Exhibit 10.11
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
September 2, 2003 (this "Agreement"), is by and among CommVault Systems, Inc., a
corporation organized under the laws of the State of Delaware, (the "Company"),
and the undersigned.
WHEREAS, pursuant to that certain Purchase Agreement, dated as of November
10, 2000 (the "Purchase Agreement"), by and among the Company and the investors
a party thereto (the "Investors"), the Investors purchased shares of Series BB
Preferred Stock, par value $0.01 per share, of the Company (the "Preferred
Stock"), all of which may be converted into the Company's common stock, par
value $0.01 per share (the "Common Stock"), pursuant to the terms of the
Preferred Stock:
WHEREAS, pursuant to that certain warrant (the "EMC Warrant") dated as of
July 30, 2003, EMC Investment Corporation ("EMC") has the right to acquire
Common Stock:
WHEREAS, in connection with the Purchase Agreement, the Company agreed to
register for sale (i) by the Investors, the Common Stock to be received upon
conversion of Preferred Stock, (ii) by the Investors, Common Stock that may
received under an exercise by the Investors of preemptive rights under Section
5(g) of the Purchase Agreement or in conversion of other securities received in
an exercise of such rights, (iii) any other shares of the Common Stock issued as
(or issuable upon conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to or in
exchange for or replacement of the Preferred Stock, and (iv) by EMC, the Common
Stock to be received upon exercise of the EMC Warrant (collectively, the
"Registrable Stock");
WHEREAS, the Company and the Investors entered into a registration rights
agreement, dated as of November 10, 2000 and amended and restated as of February
14, 2002, relating to the Registrable Stock (the "Registration Rights
Agreement"); and
WHEREAS the Company and the Investors desire to amend and restate the
Registration Rights Agreement as forth below;
NOW THEREFORE in consideration of the foregoing and the covenants of the
parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Certain Definitions. In this Agreement the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
SERIES BB REG. RIGHTS AGREE.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the relevant time.
"Holders" shall mean (i) the Investors, (ii) each Person holding
Registrable Stock as a result of a transfer or assignment to that Person of
Registrable Stock other than pursuant to an effective registration statement or
Rule 144 under the Securities Act and (iii) Persons holding Registrable Stock as
of the date hereof and any permitted transferees hereunder.
"Indemnified Party" shall have the meaning ascribed to it in Section
7(c) of this Agreement.
"Indemnifying Party" shall have the meaning ascribed to it in Section
7(c) of this Agreement.
"Initiating Holders" shall mean any Holder or Holders who in the
aggregate hold not less than 50% of the outstanding Registrable Stock (not
taking into account any Common Stock received upon exercise of the EMC Warrant).
"Person" shall mean an individual, corporation, partnership, limited
liability company, estate, trust, association, private foundation, joint stock
company or other entity.
"Piggyback Notice" shall have the meaning ascribed to it in Section
3(a) of this Agreement.
"Piggyback Registration" shall have the meaning ascribed to it in
Section 3(a) of this Agreement.
"Preferred Stock" shall have the meaning ascribed to it in the
recitals to this Agreement.
The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Stock in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"Registrable Stock" shall have the meaning ascribed to it in the
recitals to this Agreement, except that as to any particular Registrable Stock,
such securities shall cease to be Registrable Stock when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (b) such securities shall
have been sold in accordance with Rule 144 (or any successor provision) under
the Securities Act.
"Registration Request" shall have the meaning ascribed to it in
Section 2(a) of this Agreement.
2 SERIES BB REG. RIGHTS AGREE.
"Registration Rights Agreement" shall have the meaning ascribed to it
in the recitals to this Agreement.
"Rule 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"Series AA Holder" shall mean the holders of the Company's Series AA
Preferred Stock, $0.01 par value per share, that have registration rights
pursuant to the Amended and Restated Registration Rights Agreement, dated August
____, 2003, between the Company and investors in such stock.
"Series CC Holder" shall mean the holders of the Company's Series CC
Preferred Stock, $0.01 par value per share, that have registration rights
pursuant to the Amended and Restated Registration Rights Agreement, dated August
____, 2003, between the Company and investors in such stock.
"Suspension Right" shall have the meaning ascribed to it in Section
2(a) of this Agreement.
"S-3 Suspension Right" shall have the meaning ascribed to it in
Section 4(a) of this Agreement.
Section 2. Demand Registration.
