Exhibit 10.17
SERIES CC PURCHASE AGREEMENT
THIS SERIES CC PURCHASE AGREEMENT (this "AGREEMENT"), dated as
of September 2, 2003, is by and between the parties listed on SCHEDULE A hereto
(collectively , the "PURCHASERS") and CommVault Systems, Inc., a Delaware
corporation (the "COMPANY").
WHEREAS, each of the Purchasers desire to invest in the
Company; and
WHEREAS, the Company desires to issue and sell to the
Purchasers an aggregate of 4,790,802 shares of its Series CC Preferred Stock
(the "SHARES") and the Purchasers desire to purchase the Shares on the terms and
subject to the conditions described herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, agreements and warranties herein contained, the parties hereto
agree as follows:
1. DEFINITIONS. Capitalized terms that are not defined in the
text of this Agreement have the meanings set forth below:
"Additional Shares" has the meaning set forth in SECTION 5(E).
"Affiliate" shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, owns, manages or controls, is under common
ownership, management or control with, or is owned, managed or controlled by,
such specified Person and, with respect to Putnam, any funds or accounts where
Putnam Investment Management, LLC or its affiliates, acts as Investment Adviser
(as defined in the Investment Advisers Act of 1940, as amended). For purposes of
this definition, a Person shall be deemed to control another Person if the first
Person owns, manages or holds more than 50% of the voting power of the second
Person.
"Amended Certificate" shall mean the Amended and Restated Certificate
of Incorporation of the Company in the form of EXHIBIT 2.
"Board of Directors" shall mean the board of directors of the Company.
"Closing" has the meaning set forth in SECTION 2(B).
"Code" shall mean the Internal Revenue Code of 1986 or any successor
statute, and the rules and regulations thereunder, collectively and as from time
to time amended and in effect.
"Commission" shall mean the Securities and Exchange Commission.
"Conversion Shares" has the meaning set forth in SECTION 5(C).
"Environmental Laws" has the meaning set forth in SECTION 3(R).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974
or any successor statute and the rules and regulations thereunder, collectively
and as from time to time amended and in effect.
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"Existing Series CC Purchase Agreement" means the Series CC Purchase
Agreement, dated as of February 14, 2002, between the Company and the other
Persons party thereto.
"Existing Series CC Registration Rights Agreement" means the
Registration Rights Agreement, dated as of February 14, 2002, between the
Company and the holders of the Series CC Preferred Stock party thereto.
"Financial Statements" has the meaning set forth in SECTION 3(G).
"Governmental Authority" shall mean the government of the United States
or any foreign country or any state or political subdivision thereof and any
entity, body or authority exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Initial Public Offering" shall mean the initial public offering or
sale of common stock by the Company through underwriters or otherwise, that
requires registration, qualification or the filing of a prospectus under the
Securities Act.
"Issuance Notice" has the meaning set forth in SECTION 5(E).
"Knowledge" shall mean the actual knowledge (assuming reasonable
investigation) of N. Robert Hammer, Louis Miceli, Larry Cormier, Al Bunte and
Brian McAteer and the other senior executives of the Company.
"Law" shall mean any law, statute, regulation, ordinance, rule, order,
decree, judgment, consent decree, settlement agreement or governmental
requirement enacted, promulgated, entered into, agreed or imposed by any
Governmental Authority.
"Lien" shall mean any mortgage, lien (except for any lien for taxes not
yet due and payable), charge, restriction, pledge, security interest, option,
lease or sublease, claim, right of any third party, easement, encroachment or
encumbrance.
"Litigation" has the meaning set forth in SECTION 3(E).
"Material Adverse Effect" shall mean an effect on the business,
operations, assets, liabilities, results of operations, cash flows or condition
(financial or otherwise) of the Company which is material and adverse.
"Non-Preemptive Shares" shall mean any voting shares of the capital
stock of the Company issued, sold, granted or conveyed (i) as consideration in
any acquisition of all or a portion of any Person or a merger or combination
with any Person duly authorized by the Board of Directors, (ii) to any current
or new director, officer, employee or consultant of the Company pursuant to any
plan or arrangement, now or hereafter existing, duly authorized by the Board of
Directors, (iii) any shares of capital stock issued in connection with the
antidilution rights of any Person or (iv) pursuant to any of the items listed on
SCHEDULE C.
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"Person" shall mean any individual, corporation, proprietorship, firm,
partnership, limited liability company, limited partnership, trust, association,
Massachusetts business trust or other entity.
"Preferred Stock" shall mean, collectively, the Company's issued and
outstanding Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series AA
Preferred Stock, Series BB Preferred Stock and Series CC Preferred Stock.
"Proprietary Assets" has the meaning set forth in SECTION 3(F).
"Proprietary Software" has the meaning set forth in SECTION 3(F).
"Purchase Price" has the meaning set forth in SECTION 2(A).
"Putnam" means funds and accounts managed by Affiliates of Putnam
Investments, LLC.
"Registration Rights Agreement" shall mean the Amended and Restated
Series CC Registration Rights Agreement (amending and restating the Existing
Series CC Registration Rights Agreement) to which Purchasers shall become a
party as of the Closing in the form of EXHIBIT 1.
"Required Consents" means (i) the approval of the Amended Certificate
by the Company's stockholders and the filing of such certificate with the
Delaware Secretary of State, (ii) approval of amendments to the Series AA
Registration Rights Agreement, the Series BB Registration Rights Agreement, the
Existing Series CC Registration Rights Agreement and the Stockholders' Agreement
and (iii) waivers by the holders of the Company's Preferred Stock of preemptive
rights to purchase the Shares.
"Response Notice" has the meaning set forth in SECTION 5(E).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series AA Purchase Agreement" shall mean the Purchase Agreement, dated
as of April 14, 2000 between the Company and the other Persons party thereto.
"Series AA Registration Rights Agreement" shall mean the Amended and
Restated Registration Rights Agreement, dated as of February 14, 2002, between
the Company and the holders of the Company's Series AA Preferred Stock.
"Series BB Purchase Agreement" shall mean the Purchase Agreement, dated
as of November 10, 2000, by and between the Company and the other Persons party
thereto.
"Series BB Registration Rights Agreement" shall mean the Amended and
Restated Registration Rights Agreement, dated as of February 14, 2002, between
the Company and the holders of the Series BB Preferred Stock.
"Share" has the meaning set forth in the preamble.
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"Stock Plan" shall mean the Company's stock plan, as described on
SCHEDULE C.
"Stockholders' Agreement" shall mean the stockholders' agreement, dated
as of May 22, 1996, and as further amended, between the Company and certain of
its stockholders.
"Subsidiaries" shall mean the Persons set forth on SCHEDULE B.
"Third Party Buyer" has the meaning set forth in SECTION 5(E).
"Transfer" has the meaning set forth in SECTION 5(D).
2. PURCHASE AND SALE OF SHARES.
(a) PURCHASE PRICE. Subject to the terms and conditions set forth in
this Agreement, at the Closing (as hereinafter defined), the Purchasers shall
purchase, and the Company shall issue and sell to the Purchasers the Shares for
an aggregate purchase price (the "Purchase Price") of $15,000,001.06. The number
of Shares being sold to each Purchaser and the portion of the Purchase Price
attributable thereto is set forth on SCHEDULE A hereto.
(b) CLOSING. The closing (the "Closing") of the transactions described
herein shall occur at 10:00 a.m. on the date hereof, at the offices of Mayer,
Brown, Rowe & Maw LLP, 190 S. LaSalle Street, Chicago, IL 60603, or such other
place and time as agreed upon by the Purchasers and the Company. At the Closing,
the Purchasers shall pay the Company the Purchase Price in cash by wire transfer
of immediately available funds to an account designated by the Company, which
designation shall occur at least two business days before the Closing, and the
Company shall deliver to each Purchaser a certificate representing the Shares
purchased by such Purchaser; PROVIDED, that, if so requested by a Purchaser that
is an Affiliate of Putnam, the Company will deliver such certificate to such
Purchaser's custodian at least one business day prior to the Closing pursuant to
an escrow arrangement reasonably acceptable to such custodian, the Company and
Putnam.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to each of the Purchasers:
(a) DUE INCORPORATION; SUBSIDIARIES. Each of the Company and the
Subsidiaries is duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, with all requisite power and
authority to own, lease and operate its properties and to carry on its business
as they are now being owned, leased, operated and conducted. Each of the Company
and the Subsidiaries is licensed or qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the nature of the
properties owned, leased or operated by it and the businesses transacted by it
require such licensing or qualification, except where the failure to be so
licensed or qualified would not individually or in the aggregate have a Material
Adverse Effect. Except as set forth on SCHEDULE B, the Company has no direct or
indirect subsidiaries, either wholly or partially owned, and the Company does
not hold any direct or indirect economic, voting or management interest in any
Person or directly or indirectly own any security issued by any Person. Each
Subsidiary is wholly owned by the Company.
