Contract

Exhibit 10.15 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this “AGREEMENT”), dated as ofNovember 10, 2000, is by and between EMC Investment Corporation, a Delawarecorporation (“EMC”), and the other persons listed on the signature page hereto(collectively with EMC, the “PURCHASERS”), and CommVault Systems, Inc., aDelaware corporation (the “COMPANY”). WHEREAS, each of the Purchasers desire to invest in theCompany; and WHEREAS, the Company desires to issue and sell to thePurchasers an aggregate of 2,758,358 shares of its Series BB Preferred Stock(the “SHARES”) and the Purchasers desire to purchase the Shares on the terms andsubject to the conditions described herein. NOW, THEREFORE, in consideration of the premises and of themutual covenants, agreements and warranties herein contained, the parties heretoagree as follows: 1. DEFINITIONS. Capitalized terms that are not defined in thetext of this Agreement have the meanings set forth below: “Affiliate” shall mean, with respect to any specified Person, any otherPerson which, directly or indirectly, owns or controls, is under commonownership or control with, or is owned or controlled by, such specified Person.For purposes of this definition, a Person shall be deemed to control anotherPerson if the first Person owns or holds more than 50% of the voting power ofthe second Person. “Amended Certificate” shall mean the Amended and Restated Certificateof Incorporation of the Company in the form of Exhibit 2. “Board of Directors” shall mean the board of directors of the Company. “Conversion Shares” shall have the meaning set forth in Section 5(e). “Governmental Authority” shall mean the government of the United Statesor any foreign country or any state or political subdivision thereof and anyentity, 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 orsale of common stock by the Company through underwriters or otherwise, thatrequires registration, qualification or the filing of a prospectus underapplicable securities laws. “Knowledge” means the actual knowledge of N. Robert Hammer, LouisMiceli, Larry Cormier or Al Bunte. “Law” shall mean any law, statute, regulation, ordinance, rule, order,decree, judgment, consent decree, settlement agreement or governmentalrequirement enacted, promulgated, entered into, agreed or imposed by anyGovernmental Authority. PURCHASE AGREEMENT “Lien” shall mean any mortgage, lien (except for any lien for taxes notyet due and payable), charge, restriction, pledge, security interest, option,lease or sublease, claim, right of any third party, easement, encroachment orencumbrance. “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 capitalstock of the Company issued, sold, granted or conveyed (i) in connection withany acquisition of all or a portion of any Person or a merger or combinationwith any Person duly authorized by the Board of Directors, (ii) to any currentor new director, officer, employee or consultant of the Company pursuant to anyplan or arrangement, now or hereafter existing, duly authorized by the Board ofDirectors or (iii) pursuant to any of the items listed on SCHEDULE B. “Person” shall mean any individual, corporation, proprietorship, firm,partnership, limited liability company, limited partnership, trust, associationor other entity. “Preferred Stock” shall mean, collectively, the Company’s issued andoutstanding Series A Preferred Stock, Series B Preferred Stock, Series CPreferred Stock, Series D Preferred Stock, Series E Preferred Stock and SeriesAA Preferred Stock. “Registration Rights Agreement” shall mean a Registration RightsAgreement to be entered into between Purchasers and the Company as of theClosing in the form of Exhibit 1. “Related Agreements” shall mean, (i) with respect to the Company andEMC, the Registration Rights Agreement and the Warrant and (ii) with respect tothe other Purchasers, only the Registration Rights Agreement. “Securities Act” shall mean the Securities Act of 1933, as amended. “Stock Plan” shall mean the Company’s stock plan, as described onSCHEDULE B. “Subsidiaries” shall mean the Persons set forth on SCHEDULE A. “Warrant” shall mean a warrant to be issued to EMC to purchase sharesof common stock of the Company in the form of Exhibit 3. “Warrant Shares” shall have the meaning set forth in Section 5(e).2. PURCHASE AND SALE OF SHARES. (a) PURCHASE PRICE. Subject to the terms and conditions set forth inthis Agreement, at the Closing (as hereinafter defined), the Purchasers shallpurchase, and the Company shall issue and sell to the Purchasers the Shares foran aggregate purchase price (the “Purchase Price”) of $33,376,131.80. The numberof Shares being sold to each Purchaser and the portion of the Purchase Priceattributable thereto is set forth under such Purchaser’s name on the signaturepage hereto. PURCHASE AGREEMENT -2- (b) CLOSING. The closing (the “Closing”) of the transactions describedherein shall occur on November 10, 2000, or such other date as agreed upon bythe Purchasers and the Company. At the Closing, the Purchasers shall pay theCompany the Purchase Price in cash by wire transfer of immediately availablefunds to an account designated by the Company at least two business days beforethe Closing and the Company shall deliver to each Purchaser a certificaterepresenting the Shares purchased by such Purchaser. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Companyhereby represents and warrants to each of the Purchasers: (a) DUE INCORPORATION; SUBSIDIARIES. Each of the Company and theSubsidiaries is duly incorporated, validly existing and in good standing underthe laws of its jurisdiction of incorporation, with all requisite power andauthority to own, lease and operate its properties and to carry on its businessas they are now being owned, leased, operated and conducted. Each of the Companyand the Subsidiaries is licensed or qualified to do business and is in goodstanding as a foreign corporation in each jurisdiction where the nature of theproperties owned, leased or operated by it and the businesses transacted by itrequire such licensing or qualification, except where the failure to be solicensed or qualified would not individually or in the aggregate have a MaterialAdverse Effect. Except as set forth on SCHEDULE A, the Company has no direct orindirect subsidiaries, either wholly or partially