EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COMMVAULT SYSTEMS, INC.
COMMVAULT SYSTEMS, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "General Corporation
Law"), hereby certifies as follows:
1. The name of the corporation is CommVault Systems, Inc. The corporation
was originally incorporated on April 19, 1996 under the name "CV Systems, Inc."
pursuant to the General Corporation Law.
2. This Amended and Restated Certificate of Incorporation restates,
integrates and amends the Amended and Restated Certificate of Incorporation of
this corporation such that the text of the Amended and Restated Certificate of
Incorporation shall now read as follows:
ARTICLE I
NAME
The name of the Corporation is CommVault Systems, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of New Castle. The name of the Corporation's registered agent at such address is
The Prentice-Hall Corporation System, Inc.
ARTICLE III
PURPOSE
The purposes for which the Corporation is formed are to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law and to possess and exercise all of the powers and privileges
granted by such law and any other law of the State of Delaware.
ARTICLE IV
AUTHORIZED CAPITAL
(A) The number of shares which the corporation is authorized to issue is
Eighty Nine Million Five Hundred Seventy Five Thousand (89,575,000) divided into
two (2) classes. Sixty Million Four Hundred Twenty Five Thousand (60,425,000)
shares shall be
Common Stock, par value $0.01 per share (the "Common Stock"), and Twenty Nine
Million One Hundred Fifty Thousand (29,150,000) shares shall be Preferred Stock,
par value $0.01 per share (the "Preferred Stock"). The preferences, limitations
and relative rights in respect of the shares of each class (and the variations
in the relative rights and preferences as between series of any class in series)
are as follows:
(B) Preferred Stock. The Preferred Stock authorized by this Certificate
of Incorporation may be issued from time to time in one or more series. The
rights, preferences, privileges and restrictions granted to and imposed on (i)
the Series A Preferred Stock (the "Series A Preferred Stock"), which series
shall consist of Three Million (3,000,000) shares, (ii) the Series B Preferred
Stock (the "Series B Preferred Stock"), which series shall consist of One
Million (1,000,000) shares, (iii) the Series C Preferred Stock (the "Series C
Preferred Stock"), which series shall consist of One Million (1,000,000) shares,
(iv) the Series D Preferred Stock (the "Series D Preferred Stock"), which series
shall consist of One Million (1,000,000) shares, (v) the Series E Preferred
Stock, which series shall consist of One Million (1,000,000) shares (the "Series
E Preferred Stock", and collectively with the classes of Preferred Stock
described in clauses (i) through (iv), shall be sometimes referred to as the
"Series A Through E Preferred Stock"), (vi) the Series AA Preferred Stock (the
"Series AA Preferred Stock"), which series shall consist of Five Million
(5,000,000) shares, (vii) the Series BB Preferred Stock (the "Series BB
Preferred Stock"), which series shall consist of Five Million (5,000,000) shares
and (viii) the Series CC Preferred Stock (the "Series CC Preferred Stock"),
which series shall consist of Twelve Million One Hundred Fifty Thousand
(12,150,000) shares are as set forth below in this Article IV(B). The Board of
Directors of this Corporation is hereby authorized to fix or alter the rights,
preferences, privileges and restrictions granted to or imposed upon additional
series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof. Subject to compliance with applicable protective
voting rights which have been or may be granted to the Preferred Stock or any
series thereof ("Protective Provisions"), but notwithstanding any other rights
of the Preferred Stock or any series thereof, the rights, privileges,
preferences and restrictions of any such additional series shall be subordinated
to or pari passu with (including, without limitation, inclusion in provisions
with respect to liquidation and acquisition preferences, redemption and/or
approval of matters by vote or written consent) any of those of any present or
future class or series of Preferred Stock or Common Stock. Subject to compliance
with applicable Protective Provisions, the Board of Directors is also authorized
to increase or decrease the number of shares of any series (other than the
Series A Preferred Stock) prior or subsequent to the issue of that series, but
not below the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares no longer
constituting such series shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
(1) Dividend Provisions.
(a) In the event this Corporation declares a cash dividend
on the Common Stock, the holders of the Series AA Preferred Stock, the Series BB
Preferred Stock, and the Series CC Preferred Stock shall each be entitled to
receive a proportionate share of any such dividend, out of any assets legally
available therefor, as though the holders of the Series AA Preferred Stock, the
Series BB Preferred Stock and the Series CC Preferred Stock were the holders of
the number of shares of Common Stock of this Corporation into which their shares
of
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Series AA Preferred Stock, Series BB Preferred Stock and the Series CC Preferred
Stock are convertible as of the record date fixed for the determination of the
holders of the Common Stock of this Corporation entitled to receive such
distribution (the "Dividend Record Date").
