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EXHIBIT 4.3
MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
AUGUST 25, 1997
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TABLE OF CONTENTS
Page
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1. Registration Rights....................................................1
1.1 Definitions......................................................1
1.2 Request for Registration.........................................2
1.3 Company Registration.............................................3
1.4 Obligations of the Company.......................................4
1.5 Furnish Information..............................................5
1.6 Expenses of Demand Registration..................................6
1.7 Expenses of Company Registration.................................6
1.8 Underwriting Requirements........................................6
1.9 Delay of Registration............................................7
1.10 Indemnification..................................................7
1.11 Reports Under Securities Exchange Act of 1934....................9
1.12 Form S-3 Registration...........................................10
1.13 Assignment of Registration Rights...............................11
1.14 "Market Stand-Off"Agreement.....................................11
1.15 Termination of Registration Rights..............................12
2 Covenants of the Company..............................................12
2.1 Delivery of Financial Statements................................12
2.2 Termination of Covenants........................................13
2.3 Participation Right.............................................13
2.4 Inspection......................................................14
2.5 Employee Agreements.............................................15
2.6 Proprietary Information Agreements..............................15
2.7 Key Person Insurance............................................15
3. Voting Provisions.....................................................15
3.1. Voting on Corporate Transactions................................15
3.2. Termination of Obligations......................................16
4. Miscellaneous.........................................................16
4.1 Successors and Assigns..........................................16
4.2 Governing Law...................................................16
4.3 Counterparts....................................................16
4.4 Titles and Subtitles............................................16
4.5 Notices.........................................................16
4.6 Expenses........................................................17
4.7 Amendments and Waivers..........................................17
4.8 Severability....................................................17
4.9 Aggregation of Stock............................................17
4.10 Entire Agreement................................................17
4.11 Remedies........................................................17
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4.12 Termination of Prior Agreement..................................17
SCHEDULE A - Schedule of Investors
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT is made as of the 25th day of
August, 1997, by and between Marimba, Inc., a Delaware corporation (the
"Company"), the holders of the Company's Common Stock who are signatories hereto
(the "Founders"), and the investors listed on the Schedule of Investors attached
as Schedule A hereto, each of which is herein referred to as an "Investor."
RECITALS
WHEREAS, certain of the Investors (the "Series A Investors") and
the Founders possess registration and other rights granted pursuant to the
Marimba, Inc. Investor Rights Agreement by and among the Company, the Series A
Investors and the Founders named therein, dated August 8, 1996 (the "Prior
Agreement"), entered into in connection with that certain Series A Preferred
Stock Purchase Agreement, dated August 8, 1996, by and among the Company and the
Series A Investors (the "Series A Agreement");
WHEREAS, the Prior Agreement may be amended, and any provision
therein waived, with the consent of the Company, the holders of a majority of
the "Registrable Securities" of the Company (as defined in the Prior Agreement)
then outstanding and held by the Founders and the holders of a majority of the
Registrable Securities of the Company then outstanding and held by the Series A
Investors;
WHEREAS, certain of the Investors are parties to the Series B
Preferred Stock Purchase Agreement (the "Series B Agreement"), of even date
herewith, by and among the Company and the Investors listed on Schedule A
thereto (the "Series B Investors");
WHEREAS, in order to induce the Company to enter into the Series
B Agreement and to induce the Series B Investors to invest funds in the Company
pursuant to the Series B Agreement, the Series A Investors and the Founders
desire to waive and amend certain rights and restate all rights granted to them
under the Prior Agreement, to terminate the Prior Agreement and to amend and
restate the Prior Agreement in its entirety as set forth herein; and
WHEREAS, the Series B Investors and the Company have agreed,
pursuant to the Series B Agreement, to enter into this Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document
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in compliance with the Securities Act of 1933, as amended (the "Act"), and the
declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means (1) the Common
Stock of the Company issuable or issued upon conversion of the Series A
Preferred Stock and Series B Preferred Stock issued pursuant to the Series A
Agreement and Series B Agreement, respectively, (2) solely with respect to and
for purposes of the registration rights provided in Section 1.3 hereof, the
Common Stock of the Company held by the Founders (the "Founders' Stock"), and
(3) any Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right, or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Series A Preferred Stock, Series B Preferred Stock or
Founders' Stock;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock then
outstanding, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities, that are Registrable Securities;
(d) The term "Initial Public Offering" means the initial
sale of the Company's Common Stock in an underwritten public offering pursuant
to a registration statement under the Act, with aggregate proceeds to the
Company of at least $12,500,000 at an initial purchase price of at least $7.5108
per share (as adjusted for stock splits, combinations and the like);
(e) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.13 hereof; and
(f) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission ("SEC") which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.2 Request for Registration.