(a) Upon receipt of a written request (a "Registration Request"),
delivered no earlier than the earlier of (i) January 31, 2004 and (ii) the first
anniversary of the date of the closing of an underwritten initial public
offering of the Common Stock, from Initiating Holders with respect to
Registrable Stock representing at least 25% of such Initiating Holders'
Registrable Stock (or any lesser percentage having a reasonably anticipated
aggregate offering price to the public of more than $2,000,000), the Company
shall (i) promptly give notice of the Registration Request to all non-requesting
Holders and (ii) prepare and file with the Commission promptly, but in any event
within (x) 90 days after its receipt of such Registration Request if the Company
had not conducted an underwritten public offering of the Common Stock before
such time and (y) 45 days after its receipt of such Registration Request if the
Company had conducted an underwritten public offering of the Common Stock before
such time, a registration statement for the purpose of effecting a Registration
of the sale of all Registrable Stock requested to be Registered by the
requesting Holders and any non-requesting Holder who requests to have his
Registrable Stock included in such registration statement within ten days after
receipt of notice by such Holder of the Registration Request. The Company shall
use commercially reasonable efforts to effect such Registration as soon as
practicable (including, without limitation, the execution of an undertaking to
file post-effective amendments and appropriate qualification under applicable
state securities laws); and shall keep such Registration continuously effective
until the earlier of (i) the second anniversary of the date that shares of
Registrable Stock are first sold pursuant to such Registration, (ii) the date on
which all shares of Registrable Stock have
3 SERIES BB REG. RIGHTS AGREE.
been sold pursuant to such registration statement or Rule 144 and (iii) the date
on which, in the reasonable opinion of counsel to the Company, all of the
Registrable Stock may be sold in accordance with Rule 144(k); provided, however,
that the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 2 (i) in any
particular jurisdiction in which the Company would become subject to taxation or
would be required to execute a general consent to service of process in
effecting such Registration, qualification or compliance unless the Company is
already subject to taxation or service in such jurisdiction or (ii) during the
period starting with the date 60 days prior to the Company's good faith estimate
of the date of filing of, and ending on a date 180 days after the effective date
of, a Company-initiated registration.
Notwithstanding the foregoing, the Company shall have the right (the
"Suspension Right"") to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration statement
and suspend sales thereunder) at any time or from time to time, for a period of
not more than 90 days during any period of 365 days, if the Company shall
furnish to the Holders a certificate signed by an executive officer or any
trustee of the Company stating that, in the good faith judgment of the Company,
it would be detrimental to the Company and its shareholders to file such
registration statement or amendment thereto at such time (or continue sales
under a filed registration statement) and therefore the Company has elected to
defer the filing of such registration statement (or suspend sales under a filed
registration statement).
(b) If a Demand Registration is an underwritten Demand Registration
with other holders requesting to include their securities pursuant to other
piggyback rights and the managing underwriters advise the Company in writing
that, in their opinion, the number of securities requested to be included in
such registration exceeds the number which can be sold in an orderly manner in
such offering within a price range acceptable to the holders initially
requesting such registration, the Company will include in such registration (i)
first, the Registrable Stock requested to be included therein by the Holders and
the securities requested to be included therein by the Series AA Holders and the
Series CC Holders, pro rata among the Holders, the Series AA Holders and the
Series CC Holders on the basis of the number of shares of Registrable Stock or
securities requested for inclusion in such registration by each such Holder,
Series AA Holder or Series CC Holder and (ii) second, any securities requested
to be included therein by any other holders with piggyback rights, subject to
reduction as provided in the agreements granting registration rights to such
holders.
(c) The Company shall not be required to effect more than two
Registrations pursuant to this Section 2.
Section 3. Piggyback Registrations.
(a) On and after the closing of an underwritten initial public
offering of the Common Stock, as long as the Holders hold any Registrable Stock,
if the Company proposes to register any of its common equity securities or any
securities convertible into its common equity securities under the Securities
Act whether or not for its own account (other than pursuant to (i) a
registration on Form S-4 or any successor form, or (ii) an offering of
securities in connection with an employee benefit, share dividend, share
ownership or dividend reinvestment plan) and
4 SERIES BB REG. RIGHTS AGREE.
the registration form to be used may be used for the registration of Registrable
Stock, the Company shall give prompt written notice to all Holders of its
intention to effect such a registration (each a "Piggyback Notice") and, subject
to subparagraph 3(c) below, the Company shall include in such registration all
Registrable Stock with respect to which the Company has received written
requests for inclusion therein within ten days after the date of receipt of the
Piggyback Notice (a "Piggyback Registration"), unless, in the case of an
underwritten Piggyback Registration, pursuant to Section 3(b) the managing
underwriters advise the Company in writing that in their opinion, the inclusion
of Registrable Stock would adversely interfere with such offering. Nothing
herein shall affect the right of the Company to withdraw any such registration
in its sole discretion.
