Exhibit 10.12
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND 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 Series CC Purchase Agreement, dated as
February 14, 2002 (the "Purchase Agreement"), by and among the Company and the
investors a party thereto (the "Investors"), the Investors purchased shares of
Series CC Preferred Stock, par value $0.01 per share, of the Company (the
"Preferred Stock"), all of which may be convened into the Company's common
stock, par value $0.01 per share (the "Common Stock"), pursuant to the terms of
the Preferred Stock;
WHEREAS, on the date hereof, the Company authorized for issuance an
additional 4,800,000 shares of Preferred Stock and will issue certain of such
Preferred Stock pursuant to a Purchase Agreement, dated as of the date hereof
(the "New Purchase Agreement"), between the Company and the investors party
thereto;
WHEREAS, the Company agreed to register for sale, or desires to provide for
registration for sale of, (i) the Common Stock to be received upon conversion of
Preferred Stock, (ii) Common Stock that may received under an exercise by the
Investors of preemptive rights under Section 5(g) of the Purchase Agreement or
preemptive rights granted under Section 5(e) of the New Purchase Agreement or in
conversion of other securities received in an exercise of such rights; and (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 (collectively, the "Registrable Stock");
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.
"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. A Person shall cease to be a Holder when such Person no
longer holds any Registrable Stock.
"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.
"Investors" shall have the meaning ascribed to it in the recitals, and
shall include all parties to this Agreement other than the Company.
"Initiating Holders" shall mean any Holder or Holders who in the
aggregate hold not less than 50% of the outstanding Registrable Stock at the
time the demand is made; provided that all Registrable Stock held by such Holder
or Holders and included for purposes of determining whether 50% of the
outstanding Registrable Stock is held at such time shall have been outstanding
for at least one year at such time.
"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 and shall include the shares of Preferred Stock
authorized by the Company on the date hereof.
"Xxxxxx" shall mean the funds and accounts managed by affiliates of
Xxxxxx Investments, LLC, as listed on the signature pages hereto.
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.
2 SERIES CC REG. RIGHTS AGREE.
"Registration Request" shall have the meaning ascribed to it in
Section 2(a) of 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 Registration Rights Agreement" shall mean the Amended and
Restated Registration Rights Agreement, dated as of the date hereof, relating to
the Company's Series AA Preferred Stock. $0.01 par value per share.
"Series AA Holders" shall have the meaning ascribed to it in Section
2(b) of this Agreement.
"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) 180 days
from the effective date of the registration statement relating to 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 other Holders (other than Xxxxxx, in which case: the Company will
not give such prior notice and as a substitute for such notice will give Xxxxxx
notice of the Registration promptly after 4:00 p.m. (New York City time) on the
business day immediately preceding the day upon which the registration statement
will be filed with the SEC (the "Filing Date") and Xxxxxx will have until 3:00
p.m. on the Filing Date to give the Company notice (which notice may be by
telephone or e-mail) of the number of shares that it desires to include in the
registration statement, subject to Section 2(b) below; provided, that, if the
Company fails to file such registration statement by 9:00 a.m. (New York City
time) on the day immediately following the proposed Filing Date, it will issue a
press release conforming with Rule 135 under the Securities Act describing in
detail such proposed Registration by 9:00 a.m. (New York City time) on the day
following the proposed Filing Date) 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
3 SERIES CC REG. RIGHTS AGREE.
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 or, in the case of Xxxxxx, by 1:00 p.m. on the Filing Date.
The Company shall use reasonable best 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 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 45 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 45 days during any period of 365 days, if the Company shall
furnish to the Holders a certificate signed by an executive officer 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 holders that have
piggyback registration rights pursuant to the Series AA Registration Rights
Agreement (the "Series AA Holders"), pro rata among such Holders, and Series AA
Holders on the basis of the number of shares of Registrable Stock or securities
requested for inclusion in such registration by each such Holder or Series AA
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.
