Underwriting Agreement (2006)Full Document 

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                                11,111,111 SHARES

                             COMMVAULT SYSTEMS, INC.

                                  COMMON STOCK

                             UNDERWRITING AGREEMENT


                                                             September [o], 2006


Credit Suisse Securities  LLC
     Eleven Madison Avenue
         New York, N.Y. 10010-3629

Goldman, Sachs & Co.
     85 Broad Street
         New York, N.Y. 10004

As Representatives of the Several Underwriters

Dear Sirs:


         1. Introductory. CommVault Systems, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell 6,148,148 shares of its Common Stock,
par value $0.01 per share ("SECURITIES"), and the stockholders listed in
Schedule A hereto ("SELLING STOCKHOLDERS") propose severally to sell an
aggregate of 4,962,963 outstanding shares of the Securities (such 11,111,111
shares of Securities being hereinafter referred to as the "FIRM SECURITIES"), to
the Underwriters (as defined below), for whom Credit Suisse Securities (USA) LLC
and Goldman, Sachs & Co. are acting as representatives ("REPRESENTATIVES").
Certain of the Selling Stockholders also propose to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 1,666,667
additional outstanding shares of the Company's securities (with each Selling
Stockholder selling the number of Optional Securities (as defined below) set
forth opposite its name on Schedule A), in each case as set forth below (such
1,666,667 additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES". As part of the offering
contemplated by this Agreement, Credit Suisse Securities (USA) LLC (the
"DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to 890,952 shares for sale to the
holders of the Company's Series CC preferred stock (collectively, the
"PARTICIPANTS"), as set forth in the Prospectus (as defined herein) under the
heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The Firm Securities to be
sold by the Designated Underwriter pursuant to the Directed Share Program (the
"DIRECTED SHARES") will be sold by the Designated Underwriter pursuant to this
Agreement at the public offering price. Any Directed Shares not subscribed for
by 7:00 A.M (Eastern Standard Time) on the day following the business day on
which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus. The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:

         2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:





                  (i) A registration statement (No. 333-132550) relating to the
         Offered Securities, including a form of prospectus, has been filed with
         the Securities and Exchange Commission ("COMMISSION") and either (A)
         has been declared effective under the Securities Act of 1933 ("ACT")
         and is not proposed to be amended or (B) is proposed to be amended by
         amendment or post-effective amendment. If such registration statement
         ("INITIAL REGISTRATION STATEMENT") has been declared effective, either
         (A) an additional registration statement ("ADDITIONAL REGISTRATION
         STATEMENT") relating to the Offered Securities may have been filed with
         the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act
         and, if so filed, has become effective upon filing pursuant to such
         Rule and the Offered Securities all have been duly registered under the
         Act pursuant to the initial registration statement and, if applicable,
         the additional registration statement or (B) such an additional
         registration statement is proposed to be filed with the Commission
         pursuant to Rule 462(b) and will become effective upon filing pursuant
         to such Rule and upon such filing the Offered Securities will all have
         been duly registered under the Act pursuant to the initial registration
         statement and such additional registration statement. If the Company
         does not propose to amend the initial registration statement or if an
         additional registration statement has been filed and the Company does
         not propose to amend it, and if any post-effective amendment to either
         such registration statement has been filed with the Commission prior to
         the execution and delivery of this Agreement, the most recent amendment
         (if any) to each such registration statement has been declared
         effective by the Commission or has become effective upon filing
         pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
         of the additional registration statement, Rule 462(b). For purposes of
         this Agreement, "EFFECTIVE TIME" with respect to the initial
         registration statement or, if filed prior to the execution and delivery
         of this Agreement, the additional registration statement means (A) if
         the Company has advised the Representatives that it does not propose to
         amend such registration statement, the date and time as of which such
         registration statement, or the most recent post-effective amendment
         thereto (if any) filed prior to the execution and delivery of this
         Agreement, was declared effective by the Commission or has become
         effective upon filing pursuant to Rule 462(c), or (B) if the Company
         has advised the Representatives that it proposes to file an amendment
         or post-effective amendment to such registration statement, the date
         and time as of which such registration statement, as amended by such
         amendment or post-effective amendment, as the case may be, is declared
         effective by the Commission. If an additional registration statement
         has not been filed prior to the execution and delivery of this
         Agreement but the Company has advised the Representatives that it
         proposes to file one, "EFFECTIVE TIME" with respect to such additional
         registration statement means the date and time as of which such
         registration statement is filed and becomes effective pursuant to Rule
         462(b). "EFFECTIVE DATE" with respect to the initial registration
         statement or the additional registration statement (if any) means the
         date of the Effective Time thereof. The initial registration statement,
         as amended at its Effective Time, including all information contained
         in the additional registration statement (if any) and deemed to be a
         part of the initial registration statement as of the Effective Time of
         the additional registration statement pursuant to the General
         Instructions of the Form on which it is filed and including all
         information (if any) deemed to be a part of the initial registration
         statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
         430A(b)") under the Act, is hereinafter referred to as the "INITIAL
         REGISTRATION STATEMENT". The additional registration statement, as
         amended at its Effective Time, including the contents of the initial
         registration statement incorporated by reference therein and including
         all information (if any) deemed to be a part of the additional
         registration statement as of its Effective Time pursuant to Rule
         430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
         STATEMENT". The Initial Registration Statement and the Additional
         Registration Statement are herein referred to collectively as the
         "REGISTRATION STATEMENTS" and individually as a "REGISTRATION
         STATEMENT". "REGISTRATION STATEMENT" without reference to a time means
         the Registration Statement as of its Effective Time. "REGISTRATION
         STATEMENT" as of any time means the initial registration statement and
         any additional registration statement in the form then filed with the
         Commission, including any amendment thereto and any prospectus deemed
         or retroactively deemed to be a part thereof that has not been
         superseded or modified. For purposes of the previous sentence,
         information contained in a form of prospectus or