(a) If the Company shall receive at any time after the
earlier of (i) August 31, 2001, or (ii) one hundred eighty (180) days after the
Initial Public Offering, a written request from the Holders of at least
thirty-five percent (35%) of the Registrable Securities then outstanding that
the Company file a registration statement under the Act for a public offering in
which the aggregate proceeds from the offering would exceed $5,000,000, then the
Company shall, within ten (10) days of the receipt thereof, give written notice
of such request to all Holders and shall, subject to the limitations of
subsection 1.2(b) hereof, effect as soon as practicable, and in any event shall
use its best efforts to effect within ninety (90) days of the receipt of such
request, the registration under the Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 4.5 hereof.
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(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to this Section 1.2 and the
Company shall include such information in the written notice referred to in
subsection 1.2(a) hereof. The underwriter will be selected by a majority in
interest of the Initiating Holders and shall be reasonably acceptable to the
Company. In such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e) hereof) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all participating Holders thereof,
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each participating
Holder; provided, however, that the number of shares of Registrable Securities
to be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders. This right
shall not be utilized more than once in any twelve month period.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration.
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Upon the written request of each Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 4.5 hereof, the
Company shall, subject to the provisions of Section 1.8 hereof, cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
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(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Provided such securities are being sold through
underwriters, use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with the registration pursuant to this Section 1, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters
and to the Holders requesting registration of Registrable Securities and (ii) a
letter dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters.
(j) In connection with an underwritten public offering,
(i) cooperate with the selling Holders, the underwriters participating in the
offering and their counsel in any due diligence investigation reasonably
requested by the selling Holders or the underwriters in connection therewith and
(ii) participate, to the extent reasonably requested by the managing underwriter
for the offering or the selling Holder, in efforts to sell the Registrable
Securities under the offering (including, without limitation, participating in
"roadshow" meetings with prospective investors) that would be customary for
primary offerings of equity securities by the Company.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.12 hereof if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.12(b)(2).
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2 hereof,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel selected by
the selling Holders by majority vote shall be borne by the Company; provided,
however, that the Company
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shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 1.2 hereof if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating Holders shall bear
such expenses), unless the Holders of a majority of the Registrable Securities
agree to forfeit their right to one demand registration pursuant to Section 1.2
hereof; provided further, however, that if at the time of such withdrawal, the
Holders have learned of a material adverse change in the condition or business
of the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their full rights pursuant to Section 1.2 hereof.
1.7 Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 hereof for each Holder, including (without limitation)
all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of one counsel
selected by the selling Holders hereunder by majority vote, but excluding
underwriting discounts and commissions relating to the Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 hereof to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities to be sold other than
by the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders) but in no event shall (i) the amount of securities
of the selling Holders included in the offering be reduced below thirty percent
(30%) of the total amount of securities included in such offering, unless such
offering is the Company's Initial Public Offering in which case the selling
stockholders may be excluded if the underwriters make the determination
described above and no other stockholder's securities are included, or (ii) any
securities held by a Founder be included if any securities held by any selling
Holder are excluded. For purposes of the preceding sentence concerning
apportionment, for any selling stockholder which is a holder of Registrable
Securities and which is a partnership, limited liability company or corporation,
the partners, retired partners, members and stockholders of such holder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying
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registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, or the 1934 Act, or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, or the 1934 Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company, which consent shall not be unreasonably
withheld, nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Holder, underwriter, or controlling person.
(b) To the extent permitted by law, each selling Holder,
severally and not jointly, will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, or the 1934 Act, or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such
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Violation occurs in reliance upon and in conformity with written information
furnished by an officer of such Holder with the title of Vice President or above
or, if such Holder is not a corporation, by a representative of such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.10(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of receipt of notice of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10. The indemnifying party shall not be liable for any settlement of any
proceeding without its written consent, which consent shall not be unreasonably
withheld, or, in the alternative, without full release of its liability. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the Indemnifying Party agrees to
indemnify and hold harmless any Indemnified Party from and against any loss of
liability by reason of such settlement or judgment.