owned, and the Company doesnot hold any direct or indirect economic, voting or management interest in anyPerson or directly or indirectly own any security issued by any Person. EachSubsidiary is wholly owned by the Company. (b) DUE AUTHORIZATION. The Company has full power and authority toenter into this Agreement and its Related Agreements and to consummate thetransactions contemplated hereby and thereby. The execution, delivery andperformance by the Company of this Agreement and its Related Agreements havebeen duly and validly approved by the board of directors of the Company and noother actions or proceedings on the part of the Company are necessary toauthorize this Agreement, the Related Agreements and the transactionscontemplated hereby and thereby. The Company has duly and validly executed anddelivered this Agreement and has duly and validly executed and delivered (orprior to or at the Closing will duly and validly execute and deliver) itsRelated Agreements. This Agreement constitutes legal, valid and bindingobligations of the Company and the Company’s Related Agreements upon executionand delivery by the Company will constitute legal, valid and binding obligationsof the Company, in each case, enforceable in accordance with their respectiveterms, except as such enforceability may be limited by applicable bankruptcy,insolvency, moratorium, reorganization or similar laws in effect which affectthe enforcement of creditors’ rights generally and by equitable limitations onthe availability of specific remedies. (c) CONSENTS AND APPROVALS; AUTHORITY RELATIVE TO THIS AGREEMENT. (i) No consent, authorization or approval of, filing orregistration with, or cooperation from, any Governmental Authority or any otherPerson not a party to this Agreement that has not been received by the Companyis necessary in connection with the execution, delivery and performance by theCompany of this Agreement and the execution, delivery and performance by theCompany of Related Agreements or the consummation of the transactions PURCHASE AGREEMENT -3-contemplated hereby or thereby (including, without limitation, the offer,issuance, sale and delivery of the Shares, the Conversion Shares and the WarrantShares). (ii) The execution, delivery and performance by the Company ofthis Agreement and its Related Agreements do not and will not (1) violate anyLaw; (2) violate or conflict with, result in a breach or termination of,constitute a default or give any third party any additional right (including atermination right) under, permit cancellation of, result in the creation of anyLien upon any of the assets or properties of the Company under, or result in orconstitute a circumstance which, with or without notice or lapse of time orboth, would constitute any of the foregoing under, any contract to which theCompany, is a party or by which the Company or any of its assets or propertiesare bound; (3) permit the acceleration of the maturity of any indebtedness ofthe Company or indebtedness secured by its assets or properties; or (4) violateor conflict with any provision of any of the Amended Certificate or by-laws ofthe Company. (d) CAPITALIZATION. (i) The authorized capital stock of the Company is asdescribed in the Amended Certificate. All of the outstanding capital stock ofthe Company and each Subsidiary (i) is validly issued, fully paid andnonassessable and (ii) is free of preemptive rights (except as provided in theAmended Certificate or this Agreement). When issued, the Shares, the ConversionShares and the Warrant Shares will be validly issued, fully paid andnonassessable and will not have been issued in violation of any preemptiverights or rights of first refusal. The authorized capital stock as described inthe Amended Certificate contains a sufficient number of shares of common stockfor issuance of the Conversion Shares and Warrant Shares. (ii) Except as set forth above or on SCHEDULE B, there are noshares of capital stock or other securities (whether or not such securities havevoting rights) of the Company issued or outstanding or any subscriptions,options, warrants, calls, rights, convertible securities or other agreements orcommitments 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 orother securities (whether or not such securities have voting rights). Except asset forth in SCHEDULE B, there are no outstanding contractual obligations of theCompany which relate to the purchase, sale, issuance, repurchase, redemption,acquisition, transfer, disposition, holding or voting of any shares of itscapital stock or other securities. The maximum number of shares of common stockthat the Company has issued and would be obligated to issue as of the datehereof pursuant to the agreements listed in paragraphs 1-8 of SCHEDULE B is57,868,509 shares on a fully diluted basis, plus any Shares issued hereunder(including the Warrant Shares) and the shares issuable pursuant to the warrantlisted in paragraph 9 of SCHEDULE B. (e) LITIGATION. (i) There is no claim, action, suit, investigation orproceeding (“LITIGATION”) pending or, to the Knowledge of the Company,threatened against the Company or any Subsidiary, or involving any of itsproperties or assets by or before any court, arbitrator or other GovernmentalEntity which (1) in any manner challenges or seeks to prevent, enjoin, alter ormaterially delay the transactions contemplated by this Agreement or (2) ifresolved adversely to PURCHASE AGREEMENT -4-the Company or any Subsidiary, would reasonably be expected to have a MaterialAdverse Effect. (ii) Neither the Company nor any Subsidiary is in defaultunder or in breach of any order, judgment or decree of any court, arbitrator orother Governmental Authority, except for defaults or breaches, whichindividually or in the aggregate would not reasonably be expected to have aMaterial Adverse Effect. (f) INTELLECTUAL PROPERTY. The Company has title and ownership of, orhas license to, all patents, patent applications, trademarks, service marks,trade names, copyrights, trade secrets and other confidential and proprietaryinformation (collectively, the “PROPRIETARY ASSETS”) necessary to enable it tocarry on its business as now conducted and as presently proposed to be conductedwithout any conflict with or infringement of the rights of others, except whereany failure to have such title, ownership