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         prospectus supplement that is deemed retroactively to be a part of the
         Registration Statement pursuant to Rule 430A shall be considered to be
         included in the Registration Statement as of the time specified in Rule
         430A. "STATUTORY PROSPECTUS" as of any time means the prospectus
         included in the Registration Statement immediately prior to that time,
         including any prospectus deemed to be a part thereof that has not been
         superseded or modified. For purposes of the preceding sentence,
         information contained in a form of prospectus that is deemed
         retroactively to be a part of the Registration Statement pursuant to
         Rule 430A shall be considered to be included in the Statutory
         Prospectus as of the actual time that form of prospectus is filed with
         the Commission pursuant to Rule 424(b) ("RULE 424(b)") under the Act.
         "PROSPECTUS" means the Statutory Prospectus that discloses the public
         offering price and other final terms of the Offered Securities and
         otherwise satisfies Section 10(a) of the Act. "ISSUER FREE WRITING
         PROSPECTUS" means any "issuer free writing prospectus", as defined in
         Rule 433, relating to the Offered Securities in the form filed or
         required to be filed with the Commission or, if not required to be
         filed, in the form retained in the Company's records pursuant to Rule
         433(g). "GENERAL USE ISSUER FREE WRITING PROSPECTUS" means any Issuer
         Free Writing Prospectus that is intended for general distribution to
         prospective investors, as evidenced by its being specified in a
         schedule to this Agreement. "LIMITED USE ISSUER FREE WRITING
         PROSPECTUS" means any Issuer Free Writing Prospectus that is not a
         General Use Issuer Free Writing Prospectus. "APPLICABLE TIME" means
         [o]:00 [a/p]m (Eastern time) on the date of this Agreement.(1)