(b) The holders of the Series A Through E Preferred Stock
shall be entitled to receive dividends, out of any assets legally available
therefor, prior and in preference to any declaration or payment of any dividend
(payable other than in Common Stock or other non-redeemable equity securities
and rights convertible into or entitling the holder thereof to receive, directly
or indirectly, additional shares of Common Stock of this Corporation) on the
Common Stock of this Corporation, at the per share rate of $1.788 per annum (as
adjusted for any stock dividends, combinations or splits with respect to such
shares), or, if greater (as determined on a per annum basis), an amount equal to
that paid on any other outstanding shares of this Corporation, payable only when
and if declared by the Board of Directors. Such dividends shall accrue and be
cumulative from (i) in the case of the Series A Preferred Stock, the original
issue date of such shares of Series A Preferred Stock, (ii) in the case of the
Series B Preferred Stock, July 14, 1997, (iii) in the case of the Series C
Preferred Stock, December 9, 1997, (iv) in the case of the Series D Preferred
Stock, October 21, 1998, and (v) in the case of and the Series E Preferred
Stock, March 15, 1999. Such dividends shall be payable on the first day of each
April, July, October and January (commencing, with respect to each share of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, and Series E Preferred Stock on the first of such
dates to occur after the issuance of such share) to the holders of record at the
close of business on the fifteenth day of each March, June, September and
December. In the event that the Corporation fails to pay any portion of the full
quarterly dividend that accrues pursuant to this section, the difference between
such full quarterly dividend and the actual cash dividend (or the cash value of
such dividend, if not paid in cash) paid, if any, shall cumulate until paid in
full. All dividends paid with respect to shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
and Series E Preferred Stock shall be paid pro rata to the holders entitled
thereto. Dividends, if paid, or if declared and set apart for payment, must be
paid, or declared and set apart for payment, on all outstanding shares of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, and Series E Preferred Stock contemporaneously.
(c) In the event this Corporation shall declare any other
dividend or distribution payable in securities of other persons, evidences of
indebtedness issued by this Corporation or other persons, assets (excluding cash
dividends) or options or rights to purchase any such securities or evidence of
indebtedness, then, in each such case the holders of the Series AA Preferred
Stock, Series BB Preferred Stock, Series CC Preferred Stock, Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock, the Series D
Preferred Stock, and the Series E Preferred Stock shall be entitled to a
proportionate share of any such dividend or distribution as though the holders
of the Series AA Preferred Stock, Series BB Preferred Stock, Series CC Preferred
Stock, Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock, and the Series E Preferred Stock
were the holders of the number of shares of Common Stock of this Corporation
into which their respective shares of Series AA Preferred Stock, Series BB
Preferred Stock, Series CC Preferred Stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock,
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Series D Preferred Stock, or Series E Preferred Stock (as applicable) are
convertible as of the Dividend Record Date.
(2) Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding
up of this Corporation, either voluntary or involuntary, subject to the rights
of series of Preferred Stock which may from time to time come into existence,
the holders of Series AA Preferred Stock and the Series CC Preferred Stock (the
"Senior Liquidation Preference Classes") shall be entitled to receive, prior,
senior and in preference to any distribution of any of the assets of this
Corporation to the holders of the Series BB Preferred Stock, the Series A
Through E Preferred Stock or the Common Stock by reason of their ownership
thereof, an amount per share equal to $5.7319 for each share (as adjusted for
any stock dividends, combinations or splits with respect to such shares) of
Series AA Preferred Stock held by each such holder and an amount equal to $3.131
for each share (as adjusted for stock dividends, combinations or splits with
respect to such shares) of Series CC Preferred Stock held by each such holder,
plus any declared but unpaid dividends on such share. The Series AA Preferred
Stock and the Series CC Preferred Stock shall rank on a parity as to the receipt
of the respective preferential amounts for each such series upon the occurrence
of such event. If upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series AA Preferred Stock and the holders
of the Series CC Preferred Stock shall be insufficient to permit the payment to
such holders of the full aforesaid preferential amounts, then, subject to the
rights of series of Preferred Stock which may from time to time come into
existence, the entire assets and funds of this Corporation legally available for
distribution shall be distributed ratably among the holders of the Series AA
Preferred Stock and the Series CC Preferred Stock (pari passu) in proportion to
the amount each such holder is otherwise entitled to receive under this
subsection 2(a).
(b) In the event of any liquidation, dissolution or winding
up of this Corporation, either voluntary or involuntary, subject to the rights
of series of Preferred Stock which may from time to time come into existence and
subject to, and subordinate to, the rights of holders of the shares of the
Senior Liquidation Preference Classes pursuant to Section 2(a), the holders of
Series BB Preferred Stock shall be entitled to receive, prior, senior and in
preference to any distribution of any of the assets of this Corporation to the
holders of the Series A Through E Preferred Stock or the Common Stock by reason
of their ownership thereof, an amount per share equal to $12.10 for each share
(as adjusted for any stock dividends, combinations or splits with respect to
such shares) of Series BB Preferred Stock held by each such holder, plus any
declared but unpaid dividends on such share. If upon the occurrence of such
event, after distribution of all assets and funds to the holders of the shares
of the Senior Liquidation Preference Classes in accordance with Section 2(a),
the assets and funds thus distributed among the holders of the Series BB
Preferred Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amounts, then, subject to the rights of series
of Preferred Stock which may from time to time come into existence, the entire
assets and funds of this Corporation legally available for distribution shall be
distributed ratably among the holders of the Series BB (pari passu) in
proportion to the amount each such holder is otherwise entitled to receive under
this subsection 2(b).