or license would not have a MaterialAdverse Effect. To the Knowledge of the Company, no person or entity has anyownership right, title, interest, claim in or lien on any of the Company’sProprietary Assets. No current or former employee or consultant of the Companyhas any ownership right, title, interest, claim in or lien on any of theCompany’s Proprietary Assets, other than such rights, title, interests, claimsor liens that would not have a Material Adverse Effect. The Company has notgranted and, to the Knowledge of the Company, there are not outstanding, anyoptions, licenses or agreements of any kind relating to any Proprietary Asset ofthe Company, nor is the Company bound by or a party to any option, license oragreement of any kind with respect to any of its Proprietary Assets. To theKnowledge of the Company, the Company has not violated or infringed, and wouldnot, by conducting its business as currently proposed, violate or infringe, anyProprietary Asset of any other person or entity except for such violations orinfringements that would not have a Material Adverse Effect. Each employee ofthe Company hired after January 1, 1998 has signed an Employee Inventions andConfidentiality Agreement in the form attached hereto as Exhibit 4. (g) FINANCIAL STATEMENTS. The Company has furnished to each of therequesting Purchasers a complete and correct copy of the balance sheet of theCompany at September 30, 2000, and the statement of income for the period fromMarch 31, 2000 through September 30, 2000 (collectively, the “FINANCIALSTATEMENTS”). The Financial Statements are complete and correct, are inaccordance with the books and records of the Company and present fairly in allmaterial respects the financial condition and results of operations of theCompany, at the dates and for the periods indicated, and have been prepared inaccordance with generally accepted accounting principles (“GAAP”) consistentlyapplied, except that the unaudited Financial Statements may not be in accordancewith GAAP because of the absence of footnotes normally contained therein and aresubject to normal year-end adjustments which in the aggregate are not expectedto be material. (h) ABSENCE OF UNDISCLOSED LIABILITIES. The Company does not have anyliability (whether known or unknown and whether absolute or contingent), exceptfor (a) liabilities shown on the Financial Statements, (b) liabilities that havearisen since September 30, 2000 in the ordinary course of business and (c)contractual and other liabilities incurred in the ordinary course of businessthat are not material and not required by GAAP to be reflected on a balancesheet. PURCHASE AGREEMENT -5- (i) ABSENCE OF CHANGES. Since September 30, 2000, the Company hasconducted its business in the ordinary course, consistent with past practice. (j) CONTRACTS. The Company does not have and is not bound by anycontract, agreement, lease or commitment, other than (i) contracts for thepurchase of supplies and services or the licensing of technology that wereentered 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 contractsentered into in the ordinary course of business, (iii) the leases for theCompany’s office or other space, (iv) contracts terminable at will by theCompany on no more than 30 days’ notice without cost or liability to theCompany, (v) an agreement with Microsoft Corporation, dated as of April 12,2000, or (vi) other contacts the loss of which would not have a Material AdverseEffect. To the Knowledge of the Company, all of the contracts to which it is aparty are valid and binding and are in full force and effect as of the date ofthis Agreement. (k) REGISTRATION RIGHTS. Other than the Registration Rights Agreement,the registration rights agreement with the holders of the Series AA PreferredStock, dated April 14, 2000, the Stockholders Agreement listed in paragraph 4 ofSCHEDULE B, and the piggyback registration rights granted pursuant to thePurchase Agreement listed in paragraph 6 of SCHEDULE B, the Company has notgranted any registration rights to any party for any of its securities. (l) COMPLIANCE WITH LAWS. The Company and each Subsidiary are incompliance in all material respects with all applicable Laws. All securitiesissued by the Company prior to the date hereof have been issued in transactionsexempt from the registration requirements of Section 5 of the Securities Act. (m) OFFERING OF SHARES. Neither the Company nor any Person acting onits behalf has taken or will take any action (including, without limitation, anyoffering of any securities of the Company under circumstances which wouldrequire, under the Securities Act, the integration of such offering with theoffering and sale of the Shares) which might reasonably be expected to subjectthe offering, issuance or sale of the Shares to the registration requirements ofthe Securities Act. Subject to the continuing accuracy of the Purchasers’representations in Section 4, the offer, sale and issuance of the Shares, theConversion Shares and the Warrant Shares in conformity with the terms of thisAgreement, the Amended Certificate and the Warrant constitute or will constitutetransactions exempt from the registration requirements of Section 5 of theSecurities Act. (n) BROKERS. No broker, finder or investment banker is entitled to anybrokerage, finder’s or other fee or commission from any party in connection withthe transactions contemplated by this Agreement based upon arrangements made byor on behalf of the Company. 