(b) If a Piggyback Registration is a primary underwritten registration
and the managing underwriters advise the Company in writing that, in their
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner within a price range
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the securities
requested to be included therein, if any, by the Series AA Holders and the
Series CC Holders, pro rata among such Series AA Holders and Series CC Holders
on the basis of the number of shares requested for inclusion by each such Series
AA Holder or Series CC Holder, and (iii) third, the Registrable Stock requested
to be included in such Registration by the Holders of Registrable Stock and the
securities requested to be included in such Registration by any other holder
that has piggyback rights, pro rata on the basis of the number of shares of
Registrable Stock and other securities requested for inclusion in such
registration by each such Holder or holder.
(c) If a Piggyback Registration is a secondary registration requested
by other holders of the Company's securities and, if the Piggyback Registration
is an underwritten Piggyback Registration and the managing underwriters advise
the Company in writing that, in their opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in an orderly manner in such offering within a price range acceptable to
the holders initially requesting such registration, the Company will include in
such registration (i) first, the securities requested to be included therein by
the holders requesting such registration, the Series AA Holders and the Series
CC Holders, pro rata among such holders requesting such registration, Series AA
Holders and Series CC Holders on the basis of the number of shares of Common
Stock of the Company requested for inclusion in such registration by each such
holder requesting such registration, Series AA Holder or Series CC Holder and
(ii) second, the securities requested to be included therein by any other
holders with piggyback rights and by the Holders, pro rata among the holders
with piggyback rights and the Holders on the basis of the number of shares of
Common Stock of the Company requested for inclusion in such registration by each
such holder or Holder.
(d) In the case of an underwritten Piggyback Registration, the Company
will have the right to select the investment banker(s) and manager(s) to
administer the offering. If requested by the underwriters for any underwritten
offerings by Holders, under a registration requested pursuant to Section 2(a),
the Company will enter into a customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
by the Company and such other terms which are customarily contained in
agreements
5 SERIES BB REG. RIGHTS AGREE.
of this type (including indemnification provisions). The Holders shall be a
party to such underwriting agreement and may, at their option, require that any
or all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of
Holders. The Holders shall not be required to make any representations or
warranties to or agreement with the Company or the underwriters other than
representations, warranties or agreements regarding the Holders and the Holders'
intended method of distribution and any other representations or warranties
required by law.
Section 4. S-3 Registration.
(a) After its initial public offering of Common Stock, the Company
shall use its commercially reasonable efforts to qualify for registration on
Form S-3 or any comparable or successor form or forms. After the Company has
qualified for use of Form S-3, in addition to the rights contained in Sections 2
and 3, the Holders of Registrable Securities shall have the right to request
registrations on Form S-3 (such requests shall be in writing and shall state the
number of shares of Registrable Securities to be disposed of and the intended
methods of disposition of such shares by such Holder or Holders). The Company
shall use commercially reasonable efforts to effect such Registration as soon as
practicable (including, without limitation, the execution of an undertaking to
file post-effective amendments and appropriate qualification under applicable
state securities laws); and shall keep such Registration continuously effective
until the earlier of (i) the date on which all shares of Registrable Stock have
been sold pursuant to such registration statement or Rule 144 and (ii) the date
on which, in the reasonable opinion of counsel to the Company, all of the
Registrable Stock may be sold in accordance with Rule 144(k), provided, however,
that the Company shall not be obligated to effect any such registration (i) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) on Form S-3 at an aggregate price
to the public of less than $1,000,000, (ii) in the circumstances described in
the proviso to the first paragraph of Section 2(a), (iii) if, in connection with
a Demand Registration under Section 2, the Company shall furnish the
certification described in the second paragraph of Section 2(a) (but subject to
the limitations set forth therein) or (iv) if, in a given twelve-month period,
the Company has effected one such registration in such period.
Notwithstanding the foregoing, the Company shall have the right (the
"S-3 Suspension Right") (i) to defer such filing or suspend sales under any
filed registration statement for up to 60 days during any period of 365 days or
(ii) defer the updating of any filed registration statement and suspend sales
thereunder at any time or from time to time, for a period of not more than 60
days during any period of 365 days, if the Company shall furnish to the Holders
a certificate signed by an executive officer or any trustee of the Company
stating that, in the good faith judgment of the Company, it would be detrimental
to the Company and its shareholders to file such registration statement or
amendment thereto at such time (or continue sales under a filed registration
statement) and therefore the Company has elected to defer the filing of such
registration statement (or suspend sales under a filed registration statement).