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(c) In the event of any liquidation, dissolution or winding
up of this Corporation, either voluntary or involuntary, subject to the rights
of series of Preferred Stock which may from time to time come into existence and
subject to, and subordinate to, the rights of the holders of shares of the
Senior Liquidation Preference Classes pursuant to Section 2(a) and the rights of
the Series BB Preferred Stock holders pursuant to Section 2(b), the holders of
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series D Preferred Stock, and the Series E Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any of the
assets of this Corporation to the holders of the Common Stock by reason of their
ownership thereof, an amount per share equal to $14.90 for each share (as
adjusted for any stock dividends, combinations or splits with respect to such
shares) of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, and the Series E Preferred Stock (as
applicable) held by each such holder, plus any accrued but unpaid dividends on
such share. If upon the occurrence of such event, after distribution of all
assets and funds to the holders of shares of the Senior Liquidation Preference
Classes in accordance with Section 2(a) and to the holders of the Series BB
Preferred Stock in accordance with Section 2(b), the assets and funds thus
distributed among the holders of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, and
the Series E Preferred Stock shall be insufficient to permit the payment to such
holders of the full aforesaid preferential amounts, then, subject to the rights
of series of Preferred Stock which may from time to time come into existence,
the remaining assets and funds of this Corporation legally available for
distribution shall be distributed ratably among the holders of the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, the
Series D Preferred Stock, and the Series E Preferred Stock (pari passu) in
proportion to the amount each such holder is otherwise entitled to receive under
this subsection 2(c).
(d) Upon the completion of the distributions required by
subsections 2(a), 2(b) and 2(c) above, and subject to the rights of series of
Preferred Stock which may from time to time come into existence, the remaining
assets of this Corporation available for distribution to stockholders shall be
distributed among the holders of Common Stock and of the Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock, the Series D
Preferred Stock, and the Series E Preferred Stock with all shares of such stock
being treated as a single class for such purposes as if the holders of the
shares of such stock were the holders of the number of shares of Common Stock
into which such shares are convertible as of the record date fixed for the
determination of the holders of the Common Stock entitled to receive such
distribution.
(e) A consolidation or merger of this Corporation with or
into any other corporation or corporations (other than a wholly-owned subsidiary
or parent corporation) or a sale, conveyance or disposition of all or
substantially all of the assets of this Corporation or the effectuation by this
Corporation of a transaction or series of related transactions in which more
than fifty (50%) percent of the voting power of this Corporation is disposed of,
shall be deemed to be a liquidation, dissolution or winding up within the
meaning of this Section 2.
(f) In the event a liquidation, dissolution or winding up
of this Corporation under this Section 2 is effected, whether in whole or in
part, through a noncash distribution, the value of the assets to be distributed
to the holders of shares of Preferred Stock
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and the holders of shares of Common Stock shall, (i) in the case of
publicly-traded securities, be equal to the closing sale price for such
securities over the thirty (30) day period ending on the date immediately prior
to the closing of the transaction that is deemed to be a liquidation,
dissolution or winding up or (ii) in all other cases, the value of such
consideration shall be the fair market value thereof as reasonably determined in
good faith by the Board of Directors of this Corporation.
(3) Conversion. The holders of the Series AA Preferred Stock, the
Series BB Preferred Stock, the Series CC Preferred Stock and the Series A
Through E Preferred Stock shall have conversion rights (the "Conversion Rights")
as follows:
(a) Right to Convert Series AA Preferred Stock. Each share
of Series AA Preferred Stock shall be convertible into Common Stock, in whole or
in part, by the holder thereof at any time concurrent with or after the closing
of an Initial Public Offering upon the election of such holder, with each share
of Series AA Preferred Stock converting upon such election into Common Stock at
the Series AA Conversion Ratio as provided under Section 3(f) below. The Series
AA Preferred Stock shall automatically be converted into Common Stock at the
Series AA Conversion Ratio upon the closing of the Initial Public Offering. For
all purposes herein, "Initial Public Offering" shall mean the initial public
offering of Common Stock by this Corporation, through underwriters or otherwise,
that (i) requires registration, qualification or the filing of a prospectus
under the Securities Act of 1933, (ii) raises net proceeds of at least
$40,000,000 and (iii) the offering price per share of Common Stock, when
multiplied by the Series CC Conversion Ratio in effect at the time of the
offering, shall equal or exceed $6.26 per share.
(b) Right to Convert Series BB Preferred Stock. Each share
of Series BB Preferred Stock shall be convertible into Common Stock, in whole or
in part, by the holder thereof at any time upon the election of such holder,
with each share of Series BB Preferred Stock converting upon such election into
0.5 shares of Common Stock, as adjusted from time to time pursuant to Section
3(f) (the "Series BB Conversion Ratio"). The Series BB Preferred Stock shall be
automatically converted into Common Stock at the Series BB Conversion Ratio upon
the closing of the Initial Public Offering.
(c) Right to Convert Series CC Preferred Stock. Each share
of Series CC Preferred Stock shall be convertible into shares of Common Stock,
in whole or in part, by the holder thereof at any time upon the election of such
holder, with each share of Series CC Preferred Stock converting upon such
election into Common Stock at the Series CC Conversion Ratio as provided under
Section 3(f) below. The Series CC Preferred Stock shall be automatically
converted into Common Stock at the Series CC Conversion Ratio upon the closing
of the Initial Public Offering.
(d) Right to Convert Series A Through E Preferred Stock.