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(b) DUE AUTHORIZATION. The Company has full power and
authority to enter into this Agreement and the Registration Rights Agreement and
to consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Company of this Agreement and the Registration
Rights Agreement have been duly and validly approved by the board of directors
of the Company and no other actions or proceedings on the part of the Company
are necessary to authorize this Agreement, the Registration Rights Agreement and
the transactions contemplated hereby and thereby. The Company has duly and
validly executed and delivered this Agreement and has duly and validly executed
and delivered the Registration Rights Agreement. This Agreement constitutes
legal, valid and binding obligations of the Company and the Registration Rights
Agreement upon execution and delivery by the Company will constitute legal,
valid and binding obligations of the Company, in each case, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific remedies.
(c) CONSENTS AND APPROVALS; AUTHORITY RELATIVE TO THIS AGREEMENT.
(i) No consent, authorization or approval of, filing or
registration with, or cooperation from, any Governmental Authority or any other
Person not a party to this Agreement that has not been received by the Company
is necessary in connection with the execution, delivery and performance by the
Company of this Agreement and the execution, delivery and performance by the
Company of the Registration Rights Agreement or the consummation of the
transactions contemplated hereby or thereby (including, without limitation, the
offer, issuance, sale and delivery of the Shares and the Conversion Shares).
(ii) The execution, delivery and performance by the Company of
this Agreement and the Registration Rights Agreement or the consummation of the
transactions contemplated hereby and thereby do not and will not (1) violate any
Law; (2) violate or conflict with, result in a breach or termination of,
constitute a default or give any third party any additional right (including a
termination right) under, permit cancellation of, result in the creation of any
Lien upon any of the assets or properties of the Company under, or result in or
constitute a circumstance which, with or without notice or lapse of time or
both, would constitute any of the foregoing under, any contract to which the
Company, is a party or by which the Company or any of its assets or properties
are bound; (3) permit the acceleration of the maturity of any indebtedness of
the Company or indebtedness secured by its assets or properties; or (4) violate
or conflict with any provision of any of the Amended Certificate or by-laws of
the Company.
(d) CAPITALIZATION.
(i) The authorized capital stock of the Company is as
described in the Amended Certificate. The outstanding capital stock of the
Company immediately prior to the Closing and before the issuance of the Shares
is as follows: (i) 2,039,717 shares of Series A Preferred Stock, (ii) 346,000
shares of Series B Preferred Stock, (iii) 333,333 shares of Series C Preferred
Stock, (iv) 247,204 shares of Series D Preferred Stock, (v) 200,000 shares of
Series E Preferred Stock, (vi) 4,361,555 shares of Series AA Preferred Stock,
(vii) 2,758,358 shares of
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Series BB Preferred Stock, (viii) 7, 341,105 shares of Series CC Preferred Stock
and (ix) 39,786,975 shares of Common Stock. All of the outstanding capital stock
of the Company and each Subsidiary (i) is validly issued, fully paid and
nonassessable and (ii) is free of preemptive rights (except as provided in the
Stockholders' Agreement, Series AA Purchase Agreement, the Series BB Purchase
Agreement, the Existing Series CC Purchase Agreement and this Agreement). When
issued, the Shares and the Conversion Shares will be validly issued, fully paid
and nonassessable and will not have been issued in violation of any preemptive
rights or rights of first refusal. The authorized capital stock as described in
the Amended Certificate contains a sufficient number of shares of common stock
for issuance of the Conversion Shares.
(ii) Except as set forth above or on SCHEDULE C, there are no
shares of capital stock or other securities (whether or not such securities have
voting rights) of the Company issued or outstanding or any subscriptions,
options, warrants, calls, rights, convertible securities or other agreements or
commitments of any character obligating the Company to issue, transfer or sell,
or cause the issuance, transfer or sale of, any shares of its capital stock or
other securities (whether or not such securities have voting rights). Except as
set forth in SCHEDULE C, there are no outstanding contractual obligations of the
Company which relate to the purchase, sale, issuance, repurchase, redemption,
acquisition, transfer, disposition, holding or voting of any shares of its
capital stock or other securities. After giving effect to the issuance of the
Shares (and antidilution adjustments resulting therefrom), the maximum number of
shares of common stock that the Company has issued and would be obligated to
issue as of the date hereof is 82,877,864 shares on a fully diluted basis.
(e) LITIGATION.
(i) There is no claim, action, suit, investigation or
proceeding ("LITIGATION") pending or, to the Knowledge of the Company,
threatened against the Company or any Subsidiary, or involving any of its
properties or assets by or before any court, arbitrator or other Governmental
Entity which (1) in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement or (2) if
resolved adversely to the Company or any Subsidiary, would reasonably be
expected to have a Material Adverse Effect.
(ii) Neither the Company nor any Subsidiary is in default
under or in breach of any order, judgment or decree of any court, arbitrator or
other Governmental Authority.
(f) INTELLECTUAL PROPERTY.
(i) The Company owns all right, title and interest in, or, to
the Knowledge of the Company, has the right to use: all patents and the
inventions claimed therein; trademarks, service marks and trade names, together
with associated goodwill; copyrights and copyrightable work; Internet domain
names; registrations and applications relating to any of the foregoing;
know-how, processes, formulae, algorithms, models, methodologies and trade
secrets; computer programs, including any and all software implementations of
algorithms, models and methodologies whether in source code or object code form;
databases and compilations, including any and all data, all documentation,
including user manuals and training materials, related to any of the foregoing;
and the content and information contained on any Company Web
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site; and other confidential and proprietary information (collectively, the
"Proprietary Assets") used in its business as now conducted and as presently
proposed to be conducted. To the Knowledge of the Company, no person or entity
has any ownership right, title, interest, claim in or Lien on any of the
Company's Proprietary Assets. No current or former employee, officer, director
or consultant of the Company has any ownership right, right to use, title,
interest, claim in or Lien on any of the Company's Proprietary Assets. Except
for licenses granted in the ordinary course of business in connection with the
sale of the Company's products, the Company has not granted and, to the
Knowledge of the Company, there are not outstanding, any options, licenses or
agreements of any kind relating to any Proprietary Asset of the Company, nor has
the Company granted and, to the Knowledge of the Company, is the Company bound
by or a party to, any option, license or agreement of any kind with respect to
any of its Proprietary Assets. No settlement agreements, consents, judgments,
orders, forbearance to sue or similar obligations limit or restrict the
Company's rights in and to any Proprietary Assets.
(ii) To the Knowledge of the Company, the Company has not
violated, misappropriated, diluted or infringed, and would not, by conducting
its business as currently proposed, violate, misappropriate, dilute or infringe,
any intellectual property right in any Proprietary Asset of any other Person.
There is no claim, action, suit, investigation or proceeding pending or, to the
Knowledge of the Company, threatened against the Company which would affect in
any way any of its Proprietary Assets by or before any court, arbitrator or
other Governmental Entity. To the Knowledge of the Company, no third party has
violated, misappropriated, diluted or infringed any intellectual property right
in any Proprietary Asset of the Company.
(iii) The Company takes all reasonable measures to protect the
confidentiality of its trade secrets including requiring third parties having
access thereto to execute written nondisclosure agreements. Each employee of the
Company hired after January 1, 1998 has signed an Employee Inventions and
Confidentiality Agreement substantially in the form attached hereto as SCHEDULE
D.
(iv) All material Proprietary Assets owned or used by the
Company have been duly maintained, are valid and subsisting, in full force and
effect and have not been cancelled, expired or abandoned. The execution,
delivery and performance by the Company of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions contemplated hereby
and thereby will not result in the loss or impairment of the Company's rights to
own or use any of the Proprietary Assets, nor will such consummation require the
consent of any third party in respect of any Proprietary Assets.
(v) Except for Microsoft Corporation's SQL product, which
Microsoft Corporation has licensed to the Company (with rights to further
sublicense such software), the Company's software products (the "PROPRIETARY
SOFTWARE") were either developed (a) by employees of the Company within the
scope of their employment; (b) by independent contractors as
"works-made-for-hire," as that term is defined under Section 101 of the United
States Copyright Act, 17 U.S.C. ss. 101, pursuant to written agreement; or (c)
by third parties who have assigned all of their rights therein to the Company
pursuant to a written agreement. No former or present employees, officers or
directors of the Company, or any other third parties retain any rights of
ownership or use of the Proprietary Software, and no employees or third parties
who
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have developed or participated in the development of the Proprietary Software
have any claims to any moral rights therein.