(b) The Holders' rights under this Section 4 shall terminate upon the
earlier to occur of (i) the fifth anniversary of the date of the closing of an
underwritten initial public
6 SERIES BB REG. RIGHTS AGREE.
offering of the Common Stock and (ii) the date on which, in the reasonable
opinion of counsel to the Company, all of the Registrable Stock may be sold in
accordance with Rule 144(k).
Section 5. Registration Procedures.
(a) The Company shall promptly notify the Holders of the occurrence of
the following events:
(i) when any registration statement relating to the Registrable
Stock or post-effective amendment thereto filed with the Commission has
become effective;
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of any registration statement relating to the Registrable
Stock;
(iii) the suspension of an effective registration statement by
the Company in accordance with the last paragraph of Section 2(a) or
Section 4(a) hereof;
(iv) the Company's receipt of any notification of the suspension
of the qualification of any Registrable Stock covered by a registration
statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that results
in a registration statement or prospectus relating to Registrable Stock or
any document incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading during the distribution of securities.
The Company agrees to use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as promptly as possible. The Holders agree
that upon receipt of any notice from the Company of the occurrence of any event
of the type described in Sections 5(a)(ii), (iii), (iv) or (v) to immediately
discontinue their disposition of Registrable Stock pursuant to any registration
statement relating to such securities until the Holders receive written notice
from the Company that such disposition may be made.
(b) The Company shall provide to the Holders, at no cost to the
Holders, a copy of the registration statement and any amendment thereto used to
effect the Registration of the Registrable Stock, each prospectus contained in
such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Stock covered by such registration statement. The Company consents to the use of
each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Stock covered by such registration
statement or any amendment thereto. If the Common Stock is listed on a national
securities exchange at any time during the period in which the Company is
obligated to keep the registration statement effective pursuant to Sections 2, 3
or 4, to the extent applicable, the Company shall also file a sufficient number
of copies of the prospectus and any post-effective amendment or supplement
thereto with such exchange so as to
7 SERIES BB REG. RIGHTS AGREE.
enable the Holders to have the benefits of the prospectus delivery provisions of
Rule 153 under the Securities Act.
(c) The Company shall use commercially reasonable efforts to cause the
Registrable Stock covered by a registration statement to be registered with or
approved by such state securities authorities as may be necessary to enable the
Holders to consummate the disposition of such stock pursuant to the plan of
distribution set forth in the registration statement; provided, however, that
the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 5 in any
particular jurisdiction in which the Company would become subject to taxation or
would be required to execute a general consent to service of process in
effecting such Registration, qualification or compliance unless the Company is
already subject to taxation or service in such jurisdiction.
(d) Subject to the Company's Suspension Right or an S-3 Suspension
Right, if any event, fact or circumstance requiring an amendment to a
registration statement relating to the Registrable Stock or supplement to a
prospectus relating to the Registrable Stock shall exist, immediately upon
becoming aware thereof the Company shall notify the Holders and prepare and
furnish to the Holders a post-effective amendment to the registration statement
or supplement to the prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Stock, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
(e) The Company shall use commercially reasonable efforts (including
the payment of any listing or quotation fees) to obtain the listing or quotation
of all Registrable Stock covered by the registration statement on each
securities exchange or inter-dealer automated quotation system on which
securities of the same class or series are then listed.
(f) The Company and the Holders shall use commercially reasonable
efforts to comply with the Securities Act and the Exchange Act in connection
with the offer and sale of Registrable Stock pursuant to a registration
statement, and, as soon as reasonably practicable following the end of any
fiscal year during which a registration statement effecting a Registration of
the Registrable Stock shall have been effective, to make available to the
Holders an earnings statement satisfying the provisions of Section 1l(a) of the
Securities Act.
(g) The Company shall cooperate with the selling Holders to facilitate
the timely preparation and delivery of certificates representing Registrable
Stock to be sold pursuant to a Registration and not bearing any Securities Act
legend; and enable certificates for such Registrable Stock to be issued for such
numbers of stock and registered in such names as the Holders may reasonably
request at least two business days prior to any sale of Registrable Stock.