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each of thePurchasers severally but not jointly hereby represents and warrants to theCompany as follows: (a) DUE INCORPORATION. Each Purchaser that is not an individual is dulyorganized, validly existing and in good standing under the laws of itsjurisdiction of organization, with all PURCHASE AGREEMENT -6-requisite power and authority to own, lease and operate its properties and tocarry on its business as they are now being owned, leased, operated andconducted. (b) DUE AUTHORIZATION. Each Purchaser that is not an individual hasfull power and authority to enter into this Agreement and its Related Agreementsand to consummate the transactions contemplated hereby and thereby. Theexecution, delivery and performance by such Purchaser of this Agreement and itsRelated Agreements have been duly and validly approved by its governing bodyempowered to authorize the transactions contemplated by this Agreement and itsRelated Agreements and no other actions or proceedings on the part of suchPurchaser are necessary to authorize this Agreement, its Related Agreements andthe transactions contemplated hereby and thereby. (c) DUE EXECUTION; BINDING EFFECT. Such Purchaser has validly executedand delivered this Agreement and has duly and validly executed and delivered (orprior to or at the Closing will duly and validly execute and deliver) itsRelated Agreements. This Agreement constitutes legal, valid and bindingobligations of such Purchaser and such Purchaser’s Related Agreements uponexecution and delivery by such Purchaser (as applicable) will constitute legal,valid and binding obligations of such Purchaser, in each case, enforceable inaccordance with their respective terms, except as such enforceability may belimited by applicable bankruptcy, insolvency, moratorium, reorganization orsimilar laws in effect which affect the enforcement of creditors’ rightsgenerally 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 orregistration with, or cooperation from, any Governmental Authority or any otherPerson not a party to this Agreement is necessary in connection with theexecution, delivery and performance by such Purchaser of this Agreement and itsRelated Agreements and the consummation by such Purchaser of the transactionscontemplated hereby and thereby. (ii) The execution, delivery and performance by such Purchaserof this Agreement and its Related Agreements do not and will not (1) violate anyLaw applicable to such Purchaser; (2) violate or conflict with, result in abreach or termination of, constitute a default or give any third party anyadditional right (including a termination right) under, permit cancellation of,result in the creation of any Lien upon any of the assets or properties of suchPurchaser under, or result in or constitute a circumstance which, with orwithout notice or lapse of time or both, would constitute any of the foregoingunder, any contract to which Purchaser is a party or by which such Purchaser orany of its assets or properties are bound; (3) permit the acceleration of thematurity of any indebtedness of such Purchaser or indebtedness secured by itsassets or properties; or (4) for each Purchaser that is not an individual,violate or conflict with any provision of such Purchaser’s organizationaldocuments. (e) BROKERS. No broker, lender or investment banker is entitled to anybrokerage, lender’s or other fee or commission from any party in connection withthe transactions contemplated by this Agreement based on arrangements made by oron behalf of such Purchaser. PURCHASE AGREEMENT -7- (f) PURCHASE FOR INVESTMENT. Such Purchaser is purchasing the Shareshereunder for investment without any intent of the distribution thereof withinthe 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 tobear the economic risk of acquisition of the Shares, can afford to sustain atotal loss on such investment, and has such knowledge and experience infinancial and business matters that it is capable of evaluating the merits andrisk of the proposed investment. Such Purchaser has been furnished theopportunity to ask questions of and receive answers from representatives of theCompany concerning the business and financial affairs of the Company. 5. COVENANTS. (a) FINANCIAL INFORMATION. (1) As soon as practicable after the end ofeach fiscal year of the Company, and in any event within 120 days thereafter,the Company shall furnish to each Purchaser that holds (together with itsAffiliates) at least 750,000 Shares, an audited balance sheet and incomestatement of the Company (the “FINANCIAL INFORMATION”) as at the end of suchfiscal year, prepared in accordance with GAAP consistently applied. (2) As soon as practicable after the end of the first, secondand third quarterly accounting periods in each fiscal year of the Company, andin any event within 60 days thereafter, the Company shall furnish to eachPurchaser that holds (together with its Affiliates) at least 750,000 Shares,unaudited Financial Information for such period and for such fiscal year todate, prepared in accordance with GAAP consistently applied, subject to changesresulting from normal year-end audit adjustments, and except that such FinancialInformation need not contain the notes required by GAAP. (3) Each Purchaser acknowledges that any information obtainedby such Purchaser pursuant to this Section 5(a) that may be proprietary to theCompany or otherwise confidential shall not be disclosed without the priorwritten consent of the Company and the provision of such information shall besubject to the receipt by the Company of a confidentiality agreement coveringsuch information and reasonably acceptable to the Company and such Purchaser.Each Purchaser further acknowledges and understands that any information soobtained that may be considered “inside” non-public information shall not beutilized by such Purchaser in connection with purchases and/or sales of theCompany’s securities except in compliance with applicable state and federalantifraud statutes. The Company may exclude a Purchaser from the distribution ofthe information to be delivered pursuant hereto if the Board of Directorsdetermines in good faith upon advice of counsel that such exclusion isreasonably necessary to preserve attorney-client privilege or to protect othersimilar confidential information. The rights and obligations of the partiespursuant to this Section 5(a) shall terminate upon the closing of an InitialPublic Offering. (b) BOARD OBSERVER. EMC shall be entitled to designate one non-votingobserver (the “NON-VOTING OBSERVER”) to attend (but not vote at) all meetings ofthe Board of Directors. The Non-Voting Observer shall have the same access toinformation concerning the business and operations of the Company and at thesame time as the directors of the Company, except for such PURCHASE AGREEMENT -8-information that the Company reasonably determines it cannot distribute forconfidentiality reasons, and shall be entitled to ask questions of the Board ofDirectors, but shall not be entitled to vote or otherwise seek to influence thebusiness decisions of the Board of Directors. Any other Purchaser that owns(together with its