(g) FINANCIAL STATEMENTS. The Company has furnished to each of
the requesting Purchasers audited financial statements as of, and for, the year
ended March 31, 2003, including a balance sheet and statement of income
(collectively, the "FINANCIAL STATEMENTS"). The Financial Statements are
complete and correct, are in accordance with the books and records of the
Company and present fairly in all material respects the financial condition and
results of operations of the Company, at the dates and for the periods
indicated, and have been prepared in accordance with generally accepted
accounting principles consistently applied.
(h) ABSENCE OF UNDISCLOSED LIABILITIES. The Company does not
have any liability (whether known or unknown and whether absolute or
contingent), except for (a) liabilities shown on the face of the Financial
Statements and (b) liabilities that have arisen since March 31, 2003 in the
ordinary course of business that are not material.
(i) ABSENCE OF CHANGES. Since March 31, 2003, the Company has
conducted its business in the ordinary course, consistent with past practice and
there has not been any event or condition which has had or would be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) CONTRACTS. The Company does not have and is not bound by
any contract, agreement, lease or commitment, other than (i) contracts for the
purchase of supplies and services or the licensing of technology that were
entered into in the ordinary course of business that do not involve more than
$250,000 per year and do not extend for more than one year, (ii) sales contracts
entered into in the ordinary course of business, (iii) the leases for the
Company's office or other space, (iv) contracts terminable at will by the
Company on no more than 30 days' notice without cost or liability to the
Company, (v) an agreement with Microsoft Corporation, dated as of April 12,
2000, or (vi) other contracts the loss of which would not have a Material
Adverse Effect. The Company has provided the Purchasers with a copy of all its
material contracts. To the Knowledge of the Company, all of the contracts to
which it is a party are valid and binding and are in full force and effect as of
the date of this Agreement.
(k) REGISTRATION RIGHTS. Other than the Registration Rights
Agreement, the Series AA Registration Rights Agreement, the Series BB
Registration Rights Agreement, the Existing Series CC Registration Rights
Agreement, the Stockholders Agreement and the piggyback registration rights
granted pursuant to the purchase agreement listed in paragraph 4 of SCHEDULE C,
the Company has not granted any registration rights to any party for any of its
securities.
(l) COMPLIANCE WITH LAWS. The Company and each Subsidiary are
in compliance in all material respects with all applicable Laws. All securities
issued by the Company prior to the date hereof have been issued in transactions
exempt from the registration requirements of Section 5 of the Securities Act.
(m) OFFERING OF SHARES. Neither the Company nor any Person
acting on its behalf has taken or will take any action (including, without
limitation, any offering of any securities of the Company under circumstances
which would require, under the Securities Act, the integration of
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such offering with the offering and sale of the Shares) which might reasonably
be expected to subject the offering, issuance or sale of the Shares to the
registration requirements of the Securities Act. Subject to the continuing
accuracy of the Purchasers' representations in Section 4, the offer, sale and
issuance of the Shares and the Conversion Shares in accordance with the terms of
this Agreement and the Amended Certificate constitute or will constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act.
(n) BROKERS. Except for fees and commissions payable to C.E.
Unterberg, Towbin by the Company, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission from any party in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
(o) INSURANCE COVERAGE. The Company maintains in full force
and effect insurance coverage that the Company reasonably believes to be
adequate against all liabilities, claims and risks against which it is customary
for comparably situated companies to insure.
(p) EMPLOYEES. To the Company's Knowledge, no executive, key
employee, or group of employees has any plans to terminate employment with the
Company. The Company is in compliance in all material respects with all
applicable Laws regarding employment and employment practices and terms and
conditions of employment.
(q) ERISA. The Company does not have or otherwise contribute
to or participate in any employee benefit plan subject to Title IV of ERISA.
(r) ENVIRONMENTAL MATTERS. The Company is not in violation of
any statute, rule, regulation, decision or order of any Governmental Authority
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), does not
own or operate any real property contaminated with any substance that is subject
to any Environmental Laws, is not liable for any off-site disposal or
contamination pursuant to any Environmental Laws, and is not subject to any
claim relating to any Environmental Laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company has no Knowledge of any pending investigation
that might lead to such a claim.
(s) AFFILIATED TRANSACTIONS. Other than the Stockholders'
Agreement, the Series AA Purchase Agreement, the Series AA Registration Rights
Agreement, the Series BB Purchase Agreement, the Series BB Registration Rights
Agreement, agreements for certain advisory services with Credit Suisse First
Boston Corporation and/or its Affiliates, the Company's Employment Agreement
with N. Robert Hammer and the side letters with holders of the Company's Series
A through E Preferred Stock dated February 14, 2002, the Company is not, nor has
it been, a party to or bound by any contract, agreement, lease or commitment
with any of the Affiliates of the Company, other than on arms-length terms which
are no less favorable to the Company than those which could be obtained with a
third party which is not an Affiliate of the Company and no Affiliate of the
Company owns or otherwise has any rights to or interests in any asset, tangible
or intangible, which is used in the conduct of the Company's business.
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(t) NO ILLEGAL PAYMENTS. In connection with the conduct of the
Company's business, none of the Company nor any of their directors or officers
nor, to the Company's Knowledge, any of their employees or agents, has (x)
directly or indirectly given or agreed to give any illegal gift, contribution,
payment or similar benefit to any supplier, customer, governmental official or
employee or other person who was, is or may be in a position to help or hinder
the Company (or assist in connection with any actual or proposed transaction) or
made or agreed to make any illegal contribution, or reimbursed any illegal
political gift or contribution made by any other person, to any candidate for
federal, state, local or foreign public office (i) which might subject the
Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding or (ii) the non-continuation of which has had or might
have a Material Adverse Effect or (y) established or maintained any unrecorded
fund or asset or made any false entries on any books or records for any purpose.
(u) DISCLOSURE. The representations and warranties contained
in this Section 3 (including any schedules and exhibits required to be delivered
by the Company to the Purchasers pursuant to this Agreement) and any certificate
furnished or to be furnished by the Company to the Purchasers do not contain and
on the date of the Closing will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements and information contained in this Section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each of the
Purchasers severally but not jointly hereby represents and warrants to the
Company as follows:
(a) DUE INCORPORATION. Such Purchaser, if not an individual,
is duly organized or duly formed, validly existing and in good standing under
the laws of its jurisdiction of organization, with all requisite power and
authority to own, lease and operate its properties and to carry on its business
as they are now being owned, leased, operated and conducted.
(b) DUE AUTHORIZATION. Such Purchaser, if not an individual,
has full power and authority to enter into this Agreement and the Registration
Rights Agreement and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by such Purchaser of this
Agreement and the Registration Rights Agreement have been duly and validly
approved by its governing body empowered to authorize the transactions
contemplated by this Agreement and the Registration Rights Agreement and no
other actions or proceedings on the part of such Purchaser are necessary to
authorize this Agreement, the Registration Rights Agreement and the transactions
contemplated hereby and thereby. Such Purchaser, if an individual, has the legal
capacity to enter into this Agreement and the Registration Rights Agreement.
(c) DUE EXECUTION; BINDING EFFECT. Such Purchaser has validly
executed and delivered this Agreement and has duly and validly executed and
delivered (or prior to or at the Closing will duly and validly execute and
deliver) the Registration Rights Agreement. This Agreement constitutes legal,
valid and binding obligations of such Purchaser and such Purchaser's Related
Agreements upon execution and delivery by such Purchaser (as applicable) will
constitute legal, valid and binding obligations of such Purchaser, in each case,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which
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affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(d) CONSENTS AND APPROVALS; AUTHORITY RELATIVE TO THIS AGREEMENT.
(i) No consent, authorization or approval of, filing or
registration with, or cooperation from, any Governmental Authority or any other
Person not a party to this Agreement is necessary in connection with the
execution, delivery and performance by such Purchaser of this Agreement and the
Registration Rights Agreement and the consummation by such Purchaser of the
transactions contemplated hereby and thereby.