Section 6. Expenses of Registration. All reasonable expenses, other than
underwriting discounts and commissions and transfer taxes and printing and
accounting expenses, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 4 hereof, including, without
limitation, all registration, listing and qualifications fees, the fees and
disbursements of one counsel for the Company and the fees and disbursements of
8 SERIES BB REG. RIGHTS AGREE.
counsel selected by the Holders shall be borne by the Holders participating in
the particular registration and all reasonable expenses, other than underwriting
discounts and commissions and the reasonable fees and disbursements of any
counsel selected by the Holders, incurred in connection with registrations,
filings or qualifications pursuant to Section 3 hereof, including, without
limitation, all registration, listing and qualifications fees, printing and
accounting fees, and the fees and disbursements of counsel for the Company shall
be borne by the Company.
Section 7. Indemnification.
(a) The Company shall indemnify each Holder, each Holder's officers
and directors, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act against all expenses, claims, losses, damages
and liabilities (including reasonable legal fees and expenses), arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement or prospectus relating to the
Registrable Stock, or any amendment or supplement thereto, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided, however, that the Company shall not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter for inclusion therein.
(b) Each Holder, if Registrable Stock held by such Holder is included
in the securities as to which such registration is being effected, shall
indemnify the Company, each of its trustees and each of its officers who signs
the registration statement, each underwriter, if any, of the Company's
securities covered by such registration statement, and each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (including
reasonable legal fees and expenses) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement or prospectus, or any amendment or supplement thereto, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or prospectus, in reliance upon and in
conformity with information furnished in writing to the Company by such Holder
for inclusion therein.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 7 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to the Indemnified Party, and payment of
expenses. The Indemnified Party shall have the right to employ its own counsel
in any such case, but the legal fees and expenses of such counsel shall be
9 SERIES BB REG. RIGHTS AGREE.
at the expense of the Indemnified Party, unless the employment of such counsel
shall have been authorized in writing by the Indemnifying Party in connection
with the defense of such action, or the Indemnifying Party shall not have
employed counsel to take charge of the defense of such action or the Indemnified
Party shall have reasonably concluded that there may be defenses available to it
or them which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of the Indemnified Party),
in any of which events such fees and expenses shall be borne by the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to a party that would have been an Indemnified Party under this
Section 7 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7(d).
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) In no event shall any Holder be liable for any expenses, claims,
losses, damages or liabilities pursuant to this Section 7 in excess of the net
proceeds to such Holder of any Registrable Stock sold by such Holder pursuant to
the registration statement in question.
Section 8. Information to be Furnished by Holders. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2, Section 3 or Section 4 hereof. If any
Holder fails to provide the Company with such information within 10 days of
receipt of the Company's request, the Company's obligations under Section 2,
Section 3 or Section 4 hereof, as applicable, with respect to such Holder or the
Registrable Stock owned by such Holder shall be suspended until such Holder
provides such information.
10 SERIES BB REG. RIGHTS AGREE.
Section 9. Rule 144 Sales.
(a) The Company shall use its commercially reasonable efforts to file
the reports required to be filed by the Company under the Exchange Act, so as to
enable any Holder to sell Registrable Stock pursuant to Rule 144 under the
Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Stock pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Stock to be
sold and not bearing any Securities Act legend, and enable certificates for such
Registrable Stock to be for such number of shares and registered in such names
as the selling Holder may reasonably request at least two business days prior to
any sale of Registrable Stock.
Section 10. Assignment of Registration Rights. The rights of the Holders
hereunder including the right to have the Company register Registrable Stock
pursuant to this Agreement shall be automatically assignable by each Holder to
any transferee of all or any portion of the shares of Preferred Stock or the
Registrable Stock if: (i) the Holder agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company after such assignment, (ii) the Company is furnished with written notice
of (a) the name and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are being transferred
or assigned, (iii) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, (iv) the transferee or
assignee agrees in writing for the benefit of the Company to be bound by all of
the provisions contained herein, and (v) such transfer of the Registrable Stock
shall have been made in accordance with the applicable requirements of Section
5(f) of the Purchase Agreement.
Section 11. Miscellaneous.
(a) Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with, the laws of the
State of Delaware.
(b) WAIVER OF JURY TRIAL. THE COMPANY AND THE INVESTORS HEREBY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING
OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
(c) Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, among the parties hereto and their affiliates with respect to the matters
set forth herein.
(d) Amendments and Waivers. No provision of this Agreement may be
waived other than by an instrument in writing signed by the party to be charged
with enforcement and no provision of this Agreement may be amended other than by
an instrument in writing signed by the Company and the Holders of at least a
majority of the Registrable Stock.