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(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault, as determined by such court, of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports under Securities Exchange Act of 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the 1934 Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act, and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such
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other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
1.12 Form S-3 Registration. If the Company receives from any
Holder or Holders of Registrable Securities then outstanding a written request
or requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 15 days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.12: (1) if
Form S-3 is not available for such offering; (2) if the Holders, together with
the holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (net of any underwriters' discounts
or commissions) of less than $1,500,000; (3) if the Company shall furnish to the
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than 120 days after receipt of the request of the Holder or
Holders under this Section 1.12; provided, however, that the Company shall not
utilize this right more than once in any twelve-month period; (4) if the Company
has already effected two registrations on Form S-3 for the Holders pursuant to
this Section 1.12 within the prior twelve-month period; or (5) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to this Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of one counsel selected by
majority vote of the selling Holder or Holders and counsel for the Company, but
excluding any underwriters' discounts or commissions associated with Registrable
Securities, shall be borne by the Company.
10
14
Registrations effected pursuant to this Section 1.12 shall not be counted as
demands for registration or registrations effected pursuant to Sections 1.2 or
1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 50,000 shares of Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations, and other recapitalizations)
(or a lesser number if all such shares held by the transferor or assignor are
being transferred), provided the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. For the purposes of determining the number of shares
of Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership or of a limited liability company who are members of such
limited liability company (including spouses and ancestors, lineal descendants,
and siblings of such partners or spouses who acquire Registrable Securities by
gift, will, or intestate succession) shall be aggregated together and with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices, or
taking any action under this Section 1.
1.14 "Market Stand-Off" Agreement Each of the Investors hereby
agrees that, during the period of duration (not to exceed 180 days) specified by
the Company and an underwriter of Common Stock or other securities of the
Company, following the effective date of the Initial Public Offering, it shall
not, to the extent requested by the Company and such underwriter, directly or
indirectly, sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock included in such registration; provided, however, that (i) all
officers, directors and 2% or greater stockholders of the Company, and all other
persons with registration rights are bound by similar agreements ("Lock-Up
Agreements"), (ii) that this Section 1.14 shall only apply to the first two
registration statements of the Company causing securities to be sold on its
behalf to the public in an underwritten offering, and (iii) that this Section
1.14 shall not apply to Common Stock purchased in the publicly-traded market
after the Initial Public Offering. The Company shall provide prompt written
notice to the Investors if the Company releases any officer, director or 2% or
greater stockholder from a Lock-Up Agreement.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
11
15
1.15 Termination of Registration Rights. No Holder shall be
entitled to exercise any rights provided for in this Section 1 on such date
after the closing of the Initial Public Offering if all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period (the "Rule 144(k)
Date"); provided, however that the rights set forth in Section 1.3 shall
terminate with respect to a Holder's Registrable Securities upon the later of
(i) the Rule 144(k) Date and (ii) the third anniversary after the Initial Public
Offering.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall
furnish the following information to each Holder who holds at least 125,000
shares of Registrable Securities (a "Major Investor"):
(a) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP")
and audited by nationally recognized independent accountants;
(b) within forty-five (45) days of the end of each month
and each quarter, an unaudited income statement and statement of cash flows and
balance sheet for and as of the end of such month or quarter, in reasonable
detail;
(c) as soon as practicable, but in any event forty-five
(45) days prior to the end of each fiscal year, a budget for the next fiscal
year, prepared on a monthly basis, including balance sheets and statements of
cash flows for such months and, as soon as prepared, any other budgets or
revised budgets prepared by the Company;
(d) such other information relating to the financial
condition, business, prospects, or corporate affairs of the Company, including
any amended or new Business Plan of the Company, as the Major Investors or any
assignee of the Major Investors may from time to time request, provided,
however, that the Company shall not be obligated under this subsection (e) or
any other subsection of Section 2.1 to provide information which it deems in
good faith to be a trade secret or similar confidential information.