                  (ii) If the Effective Time of the Initial Registration
         Statement is prior to the execution and delivery of this Agreement: (A)
         on the Effective Date of the Initial Registration Statement, the
         Initial Registration Statement conformed in all material respects to
         the requirements of the Act and the rules and regulations of the
         Commission ("RULES AND REGULATIONS") and did not include any untrue
         statement of a material fact or omit to state any material fact
         required to be stated therein or necessary to make the statements
         therein not misleading, (B) on the Effective Date of the Additional
         Registration Statement (if any), each Registration Statement conformed,
         or will conform, in all material respects to the requirements of the
         Act and the Rules and Regulations and did not include, or will not
         include, any untrue statement of a material fact and did not omit, or
         will not omit, to state any material fact required to be stated therein
         or necessary to make the statements therein not misleading and (C) on
         the date of this Agreement, the Initial Registration Statement and, if
         the Effective Time of the Additional Registration Statement is prior to
         the execution and delivery of this Agreement, the Additional
         Registration Statement each conforms, and at the time of filing of the
         Prospectus pursuant to Rule 424(b) or (if no such filing is required)
         at the Effective Date of the Additional Registration Statement in which
         the Prospectus is included, each Registration Statement and the
         Prospectus will conform, in all material respects to the requirements
         of the Act and the Rules and Regulations, and neither of such documents
         includes, or will include, any untrue statement of a material fact or
         omits, or will omit, to state any material fact required to be stated
         therein or necessary to make the statements therein not misleading. If
         the Effective Time of the Initial Registration Statement is subsequent
         to the execution and delivery of this Agreement: on the Effective Date
         of the Initial Registration Statement, the Initial Registration
         Statement and the Prospectus will conform in all material respects to
         the requirements of the Act and the Rules and Regulations, neither of
         such documents will include any untrue statement of a material fact or
         will omit to state any material fact required to be stated therein or
         necessary to make the statements therein not misleading, and no
         Additional Registration Statement has been or will be filed. The two
         preceding sentences do not apply to statements in or omissions from a
         Registration Statement or the Prospectus based upon written information
         furnished to the Company by any Underwriter through the Representatives
         specifically for use therein, it being understood and agreed that the
         only such information is that described as such in Section 8(c) hereof.


--------
(1) The Applicable Time will be determined by the Representatives on the pricing
date and will be at pricing or shortly thereafter to allow for completion of the
General Disclosure Package.


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                  (iii) (A) At the time of filing the Registration Statement and
         (B) at the date of this Agreement, the Company was not and is not an
         "ineligible issuer", as defined in Rule 405.

                  (iv) As of the Applicable Time, neither (A) the General Use
         Issuer Free Writing Prospectus(es) issued at or prior to the Applicable
         Time and the Statutory Prospectus, all considered together
         (collectively, the "GENERAL DISCLOSURE PACKAGE"), nor (B) any
         individual Limited Use Issuer Free Writing Prospectus, when considered
         together with the General Disclosure Package, included any untrue
         statement of a material fact or omitted to state any material fact
         necessary in order to make the statements therein, in the light of the
         circumstances under which they were made, not misleading. The preceding
         sentence does not apply to statements in or omissions from any
         prospectus included in the Registration Statement or any Issuer Free
         Writing Prospectus in reliance upon and in conformity with written
         information furnished to the Company by any Underwriter through the
         Representatives specifically for use therein, it being understood and
         agreed that the only such information furnished by any Underwriter
         consists of the information described as such in Section 8(c) hereof.

                  (v) Each Issuer Free Writing Prospectus, as of its issue date
         and at all subsequent times through the completion of the public offer
         and sale of the Offered Securities or until any earlier date that the
         Company notified or notifies the Representatives as described in the
         next sentence, did not, does not and will not include any information
         that conflicted, conflicts or will conflict with the information then
         contained in the Registration Statement. If at any time following
         issuance of an Issuer Free Writing Prospectus there occurred or occurs
         an event or development as a result of which such Issuer Free Writing
         Prospectus conflicted or would conflict with the information then
         contained in the Registration Statement or included or would include an
         untrue statement of a material fact or omitted or would omit to state a
         material fact necessary in order to make the statements therein, in the
         light of the circumstances prevailing at that subsequent time, not
         misleading, (A) the Company has promptly notified or will promptly
         notify the Representatives and (B) the Company has promptly amended or
         will promptly amend or supplement such Issuer Free Writing Prospectus
         to eliminate or correct such conflict, untrue statement or omission.
         The foregoing two sentences do not apply to statements in or omissions
         from any Issuer Free Writing Prospectus in reliance upon and in
         conformity with written information furnished to the Company by any
         Underwriter through the Representatives specifically for use therein,
         it being understood and agreed that the only such information furnished
         by any Underwriter consists of the information described as such in
         Section 8(c) hereof.

                  (vi) The Company has been duly incorporated and is an existing
         corporation in good standing under the laws of the State of Delaware,
         with power and authority (corporate and other) to own its properties
         and conduct its business as described in the General Disclosure
         Package; and the Company is duly qualified to do business as a foreign
         corporation in good standing in all other jurisdictions in which its
         ownership or lease of property or the conduct of its business requires
         such qualification, except where the failure to be so qualified as a
         foreign corporation would not be reasonably likely to individually or
         in the aggregate have a material adverse effect on the condition
         (financial or other), business, properties or results of operations of
         the Company and its subsidiaries taken as a whole ("MATERIAL ADVERSE
         EFFECT").