Affiliates) at least 750,000 Shares shall also have the sameaccess to financial information of the Company at the same time as the directorsof the Company, except for such information that the Company reasonablydetermines it cannot distribute for confidentiality reasons. The provision ofany such information to the Non-Voting Observer and any such Purchasers shall besubject to the receipt by the Company of a confidentiality agreement coveringsuch information and reasonably acceptable to the Company and such Purchaser. If(1) the Company receives or solicits an expression of interest to purchase orsell (i) more than 50% of the voting stock of the Company or (ii) all orsubstantially all of the assets of the Company, or (2) there occurs a MaterialAdverse Effect, then the Company shall promptly notify EMC of such expression ofinterest or Material Adverse Effect, as the case may be, and EMC shall beentitled to designate for election to the Board of Directors one director (the”EMC DIRECTOR”). The Company will, to the extent requested by EMC, take allaction necessary for the EMC Director to be elected to the Board of Directors assoon as possible after such request by EMC. In connection with any annualmeeting of stockholders of the Company at which the term of the EMC Director isto expire, the Company will take all necessary action to cause the EMC Directorto be nominated and use its reasonable best efforts to cause the EMC Director tobe elected to the Board of Directors. In the event a vacancy shall exist in theoffice of the EMC Director, EMC shall be entitled to designate a successor andthe Board of Directors shall elect such successor and, in connection with themeeting of stockholders of the Company next following such election, nominatesuch successor for election as director by the stockholders and use itsreasonable best efforts to cause the successor to be elected. EMC’s right tonominate the EMC Director (if such right comes into existence after the datehereof) and the Non-Voting Observer and the Company’s obligation (if suchobligation comes into existence after the date hereof) to take any action tocause the EMC Director to be elected to the Board of Directors shall terminateas of the Initial Public Offering. In addition, the term of the EMC Director andall rights of the EMC Director and the Non-Voting Observer and any otherPurchasers, including the rights to observe and have access to the books andrecords of the Company and other information as provided above, shall expire asof such time. Subject to any other agreement between the parties, EMC and anyother Purchaser that receives information agrees that the information providedby the Company, officers, directors and employees pursuant to this Section 5(b)will be used solely for the purpose of evaluating such Purchaser’s investment inthe Shares, the Conversion Shares and the Warrant Shares, as applicable, andthat such information will be kept strictly confidential by such Purchaser;PROVIDED that the foregoing obligation of such Purchaser shall not (a) relate toany information that (i) is or becomes generally available other than as aresult of unauthorized disclosure by such Purchaser or by persons to whom suchPurchaser has made such information available, (ii) is already in suchPurchaser’s possession, provided that such information is not subject to anotherconfidentiality agreement with or other obligation of secrecy to the Company or(iii) is or becomes available to such Purchaser on a non-confidential basis froma third party that is not, to such Purchaser’s knowledge, bound by any otherconfidentiality agreement with the Company or its subsidiaries, or (b) prohibitdisclosure of any information if required by Law or the rules of any stockexchange. EMC and each other Purchaser hereby acknowledges that it is aware thatthe United States securities laws prohibit any person who has received from anissuer or any PURCHASE AGREEMENT -9-Affiliate thereof any material, non-public information frompurchasing or selling securities of such issuer or from communicating suchinformation to any other person under circumstances in which it is reasonablyforeseeable that such person is likely to purchase or sell such securities. (c) AMENDED CERTIFICATE. The Company shall, prior to or concurrentlywith the Closing, cause the Amended Certificate to be filed with the Secretaryof State of the State of Delaware. (d) COOPERATION. Each of the Purchasers and the Company agrees to useits reasonable best efforts to take, or cause to be taken, all such furtheractions as shall be necessary to make effective and consummate the transactionscontemplated by this Agreement. (e) RESERVE SHARES. The Company will at all times reserve and keepavailable, solely for issuance and delivery upon conversion of the Shares, thenumber of shares of common stock from time to time issuable upon conversion ofall Shares at the time outstanding (the “CONVERSION SHARES”) and any shares ofcommon stock to be issued pursuant to the Warrant (the “WARRANT SHARES”). AllConversion Shares and Warrant Shares shall be duly authorized and, when issuedupon such conversion or exercise in accordance with the Amended Certificate orthe Warrant, as the case may be, shall be validly issued, fully paid andnonassessable. (f) RESTRICTIONS ON TRANSFER. The Purchasers will not, prior to theearlier of (a) December 31, 2004 or (b) the time of the closing of the InitialPublic 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) Transfersbetween and among the Purchasers and their Affiliates provided such Transfer isin accordance with the transfer restrictions applicable to the Shares or theConversion Shares under federal and state securities laws and the Affiliatetransferee agrees to be bound by the restrictions applicable to such Shares orConversion Shares, including without limitation the agreements set forth in thisSection 5(f), and (ii) Transfers (x) pursuant to a bona fide tender or exchangeoffer made pursuant to a merger or other agreement approved by the Board ofDirectors to acquire securities of the Company; PROVIDED, that the Purchasersmay not tender or exchange in such offer unless at least 50% of the outstandingvoting securities of the Company have previously been tendered or exchanged byother holders of the Company’s securities in connection therewith, (y) pursuantto