(ii) The execution, delivery and performance by such Purchaser
of this Agreement and the Registration Rights Agreement do not and will not (1)
violate any Law applicable to such Purchaser; (2) violate or conflict with,
result in a breach or termination of, constitute a default or give any third
party any additional right (including a termination right) under, permit
cancellation of, result in the creation of any Lien upon any of the assets or
properties of such Purchaser under, or result in or constitute a circumstance
which, with or without notice or lapse of time or both, would constitute any of
the foregoing under, any contract to which Purchaser is a party or by which such
Purchaser or any of its assets or properties are bound; (3) permit the
acceleration of the maturity of any indebtedness of such Purchaser or
indebtedness secured by its assets or properties; or (4) if such Purchaser is
not an individual, violate or conflict with any provision of such Purchaser's
organizational documents.
(e) BROKERS. No broker, lender or investment banker is entitled to any
brokerage, lender's or other fee or commission from any party in connection with
the transactions contemplated by this Agreement based on arrangements made by or
on behalf of such Purchaser.
(f) PURCHASE FOR INVESTMENT. Such Purchaser is purchasing the Shares
hereunder for investment without any intent of the distribution thereof within
the meaning of the Securities Act.
(g) ACCREDITED INVESTOR. Such Purchaser is an "accredited investor"
within the meaning of Regulation 501(a) under the Securities Act and is able to
bear the economic risk of acquisition of the Shares, can afford to sustain a
total loss on such investment, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risk of the proposed investment. Such Purchaser has been furnished the
opportunity to ask questions of and receive answers from representatives of the
Company concerning the business and financial affairs of the Company.
5. COVENANTS.
(a) AMENDED CERTIFICATE. The Company shall, prior to the Closing, cause
the Amended Certificate to be filed with the Secretary of State of the State of
Delaware.
(b) COOPERATION. Each of the Purchasers and the Company agrees to use
its reasonable best efforts to take, or cause to be taken, all such further
actions as shall be necessary to make effective and consummate the transactions
contemplated by this Agreement.
-11-
(c) RESERVE SHARES. The Company will at all times reserve and keep
available, solely for issuance and delivery upon conversion of the Shares, the
number of shares of common stock from time to time issuable upon conversion of
all Shares at the time outstanding (the "CONVERSION SHARES"). All Conversion
Shares shall be duly authorized and, when issued upon such conversion in
accordance with the Amended Certificate, shall be validly issued, fully paid and
nonassessable.
(d) RESTRICTIONS ON TRANSFER. The Purchasers will not, prior to the
earlier of (a) December 31, 2005 or (b) the time of the closing of the Initial
Public Offering, sell, transfer, assign, convey, gift, mortgage, pledge,
encumber, hypothecate, or otherwise dispose of, directly or indirectly,
("TRANSFER") any of the Shares or any Conversion Shares except for (i) Transfers
between and among the Purchasers and their Affiliates provided such Transfer is
in accordance with the transfer restrictions applicable to the Shares or the
Conversion Shares under federal and state securities laws and the Affiliate
transferee agrees to be bound by the restrictions applicable to such Shares or
Conversion Shares, including without limitation the agreements set forth in this
SECTION 5(D), and (ii) Transfers (x) pursuant to a bona fide tender or exchange
offer made pursuant to a merger or other agreement approved by the Board of
Directors to acquire securities of the Company, (y) pursuant to any cash merger,
or other business combination transaction to which the Company is a party or
involved in which the common stock of the Company's stockholders is exchanged
for cash upon consummation of such merger or other business combination or (z)
agreed to in writing by the Company. Notwithstanding any other provision of this
SECTION 5(D), no Purchaser shall avoid the provisions of this SECTION 5(D) by
making one or more transfers to one or more Affiliates and then disposing of all
or any portion of such Purchaser's interest in any such Affiliate.
(e) PREEMPTIVE RIGHT. If at any time the Company desires to issue or
sell any shares of its capital stock or securities convertible, exercisable or
exchangeable for the Company's capital stock (other than Non-Preemptive Shares)
(the "ADDITIONAL SHARES") to any Person, the Company shall give a written notice
(the "ISSUANCE NOTICE") to the Purchasers setting forth the proposed terms of
the sale of such Additional Shares and the quantity of Additional Shares to be
issued, the proposed issuance date and the price at which such Additional Shares
shall be issued. Each of the Purchasers shall have the option to purchase the
number of Additional Shares necessary to maintain such Purchaser's percentage of
issued and outstanding shares of the Company at the time of the Issuance Notice,
which option may be exercised by giving written notice to the Company (the
"RESPONSE NOTICE") within 14 days of the Issuance Notice that contains an
agreement to purchase all or any portion of the Additional Shares to which such
Purchaser is entitled to purchase. Failure by a Purchaser to give the Response
Notice to the Company within such 14-day period shall be deemed to be a
rejection of such option. For a period of 180 days after any Issuance Notice,
the Company shall have the right to issue or sell to any Person (a "THIRD PARTY
BUYER") up to the number of Additional Shares specified in the Issuance Notice
less the number of Additional Shares subscribed for pursuant to duly tendered
Response Notices at the same price and on other terms not materially less
favorable to the Company than as specified in the Issuance Notice. At the time
of the closing of the sale of the Additional Shares to one or more Third Party
Buyers, the Company shall sell to such Purchaser and such Purchaser shall
purchase the Additional Shares that such Purchaser agreed to purchase in the
Response Notice, at the price and on the terms set forth in the Issuance Notice.
If at the end of the 180th day following any Issuance Notice, the Company has
not completed the
-12-
issuance described in the Issuance Notice, each Purchaser that has provided a
Response Notice shall be released from its obligations thereunder. If the
Company desires to issue or sell Additional Shares, (i) after such 180-day
period, (ii) except in connection with an Initial Public Offering, on terms
materially less favorable to the Company than as specified in the Issuance
Notice, (iii) except in connection with an Initial Public Offering, at a price
less than the price specified in the Issuance Notice or (iv) except in
connection with an Initial Public Offering, in a quantity greater than as
specified in the Issuance Notice, the Company must again comply with this
SECTION 5(E). If the Company desires to take any of the actions set forth in
clauses (ii), (iii) or (iv) of the prior sentence in connection with an Initial
Public Offering, each Purchaser, at its option, shall be released from its
obligations under its Response Notice. The rights and obligations of the parties
pursuant to this SECTION 5(E) shall terminate upon the closing of an Initial
Public Offering.
(f) COMPLIANCE WITH SECURITIES LAWS. Such Purchaser understands that
the Shares and the Conversion Shares will not be registered under the Securities
Act or applicable state securities laws and agrees not to sell, pledge or
otherwise transfer any of the Shares and Conversion Shares in the absence of
such registration or an opinion of counsel reasonably satisfactory to the
Company that such registration is not required, except that the requirement of a
legal opinion will not apply to transfers by Putnam to any of its Affiliates.
Except as set forth in the Registration Rights Agreement, such Purchaser
acknowledges that the Company is not required to register the Shares or the
Conversion Shares.
6. CONDITIONS.
(a) CONDITIONS TO OBLIGATIONS OF THE PURCHASERS. The obligations of the
Purchasers to consummate the transactions contemplated hereby shall be subject
to the satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(i) No statute, rule or regulation or order of any
Governmental Authority shall be in effect which prohibits the consummation of
the transactions contemplated hereby;
(ii) The Company shall have performed, satisfied and complied
in all material respects with all of its covenants and agreements set forth in
this Agreement to be performed, satisfied and complied with prior to or at the
Closing;
(iii) The representations and warranties of the Company in
Section 3 shall be true and correct in all material respects as of the date of
Closing;
(iv) The Company shall have executed and delivered to each of
the Purchasers the Registration Rights Agreement;
(v) The Company shall have obtained sufficient waivers of
pre-emptive rights from all holders of capital stock who possess such rights so
as to allow the consummation of the transactions contemplated by this Agreement;
(vi) The Amended Certificate shall have been duly filed with
the Secretary of State of the State of Delaware in accordance with the laws of
the State of Delaware and the Amended Certificate shall be in full force and
effect;
-13-
(vii) Mayer, Brown, Rowe & Maw LLP shall have delivered an
opinion in form and substance reasonably satisfactory to Purchasers;
(viii) The Company shall have delivered a good standing
certificate for the Company (or a copy thereof) to each of the Purchasers;
(ix) The Company shall have received all consents,
authorizations, and approvals necessary to complete the transactions
contemplated hereby, including, without limitation, the Required Consents;
(x) The Company shall have delivered to each Purchaser a
certificate of the Company, dated the date of the Closing and executed by the
Chief Executive Officer of the Company, certifying as to the fulfillment of the
conditions specified in Sections 6(a)(ii), (iii), (vi), (xii) and (xiii) of this
Agreement;
(xi) The Company shall have delivered to each Purchaser a
certificate of the Company, dated the date of the Closing and executed by the
Secretary of the Company, certifying: (a) the corporate proceedings taken by the
Company's Board of Directors and, if required, stockholders approving this
Agreement and the Registration Rights Agreement and the transactions
contemplated hereby and thereby; (b) the Amended Certificate; and (c) the
By-laws of the Company;
(xii) No claim, action, cause of action, suit, litigation,
arbitration, investigation, hearing, charge, complaint, demand, notice or
proceeding to, from, by or before any Governmental Authority shall be pending or
threatened wherein an unfavorable injunction, judgment, order, decree, ruling,
or charge would (i) prevent consummation of any of the transactions contemplated
by this Agreement or (ii) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect); and
(xiii) There shall not have occurred any event, circumstances,
condition, fact, effect, or other matter which has had or would reasonably be
expected to have a Material Adverse Effect.