Subject to approval by the holders of a majority of the then outstanding shares
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, and Series E Preferred Stock (voting as a single
class), the Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock, and the Series E Preferred Stock
shall be convertible, in whole or in part, by the holders thereof at any time
into
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Common Stock and a right to receive cash, with each share of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, or Series E Preferred Stock (as the case may be) converting upon such
election into: (i) two (2) fully paid and nonassessable shares of Common Stock
and (ii) a right to receive from this Corporation a cash payment in an amount
equal to $14.85 for each share of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, or Series E Preferred
Stock (as applicable) held, plus all accrued but unpaid dividends on such share
(the "Cash Amount"). The holders of the Series A Through E Preferred Stock shall
have the right to condition their election to convert such Preferred Stock as
described above on the closing of the Corporation's Initial Public Offering.
Notwithstanding the foregoing, any election by the holders of the Series A
Through E Preferred Stock made before the Corporation's Initial Public Offering
to convert any share of Series A Through E Preferred Stock as described above
shall require the approval of each of (i) a majority of the then outstanding
shares of Series AA Preferred Stock and (ii) a majority of the then outstanding
shares of Series CC Preferred Stock, each voting as a separate class.
(e) Mechanics of Conversion. Following a conversion of the
Series AA Preferred Stock (in accordance with subsection 3(a)), Series BB
Preferred Stock (in accordance with subsection 3(b)), Series CC Preferred Stock
(in accordance with subsection 3(c)) or the Series A Through E Preferred Stock
(in accordance with subsection 3(d)), as the case may be, each holder of
Preferred Stock being so converted shall surrender the certificate or
certificates therefor, duly endorsed, at the office of this Corporation or any
transfer agent for such holder and shall indicate in writing the name or names
in which the certificate or certificates for shares of Common Stock are to be
issued. This Corporation shall issue and deliver to each such holder, or to the
nominee or nominees of such holder, a certificate or certificates for the number
of shares of Common Stock to which such holder shall be entitled pursuant to
Section 3(a), 3(b), 3(c) or 3(d) above, and, in the case of a conversion of
Series A Through E Preferred Stock, shall pay to each holder of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, or Series E Preferred Stock (as applicable) the applicable Cash
Amount for each share of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, or Series E Preferred Stock
(as applicable) held by such holder, payable by check or wire transfer within
ten (10) calendar days following such conversion. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such election to convert such Preferred Stock (or the date of automatic
conversion), and the holder entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares of Common Stock as of such date. If the Series
A Through E Preferred Stock holders condition the conversion upon the closing of
an Initial Public Offering, then such conversion shall not be deemed to have
occurred until immediately prior to the closing of such Initial Public Offering.
If the Series A Through E Preferred Stock holders elect a conversion pursuant to
Section 3(c) and the funds of this Corporation legally available for payment of
the total Cash Amounts upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock, or Series E Preferred Stock (as applicable) are insufficient at the time
of such conversion to pay in full the total Cash Amounts required upon such
conversion, those funds that are legally available at such time, if any, shall
be applied ratably to the payment of the Cash Amounts, and, thereafter, when
additional funds of this Corporation become legally available for payment of the
remaining portion of such total
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Cash Amounts, such funds shall be applied ratably to the payments of such
remaining Cash Amounts until they are paid in full.
(f) Conversion Ratio Adjustment for Preferred Stock. The
applicable ratio at which Common Stock shall be issued upon conversion of
Preferred Stock pursuant to Section 3(a), 3(b), 3(c) or 3(d) (the "Conversion
Ratio") shall be subject to adjustment from time to time as follows:
(i) In the event this Corporation shall at any time
or from time to time after the date upon which shares of any series of Preferred
Stock are first issued (the "Preferred Purchase Date") fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder hereof to receive
directly or indirectly, additional shares of Common Stock (hereinafter referred
to as "Common Stock Equivalents") without payment of any consideration by such
holder for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof) then, as of such record date (or the date of such dividend
distribution, split or subdivision, if no record date is fixed), the Conversion
Ratio (or in the case of the Series AA Preferred Stock, the Series AA Conversion
Price, and the Series CC Preferred Stock, the Series CC Conversion Price) shall
be appropriately adjusted so that the number of shares of Common Stock issuable
upon conversion of each share of Series AA Preferred Stock, Series BB Preferred
Stock, Series CC Preferred Stock or Series A through E Preferred Stock shall be
increased in proportion to such increase of the aggregate of shares of Common
Stock outstanding and those issuable with respect to such Common Stock
Equivalents.
(ii) If the number of shares of Common Stock
outstanding at any time after the Preferred Purchase Date is decreased by a
combination of the outstanding shares of Common Stock, then following the record
date of such combination, the Conversion Ratio (or in the case of the Series AA
Preferred Stock, the Series AA Conversion Price, and the Series CC Preferred
Stock, the Series CC Conversion Price) shall be appropriately adjusted so that
the number of shares of Common Stock issuable upon conversion of each share of
Series AA Preferred Stock, Series BB Preferred Stock, Series CC Preferred Stock
or Series A Through E Preferred Stock shall be decreased in proportion to such
decrease in outstanding shares.