4 SERIES CC REG. RIGHTS AGREE.
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 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 (other than Xxxxxx, in which case: the
Company will not give such prior notice and as a substitute for such notice will
give Xxxxxx notice of the Registration promptly after 4:00 p.m. (New York City
time) on the business day immediately preceding the "Filing Date" and Xxxxxx
will have until 3:00 p.m. on the Filing Date to give the Company notice (which
notice may be by telephone or e-mail) of the number of shares that it desires to
include in the registration statement, subject to Section 3(b) and Section 3(c)
below; provided, that, if the Company fails to file such registration statement
by 9:00 a.m. (New York City time) on the day immediately following the proposed
Filing Date, it will issue a press release conforming with Rule 135 under the
Securities Act describing in detail such proposed Registration by 9:00 a.m. (New
York City time) on the day following the proposed Filing Date) 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, or in the case of Xxxxxx, by 1:00 p.m. on the Filing Date (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
initiated by the Company 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
Holders and the Series AA Holders, pro rata among such Holders and Series AA
Holders on the basis of the number of shares requested for inclusion by each
such Holder or Series AA Holder, and (iii) third, any securities requested to be
included in such Registration by any other holders that have piggyback rights,
subject to reduction as provided in the agreements granting registration rights
to such holders.
(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
5 SERIES CC REG. RIGHTS AGREE.
(i) first, the securities requested to be included therein by the holders
requesting such registration, the Holders and the Series AA Holders, pro rata
among such holders requesting such registration, Holders and Series AA 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, Holder or Series AA 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.
(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 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 reasonable best 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
reasonable best 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.
6 SERIES CC REG. RIGHTS AGREE.
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 45 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 45
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 offering of the Common Stock and (ii) the date on
which all of the Registrable Stock may be sold in accordance with Rule 144(k).
Sections 5. Registration Procedures.
(a) The Company shall promptly notify the Holders participating in a
registration (the same day in the case of Xxxxxx) 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 reasonable best 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.
7 SERIES CC REG. RIGHTS AGREE.
(b) The Company shall provide to the Holders, at no cost to the
Holders, such number of copies 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 enable the Holders
to have the benefits of the prospectus delivery provisions of Rule 153 under the
Securities Act.
(c) The Company will use reasonable best efforts to obtain all legal
opinions, auditors= consents and comfort letters and experts cooperation as may
be required, including furnishing to each selling Holder of Registrable Stock a
signed counterpart, addressed or confirmed to such Holder, of (i) an opinion of
counsel for the Company and (ii) a "cold comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities.
(d) The Company shall use reasonable best 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.
(e) 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.
(f) The Company shall use reasonable best efforts (including the
payment of any listing or quotation fees) to obtain the listing or quotation of
all Registrable Stock covered by
8 SERIES CC REG. RIGHTS AGREE.
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.
(g) The Company and the Holders shall use reasonable best 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 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(h) 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, transfer taxes and fees and
disbursements of counsel for the Holders, shall be borne by the Company. The
underwriting discounts and commissions, transfer taxes and fees and
disbursements of counsel for any Holder shall be borne by such Holder.
Section 7. Indemnification.
(a) The Company shall indemnify each Holder, each Holder's officers
and directors, trustees, 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 reimbursement of 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 any document incorporated therein, 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 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, severally, but not jointly, the Company, each of its trustees and
each of its officers who signs the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (including reimbursement of
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
any document incorporated therein, or based on any
9 SERIES CC REG. RIGHTS AGREE.
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 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).
10 SERIES CC REG. RIGHTS AGREE.
(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.
Section 9. Rule 144 Sales and S-3 Eligibility.
(a) The Company shall use its reasonable best 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.
(c) The Company shall take such action, including the voluntary
registration of its Common Stock under Section 12 of the Securities Exchange Act
of 1934, as amended, as will permit Holders to use Form S-3 for the sale of
their Registrable Stock, such action to be taken as soon as practicable (but not
later than 120 days) after the end of the fiscal year in which the registration
statement for the Company's initial public offering is declared effective.
Section 10. Assignment of Registration Rights; Future Holders.
(a) 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 any applicable provisions of the
Securities Act and state securities laws, (iv) the transferee or assignee agrees
in
11 SERIES CC REG. RIGHTS AGREE.
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 or Section 5(d) of the New Purchase Agreement.
Section 11. Limitation on Grant of Additional Piggyback Rights. The Company
shall not, without the consent of the Holders of at least 50% of the Registrable
Stock then outstanding, grant to any holder of the Company's securities
piggyback registration rights that are superior to those contained in this
Agreement.