The information provided pursuant to this subsection 2.1 shall
be used by each Major Investor or any permitted assignee of each Major Investor
solely in furtherance of its interests as an investor in the Company and each
such Major Investor and any permitted assignee of such Major Investor agrees to
hold in confidence and trust and to act in a fiduciary manner with respect to
all information provided in connection with this subsection 2.1, unless such
information (i) was known by such Major Investor or permitted assignee prior to
its disclosure to them by the Company, (ii) has been, is now or later becomes
rightfully learned by such Major Investor or permitted assignee without
restriction as a matter of right by a third party not affiliated with or working
for the Company nor under restriction or duty imposed by the
12
16
Company, (iii) has been, is now or later becomes publicly available through no
fault of such Investor or permitted assignee, (iv) has been, is now or later is
furnished to third parties by the Company, if such disclosure is or has been
made to third parties without similar restriction, duty or limitation of use or
(v) has been, is now, or later is independently developed by such Major Investor
or permitted assignee without use of or resort to such information and can be
proven by written records. Notwithstanding the foregoing, a Major Investor may
disclose, if applicable, (i) to Major Investor's general and limited partners,
or members and managers, (ii) to an employee or subcontractor that has a need to
know such information, or (iii) to Major Investor's Board of Directors or
executive officers, such information, provided that such general or limited
partners, members, managers, employees, subcontractors, or such Board of
Directors or executive officers agree to be bound by the terms of this Section
2.1. The Company shall use reasonable efforts to xxxx such information as
confidential. The obligations set forth in this paragraph will survive any
termination of this subsection 2.1 or this Agreement. This Section 2.1 may be
amended only with the written consent of holders of at least 66.667% of the
Common Stock issued or issuable upon conversion of the Company's Series B
Preferred Stock.
2.2 Termination of Covenants. The covenants set forth in
Sections 2.1, 2.3, 2.4, 2.5, 2.6 and 2.7 hereof shall terminate as to the Major
Investors and be of no further force or effect following the Company's Initial
Public Offering, or when the Company first becomes subject to the periodic
reporting requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever
event shall first occur.
2.3 Participation Right. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Major Investor
a participation right with respect to future sales by the Company of its Shares
(as hereinafter defined). Each Major Investor shall be entitled to apportion the
participation right hereby granted it among itself, its partners, members and
affiliates in such proportions as it deems appropriate. Each time the Company
proposes to offer any shares of, or securities convertible into or exercisable
for any shares of, any class of its capital stock ("Shares"), the Company shall
first make an offering of such Shares to each Major Investor in accordance with
the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Major Investor stating (i) its bona fide intention to offer
such Shares, (ii) the number of such Shares to be offered, and (iii) the price
and terms, if any, upon which it proposes to offer such Shares.
(b) Within 20 calendar days after receipt of the Notice,
each Major Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of the Preferred Stock then held by such Major Investor
bears to the total number of shares of Common Stock of the Company then
outstanding (assuming full conversion of all outstanding Preferred Stock).
(c) If all Shares which a Major Investor is entitled to
obtain pursuant to subsection 2.3(b) hereof are not elected to be obtained as
provided in subsection
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17
2.3(b) hereof, the Company may, during the 60-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the
remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for the
sale of the Shares within such period, or if such agreement is not consummated
within 30 days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Major Investors in accordance herewith.
(d) The participation right in this paragraph 2.3 shall
not be applicable (i) to the future issuance or sale of shares of Common Stock
(or options therefor) to Company employees, directors, officers, or consultants
for the primary purpose of soliciting or retaining their employment or services,
(ii) the issuance of up to 3,050,000 shares of Series B Preferred Stock, (iii)
to or after consummation of the Company's Initial Public Offering, (iv) the
issuance of securities pursuant to corporate or strategic partnerships or
alliances approved by the Board of Directors, including that director elected by
the holders of the Company's Series A Preferred Stock, (v) the issuance of
Common Stock pursuant to the conversion of the Series A Preferred Stock or
Series B Preferred Stock, (vi) the issuance of securities in connection with a
bona fide business acquisition of or by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock, or otherwise, approved
in good faith by the Board of Directors, including that director, if any,
elected by the holders of the Company's Series A Preferred Stock, Series B
Preferred Stock and Common Stock, voting together as a single class, (vii) the
issuance of securities to lenders or lessors in connection with a bona fide loan
or lease financing approved in good faith by the Company's Board of Directors,
including that director, if any, elected by the holders of the Company's Series
A Preferred Stock, Series B Preferred Stock and Common Stock, voting together as
a single class and (viii) the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities the original issuance of
which was subject to or exempt from this Section 2.3.