(iii) If at any time or from time to time after the
Preferred Purchase Date there shall be a recapitalization of the Common Stock
(other than a subdivision or combination provided for elsewhere in this Section
3), provision shall be made so that the holders of the Series AA Preferred
Stock, Series BB Preferred Stock, Series CC Preferred Stock or Series A Through
E Preferred Stock shall thereafter be entitled to receive, upon conversion of
such Series AA Preferred Stock, Series BB Preferred Stock, Series CC Preferred
Stock or Series A Through E Preferred Stock, the number of shares of stock or
other securities or property of this Corporation or otherwise, to which a holder
of Common Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, an appropriate adjustment shall be made in
the application of the provisions of this Section 3
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with respect to the rights of the holders of the Preferred Stock after the
recapitalization to the end that the provisions of this Section 3 (including
adjustment of the Conversion Ratio (or in the case of the Series AA Preferred
Stock, the Series AA Conversion Price, and the Series CC Preferred Stock, the
Series CC Conversion Price) then in effect and the number of shares purchasable
upon conversion of such Series AA Preferred Stock, Series BB Preferred Stock,
Series CC Preferred Stock or Series A Through E Preferred Stock) shall be
applicable after that event as nearly equivalent as may be practicable.
(iv) For each share of Series AA Preferred Stock,
the "Series AA Conversion Ratio" shall be expressed as a fraction, the numerator
of which shall equal $5.7319 and the denominator of which (the "Series AA
Conversion Price") shall initially equal $11.4638. For each share of Series CC
Preferred Stock, the "Series CC Conversion Ratio" shall be expressed as a
fraction, the numerator of which shall equal $3.131 and the denominator of which
(the "Series CC Conversion Price") shall initially equal $6.262. The Series AA
Conversion Price and the Series CC Conversion Price shall be subject to
adjustment pursuant to this subsection 3(f)(iv) and as otherwise provided by
this subsection 3(f).
(1) (A) If this Corporation shall issue,
after the date on which any shares of Series CC Preferred Stock were first
issued (the "Series CC Purchase Date"), to any persons any Additional Stock (as
defined below in subsection 3(f)(iv)(2)) without consideration or for a
consideration per share less than the Series AA Conversion Price or the Series
CC Conversion Price in effect immediately prior to the issuance of such
Additional Stock, then the Series AA Conversion Price and the Series CC
Conversion Price, as applicable, in effect immediately prior to each such
issuance shall forthwith (except as otherwise provided in this subsection
3(f)(iv)(1)) be adjusted to a price determined by multiplying such Series AA
Conversion Price or Series CC Conversion Price, as applicable, by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance plus the number of shares of Common Stock
that the aggregate consideration received by this Corporation for such issuance
would purchase at such Series AA Conversion Price or Series CC Conversion Price,
as applicable; and the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance plus the number of
shares of such Additional Stock actually issued.
(B) No adjustment of the Series AA
Conversion Price or the Series CC Conversion Price shall be made in an amount
less than one hundredth of one cent per share, provided, that any adjustments
which are not required to be made by reason of this sentence shall be carried
forward and shall be either taken into account in any subsequent adjustment to
the Series AA Conversion Price or the Series CC Conversion Price, as the case
may be, made prior to three (3) years from the date of the event giving rise to
the adjustment being carried forward, or shall be made at the end of three (3)
years from the date of the event giving rise to the adjustment being carried
forward. Except to the limited extent provided for in subsections
3(f)(iv)(1)(E)(III) and 3(f)(iv)(1)(E)(IV), no adjustment of such Series AA
Conversion Price or Series CC Conversion Price pursuant to this subsection
3(f)(iv)(1) shall have the effect of increasing the Series AA Conversion Price
or the Series CC Conversion Price above the Series AA Conversion Price or the
Series CC Conversion Price, as applicable, in effect immediately prior to such
adjustment.
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(C) In the case of the issuance of
shares of Common Stock for cash, the consideration shall be deemed to be the
amount of cash paid therefor before deducting any reasonable discounts,
commissions or other expenses allowed, paid or incurred by this Corporation for
any underwriting or otherwise in connection with the issuance and sale thereof;
provided that any direct or indirect additional consideration paid by the
Corporation to the purchasers of the Common Stock that is not in consideration
for goods, services or other benefits provided by such purchasers pursuant to a
bona fide commercial arrangement on arms-length terms shall be deducted from the
amount of cash paid.
(D) In the case of the issuance of
shares of Common Stock for a consideration in whole or in part other than cash,
the consideration other than cash shall be valued as follows: (i) in the case of
publicly-traded securities, the value shall be equal to the closing sale price
for such securities over the thirty (30) day period ending on the date
immediately prior to the closing of the transaction, or (ii) in all other cases,
the value of such consideration shall be the fair market value thereof as
reasonably determined in good faith by the Board of Directors of this
Corporation irrespective of any accounting treatment.
(E) In the case of the issuance
(whether before, on or after the Series CC Purchase Date) of options, warrants
or other rights to purchase or subscribe for shares of Common Stock, securities
by their terms convertible into or exchangeable for shares of Common Stock or
options, warrants or other rights to purchase or subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this subsection 3(f)(iv)(1) and subsection 3(f)(iv)(2):
I. The aggregate maximum number
of shares of Common Stock deliverable on exercise (assuming the satisfaction of
any conditions to exercisability, including, without limitation, the passage of
time, but without taking into account potential antidilution adjustments) of
such options, warrants or other rights to purchase or subscribe for shares of
Common Stock shall be deemed to have been issued at the time such options,
warrants or other rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subsections 3(f)(iv)(1)(C)
and 3(f)(iv)(1)(D)) if any, received by this Corporation on the issuance of such
options, warrants or other rights plus the minimum exercise price provided in
such options, warrants or other rights (without taking into account potential
antidilution adjustments) for the Common Stock covered thereby.