any cash merger, or other business combination transaction to which theCompany is a party or involved in which the common stock of the Company’sstockholders is exchanged for cash upon consummation of such merger or otherbusiness combination or (z) agreed to in writing by the Company. Notwithstandingany other provision of this Section 5(f), no Purchaser shall avoid theprovisions of this Section 5(f) by making one or more transfers to one or moreAffiliates and then disposing of all or any portion of such Purchaser’s interestin any such Affiliate. (g) PREEMPTIVE RIGHT. If at any time the Company desires to issue orsell any shares (the “ADDITIONAL Shares”) of its capital stock that entitle theholder thereof to voting rights (other than Non-Preemptive Shares) to anyPerson, the Company shall give a written notice (the “ISSUANCE NOTICE”) to thePurchasers setting forth the proposed terms of such Additional Shares and thequantity of Additional Shares to be issued, the issuance date and the price atwhich such Additional Shares shall be issued. Each of the Purchasers shall havethe option to purchase the number of Additional Shares necessary to maintainsuch Purchaser’s percentage of issued and PURCHASE AGREEMENT -10-outstanding voting 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 anunconditional agreement to purchase all (and not less than all) of theAdditional Shares to which such Purchaser is entitled to purchase. Failure by aPurchaser to give the Response Notice to the Company within such 14-day periodshall be deemed to be a rejection of such option. At the option of the Company,within 14 days of Company’s receipt of the Response Notice or at the time of theclosing of the sale of Additional Shares to any Persons pursuant to the nextsentence, the Company shall sell to such Purchaser and such Purchaser shallpurchase the Additional Shares that such Purchaser agreed to purchase in theResponse Notice, at the price and on the terms set forth in the Issuance Notice.For a period of 270 days after any Issuance Notice, the Company shall have theright to issue or sell to any Person up to the number of Additional Sharesspecified in the Issuance Notice less the number of Additional Shares pursuantto duly tendered Response Notices at a price and on terms not materially lessfavorable to the Company than as specified in the Issuance Notice. If theCompany desires to issue or sell Additional Shares, (i) after such 270-dayperiod, (ii) on terms materially less favorable to the Company than as specifiedin the Issuance Notice or (iii) in a quantity greater than as specified in theprevious sentence, the Company must again comply with this Section 5(g). Therights and obligations of the parties pursuant to this Section 5(g) shallterminate upon the closing of an Initial Public Offering. (h) COMPLIANCE WITH SECURITIES LAWS. Such Purchaser understands thatthe Shares, the Conversion Shares and the Warrant Shares will not be registeredunder the Securities Act or applicable state securities laws and agrees not tosell, pledge or otherwise transfer any of the Shares, Conversion Shares and theWarrant Shares in the absence of such registration or an opinion of counselreasonably satisfactory to the Company that such registration is not required.Except as set forth in the Registration Rights Agreement, such Purchaseracknowledges that the Company is not required to register the Shares, theConversion Shares or the Warrant Shares. 6. CONDITIONS. (a) CONDITIONS TO OBLIGATIONS OF THE PURCHASERS. The obligations of thePurchasers to consummate the transactions contemplated hereby shall be subjectto the satisfaction or waiver at or prior to the Closing of each of thefollowing conditions: (i) No statute, rule or regulation or order of any court oradministrative agency shall be in effect which prohibits the consummation of thetransactions contemplated hereby; (ii) The Company shall have performed, satisfied and compliedin all material respects with all of its covenants and agreements set forth inthis Agreement to be performed, satisfied and complied with prior to or at theClosing; (iii) The Company shall have executed and delivered to each ofthe Purchasers the Registration Rights Agreement; PURCHASE AGREEMENT -11- (iv) The Amended Certificate shall have been duly filed withthe Secretary of State of the State of Delaware in accordance with the laws ofthe State of Delaware and the Amended Certificate shall be in full force andeffect; (v) The Company shall have executed and delivered to EMC theWarrant; (vi) The Conversion Shares and the Warrant Shares shall havebeen duly authorized and reserved for issuance; (vii) Mayer, Brown & Platt shall have delivered an opinion inform and substance reasonably satisfactory to Purchasers; (viii) The Company shall have delivered a good standingcertificate for the Company; and (ix) There shall not have occurred any event, circumstances,condition, fact, effect, or other matter which has had or would reasonably beexpected to have a Material Adverse Effect. (b) CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of theCompany to consummate the transactions contemplated hereby shall be subject tothe satisfaction or waiver at or prior to the Closing of each of the followingconditions: (i) No statute, rule or regulation or order of any court oradministrative agency shall be in effect which prohibits the consummation of thetransactions contemplated hereby; (ii) Each of the Purchasers shall have executed and deliveredto the Company its Related Agreements; and (iii) The Purchasers shall have performed, satisfied andcomplied in all material respects with all of their covenants and agreements setforth in this Agreement to be performed, satisfied and complied with prior to orat the Closing Date. 7. [INTENTIONALLY OMITTED] 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and warranties of the parties contained in thisAgreement shall expire on the 18-month anniversary of the Closing, except forthose representations and warranties contained in Sections 3(b) and 3(d) whichshall 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 ofno further force and effect, except to the extent a party has given notice tothe other party of a claim for breach of any such representation or warrantyprior to the expiration of such period, in which event any representation orwarranty to which such claim relates shall survive with respect to such claimuntil such claim is resolved as provided in this Section 8. The covenants and PURCHASE AGREEMENT -12-agreements of the parties hereto contained in this Agreement shall survive theClosing until performed in accordance with their terms. 