days prior to the proposed date of any
sale pursuant to a Tag-Along Offer, the Majority Stockholder(s) shall
notify the Minority Stockholders that have delivered an Exercise Notice
of the proposed sale date and the number of shares of Common Stock to
be sold be each Majority Stockholder and Minority Stockholder. Not less
than five (5) business days prior to the proposed sale date, each
Minority Stockholder shall deliver to the Majority Stockholder(s) a
limited power-of-attorney authorizing the Majority Stockholder(s) to
transfer such Minority Stockholder's shares pursuant to the terms and
conditions set forth in the Tag-Along Offer.
4.4 The Majority Stockholder(s) will have ninety (90) calendar days from
the date on which the Tag-Along Offer is delivered to the Minority
Stockholders to consummate the sale of shares contemplated in the
Tag-Along Offer on substantially the same terms contained in the
Tag-Along Offer. If at the end of such ninety (90) day period the
Majority Stockholder(s) have not completed such sale (for any reason
other than a failure of any Minority Stockholder to perform its
obligations under this Section 4), the right of the Majority
Stockholder(s) to effect such sale shall terminate, and the provisions
of this Section 4 must be satisfied again before the Offered Securities
may be issued and sold.
4.5 Notwithstanding anything contained in this Section 4, there shall be no
liability on the part of the Majority Stockholder(s) to the Minority
Stockholders if the sale of shares pursuant to this Section 4 is not
consummated for whatever reason whatsoever. The decision as to whether
to effect a sale pursuant to this Section 4 is in the sole and absolute
discretion of the Majority Stockholder(s).
5. Drag-Along Rights.
If the Board of Directors of the Company and the Majority Stockholder
(s)approve a bona fide sale of all of the Company's Common Stock to an
unaffiliated third party pursuant to which all Stockholders
will receive identical consideration for their shares of Common
Stock, the Minority Stockholders shall vote for, consent to, and
raise no objection against, such sale. If the sale is structured as a
merger or consolidation, the Minority Stockholders shall (i) waive
any dissenters' rights, appraisal rights or similar rights in
connection therewith, (ii) agree to sell all of their shares on the
same terms and conditions applicable to the Majority Stockholder(s)
(provided, that no Minority Stockholder shall be obligated to make
any representations, warranties or covenants except as to
ownership and title of its shares of Common Stock), and (iii) take
all commercially reasonable actions in connection with the
consummation of the sale and the distribution of the aggregate
consideration from such sale as requested by the Majority
Stockholder (s).
6. [Reserved].
7. After-Acquired Shares. All of the provisions of this Agreement
shall apply to all shares of the Company's equity securities
now owned by or which may be issued or transferred hereafter
to any of the parties hereto or any persons who become parties
hereto in consequence of any additional issuance, purchase,
exchange, conversion or reclassification of the Company's
equity securities, corporate reorganization, or any form of
recapitalization, consolidation, merger, share split, share
dividend, distribution or transfer or which are acquired by
such person in any manner whatsoever.
8. [Reserved].
9. Termination. This Agreement shall remain in effect until the
earlier to occur of (i) the tenth (10th) anniversary of the
date hereof and (ii) with respect to any Stockholder, the date
on which such Stockholder no longer owns any shares of the
Common Stock.
10. Legend.
(a) Concurrently with the execution of this Agreement, there shall
be imprinted or otherwise placed, on certificates representing
the Common Stock the following restrictive legend (the
"Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A SHAREHOLDERS AGREEMENT DATED AS OF JANUARY 28,
2003, WHICH PLACES CERTAIN RESTRICTIONS ON THE SALE, PLEDGE, TRANSFER,
HYPOTHECATION AND VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON
ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO HAVE AGREED TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH SHAREHOLDERS
AGREEMENT. A COPY OF SUCH SHAREHOLDERS AGREEMENT WILL BE FURNISHED TO
THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN
REQUEST TO CLEARBLUE ATLANTIC, LLC AT ITS PRINCIPAL PLACE OF BUSINESS."
11. Miscellaneous.
11.1 Further Assurances. Each of the parties hereto shall perform such
further acts and execute such further documents as may be reasonably
necessary to carry out and give full effect to the provisions of this
Agreement and the intentions of the parties as reflected thereby.
11.2 Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto with respect to the transactions contemplated
herein, and supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for
herein.
11.3 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors,
heirs, executors, administrators, legal representatives and permitted
assigns.
11.4 Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement
shall be effective against the Stockholders unless such modification,
amendment or waiver is approved in writing by all the Stockholders. The
failure of any party to enforce any of the provisions of this Agreement
shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11.5 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable law, then
such provision shall be excluded from this Agreement and the remainder
of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms;
provided, however, that in such event, this Agreement shall be
interpreted so as to give effect, to the greatest extent consistent
with and permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of competent
jurisdiction.
11.6 Governing Law. This Agreement, the rights and obligations of the
parties hereto and any claims or disputes relating hereto, shall be
governed by and construed in accordance with the substantive laws of
the state of Delaware, excluding the choice of law provisions thereof.
11.7 Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, mailed by certified mail
(postage prepaid and return receipt requested), sent by reputable
overnight courier service (charges prepaid) or transmitted by facsimile
to each party at the address set forth below. Notices shall be deemed
to have been given hereunder when delivered personally or by facsimile,
three (3) calendar days after deposit in the U.S. mail and one (1)
calendar day after deposit with a reputable overnight courier service
to the party's address listed on the signature pages of this Agreement.
11.8 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
11.9 Assignment. The provisions of this Agreement shall be binding upon
the successors in interest to any of the shares of Common Stock held
by the Stockholders.
11.10 Execution in Counterparts. This Agreement maybe executed in two or more
counterparts, each of which shall constitute an original but all of
which, when taken together, shall constitute one instrument.
IN WITNESS WHEREOF the parties hereby execute this Agreement as of the date
first written above.
HEWLETT-PACKARD FINANCIAL SERVICES COMPANY
420 Mountain Avenue
Murray Hill, New Jersey 07974
By:__/s/ Thomas G. Adams
-------------------
Name: Thomas G. Adams
Title: VP and CFO
CLEARBLUE ATLANTIC, LLC
20 East 66th Street, 2nd Floor
New York, NY 10021
By: Atlantic Investors, LLC, its Managing Member
By: Madison Technology LLC, its Managing Member
By:__/s/ Arthur Becker
Name: Arthur Becker
Title: Managing Member
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