(b) CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligation of the
Company to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver at or prior to the Closing of each of the following
conditions:
(i) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits the consummation of the
transactions contemplated hereby;
(ii) Each of the Purchasers shall have executed and delivered
to the Company the Registration Rights Agreement;
(iii) The representations and warranties of the Purchasers in
Section 4 shall be true and correct in all material respects as of the date of
Closing;
-14-
(iv) The Company shall have received the Required Consents; and
(v) The Purchasers shall have performed, satisfied and complied
in all material respects with all of their covenants and agreements set forth in
this Agreement to be performed, satisfied and complied with prior to or at the
Closing.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the parties contained in this
Agreement shall expire on the 18-month anniversary of the Closing, except for
those representations and warranties contained in Sections 3(a) through 3(d)
which shall expire on the later of (i) the 18-month anniversary of the Closing
or (ii) the closing of an Initial Public Offering. After the expiration of such
period, any claim by a party based upon any such representation or warranty
shall be of no further force and effect, except to the extent a party has given
notice to the other party of a claim for breach of any such representation or
warranty prior to the expiration of such period, in which event any
representation or warranty to which such claim relates shall survive with
respect to such claim until such claim is resolved. The covenants and agreements
of the parties hereto contained in this Agreement shall survive the Closing
until performed in accordance with their terms.
8. RESTRICTIVE LEGENDS. Each certificate representing any
Shares or Conversion Shares shall bear legends in substantially the following
form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE SHALL BE CONVERTIBLE INTO
THE COMPANY'S COMMON STOCK IN THE MANNER AND ACCORDING TO THE TERMS SET
FORTH IN THE CERTIFICATE OF INCORPORATION AS AMENDED AND/OR RESTATED
FROM TIME TO TIME. THE COMPANY IS AUTHORIZED TO ISSUE MORE THAN ONE
CLASS OR SERIES OF STOCK. AS REQUIRED UNDER DELAWARE LAW, THE COMPANY
SHALL FURNISH TO ANY HOLDER UPON REQUEST AND WITHOUT CHARGE, A FULL
SUMMARY STATEMENT OF THE DESIGNATIONS, VOTING RIGHTS, PREFERENCES,
LIMITATIONS AND SPECIAL RIGHTS OF THE SHARES OF EACH CLASS OR SERIES
AUTHORIZED TO BE ISSUED BY THE COMPANY SO FAR AS THEY HAVE BEEN FIXED
AND DETERMINED AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO FIX AND
DETERMINE THE DESIGNATIONS, VOTING RIGHTS, PREFERENCES, LIMITATIONS AND
SPECIAL RIGHTS OF THE CLASSES AND SERIES OF SECURITIES OF THE COMPANY.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER
ANY APPLICABLE STATE LAWS. THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED BY THE REGISTERED OWNER HEREOF FOR INVESTMENT AND
NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION
THEREOF WITHIN THE MEANING OF THE 1933 ACT.
-15-
THE SHARES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN
A TRANSACTION WHICH IS EXEMPT UNDER THE PROVISIONS OF THE 1933 ACT OR
ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN A TRANSACTION OTHERWISE IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
THE SALE, PLEDGE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY AND SUBJECT TO
THE PROVISIONS OF A PURCHASE AGREEMENT DATED AS OF SEPTEMBER 2, 2003, A
COPY OF WHICH IS AVAILABLE UPON REQUEST FOR INSPECTION AT THE OFFICE'S
OF THE COMPANY. ANY SUCH REQUEST SHOULD BE ADDRESSED TO THE SECRETARY
OF THE COMPANY.
9. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement shall bind and inure to the benefit of the Company and the Purchasers
and the respective successors, permitted assigns, heirs and personal
representatives of the Company and the Purchasers; PROVIDED that the Company may
not assign its rights or obligations under this Agreement to any Person without
the prior written consent of the Purchasers, and PROVIDED FURTHER that the
Purchasers may not assign their rights or obligations under this Agreement to
any Person (other than an Affiliate) without the prior written consent of the
Company. 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.
10. 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 set forth below:
If to any of the Purchasers, at the address set forth under such
Purchaser's name on SCHEDULE A.
If to the Company:
CommVault Systems, Inc.
2 Crescent Place
Oceanport, New Jersey 07757
Attn: N. Robert Hammer
Facsimile: (732) 870-4514
With a copy to:
-16-
Mayer, Brown, Rowe & Maw LLP
190 S. LaSalle Street
Chicago, Illinois 60603
Attention: Philip J. Niehoff
Facsimile: (312) 701-7711
11. FURTHER ASSURANCES. At any time or from time to time after
the Closing, the Company, on the one hand, and the Purchasers, on the other
hand, agree to cooperate with each other, and at the request of the other party,
to execute and deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order to evidence or
effectuate the consummation of the transactions contemplated hereby and to
otherwise carry out the intent of the parties hereunder.
12. PUBLIC DISCLOSURE. Except as required by Law or the rules
of any stock exchange (in which case the Company shall give Putnam notice at
least 24 hours prior to any public announcement containing its name), no public
announcement or other publicity regarding the transactions referred to herein
shall be made by any of the Purchasers or the Company or any of their respective
Affiliates, officers, directors, employees, representatives or agents, without
the prior written agreement of the Purchasers and Company, in any case, as to
form, content, timing and manner of distribution or publication; PROVIDED,
HOWEVER, that nothing in this Section shall prevent such parties from (i)
discussing such transactions with those Persons whose approval, agreement or
opinion, as the case may be, is required for consummation or subsequent review
of such particular transaction or transactions or (ii) disclosing such
information about such transactions in a registration statement or prospectus in
connection with the Initial Public Offering or (iii) if the disclosing party is
a Purchaser, disclosing such Purchaser's investment herein provided that such
disclosure does not mention any other Purchaser by name and is approved by the
Company in writing. Each of the parties acknowledge and agree that there would
be no adequate remedy at Law if it fails to perform its obligations under this
Section 12 and accordingly agrees that each of the other parties, in addition to
any other remedy to which it may be entitled at Law or in equity, shall be
entitled to compel specific performance of the obligations of the first party
under this Section 12.
13. WAIVER AND AMENDMENT. With the written consent of the
Company and the record holders of 66 2/3% of the Conversion Shares (including
the Conversion Shares represented by the Shares as if the Shares were converted
into Conversion Shares), (i) the obligations of the Company under this Agreement
and the rights of the holders of the Conversion Shares 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, (x) if any waiver of any right or rights granted
to a Purchaser under this Agreement would uniquely affect such Purchaser, then
such waiver may be approved or granted by such Purchaser without the consent or
approval of any other Purchaser and (y) if any waiver or amendment of any right
or rights granted to a Purchaser under this Agreement would adversely affect
only a given Purchaser, then such amendment or waiver may not be effected
without the consent or approval of such affected Purchaser. Neither this
Agreement nor any provisions hereof may be amended, changed, waived, discharged
or terminated orally, but only by a signed statement in writing.
-17-
14. ENTIRE AGREEMENT. This Agreement and the Registration
Rights Agreement constitute the entire agreement, and supersede 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.
15. 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.
16. CAPTIONS. The Section references 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.
17. 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.
18. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
19. WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASERS
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.
20. 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.
21. MASSACHUSETTS BUSINESS TRUSTS. A copy of the Agreement and
Declaration of Trust of each Putnam 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 or shareholders of the Fund individually but
are binding only upon the assets and property of such Fund.
* * * *
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first written above.
COMMVAULT SYSTEMS, INC.