9. RESTRICTIVE LEGENDS. In addition to the restrictions setforth in Section 5(f), no Shares, Conversion Shares or Warrant Shares may betransferred without registration under the Securities Act and applicable statesecurities laws unless counsel reasonably acceptable to the Company shall advisethe Company that such transfer may be effected without such registration. Eachcertificate representing any of the foregoing shall bear legends insubstantially 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. 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. 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 NOVEMBER 10, 2000, 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. PURCHASE AGREEMENT -13- 10. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. ThisAgreement shall bind and inure to the benefit of the Company and the Purchasersand the respective successors, permitted assigns, heirs and personalrepresentatives of the Company and the Purchasers; PROVIDED that the Company maynot assign its rights or obligations under this Agreement to any Person withoutthe prior written consent of the Purchasers, and PROVIDED FURTHER that thePurchasers may not assign their rights or obligations under this Agreement toany Person (other than an Affiliate) without the prior written consent of theCompany. This Agreement is intended for the benefit of the parties hereto andtheir respective permitted successors and assigns, and is not for the benefitof, nor may any provision hereof be enforced by, any other person. 11. NOTICES. Each notice, demand, request, request forapproval, consent, approval, disapproval, designation or other communication(each of the foregoing being referred to herein as a notice) required or desiredto be given or made under this Agreement shall be in writing (except asotherwise provided in this Agreement), and shall be effective and deemed to havebeen received (i) when delivered in person, (ii) when sent by fax with receiptacknowledged, (iii) five days after having been mailed by certified orregistered United States mail, postage prepaid, return receipt requested, or(iv) the next business day after having been sent by a nationally recognizedovernight mail or courier service, receipt requested. Notices shall be addressedas set forth below: If to EMC: EMC Corporation 35 Parkwood Drive Hopkinton, MA 01748 Attn: Office of the General Counsel Facsimile: (508) 497-6915 with a copy to the Vice President, Corporate Development Facsimile: (508) 435-8900 If to any of the other Purchasers, at the address set forth under his name on the signature page. With a copy to: —————————————————– —————————————————– —————————————————– Attn: ————————————— Facsimile: ———————————- PURCHASE AGREEMENT -14- 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: Mayer, Brown & Platt 190 S. LaSalle Street Chicago, Illinois 60603 Attention: Philip J. Niehoff Facsimile: (312) 701-7711 12. FURTHER ASSURANCES. At any time or from time to time afterthe Closing, the Company, on the one hand, and the Purchasers, on the otherhand, 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 suchfurther action as the other party may reasonably request in order to evidence oreffectuate the consummation of the transactions contemplated hereby and tootherwise carry out the intent of the parties hereunder. 13. PUBLIC DISCLOSURE. Except as required by Law or the rulesof any stock exchange (in which case the Company shall give EMC notice at least24 hours prior to any public announcement containing its name), no publicannouncement or other publicity regarding the transactions referred to hereinshall be made by any of the Purchasers or the Company or any of their respectiveAffiliates, officers, directors, employees, representatives or agents, withoutthe prior written agreement of 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 suchtransactions with those Persons whose approval, agreement or opinion, as thecase may be, is required for consummation of such particular transaction ortransactions or (ii) disclosing such information about such transactions in aregistration statement or prospectus in connection with the Initial PublicOffering or (iii) if the disclosing party is a Purchaser, disclosing suchPurchaser’s investment herein provided that such disclosure does not mention anyother Purchaser by name and is approved by the Company in writing. Each of theparties acknowledge and agree that there would be no adequate remedy at Law ifit fails to perform its obligations under this Section 13 and accordingly agreesthat each of the other parties, in addition to any other remedy to which it maybe entitled at Law or in equity, shall be entitled to compel specificperformance of the obligations of the first party under this Section 13. 14. WAIVER. No party may waive any of the terms or conditionsof this Agreement except by a duly signed writing referring to the specificprovision to be waived. PURCHASE AGREEMENT -15- 15. ENTIRE AGREEMENT. This Agreement and the RelatedAgreements constitute the entire agreement, and supersedes all other prioragreements and understandings, both written and oral, among the parties heretoand their affiliates with respect to the matters set forth herein. 16. SEVERABILITY. If any provision of this Agreement shall beheld invalid, illegal or unenforceable, the validity, legality or enforceabilityof the other provisions hereof shall not be affected thereby, and there shall bedeemed substituted for the provision at issue a valid, legal and enforceableprovision as similar as possible to the provision at issue. 17. CAPTIONS. The Section references herein are forconvenience of reference only, do not constitute part of this Agreement andshall not be deemed to limit or otherwise affect any of the provisions hereof. 18. COUNTERPARTS. This Agreement may be executed in one ormore counterparts, each of which shall be deemed an original but all of whichshall constitute one and the same instrument. 