Section 12. Miscellaneous.
(a) Governing Law; 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. With the written consent of the Company
and the record holders of 66 2/3% of the Registrable Stock then outstanding, (i)
the obligations of the Company under this Agreement and the rights of the
holders of the Registrable Stock under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely) or (ii) this
Agreement may be amended, changed, discharged or terminated. Notwithstanding the
foregoing, (i) if any waiver of any right or rights granted to a Holder under
this Agreement would uniquely affect such Holder, then such waiver may be
approved or granted by such Holder without the consent or approval of any other
Holder and (ii) if any waiver or amendment of any right or rights granted to a
Holder under this Agreement would adversely affect only a given Holder, then
such amendment or waiver may not be effected without the consent or approval of
such affected Holder. Neither this Agreement nor any provisions hereof may be
amended, changed, waived, discharged or terminated orally, but only by a signed
statement in writing.
(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, (iv) the next business day
after having been sent by a nationally recognized overnight mail or courier
service, receipt requested, (v) when sent by
12 SERIES CC REG. RIGHTS AGREE.
email or (vi) when delivered by telephone in person to the recipient or by
voicemail. Notices shall be addressed as follows: (a) if to an Investor, 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 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 & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
If to Xxxxxx:
Xxxxxx Investment Management
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx XxXxx and Xxxxx Xxxxxxxx
and (by telephone and email) to:
Xxxx Xxxx (xxxx_xxxx@xxxxxxxxx.xxx; telephone (000) 000-0000)
Xxxxxxx Xxxxxx (xxxxxxx_xxxxxx@xxxxxxxxx.xxx; telephone
(000) 000-0000)
with a copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxx. Esq.
13 SERIES CC 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.
(1) 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.
(n) Aggregation of Shares. All shares of Preferred Stock or
Registrable Stock held or acquired by affiliated entities of Holders shall be
aggregated together for the purposes of determining the availability of any
rights under this Agreement.
14 SERIES CC REG. RIGHTS AGREE.
(o) Massachusetts Business Trusts. A copy of the Agreement and
Declaration of Trust of each Xxxxxx fund or series investment company (each, a
"Fund") that is a Massachusetts business trust is on file with the Secretary of
State of The Commonwealth of Massachusetts and notice is hereby given that this
Agreement is executed on behalf of the trustees of the relevant Fund as trustees
and not individually and that the obligations of this Agreement are not binding
upon any of the trustees, officers and shareholders of the Fund individually but
are binding only upon the assets and property of such Fund.
15 SERIES CC 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
16 SERIES CC REG. RIGHTS AGREE.
XXXXXX OTC AND EMERGING GROWTH FUND
By Xxxxxx Investment Management, LLC
By: /s/ Xxxxxxx X Xxxx xx Xxxxx
------------------------------------
Name: Xxxxxxx X Xxxx xx Xxxxx
Title: Managing Director
XX XXX, XXXXXX XXXXXXXXXX XXXXX -
XX XXX, XXXXXX EMERGING
OPPORTUNITIES PORTFOLIO
By TH Xxx, Xxxxxx Capital Management,
LLC
By: /s/ Xxxxxxx X Xxxx xx Xxxxx
------------------------------------
Name: Xxxxxxx X Xxxx xx Xxxxx
Title: Managing Director
XXXXXX DISCOVERY GROWTH FUND
By Xxxxxx Investment Management, LLC
By: /s/ Xxxxxxx X Xxxx xx Xxxxx
------------------------------------
Name: Xxxxxxx X Xxxx xx Xxxxx
Title: Managing Director
XXXXXX WORLD TRUST II - XXXXXX
EMERGING INFORMATION SCIENCES FUND
By: The Xxxxxx Advisory Company, LLC
By: /s/ Xxxxxxx X Xxxx xx Xxxxx
------------------------------------
Name: Xxxxxxx X Xxxx xx Xxxxx
Title: Managing Director
The address for each of the foregoing
is:
c/x Xxxxxx Investment Management, LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:
-----------------------------
17 SERIES CC REG. RIGHTS AGREE.
XXXXXXXX PARTNERS III, L.P.