II. The aggregate maximum
number of shares of Common Stock deliverable on conversion of, or in exchange
for (assuming the satisfaction of any conditions to convertibility or
exchangeability, including, without limitation, the passage of time, but without
taking into account potential antidilution adjustments), any such convertible or
exchangeable securities or on the exercise of options, warrants or other rights
to purchase or subscribe for such convertible or exchangeable securities and
subsequent conversion or exchange thereof shall be deemed to have been issued at
the time such securities were issued or such options, warrants or other rights
were issued and for a consideration equal to the consideration, if any, received
by this Corporation for any such securities and related options, warrants or
other rights (excluding any cash received on account of accrued interest or
accrued dividends), plus the minimum additional consideration, if any, to
10
be received by this Corporation (without taking into account potential
antidilution adjustments) on the conversion or exchange of such securities or
the exercise in full of any related options, warrants or other rights (the
consideration in each case to be determined in the manner provided in
subsections 3(f)(iv)(1)(C) and 3(f)(iv)(1)(D)).
III. In the event of any change
in the number of shares of Common Stock deliverable or in the consideration
payable to this Corporation on exercise of such options, warrants or other
rights or on conversion of, or in exchange for, such convertible or exchangeable
securities, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Series AA Conversion Price and the Series
CC Conversion Price, to the extent in any way affected by or computed using such
options, warrants or other rights or securities, shall be recomputed to reflect
such change, but no further adjustment shall be made for the actual issuance of
Common Stock or any payment of such consideration on the exercise of any such
options, warrants or other rights or the conversion or exchange of such
securities.
IV. On the expiration of any
such options, warrants or other rights, the termination of any such rights to
convert or exchange or the expiration of any options, warrants or other rights
related to such convertible or exchangeable securities, the Series AA Conversion
Price and the Series CC Conversion Price, to the extent in any way affected by
or computed using such options, warrants or other rights or securities or
options, warrants or other rights related to such securities, shall be
recomputed to reflect the issuance of only the number of shares of Common Stock
(and convertible or exchangeable securities which remain in effect) actually
issued on the exercise of such options, warrants or other rights, on the
conversion or exchange of such securities or on the exercise of the options,
warrants or other rights related to such securities.
V. The number of shares of
Common Stock deemed issued and the consideration deemed paid therefore pursuant
to subsections 3(f)(iv)(1)(E)(I) and (II) shall be appropriately adjusted to
reflect any change, termination or expiration of the type described in either
subsection 3(f)(iv)(1)(E)(III) or (IV).
(2) "Additional Stock" shall mean any shares
of Common Stock issued, or issuable on conversion of other securities issued, by
this Corporation after the Series CC Purchase Date other than the Excluded
Stock. "Excluded Stock" means the following:
(A) shares of Common Stock issuable on
conversion of any Preferred Stock, option, warrant or other security of the
Company outstanding on the Series CC Purchase Date that is exercisable for, or
exchangeable or convertible into, Common Stock.
(B) shares of Common Stock issued or
issuable in an Initial Public Offering, before or in connection with which all
outstanding shares of Series CC Preferred Stock will be converted to Common
Stock,
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(C) shares of Common Stock issuable in
any transaction that a majority of the members of the Board of Directors that
are not employed by the Company at such time (the "Outside Directors")
specifically determines in good faith (as reflected in a Board resolution) adds
substantial strategic value to the operations of the Company and pursuant to
which the Corporation acquires substantially all of the outstanding common stock
or other equity interests of any other corporation or entity not affiliated with
the Corporation or any substantial portion of the assets of any such entity,
(D) shares of Common Stock issued to
any person or entity that is not affiliated with the Corporation which a
majority of the Outside Directors specifically determines in good faith (as
reflected in a Board resolution) (i) adds substantial strategic value to the
operations of the Corporation and (ii) is not principally a capital raising
transaction, and
(E) Common Stock of this Corporation
issued or to be issued pursuant to any bona fide stock option plan, employee
incentive plan, restricted stock plan or other agreement approved by the Board
of Directors of this Corporation to employees, officers or directors of the
Corporation or any subsidiary or to consultants or advisors of the Corporation
or any subsidiary as reasonable compensation for services rendered.
(g) No Impairment. This Corporation will not, by amendment
of its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities, or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by this Corporation, but will at all times in good faith assist in the
carrying out of all the provisions hereof and in the taking of all such actions
as may be necessary or appropriate in order to protect the conversion rights of
the holders of the Series AA Preferred Stock, Series BB Preferred Stock, Series
CC Preferred Stock or Series A Through E Preferred Stock against impairment.
(h) No Fractional Shares. No fractional shares shall be
issued upon conversion of the Series AA Preferred Stock, Series BB Preferred
Stock, Series CC Preferred Stock or Series A Through E Preferred Stock and the
number of shares of Common Stock to be issued shall be rounded to the nearest
whole share. Such rounding shall be based on the total number of shares of
Series AA Preferred Stock, Series BB Preferred Stock, Series CC Preferred Stock
or Series A Through E Preferred Stock such holder is converting into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
conversion.