11 SERIES BB REG. RIGHTS AGREE.
(e) Notices. Each notice, demand, request, request for approval,
consent approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a notice) required or desired to be given
or made under this Agreement shall be in writing (except as otherwise provided
in this Agreement), and shall be effective and deemed to have been received (i)
when delivered in person, (ii) when sent by fax with receipt acknowledged, (iii)
five days after having been mailed by certified or registered United States mail
postage prepaid, return receipt requested, or (iv) the next business day after
having been sent by a nationally recognized overnight mail or courier service
receipt requested. Notices shall be addressed as follows: (a) if to an Investor
(other than EMC), at the Investor's address or fax number set forth below its
signature hereon, or at such other address or fax number as the Investor shall
have furnished to the Company in writing, or (b) if to any assignee or
transferee of an Investor, at such address or fax number as such assignee or
transferee shall have furnished the Company in writing, (c) if to EMC or the
Company, at the address set forth below. Any notice or other communication
required to be given hereunder to a Holder in connection with a registration may
instead be given to the designated representative of such Holder.
If to the Company:
CommVault Systems Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: N. Xxxxxx Xxxxxx
with a copy to:
Xxxxx Xxxxx Xxxx & Maw
000 X. XxXxxxx Xxxxxx
Xxxxxxx XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
If to EMC:
XXX Xxxxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Office of the General Counsel
Facsimile: (000) 000-0000
with a copy to:
Vice President, Corporate Development
Facsimile: (000) 000-0000
12 SERIES BB REG. RIGHTS AGREE.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
(g) Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
(h) Headings. The headings herein are for convenience of reference
only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof.
(i) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Except as
provided herein, neither the Company nor any Investor shall assign this
Agreement or any rights or obligations hereunder.
(j) Equitable Relief. The Company and the Holders acknowledge that a
breach by it of its obligations hereunder will cause irreparable harm to the
other party by vitiating the intent and purpose of the transactions contemplated
hereby. Accordingly, the Company and the Holders acknowledge that the remedy at
law for a breach of its obligations hereunder will be inadequate and agree, in
the event of a breach or threatened breach by the Company or the Holders of the
provisions of this Agreement, that a party shall be entitled, in addition to all
other available remedies, (i) to an injunction restraining any breach and
requiring immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being required, and (ii) to
compel specific performance of another party under this Agreement in accordance
with the terms and conditions of this Agreement in any court of the United
States or any State thereof having jurisdiction.
(k) Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement. As such, the
language used herein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement.
(l) Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(m) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
13 SERIES BB REG. RIGHTS AGREE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMMVAULT SYSTEMS, INC.
By: /s/ N. Xxxxxx Xxxxxx
------------------------------------
Name: N. Xxxxxx Xxxxxx
Title: President and
Chief Executive Officer
14
EMC INVESTMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President,
Corporate Development
DLJ CAPITAL CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxxxx
President
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
SPROUT IX PLAN INVESTORS, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By:
------------------------------------
Xxxxxx X. Xxxxxxxxx
President
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
15 SERIES BB REG. RIGHTS AGREE.
EMC INVESTMENT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DLJ CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Managing Director
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
SPROUT IX PLAN INVESTORS, L.P.
By: DLJ LBO Plans Management
Corporation II, General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Attorney in Fact
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
15 SERIES BB REG. RIGHTS AGREE.
SPROUT ENTREPRENEURS FUND, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Managing Director
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
SPROUT CAPITAL IX, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Managing Director
c/o Credit Suisse First Boston
Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000 000-0000
XXXXXX XXXXXX OPPORTUNITY FUND, L.P.
By: Merchant Bankers, Inc.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
16 SERIES BB REG. RIGHTS AGREE.
XXXXXX XXXXXX EMPLOYEE INESTMENT FUND,
L.P.
By: Merchant Bankers, Inc.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
DRW VENTURE PARTNERS LP
By: Xxxx Xxxxxxxx Corporation,
its General Partner
By:
------------------------------------
Xxxx Xxxxxx
Director of Finance and
Administration RBC CMS
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
----------------------------------------
Xxxxxxx X. Xxxxx
000 Xxx Xxxx
Xxxxxxxxx, XX 00000
----------------------------------------
Xxxx Xxxxx
c/o Brocade Communication Systems
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
----------------------------------------
Will Xxxxxx
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
17 SERIES BB REG. RIGHTS AGREE.