By: /S/ N. ROBERT HAMMER
---------------------------------------------------
Name:
---------------------------------------------------
Title:
--------------------------------------------------
PURCHASE AGREEMENT
PUTNAM OTC AND EMERGING GROWTH FUND
By Putnam Investment Management, LLC
By: /S/ CHARLES A. RUYS DE PEREZ
---------------------------------------------------
Name: Charles A. Ruys de Perez
Title: Managing Director
TH LEE, PUTNAM INVESTMENT TRUST -
TH LEE, PUTNAM EMERGING
OPPORTUNITIES PORTFOLIO
By TH Lee, Putnam Capital Management, LLC
By: /S/ CHARLES A. RUYS DE PEREZ
---------------------------------------------------
Name: CHARLES A. RUYS DE PEREZ
-------------------------------------------------
Title: MANAGING DIRECTOR
------------------------------------------------
PUTNAM DISCOVERY GROWTH FUND
By Putnam Investment Management, LLC
By: /S/ CHARLES A. RUYS DE PEREZ
---------------------------------------------------
Name: Charles A. Ruys de Perez
Title: Managing Director
PUTNAM WORLD TRUST II - PUTNAM EMERGING INFORMATION
SCIENCES FUND
By The Putnam Advisory Company, LLC
By: /S/ CHARLES A. RUYS DE PEREZ
---------------------------------------------------
Name: Charles A. Ruys de Perez
Title: Managing Director
PURCHASE AGREEMENT
VAN WAGONER PRIVATE OPPORTUNITIES FUND, L.P.
By: /S/ GARRETT VAN WAGONER
---------------------------------------------------
Name: GARRETT VAN WAGONER
-------------------------------------------------
Title: GENERAL PARTNER
------------------------------------------------
VAN WAGONER CAPITAL PARTNERS, L.P.
By: /S/ GARRETT VAN WAGONER
---------------------------------------------------
Name: GARRETT VAN WAGONER
-------------------------------------------------
Title: GENERAL PARTNER
------------------------------------------------
PURCHASE AGREEMENT
WHEATLEY PARTNERS III, L.P.
By: Wheatley Partners III LLC, its General Partner
By: /S/ BARRY RUBENSTEIN
---------------------------------------------------
Name: BARRY RUBENSTEIN
-------------------------------------------------
Title: CEO
------------------------------------------------
WHEATLEY ASSOCIATES III, L.P.
By: Wheatley Partners III LLC, its General Partner
By: /S/ BARRY RUBENSTEIN
---------------------------------------------------
Name: BARRY RUBENSTEIN
-------------------------------------------------
Title: CEO
------------------------------------------------
WHEATLEY FOREIGN PARTNERS III, L.P.
By: Wheatley Partners III LLC, its General Partner
By: /S/ BARRY RUBENSTEIN
---------------------------------------------------
Name: BARRY RUBENSTEIN
-------------------------------------------------
Title: CEO
------------------------------------------------
PURCHASE AGREEMENT
DLJ CAPITAL CORPORATION
By: /S/ KEITH B. GEESLIN
---------------------------------------------------
Name: Keith B. Geeslin
Title: Managing Director
SPROUT CAPITAL IX, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /S/ KEITH B. GEESLIN
---------------------------------------------------
Name: Keith B. Geeslin
Its: Managing Director
SPROUT ENTREPRENEURS' FUND, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /S/ KEITH B. GEESLIN
---------------------------------------------------
Name: Keith B. Geeslin
Its: Managing Director
SPROUT IX PLAN INVESTORS, L.P.
By: DLJ LBO Plans Management Corporation II
Its: General Partner
By: /S/ KEITH B. GEESLIN
---------------------------------------------------
Name: Keith B. Geeslin
Its: Attorney in Fact
PURCHASE AGREEMENT
/S/ THOMAS I. UNTERBERG
-------------------------------------------------------
THOMAS I. UNTERBERG
C.E. UNTERBERG, TOWBIN CAPITAL PARTNERS I, L.P.
By: UTCM LLC
Its: General Partner
By: /S/ MARK G. HADLOCK
---------------------------------------------------
Name: MARK G. HADLOCK
-------------------------------------------------
Title: SECRETARY OF UTCM, LLC
------------------------------------------------
PURCHASE AGREEMENT
CAMELOT CAPITAL L.P.
By: /S/ SCOTT M. SMITH
---------------------------------------------------
Name: Scott M. Smith
Title: Managing Partner
CAMELOT CAPITAL II L.P.
By: /S/ SCOTT M. SMITH
---------------------------------------------------
Name: Scott M. Smith
Title: Managing Partner
CAMELOT OFFSHORE FUND LIMITED
By: /S/ SCOTT M. SMITH
---------------------------------------------------
Name: Scott M. Smith
Title: Managing Director
PURCHASE AGREEMENT
AMERINDO INTERNET FUND PLC
BY: AMERINDO INVESTMENT INC.
ITS: MANAGER
By: /S/ GARY TANAKA
---------------------------------------------------
Name: GARY TANAKA
-------------------------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------------------------
/S/ K. FLYNN MCDONALD
-------------------------------------------------------
K. FLYNN MCDONALD
/S/ MICHAEL SANDIFER
-------------------------------------------------------
MICHAEL J. SANDIFER
/S/ MARC WEISS
-------------------------------------------------------
MARC WEISS
PURCHASE AGREEMENT
AMAN VENTURES
By: /S/ WILLIAM J. BELL
---------------------------------------------------
Name: WILLIAM J. BELL
-------------------------------------------------
Title: MANAGING PARTNER
------------------------------------------------
PURCHASE AGREEMENT
HFI PRIVATE EQUITY LTD.
By: /S/ BARRY SHAILER /S/ HARRY WILKIN
---------------------------------------------------
Name: BARRY SHAILER HARRY WILKIN
---------------------------------------------------
Title: DIRECTOR DIRECTOR
---------------------------------------------------
PURCHASE AGREEMENT
DRW VENTURE PARTNERS LP
By: RBC Dain Rauscher Corporation, its
General Partner
By:/S/ MARY ZIMMER
----------------------------------------------------
Name: MARY ZIMMER
-------------------------------------------------
Title: DIRECTOR OF FINANCE AND ADMINISTRATION, RBC
CAPITAL MARKETS SERVICES
------------------------------------------------
PURCHASE AGREEMENT
SCHEDULE A
PURCHASERS
NAME AND ADDRESS OF PURCHASER NUMBER OF SHARES PRICE
- ----------------------------- ---------------- -----
Putnam OTC and Emerging Growth Fund 239,540 $ 749,999.74
c/o Putnam Investment Management, LLC
Two Liberty Square
Boston, MA 02109
TH Lee, Putnam Investment Trust 319,387 $ 1,000,000.70
TH Lee, Putnam Emerging Opportunities Portfolio
c/o Putnam Investment Management, LLC
Two Liberty Square
Boston, MA 02109
Putnam Discovery Growth Fund 79,847 $ 250,000.96
c/o Putnam Investment Management, LLC
Two Liberty Square
Boston, MA 02109
Putnam World Trust II - Putnam Emerging
Information Sciences 159,693 $ 499,998.78
Fund
c/o Putnam Investment Management, LLC
Two Liberty Square
Boston, MA 02109
Van Wagoner Capital Opportunities Fund, L.P. 463,111 $ 1,450,000.54
c/o Van Wagoner Capital Management
435 Pacific Avenue Suite 400
San Francisco, CA 94133
Attn: Garrett Van Wagoner
Fax: (415) 835-5050
Van Wagoner Capital Partners, L.P. 15,969 $ 49,998.94
Address same as above
Wheatley Partners III, L.P. 335,296 $ 1,049,811.78
80 Cuttermill Road, Suite 311
Great Neck, NY 11021
Fax No.
with a copy to:
PURCHASE AGREEMENT
A-1
NAME AND ADDRESS OF PURCHASER NUMBER OF SHARES PRICE
- ----------------------------- ---------------- -----
825 Third Avenue, 32d Floor
New York, NY 10022
Attn: Lawrence Wagenberg
Wheatley Associates III 69,958 $ 219,038.50
Address same as above
Wheatley Foreign Partners III 73,826 $ 231,149.20
address same as above
DLJ Capital Corporation 3,899 $ 12,207.77
c/o Sprout Group
11 Madison Avenue, 26th Floor
New York, NY 10010
Sprout Capital IX, L.P. 778,878 $ 5,569,667.01
Address and notice same as above
Sprout Entrepreneurs' Fund, L.P. 7,011 $ 21,951.44
Address and notice same as above
Sprout IX Plan Investors, L.P. 82,149 $ 257,208.52
Address and notice same as above
Thomas I. Unterberg 447,143 $ 1,400,004.73
c/o C.E. Unterberg, Towbin
350 Madison Avenue
New York, NY 10017
Facsimile: 212-389-8808
C.E. Unterberg, Towbin Capital Partners I, L.P. 159,693 $ 499,998.78
350 Madison Avenue
New York, NY 10017
Attn: Mark G. Hadlock
Facsimile: 212-389-8401
Camelot Capital L.P. 220,383 $ 690,019.17
3 Pickwick Plaza
Greenwich, CT 06830 (203) 863-7400
Attn: Scott M. Smith
203-863-7400
Camelot Capital II L.P. 15,763 $ 49,353.95
address same as above
PURCHASE AGREEMENT
A-2
NAME AND ADDRESS OF PURCHASER NUMBER OF SHARES PRICE
- ----------------------------- ---------------- -----
Camelot Offshore Fund Limited 83,241 $ 260,627.57
address same as above
Amerindo Internet Fund PLC c/o 148,132 $ 463,801.29
Amerindo Investment Advisors Inc.