2.4 Inspection. The Company shall permit each Major Investor,
at Major Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by Major Investor; provided, however, that the Company shall not be
obligated pursuant to this Section 2.4 to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information.
2.5 Employee Agreements. Unless approved by the Board of
Directors of the Company (including the approval of (A) the director elected by
holders of the Company's Series A Preferred Stock and (B) the director, if any,
elected by holders of the Company's Series A Preferred Stock, Series B Preferred
Stock and Common Stock, voting together as a single class), all future employees
of the Company who shall purchase (other than by exercise of stock options), or
receive options to purchase, shares of the Company's Common Stock following the
date hereof shall be required to execute stock purchase or option agreements
providing for vesting of shares over a three-year period with the first 33.33%
of such shares vesting following twelve (12) months of continued employment or
services, and the remaining
14
18
shares vesting in equal monthly installments over the following 24 months
thereafter. The Company shall retain the right to repurchase unvested shares at
cost.
2.6 Proprietary Information Agreements. The Company will use
its reasonable commercial efforts to ensure that all employees of and
consultants to the Company execute the Company's Proprietary Information and
Inventions Agreement.
2.7 Key Person Insurance. The Company shall obtain within 120
days after the date hereof and shall use commercially reasonable efforts to
maintain in full force and effect key person term life insurance on the lives of
Xxx Xxxxxx and Xxxxxx X. Xxx Xxxx, the proceeds of the policy payable to the
Company in the amounts of $1,000,000, respectively.
3. Voting Provisions.
3.1 Voting on Corporate Transactions. In the event that a
Corporate Transaction (as defined below) (i) is approved by the Board of
Directors of the Company, and (ii) if applicable, receives the stockholder
approval provided in Section 6 of Article IV of the Amended and Restated
Certificate of Incorporation of the Company, then each Investor hereby agrees,
if such Corporate Transaction is intended by the parties to be accounted for as
a "pooling of interests," to take all actions reasonably deemed necessary by the
Company's Board of Directors to preserve pooling of interest accounting
treatment for such Corporate Transaction, including, but not limited to, not
exercising any dissenters' rights under applicable law and refraining from
transferring any securities of the Company, the acquiror, or any other
applicable company during any period prohibited by then applicable pooling of
interests rules, whether before or after the Corporate Transaction. For purposes
of this Section 3, a Corporate Transaction shall mean a merger or other
combination or acquisition of the Company by or with another entity, or a sale
of all or substantially all of the assets of the Company. After receiving proper
notice, the Investors and their respective affiliated entities, as holders of
shares of voting securities, shall be present, in person or by proxy, at all
meetings of stockholders of the Company to vote on the approval of a Corporate
Transaction so that all shares of voting securities beneficially owned by such
Investors and/or its affiliated entities may be counted for the purposes of
determining the presence of a quorum at such meetings. Neither an Investor nor
any of its affiliated entities shall deposit any voting securities beneficially
owned by such holders in a voting trust or subject any such securities to any
arrangement or agreement with respect to the voting of such securities.
3.2 Termination of Obligations. The voting and other
obligations of the Investors pursuant to Section 3.1 above shall terminate upon
the Company's Initial Public Offering.
4. Miscellaneous.
4.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of
15
19
Registrable Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. This Agreement may be assigned without the Company's consent
to (i) a transferee of 125,000 shares of Registrable Securities, (ii) a wholly
owned subsidiary of Investor, (iii) a parent company that wholly owns Investor
("Parent"), (iv) any direct or indirect wholly owned subsidiary of Parent or (v)
a partnership of which such Investor, or any person described in clauses (ii),
(iii) or (iv) above, or any direct or indirect wholly owned subsidiary of
Investor, is a general partner, provided such assignee agrees to be bound by all
the terms of this Agreement.
4.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
4.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon (i) personal delivery to the party to be notified, (ii)
five (5) days following deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties, or (iii) facsimile with confirmed receipt.
4.6 Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.
4.7 Amendments and Waivers. Unless otherwise provided herein,
any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company,
the holders of at least a majority of the Registrable Securities then
outstanding and held by the Founders, the holders of at least a majority of the
Registrable Securities then outstanding and held by the Series A Investors and
the holders of at least a majority of the Registrable Securities then
outstanding and held by the Series B Investors. Each Investor and Founder
acknowledges and agrees that any amendment or waiver effected in accordance with
this paragraph shall be binding upon all holders of any Registrable
16
20
Securities, each future holder of all such Registrable Securities, and the
Company, whether or not such holder in fact consented to such amendment or
waiver.