(i) Reservation of Stock Issuable Upon Conversion. This
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the Preferred Stock such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of Preferred Stock; and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of Preferred Stock, in addition to
such other remedies as shall be available to the holder of such Preferred Stock,
this Corporation will take such corporate action
12
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
(4) Notices of Record Date. In the event of any taking by this
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, this
Corporation shall mail to each applicable holder of Preferred Stock, at least
twenty (20) days prior to the date specified therein, a notice specifying the
date on which such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
(5) Voting Rights. The Common Stock, the Series AA Preferred
Stock, the Series BB Preferred Stock, the Series CC Preferred Stock, the Series
A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock,
the Series D Preferred Stock, and the Series E Preferred Stock will vote
together as a single class on all matters submitted for stockholder consent or
approval. The holder of each share of Series AA Preferred Stock, Series BB
Preferred Stock and Series CC Preferred Stock shall have one vote for each share
of Common Stock into which such share of Series AA Preferred Stock, Series BB
Preferred Stock and Series CC Preferred Stock could then be converted (with any
fractional share determined on an aggregate conversion basis being rounded to
the nearest whole share). The holder of each share of Series A Preferred Stock,
each share of Series B Preferred Stock, each share of Series C Preferred Stock,
each share of Series D Preferred Stock, and each share of Series E Preferred
Stock shall have ten (10) votes for each share of Common Stock into which such
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, or Series E Preferred Stock (as applicable) could then
be converted (with any fractional share determined on an aggregate conversion
basis being rounded to the nearest whole share). With respect to such votes by
the holders of such Preferred Stock, each such share shall have full voting
rights and powers equal to the voting rights and powers of such number of shares
of Common Stock, and the holders thereof shall be entitled, notwithstanding any
provision hereof, to notice of any stockholders' meeting in accordance with the
bylaws of this Corporation, and shall be entitled to vote, together with holders
of Common Stock, with respect to any question upon which holders of Common Stock
have the right to vote.
(6) Protective Provisions.
(a) In addition to the vote provided for pursuant to
Section 5 above, and subject to the rights of series of Preferred Stock which
may from time to time come into existence, so long as any shares of Series A
Through E Preferred Stock, Series AA Preferred Stock, Series BB Preferred Stock
or Series CC Preferred Stock (each, a "Class") are outstanding, this Corporation
shall not, without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the voting power of
the then outstanding shares of such Class:
(i) increase the authorized number of shares of any
series of Preferred Stock;
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(ii) create any new class or series of capital
stock, equity securities or any other securities convertible into capital stock
or equity securities of this Corporation (by reclassification or otherwise),
which capital stock or equity securities have a preference over or are on parity
with such Class with respect to voting, dividends, conversion, redemption or
upon liquidation;
(iii) redeem or repurchase any other class or series
of stock that is not expressly designated as senior to such Class in rights upon
the liquidation, dissolution or winding up of this Corporation prior to such
Class; or
(iv) alter or change the rights, preferences or
privileges of such Class (including such rights, preferences and privileges
conferred by Article IV) so as to adversely affect such shares of Preferred
Stock in such Class.
For purposes of clause (ii) above, this Corporation shall be deemed not to have
issued any new class of stock or equity securities (including upon the
conversion of convertible securities) ("New Securities") that have a preference
over or are on parity with any Class,
(1) with respect to dividends, if such class
of New Securities is not entitled to any dividends other than a proportionate
share of any dividend declared on the Common Stock, which proportion shall be
determined in accordance with the number of shares of Common Stock into which
such New Securities are convertible;
(2) with respect to conversion, if (x) such
class of New Securities is convertible only into Common Stock at a conversion
price initially not less than the liquidation preference thereof (or at a
conversion ratio not less than one share of Common Stock for each share of such
New Securities) and are automatically converted into Common Stock upon an
Initial Public Offering and (y) any adjustment to such conversion price or
conversion ratio shall be on terms no more favorable to the holders of such New
Securities than as provided in Article IV(B)(3)(f) hereof;
(3) with respect to voting,
(A) with respect to matters submitted
to shareholders of this Corporation generally, if such class of New Securities
has a number of votes on such matters in accordance with the number of shares of
Common Stock into which such New Securities are convertible; and
(B) such class of New Securities is
entitled to approve certain matters voting as a single class, including matters
submitted to the other Classes (or any of them), so long as (I) such New
Securities do not participate with any other Class in voting on any matters
submitted to such other Class for approval and on which such other Class is
entitled to approve as a single class and (II) all other Classes have the right
to approve as a single class any matter that such New Securities have the right
to approve as a single class (or all such Classes that do not have such right
are granted such right at the time such class of New Securities is created);
and
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(4) with respect to redemption, such class of
New Securities is not redeemable.