399 Park Avenue, 22d Floor
New York, NY 10022
Attn: David Mainzer
Fax: 212-308-6988
K. FLYNN MCDONALD 8,000 $ 25,048.00
One Embarcadero Center, Suite 2300
San Francisco, CA 94111-3162
Telephone: (415) 249-1535
Facsimile: (415) 834-3582
MICHAEL J. SANDIFER 3,500 $ 10,958.50
6016 Lee Highway
Warrenton, VA 20187
Telephone: (540) 428-2790
Facsimile: (540) 428-2791
MARC WEISS 32,000 $ 100,192.00
c/o Amerindo Investment Advisors Inc.
399 Park Avenue, 22nd Floor
New York, NY 10022
Telephone: (212) 418-2520
Facsimile: (212) 935-6975
HFI Private Equity Ltd 24,084 $ 75,407.00
Jardine House 4th Floor
33-35 Reid Street
Hamilton IIM 12 Bermuda
Attention: Barry Shailer
Facsimile: 441-295-3011
Aman Ventures 15,838 $ 49,588.78
1500 Owl Creek Ranch Road
Aspen, CO 81611
Attention:
Facsimile: 970-923-8855
PURCHASE AGREEMENT
A-3
NAME AND ADDRESS OF PURCHASER NUMBER OF SHARES PRICE
- ----------------------------- ---------------- -----
DRW Venture Partners L.P. 4,461 $ 13,967.39
60 South 6th Street
Minneapolis, MN 55402
Attn: Mary Zimmer MS 54N2
Facsimile: (612) 373-1610
TOTAL SERIES CC $15,000,001.06
PURCHASE AGREEMENT
A-4
SCHEDULE B
SUBSIDIARIES
CommVault Systems (Canada) Inc., a Canadian corporation
CommVault Systems Mexico S de RL de CV, a Mexican company
CommVault Holding Company BV, a Netherlands company
CommVault Systems Netherlands BV, a Netherlands company
PURCHASE AGREEMENT
B-1
SCHEDULE C
1. Employment Agreement, dated as of January 20, 1999 and
amended as of May 3, 2001, between the Company and N. Robert Hammer, under which
Mr. Hammer has received options to purchase 5,622,400 shares of common stock.
2.Corporate Change of Control Agreements, between the Company
and (i) Louis Miceli, (ii) Brian McAteer, (iii) Larry Cormier, (iv) Al Bunte;
(v) David West; (vi) Scott Mercer and (vii) William Beattie.
3. Stock Plan dated as of May 22, 1996, pursuant to which the
Company is authorized to issue options to purchase 15,950,000 shares of its
common stock of which 14,525,731 shares have been granted.
4. The Company entered into an agreement with Northern
Concepts Incorporated ("NCI"), dated as of May 2000 pursuant to which 285,000
shares of the Company's common stock was issued in consideration for the
acquisition of the business of NCI by the Company.
5. Preferred Stockholders have (i) conversion rights, pursuant
to the Amended Certificate, and (ii) preemptive rights pursuant to (a) the
Stockholders' Agreement; (b) the Series AA Purchase Agreement, (c) the Series BB
Purchase Agreement and (d) the Existing Series CC Purchase Agreement.
6. EMC holds a warrant to purchase up to 3,000,000 shares of
common stock at an exercise of $6.27 per share. To the extent that EMC exercises
the warrant, holders of the Series AA Preferred Stock, Series BB Preferred Stock
and the holders of existing CC preferred stock will be entitled to purchase
shares of Common Stock of the Company at a price of $6.26 pursuant to preemptive
rights granted to such holders under their respective preferred stock purchase
agreements. Assuming that EMC exercises its warrant in full, the maximum number
of shares of Common Stock that would be sold pursuant to such preemptive rights
would be approximately 750,000 shares.
PURCHASE AGREEMENT
C-1
SCHEDULE D
CORPORATE COMPLIANCE AGREEMENT
EMPLOYEE INVENTION, CONFIDENTIALITY, NON-COMPETITION,
NON-SOLICITATION AND ETHICS AGREEMENT
THIS AGREEMENT is made between me, the undersigned, and CommVault
Systems, Inc. and on behalf of CommVault Systems, Inc. and its affiliated
companies as they exist from time to time (hereafter referred to collectively as
"CommVault"), and in consideration of my employment by CommVault and in
consideration for the compensation to be paid to me in connection with this
employment:
1. DUTIES. I shall render faithful and efficient services to
CommVault and perform exclusively for CommVault such duties as may be designated
by CommVault from time to time, which may include the functions of inventing,
discovering and developing new and novel devices, methods, and principles
relating to the business, research, and development of CommVault.
2. DISCLOSURE OF INVENTIONS. I shall promptly disclose to
CommVault in writing all inventions (including, but not limited to, new
contributions, concepts, ideas, developments, discoveries, processes, formulas,
methods, compositions, techniques, articles, machines, and improvements), all
original works of authorship and all related know-how ("Inventions"), whether or
not patentable, copyrightable or protectable as trade secrets, conceived or made
by me, alone or with others, during the period of my employment with CommVault
and, in the case of clauses (b) and (c) below, during the period of my
employment by CommVault and at any time after I cease to be employed by
CommVault for whatever reason, which (a) relate in any manner to the actual or
anticipated business, research, or development of CommVault, (b) are developed
using equipment, supplies, facilities, trade secret or confidential information
of CommVault, or (c) result from work performed by me or work supervised by me
for CommVault.
3. ASSIGNMENT OF INVENTIONS. I shall assign and do hereby
assign to CommVault my entire rights to each Invention described in SECTION 2
hereof. As requested by CommVault, I will take all steps reasonably necessary to
assist CommVault in obtaining and enforcing any patent, copyright, or other
protection which CommVault elects to obtain or enforce, in any country, for the
Inventions which I assign to CommVault. I will take no action to jeopardize
CommVault's ability to obtain or enforce its rights in such Inventions. My
obligation to assist CommVault in obtaining and enforcing patents, copyrights,
and other protections shall continue beyond the termination of my employment by
CommVault for whatever reason, but CommVault shall compensate me at a reasonable
rate after the termination of my employment for time actually spent at
CommVault's request providing such assistance. If CommVault is unable, after
reasonable effort, to secure my signature on any document needed to apply for,
prosecute, or enforce any patent, copyright, or other protection in relation to
an
PURCHASE AGREEMENT
C-2
Invention, whether because of my physical or mental incapacity or for any
other reason whatsoever, I hereby irrevocably designate and appoint CommVault
and its duly authorized officers and agents as my agent and attorney-in-fact, to
act for and in my behalf and stead to execute and file any such document and to
do all other lawfully permitted acts to further the prosecution and enforcement
of patents, copyrights, or similar protections with the same legal force and
effect as if executed by me.
4. COMMVAULT CONFIDENTIAL INFORMATION. Because of my
employment by CommVault, I will have access to and will learn techniques,
know-how, or other information of a confidential nature concerning CommVault's
experimental and development work, trade secrets, procedures, business matters
or affairs, including, but not limited to, information relating to inventions,
disclosures, processes, systems, methods, formulas, patents, patent
applications, machinery, materials, research activities and plans, grant
proposals, costs of production, contract forms, prices, business plans,
strategies, competitive strengths and weaknesses, volume of sales, promotional
methods, and lists of names or classes of customers, as well as information of a
confidential nature received from CommVault's customers, joint ventures,
collaborators, etc., and information developed solely or jointly by me, included
in connection with Inventions ("CommVault Confidential Information").
Information shall, for purposes of this Agreement, be considered to be
confidential if not known by the trade generally, even though such information
has been disclosed to one or more third parties pursuant to distribution
agreements, joint research agreements, other agreements or collaborations
entered into by CommVault.