By: Xxxxxxxx Partners III LLC,
General Partner
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: CEO
00 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxx Partners
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxx
XXXXXXXX ASSOCIATES III, L.P.
By: Xxxxxxxx Partners III LLC,
General Partner
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: CEO
address same as above
XXXXXXXX FOREIGN PARTNERS III, L.P.
By: Xxxxxxxx Partners III, LLC,
General Partner
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: CEO
address same as above
18 SERIES CC REG. RIGHTS AGREE.
EMC INVESTMENT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Office of the General
Counsel
Fax: (000) 000-0000
19 SERIES CC REG. RIGHTS AGREE.
XXX XXXXXXX CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: General Partner
000 XXXXXXX XXX.
XXXXX 000
XXX XXXXXXXXX XX 00000
Fax: (000) 000-0000
XXX XXXXXXX CROSSOVER FUNDS, L.P.
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: Managing Member - General Partner
Fax: (000) 000-0000
XXX XXXXXXX PRIVATE OPPORTUNITIES FUND,
L.P.
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: General Partner
Fax: (000) 000-0000
20 SERIES CC REG. RIGHTS AGREE.
DRW VENTURE PARTNERS LP
By: RBC Xxxx Xxxxxxxx Corporation,
its General Partner
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
Director of Finance and
Administration RBC CMS
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
21 SERIES CC REG. RIGHTS AGREE.
UBS CAPITAL AMERICAS II, LLC
By: UBS Capital Americas, LLC. as
advisor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx. XX 00000
Fax: (000) 000-0000
22 SERIES CC REG. RIGHTS AGREE.
HFI PRIVATE EQUITY LTD.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: XXXXX XXXXXXX
Title: DIRECTOR
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: XXXXX XXXXXX
Title: DIRECTOR
Jardine Xxxxx 0xx Xxxxx
00-00 Xxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Fax: (000) 000-0000
23 SERIES CC REG. RIGHTS AGREE.
AMAN VENTURES
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Partner
0000 Xxx Xxxxx Xxxxx xxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
24 SERIES CC REG. RIGHTS AGREE.
----------------------------------------
Xxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax:
-----------------------------------
----------------------------------------
Xxxx Xxxxxx
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile:
-----------------------------
----------------------------------------
Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile:
-----------------------------
25 SERIES CC REG. RIGHTS AGREE.
DLJ CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SPROUT CAPITAL IX, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Managing Director
SPROUT ENTREPRENEURS' FUND, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Managing Director
SPROUT IX PLAN INVESTORS, L.P.
By: DLJ LBO Plans Management
Corporation II
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Attorney in Fact
The address for each of the foregoing
is:
Sprout Group
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
-----------------------------
Facsimile:
-----------------------------
26 SERIES CC REG. RIGHTS AGREE.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
XXXXXX X. XXXXXXXXX
c/o X.X. Xxxxxxxxx, Towbin
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
X.X. XXXXXXXXX, TOWBIN CAPITAL
PARTNERS I, L.P.
By: UTCM LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: XXXX X. XXXXXXX
Title: SECRETARY OF UTCM LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Facsimile: 000-000-0000
27 SERIES CC REG. RIGHTS AGREE.
CAMELOT CAPITAL L.P.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Partner
CAMELOT CAPITAL II L.P.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Partner
CAMELOT OFFSHORE FUND LIMITED
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Address for each of the above:
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
000-000-0000
29 SERIES CC REG. RIGHTS AGREE.
AMERINDO INTERNET FUND PLC
BY: AMERINDO INVESTMENT ADVISORS INC.
ITS: MANAGER
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Executive Vice President
c/o Amerindo Investment Advisors
Inc.
Attn: Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
/s/ X. Xxxxx Xxxxxxxx
----------------------------------------
X. XXXXX MCDONALD
c/o Amerindo Investment Advisors Inc.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
XXXXXXX X. XXXXXXXX pp Xxxxxxx Xxxxx
0000 Xxx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
/s/ Xxxx Xxxxx
----------------------------------------
XXXX XXXXX
c/o Amerindo Investment Advisors Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
30 SERIES CC REG. RIGHTS AGREE.