19. GOVERNING LAW. This Agreement shall be governed by, andconstrued and enforced in accordance with, the laws of the State of Delaware. 20. WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASERSHEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANYACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER ORIN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. 21. FEES AND EXPENSES. All costs and expenses incurred inconnection with this Agreement shall be paid by the party incurring such costsor expense. 22. JOINT PARTICIPATION IN DRAFTING. Each party to thisAgreement has participated in the negotiation and drafting of this Agreement. Assuch, the language used herein shall be deemed to be the language chosen by theparties hereto to express their mutual intent, and no rule of strictconstruction will be applied against any party to this Agreement. PURCHASE AGREEMENT * * * * -16- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beexecuted and delivered as of the day and year first written above. EMC INVESTMENT CORPORATION By: /S/ MICHAEL J. CODY ———————————————– Name: MICHAEL J. CODY ——————————————— Title: VICE PRESIDENT, CORPORATE DEVELOPMENT ——————————————– Shares: 1,652,893 Purchase Price: $20,000,005 PURCHASE AGREEMENT THE VAN WAGONER FUNDS By: /S/ GARRETT R. VAN WAGONER ———————————————– Name: GARRETT R. VAN WAGONER ——————————————— Title: PRESIDENT ——————————————– 345 California Street Suite 2450 San Francisco, CA 94104 Facsimile: —————————————– Shares: 826,447 Purchase Price: $[10,000,008] VAN WAGONER CAPITAL PARTNERS, L.P. By: /S/ GARRETT R. VAN WAGONER ———————————————– Name: ———————————————- Title: ——————————————— 345 California Street Suite 2450 San Francisco, CA 94104 Facsimile: —————————————– Shares: None Purchase Price: $ ———————————- VAN WAGONER CROSSOVER FUND, L.P. By:/S/ GARRETT R. VAN WAGONER ———————————————— Name: ———————————————- Title: ——————————————— 345 California Street Suite 2450 San Francisco, CA 94104 Facsimile: —————————————– Shares: None Purchase Price: $ ———————————– PURCHASE AGREEMENT DRW VENTURE PARTNERS LP By: Dain Rauscher Corporation, its General Partner By: /S/ MARY ZIMMER ———————————————– Name: MARY ZIMMER ——————————————— Title: DIRECTOR, DRW FINANCE ADMINISTRATION ——————————————– 60 South 6th Street Minneapolis, MN 55402 Attn: Mary Zimmer MS 54N2 Facsimile: (612) 373-1610 ——————————— Shares: 61,984 Purchase Price: $750,006.40 PURCHASE AGREEMENT MORGAN KEEGAN OPPORTUNITY FUND, L.P. By: Merchant Bankers, Inc., its General Partner By: /S/ MINOR PERKINS ———————————————– Name: MINOR PERKINS ——————————————— Title: VICE PRESIDENT ——————————————– 50 North Front Street, 19th Floor Memphis, TN 38103 Facsimile: (901) 579-4891 Shares: 132,000 Purchase Price: $1,597,200 MORGAN KEEGAN EMPLOYEE INVESTMENT FUND, L.P. By: Merchant Bankers, Inc., its General Partner By: /S/ MINOR PERKINS ———————————————– Name: MINOR PERKINS ——————————————— Title: VICE PRESIDENT ——————————————– 50 North Front Street, 19th Floor Memphis, TN 38103 Facsimile: (901) 579-4891 Shares: 33,290 Purchase Price: $402,809 PURCHASE AGREEMENT /S/ BARBARA M. BYRNE ————————————————— Barbara M. Byrne 101 Hun Road Princeton, NJ 08540 Shares: 8,265 Purchase Price: $100,006.50 /S/ GREG REYE ————————————————— Greg Reyes c/o Brocade Communication Systems 1745 Technology Drive San Jose, CA 95110 Shares: 41,323 Purchase Price: $500,008.30 /S/ WILL HERMAN ————————————————— Will Herman 8 Cobblestone Place Sudbury, MA 01776 Shares: 2,156 Purchase Price: $26,087.60 PURCHASE AGREEMENT COMMVAULT SYSTEMS, INC. By: /S/ N. ROBERT HAMMER ———————————————- Name: N. ROBERT HAMMER ——————————————– Title: CEO ——————————————- PURCHASE AGREEMENT SCHEDULE A SUBSIDIARIESCommVault Systems (Canada) Inc., a Canadian corporationCommVault Systems Mexico S de RL de CV, a Mexican companyCommVault Holding Company BV, a Netherlands companyCommVault Systems Netherlands BV, a Netherlands company PURCHASE AGREEMENT A-1 SCHEDULE B1. Employment Agreement, dated as of January 20, 1999, between the Company and N. Robert Hammer, under which Mr. Hammer has received options to purchase common stock.2. Corporate Change of Control Agreements, between the Company and (i) Louis Miceli, (ii) Brian McAteer, (iii) Larry Cormier, (iv) Al Bunte and (v) David West.3. Stock Plan dated as of May 22, 1996, pursuant to which (i) the Company is authorized to issue options to purchase 9.7 million shares of its common stock and (ii) options to purchase 9.2 million shares of common stock have been granted.4. Preferred Stock holders have conversion rights, pursuant to the Amended Certificate, and preemptive rights pursuant to the Stockholders’ Agreement, dated as of May 22, 1996 and amended as of July 23, 1998, between the Company and DLJ Merchant Banking Partners, L.P., DLJ International Partners C.V., DLJ Offshore Partners C.V., DLJ Merchant Banking Funding, Inc., DLJ Capital Corporation, Sprout Growth II L.P., Sprout CEO Fund L.P. and certain other investors.5. A Warrant to purchase 39,840 shares of common stock was issued to DLJ Merchant Banking Partners, L.P. and certain of its Affiliates in connection with the Loan Agreement dated as of January 14, 2000, between the Company and the Lenders therein, which Warrant has been exercised and such shares have been issued.6. Purchase Agreement, dated as of August 4, 1999, between the Company and Comm Vault Systems International, B.V. (“CVSI”) and the shareholders of CVSI, pursuant to which the 957,000 shares of the Company’s common stock were in consideration for the acquisition of the business of CVSI by the Company.7. 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.8. Preferred Stock holders have conversion rights, pursuant to the Amended Certificate, and preemptive rights pursuant to the Purchase Agreement, dated as of April 14, 2000, among the Company and Microsoft Corporation and certain other investors signatories thereto.9. A Warrant to purchase up to 2,616,933 shares of common stock was issued to Microsoft Corporation in connection with the Purchase Agreement referred to in item 8 above.The Company may, from time to time, issue additional shares of common stock oroptions or warrants to purchase its common stock in an effort to recruit newofficers and employees. Non-Preemptive Shares shall include all such options orwarrants that may be issued in the future. PURCHASE AGREEMENT B-1