                  (vii) Each subsidiary of the Company has been duly
         incorporated and is an existing corporation in good standing under the
         laws of the jurisdiction of its incorporation, with power and authority
         (corporate and other) to own its properties and conduct its business as
         described in the General Disclosure Package; and each subsidiary of the
         Company is duly qualified to do business as a foreign corporation in
         good standing in all other jurisdictions in which its ownership or
         lease of property or the conduct of its business requires such
         qualification, except where the failure to be so qualified as a foreign
         corporation would not be reasonably likely to individually or in the
         aggregate have a Material Adverse Effect; all of the issued and
         outstanding capital stock of each subsidiary of the Company has been
         duly authorized and validly issued and is fully paid and nonassessable;
         and the capital stock of each subsidiary owned by the Company, directly
         or through


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         subsidiaries, is owned free from liens, encumbrances and defects,
         except for liens in connection with the Loan and Security Agreement,
         dated May 2, 2006, as amended, between the Company and Silicon Valley
         Bank, as described in the Prospectus (the "SILICON VALLEY BANK
         AGREEMENT").

                  (viii) The entities listed on Schedule C hereto are the only
         subsidiaries of the Company.

                  (ix) No subsidiary of the Company, as of March 31, 2006, was a
         "significant subsidiary" of the Company within the meaning of
         Regulation S-X under the Act.

                  (x) The Offered Securities to be sold by the Company have been
         duly authorized, and, when issued and delivered to the Underwriters
         against payment therefor in accordance with this Agreement on each
         Closing Date (as defined below), such Offered Securities will have
         been, validly issued, fully paid and nonassessable and will conform to
         the description thereof contained in the Prospectus.

                  (xi) The Offered Securities to be sold by the Selling
         Stockholders that are outstanding as of the date hereof and all other
         outstanding shares of capital stock of the Company have been duly
         authorized and validly issued and are fully paid and nonassessable and
         conform to the description thereof contained in the Prospectus.

                  (xii) The stockholders of the Company have no preemptive
         rights with respect to the Offered Securities, other than pursuant to
         (A) the Stockholders Agreement, dated as of May 22, 1996, as amended
         (the "STOCKHOLDERS AGREEMENT"), among the Company and Sprout CEO Fund,
         L.P., DLJ Capital Corporation, Sprout Growth II, L.P., Sprout Capital
         VII, L.P., Sprout Capital IX, L.P., Sprout Entrepreneurs' Fund, L.P.,
         Sprout IX Plan Investors, L.P., DLJ Merchant Banking Partners, L.P.,
         DLJ International Partners, C.V., DLJ Offshore Partners, C.V., DLJ
         Merchant Banking Funding, Inc., DLJ First ESC, L.P., DLJ ESC II, L.P.,
         Thomas J. Barry, Larry Cormier, Randy Fodero, Robert Freiburghouse, Bob
         Gailus, N. Robert Hammer, David H. Ireland, Lou Miceli, Tom Miller and
         Scotty R. Neal; (B) the Purchase Agreement, dated as of April 14, 2000,
         by and between the Company and Microsoft Corporation and the other
         purchasers listed therein, relating to the Company's Series AA
         Preferred Stock; (C) the Purchase Agreement, dated as of November 10,
         2000, by and between the Company and EMC Investment Corporation and the
         other purchasers listed therein, relating to the Company's Series BB
         Preferred Stock; (D) the Purchase Agreement, dated as of February 14,
         2002, by and between the Company and the purchasers listed therein,
         relating to the Company's Series CC Preferred Stock; (E) and the
         Purchase Agreement, dated as of September 2, 2003, by and between the
         Company and the purchasers listed therein, relating to the Company's
         Series CC Preferred Stock, which, in each case, have been either waived
         with respect to the issuance of the Offered Securities or will be
         satisfied via a concurrent private placement in the manner described in
         the General Disclosure Package and the Prospectus, and on the First
         Closing Date such preemptive rights shall terminate and be of no
         further force and effect. The Stockholders Agreement will terminate and
         cease to be of any further force and effect on the First Closing Date.

                  (xiii) Except as disclosed in the General Disclosure Package
         and the Prospectus, there are no contracts, agreements or
         understandings between the Company and any person that would give rise
         to a valid claim against the Company or any Underwriter for a brokerage
         commission, finder's fee or other like payment in connection with this
         offering.