5. PROTECTION OF COMMVAULT CONFIDENTIAL INFORMATION. I shall
at all times use my best efforts and exercise utmost diligence to protect and
guard CommVault Confidential Information. I will not use CommVault Confidential
Information for personal gain or for any purpose outside of my employment by
CommVault or disclose any such information to any person or entity either during
or subsequent to my employment, without CommVault's prior written consent,
except to such an extent as may be necessary in the ordinary course of
performing my duties as an employee of CommVault.
6. USE OF COMMVAULT CONFIDENTIAL INFORMATION. I shall not, for
my own account or as an officer, member, employee, consultant, representative,
or advisor of another, during my employment with CommVault or at any time
thereafter for any reason whatsoever, engage in or contribute my knowledge to
engineering, development, manufacture, research, business analysis or sales
relating to any product, equipment, process, or material that relates in any way
to the actual or anticipated business or research and development of CommVault,
without the written permission of CommVault. However, the foregoing provision
shall not prohibit me from engaging in any work at any time after leaving the
employ of CommVault, PROVIDED, that CommVault Confidential Information is not
involved in such work AND I am not in violation of any other term of this
Agreement or any other agreement entered into between me and CommVault. The
provisions of this SECTION 6 shall not be construed as limiting to any extent my
continuing obligations pursuant to the provisions in SECTION 5.
PURCHASE AGREEMENT
C-3
7. IMPROPER USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION. I
shall not, during my employment with CommVault, or at any time thereafter,
improperly use or disclose any proprietary information or trade secrets of any
former or current employer or other person or entity and I will not possess or
bring onto the premises of CommVault any such proprietary information without
the prior written consent of such employer, person or entity.
8. OTHER RESTRICTIONS ON EMPLOYEE. I represent that there are
no other agreements or requirements to assign any invention or discovery
conceived or made by me, alone or with others, unless I have so indicated at the
end of this Agreement.
9. DISCLOSURE IF INVENTIONS. I represent that I have listed
and described in detail at the end of this Agreement all inventions, if any,
patented and unpatented, which I conceived or made PRIOR to my employment by
CommVault. Any invention not so listed and described shall be presumed to have
been made during my employment by CommVault.
10. RETURN OF COMMVAULT COMPANY INFORMATION. Upon termination
of my employment with CommVault for any reason, I shall disclose and provide to
CommVault all originals and all copies which are in my possession or under my
control, of all notes, memoranda, records, reports, drawings, blueprints, codes,
programs. Software, manuals, materials and data of any nature which are the
property of CommVault, which shall include, but not be limited to, every item in
my possession or under my control which contains any CommVault Confidential
Information.
11. NON-COMPETITION AND NON-SOLICITATION. I acknowledge that
because my knowledge of the CommVault Confidential Information and the personal
contacts with the customers and employees of CommVault acquired by me during my
employment, CommVault would be irreparably damaged should I, in any manner or
form, enter into any form of competition with CommVault. I, therefore agree that
at all times during my employment and for a period of TWELVE (12) MONTHS
thereafter, I will not directly or indirectly, in any individual or
representative capacity, carry on, engage or participate in any business that is
in competition in any manner whatsoever with the business of CommVault, except
as expressly provided for in this Agreement, or as may hereafter be expressly
agreed to in writing by CommVault. Further, I agree to not directly or
indirectly hire, seek to hire, or refer for other employment any current
employee of CommVault nor will I, in any manner or capacity, directly or
indirectly: divert or attempt to divert from CommVault, through any means
whatsoever, any business or customers of CommVault, during the TWELVE (12) MONTH
period following my termination of employment. The phrase "carry on, engage or
participate in any business that is in competition in any manner whatsoever with
the business of CommVault" shall include, but not be limited to, the doing by
you or by any person, firm, corporation, association or other entity that
directly or indirectly, through one or more intermediaries, is controlled by, or
is under common control with, or controls you, of any of the following acts
other than as related to your services to CommVault pursuant to your employment
with CommVault: carrying on, engaging in or participating in any such business
as a principal, for your own account or solely, or jointly with others as a
PURCHASE AGREEMENT
C-4
partner (general or limited), joint venturer, shareholder or holder of any
equity security of any other corporation or entity, or as a consultant,
contractor, or subcontractor or agent of or for any person, firm, corporation,
association, or other entity or through any agency or by any other means
whatsoever; or utilizing for your own benefit, or making available to any
person, firm, corporation, association or other entity, any confidential or
proprietary proposals, financial statements, governmental filings, cost data,
business plans or correspondence relating to such information, or other
CommVault Confidential Information. I acknowledge and agree that, in light of
the nature of the business of CommVault, the foregoing activity and time period
restrictions are reasonable and properly required for the adequate protection of
CommVault, and that, in the event any such activity or time period restriction
is deemed to be unreasonable or unenforceable by a court of competent
jurisdiction, then I agree to submit to the reduction of such activity or time
period restriction to the extent necessary to enable the court to enforce such
restrictions to the fullest extent permitted under applicable law. It is the
desire and intent of the parties that the provisions of this Agreement shall be
enforced to the fullest extent permissible under the laws and public policies
applied by any jurisdiction where enforcement is sought.
12. ETHICS. I understand and agree at all times to: (a) follow
the policies and guidelines of CommVault, as set forth by CommVault from time to
time; (b) represent CommVault in a professional manner exhibiting appropriate
behavior consistent with the highest ethical standards; (c) not make any
disparaging comment or statement (written or oral) about CommVault; (d) comply
with all applicable federal, state, and local laws, ordinances, regulations and
codes, including all Security and Exchange Commission laws and regulations; and,
(e) to apply for national security or other governmental clearance, if requested
by CommVault.
13. GENERAL
(a) I understand and agree that the restrictions of this Agreement are
limited only to those restrictions necessary for the adequate and legitimate
protection of CommVault. Each paragraph and subparagraph of this document is
separate from each other and constitutes a separate and distinctive covenant. In
the event any limitation hereunder is deemed to be unreasonable by a court of
competent jurisdiction, then I agree to submit to the reduction of such
limitation as the court shall deem reasonable. In the event that I am in
violation of any limitation herein, then the time limitation shall be extended
for a period of time equal to the period of time during which such breach should
occur.
(b) I understand that nothing in this Agreement shall confer upon me
any right to continue in the employ of CommVault. I understand that the
restrictions contained in this Agreement shall survive the termination of my
employment with CommVault for any reason.
(c) I certify that I have not entered into, and I agree to not enter
into any agreement, either written or oral, in conflict with this Agreement.
PURCHASE AGREEMENT
C-5
(d) I hereby authorize CommVault to notify others, including, without
limitation, customers of CommVault and my future employers, of the terms of this
Agreement and my responsibilities hereunder.
(e) This Agreement shall be governed by the laws of the State of New
Jersey, without regard to New Jersey choice of law principles, and adjudicated
in the courts located in the State of New Jersey. Each paragraph and
subparagraph shall be independent and separable from all other paragraphs and
subparagraphs, and the invalidity of a paragraph and subparagraph shall not
affect the enforceability of any of the other paragraphs and subparagraphs. For
purposes of this Agreement, the business of CommVault shall include the business
of any corporation, firm, or partnership, directly or indirectly, controlled by,
controlling, or under common control with CommVault or any partner or joint
venturer of CommVault. For any violation of this Agreement, a restraining order
and/or an injunction may be issued against me in addition to any other rights
CommVault may have under applicable law. In the event any party to this
Agreement is successful in any suit or proceeding brought or instituted with
respect to this Agreement or to enforce the Agreement, the prevailing party will
be paid by the losing party, in addition to other costs and damages, reasonable
attorney's fees and costs.
(f) This Agreement shall be effective during the period of my
employment by CommVault and for any periods thereafter as set forth herein,
inure to the benefit of any successor or assignee of CommVault, and be binding
upon my heirs, administrators, and representatives.
I acknowledge that I am entering into this Agreement knowingly and voluntarily,
and that I have had an opportunity to review it with counsel of my choosing.
- ------------------------------------
Employee Signature
Dated:
------------------------------
USE THE SPACE BELOW AND THE BACK OF THIS AGREEMENT (IF NECESSARY) TO LIST ANY
AND ALL INVENTIONS CONCEIVED OR MADE BY ME PRIOR TO MY EMPLOYMENT WITH
COMMVAULT, AND A DETAILED DESCRIPTION THEREOF, AND OTHER AGREEMENTS OR
REQUIREMENTS TO ASSIGN INVENTIONS OR DISCOVERIES, AS DESCRIBED IN SECTIONS 8 AND
9 ABOVE.
PURCHASE AGREEMENT
C-6