(b) In addition to the votes provided for pursuant to
Section 5 and Section 6 above, and subject to the rights of series of Preferred
Stock which may from time to time come into existence, so long as any shares of
Series CC Preferred Stock are outstanding, this Corporation shall not, without
the approval (by vote or written consent, as provided by law) of at least a
majority of the voting power of the then outstanding shares of the Series CC
Preferred Stock, voting together as a single class (with respect to clause (ii)
below, such approval not to be unreasonably withheld):
(i) (A) sell all or substantially all of its assets
or (B) approve any merger or consolidation of the Corporation whereby (1) the
Corporation is not the surviving entity and (2) more than 50% of voting power of
the surviving entity immediately after such transaction is not held by the
Corporation's stockholders immediately prior to such transaction unless the
consideration to be paid is $6.26 or more for (I) each share of Series CC
Preferred Stock or (II) that number of shares of Common Stock into which each
share of the Series CC Preferred Stock is then convertible at the Series CC
Conversion Ratio. In the event that non-cash consideration is payable in
connection with such transaction, such consideration shall, (i) in the case of
publicly-traded securities, be valued at a price equal to the closing sale price
for such securities over the thirty (30) day period ending on the date
immediately prior to the closing of the transaction, or (ii) in all other cases,
have the fair value reasonably determined in good faith by the Board of
Directors; or
(ii) undertake a public offering of its equity
securities, unless such public offering satisfies the conditions set forth in
the definition of Initial Public Offering in Subsection 3(a).
(C) Common Stock.
(1) Dividend Rights. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, only when and if
declared by the Board of Directors, out of any assets of the Corporation legally
available therefore, such dividends as may be declared from time to time by the
Board of Directors.
(2) Liquidation Rights. Upon the liquidation, dissolution or
winding up of this Corporation, the assets if this Corporation shall be
distributed as provided in Section B(2) of Article IV of this Certificate of
Incorporation.
(3) Redemption. The Common Stock is not redeemable.
(4) Voting Rights. Each share of Common Stock shall entitle the
holder thereof to one (1) vote and to vote upon such matters and in such manner
as may be provided by law.
(D) Reverse Stock Split. Upon the filing of this Amended and Restated
Certificate of Incorporation of the Corporation in the Office of the Secretary
of State of the State
15
of Delaware (the "Effective Time"), and without any further action on the part
of the Corporation or any holder, each share of common stock, $0.01 par value
per share, of the Corporation issued immediately prior to the Effective Time
(the "Pre-Existing Common Stock") shall be automatically converted into 1/2 (one
half) of a share of Common Stock (the "Reverse Stock Split") without any further
action by the holders of such shares and whether or not such shares are
surrendered to the Corporation. Each stock certificate that, immediately prior
to the Effective Time, represented shares of Pre-Existing Common Stock shall,
from and after the Effective Time, automatically and without the necessity of
presenting the same for exchange, represent that number of shares of Common
Stock into which the shares of Pre-Existing Common Stock represented by such
certificate shall have been converted; provided, that each person of record
holding a certificate that represented shares of Pre-Existing Common Stock shall
receive, upon surrender of such certificate to the Corporation, a new
certificate evidencing and representing the number of shares of Common Stock
into which the shares of Pre-Existing Common Stock represented by such
certificate shall have been converted pursuant hereto. No fractional shares of
Common Stock shall be issued in connection with the Reverse Stock Split. Upon
the completion of an Initial Public Offering and upon surrender to the
Corporation of a certificate formerly representing shares of Pre-existing Common
Stock, the Corporation shall pay to the holder of the certificate an amount in
cash (without interest) equal to the product obtained by multiplying (a) the
fraction of a share of Common Stock to which such holder (after taking into
account all shares of Pre-Existing Common Stock held immediately prior to the
Effective Time by such holder) would otherwise be entitled, by (b) the price per
share of Common Stock in the Initial Public Offering.
ARTICLE V
AMENDMENTS TO BYLAWS
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the bylaws of this Corporation.
ARTICLE VI
NUMBER OF DIRECTORS
The number of directors of this Corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders of this Corporation.
ARTICLE VII
ELECTIONS OF DIRECTORS
Elections of Directors need not be by written ballot unless the bylaws of
this Corporation shall so provide.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
Meetings of Stockholders may be held within or outside the State of
Delaware, as the bylaws may provide. The books of this Corporation may be kept
(subject to any provision
16
contained in the applicable statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors
or in the bylaws of this Corporation.
ARTICLE IX
LIABILITY OF DIRECTORS
A director of this Corporation shall not be personally liable to this
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability: (i) for any breach of the director's
duty of loyalty to this Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law, or
(iv) for any transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after approval by the
stockholders of this Article IX to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of this Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article IX
by the stockholders of this Corporation shall not adversely affect any right or
protection of a director of this Corporation existing at the time of such repeal
or modification.
ARTICLE X
AMENDMENT
Subject to the rights granted to the stockholders pursuant to the
Protective Provisions, this Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
CERTIFICATE
This Amended and Restated Certificate of Incorporation, including the
Amendments thereto, has been duly adopted in accordance with Sections 242 and
245 of the Delaware General Corporation Law by the written consent of a majority
of the stockholders entitled to vote, including each class or series entitled to
vote as a separate class or series, in accordance with the provisions of Section
228 of the Delaware General Corporation Law, and written notice of such
corporate action has been given to each stockholder of the Corporation who has
not so consented in writing.
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IN WITNESS WHEREOF, said Corporation has caused this Certificate to be
signed by N. Robert Hammer, its Chairman and CEO and attested by Louis Miceli,
its Secretary, this 13th day of September, 2006.
COMMVAULT SYSTEMS, INC.
By: /s/ N. Robert Hammer
Name: N. Robert Hammer
Chairman and CEO
ATTEST:
By: /s/ Louis Miceli
Name: Louis Miceli
Secretary