                  (xiv) Other than as contained in (A) the Stockholders
         Agreement; (B) the Amended and Restated Registration Rights Agreement,
         dated as of September 2, 2003 (the "SERIES AA AMENDED AND RESTATED
         REGISTRATION RIGHTS AGREEMENT"), among the Company and the parties
         listed therein, regarding the Company's Series AA Preferred Stock; (C)
         the Amended and Restated Registration Rights Agreement, dated as of
         September 2, 2003 (the "SERIES BB AMENDED AND RESTATED REGISTRATION
         RIGHTS AGREEMENT"), among the Company and the parties listed therein,


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         regarding the Company's Series BB Preferred Stock; (D) the Amended and
         Restated Registration Rights Agreement, dated as of September 2, 2003
         (the "SERIES CC AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT"),
         among the Company and the parties listed therein, regarding the
         Company's Series CC Preferred Stock; and (E) the Registration Rights
         Agreement, dated as of the First Closing Date (the "NEW REGISTRATION
         RIGHTS AGREEMENT") among the Company and the parties listed therein
         relating to the Securities, there are no contracts, agreements or
         understandings between the Company and any person granting such person
         the right to require the Company to file a registration statement under
         the Act with respect to any securities of the Company owned or to be
         owned by such person or to require the Company to include such
         securities in the securities registered pursuant to a Registration
         Statement or in any securities being registered pursuant to any other
         registration statement filed by the Company under the Act.

                  (xv) The Offered Securities have been approved for listing on
         The Nasdaq Stock Market's National Market subject to notice of
         issuance.

                  (xvi) No consent, approval, authorization, or order of, or
         filing with, any governmental agency or body or any court is required
         to be obtained or made by the Company for the consummation of the
         transactions contemplated by this Agreement in connection with the sale
         of the Offered Securities, except such as have been obtained and made
         under the Act and from the National Association of Securities Dealers,
         Inc. ("NASD") and such as may be required under state securities laws.

                  (xvii) The execution, delivery and performance of this
         Agreement, and the consummation of the transactions herein contemplated
         will not result in a breach or violation of any of the terms and
         provisions of, or constitute a default under (A) any statute, any rule,
         regulation or order of any governmental agency or body or any court,
         domestic or foreign, having jurisdiction over the Company or any
         subsidiary of the Company or any of their properties, or (B) any
         agreement or instrument to which the Company or any such subsidiary is
         a party or by which the Company or any such subsidiary is bound or to
         which any of the properties of the Company or any such subsidiary is
         subject, provided, however, in each of (A) and (B), except as would not
         reasonably be expected to individually or in the aggregate have a
         Material Adverse Effect or materially adversely affect the ability of
         the Company and its subsidiaries to consummate the transactions
         contemplated hereby, or (C) the charter, by-laws or similar
         organizational document of the Company or any such subsidiary, and the
         Company has full power and authority to authorize, issue and sell the
         Offered Securities as contemplated by this Agreement.

                  (xviii) This Agreement has been duly authorized, executed and
         delivered by the Company.

                  (xix) Except as disclosed in the General Disclosure Package
         and the Prospectus, the Company and its subsidiaries have good and
         marketable title to all real properties and all other material
         properties and assets owned by them, in each case free from liens,
         encumbrances and defects that would materially affect the value thereof
         or materially interfere with the use made or to be made thereof by
         them, with the exception of liens in connection with the Silicon Valley
         Bank Agreement and all purchase money security interests; and except as
         disclosed in the General Disclosure Package and the Prospectus, the
         Company and its subsidiaries hold any leased real or material personal
         property under valid and enforceable leases with no exceptions that
         would materially interfere with the use made or to be made thereof by
         them.

                  (xx) The Company and its subsidiaries possess adequate
         certificates, authorities or permits issued by appropriate governmental
         agencies or bodies necessary to conduct the business now operated by
         them and have not received any notice of proceedings relating to the
         revocation or modification of any such certificate, authority or permit
         that, if determined adversely to the Company or any of its
         subsidiaries, would reasonably be expected to individually or in the
         aggregate have a Material Adverse Effect.


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                  (xxi) No labor dispute with the employees of the Company or
         any subsidiary exists or, to the knowledge of the Company, is imminent
         that would reasonably be expected to individually or in the aggregate

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