EXHIBIT 10.28
AMENDMENT
TO
THE STOCKHOLDERS' AGREEMENT
This Third Amendment (this "Amendment") to The Stockholders' Agreement
dated as of May 22, 1996, as amended, entered into among DLJ Merchant Banking
Partners, L.P., DLJ International Partners, C.V., DLJ Offshore Partners, C.V.,
DLJ Merchant Banking Funding, Inc., DLJ Capital Corporation, Sprout Growth II,
L.P., Sprout Capital VII, L.P., Sprout CEO Fund L.P. (collectively, the "DLJ
Entities"), Xxxxx X. Ireland, Xxxxxx X. Xxxx, Xxxxxx Xxxxxxxxxxxxx and CommVault
Systems, Inc. (the "Issuer") shall be effective as of the signature date below.
WHEREAS, the Issuer has entered into a Stockholders' Agreement dated as of
May 22, 1996, as amended by the First Amendment thereto, dated July 23, 1998,
and the Second Amendment thereto, dated November 6, 2000 (as so amended, the
"Agreement"), along with the DLJ Entities and the other parties thereto; and
WHEREAS, the Issuer and the DLJ Parties desire to amend the terms of the
Agreement;
NOW THEREFORE, the Agreement shall be amended, pursuant to the terms, as
follows:
1. Section 4.1(d) shall be modified to read as follows:
" (d) If a Demand Registration involves an Underwritten Public Offering
and the managing underwriter shall advise the Issuer and the Selling
Stockholders in writing that, in its opinion, the number of shares of
Common Stock requested to be included in such registration (including
Common Stock which the Issuer proposes to be included which is not
Registrable Stock or any other securities of other parties with piggyback
registration rights) exceeds the largest number of Stock which can be sold
in an orderly manner within a price range acceptable to the Selling
Stockholders (the "MAXIMUM OFFERING SIZE"), the Issuer will include such
registration, in the priority listed below, up to the Maximum Offering
Size:
(i) first, the Registrable Stock requested be included in such
registration by the Holders of Registrable Stock requesting such
registration and any securities requested to be included therein by
any other holder pursuant to such holder's piggyback rights granted
under the Amended and Restated Registration Rights Agreement, dated as
of February 14, 2002, relating to shares of the Company's Series AA
Preferred Stock (the "SERIES AA HOLDERS") or pursuant to such holder's
piggyback rights granted under the Registration Rights Agreement,
dated as of February 14, 2002, relating to shares of the Company's
Series CC Preferred Stock (the "SERIES CC HOLDERS");
(ii) second, any securities requested to be included therein by any
other holders pursuant to such holders' piggyback rights, if any, pro
rata on the basis of the number of shares of such securities requested
for inclusion in such registration by each such holder; and
(iii) third, the Common Stock proposed to be registered by the Issuer,
if any."
2. Section 4.2(b) shall be modified to read as follows:
" (b) If a registration pursuant to this Section 4.2 involves a primary
Underwritten Public Offering on behalf of the Issuer and the managing
underwriter advises the Issuer that in its opinion, the numbers of shares
of Common Stock requested to be included exceeds the Maximum Offering Size,
the Issuer will include in such registration, in the following priority, up
to the Maximum Offering Size:
(i) first, the Common Stock proposed to be registered by the Issuer;
(ii) second, the securities requested to be included in such
registration by the Series AA Holders and the Series CC Holders, if
any; and
(iii) third, the Registrable Stock requested be included in such
registration among the Holders of Registrable Stock requesting such
registration and any securities requested to be included therein by
any other holder pursuant to such holder's piggyback rights, if any,
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 registration pursuant to this Section 4.2 involves a
secondary Underwritten Public Offering requested by holders of the Issuer's
securities other than the Holders of Registrable Stock and the managing
underwriter advises the Issuer that in its view, the numbers of shares of
Common Stock requested to be included exceeds the Maximum Offering Size,
the Issuer will include in such registration, in the following priority, up
to the Maximum Offering Size:
(i) first, the securities requested be included in such registration
by the holders requesting such registration and the securities of the
Series AA Holders and the Series CC Holders requested to be included
therein, if any;
(ii) second, the Registrable Stock requested be included in such
registration by the Holders of Registrable Stock and any securities
requested to be included therein by any other holder pursuant to such
holder's piggyback rights, if any, 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;
(iii) third, the Common Stock proposed to be registered by the Issuer,
if any.
3. All capitalized terms shall have the same meaning as assigned to such
term in the Agreement. All terms and conditions of the Agreement which are
not specifically amended herein shall remain in full force and effect. This
Amendment shall be binding upon and inure to the benefit of the parties to
the Agreement.
4. This Amendment has been approved by the Board and the signatories hereto
represent holders of at least 85% of the Fully Diluted Common Stock held by
parties to the Agreement, in compliance with Section 6.4 of the Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of this ____ day of February 2002.
DLJ MERCHANT BANKING PARTNERS, L.P.
By: DLJ Merchant Banking, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Principal
DLJ INTERNATIONAL PARTNERS, C.V.
By: DLJ Merchant Banking, Inc.
Advisory General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Principal
DLJ OFFSHORE PARTNERS, C.V.
By: DLJ Merchant Banking, Inc.
Advisory General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Principal
DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Vice President
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
President
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
SPROUT CAPITAL VII, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
President
SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
President
DLJ FIRST ESC, L.P.
By: DLJ LBO Management Corporation, its
General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Principal
COMMVAULT SYSTEMS, INC.
By: /s/ N. Xxxxxx Xxxxxx
------------------------------------
Name: N. Xxxxxx Xxxxxx
Title: President