4.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.9 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement. The term Major Investor shall include any general partners or
affiliates of the Major Investor.
4.10 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
4.11 Remedies. Notwithstanding any provision herein, the
parties recognize that the ascertainment of damages in the event of a breach of
Section 3.1 would be difficult and that there may be no adequate remedy at law
for such breach. The parties therefore agree that, in addition to any available
remedies at law, the Company shall be entitled to any and all appropriate
equitable relief, including injunctive relief, pursuant to Section 3.1 in the
event of any breach thereof.
4.12 Termination of Prior Agreement. Upon the effectiveness of
this Agreement, the Prior Agreement shall terminate and be of no further force
and effect, and shall be superseded and replaced in its entirety by this
Agreement.
17
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Investor Rights Agreement as of the date first above written.
MARIMBA, INC.
By: /s/ XXX XXXXXX
-------------------------------------
Xxx Xxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
FOUNDERS:
/s/ XXXXXXXX XXXXX
----------------------------------------
XXXXXXXX XXXXX
Address: c/o Marimba, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
/s/ XXX XXXXXX
----------------------------------------
XXX XXXXXX
Address: c/o Marimba, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
/s/ XXXX XXXXX
----------------------------------------
XXXX XXXXX
Address: c/o Marimba, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
/s/ XXXXXX X. XXX XXXX
----------------------------------------
XXXXXX X. XXX XXXX
Address: c/o Marimba, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
22
INVESTORS:
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII,
L.P.
By: KPCB VIII Associates, L.P., its
General Partner
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
KPCB INFORMATION SCIENCES ZAIBATSU FUND
II, L.P.
By: KPCB VII Associates, L.P., its
General Partner
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
KPCB JAVA FUND, L.P.
By: KPCB Java Associates, L.P., its
General Partner
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address: c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxx XxxXxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
23
KPCB VIII FOUNDERS FUND, L.P.
By: KPCB VIII Associates, L.P., its
General Partner
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address: c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxx XxxXxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
24
CPQ HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Technology & Corporate
Development
Address: x/x Xxxxxx Xxxxxxxx Xxxxxxxxxxx
XX000000
20555 S.H. 249
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X. Lucie
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
25
ITOCHU Technologies, Inc.
/s/ XXXXXXX XXXXXXXXX
----------------------------------------
By: Xxxxxxx Xxxxxxxxx
Its: President
Address: c/o Itochu Technology, Inc.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
26
ITOCHU CORPORATION
/s/ XXXX XXXXXXXXX
----------------------------------------
By: Xxxx Xxxxxxxxx
Its: General Manager
Address: 0-0, Xxxx-Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000-00, Xxxxx
ITOCHU TECHNO-SCIENCE CORP.
/s/ XXXX XXXXXX
----------------------------------------
By: Xxxx Xxxxxx
Its: President
Address: 00-0 Xxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000, Xxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
27
XXXXXX BROTHERS HOLDINGS INC.
/s/ XXXX XXXXXXXXXX
----------------------------------------
By: Xxxx Xxxxxxxxxx
Its: Vice President
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
28
DMG EMPLOYEE COINVESTMENT FUND, L.P.
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Managing Director/General Partner
----------------------------------
DMG TECHNOLOGY VENTURES, L.L.C.
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Address: c/o DMG Technology Group
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
29
NATIONAL SEMICONDUCTOR CORPORATION
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Executive Vice President and CFO
----------------------------------
Address: 0000 Xxxxxxxxxxxxx Xxxxx
Mail Stop X0-000
Xxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
30
ATTRACTOR INSTITUTIONAL LP
By: MM Attractor Ventures LLC,
Its General Partner
/s/ XXXXXX XXXXXXX
----------------------------------------
By: Xxxxxx Xxxxxxx
ATTRACTOR LP
By: MM Attractor Ventures LLC,
Its General Partner
/s/ XXXXXX XXXXXXX
----------------------------------------
By: Xxxxxx Xxxxxxx
ATTRACTOR DEARBORN PARTNERS LP
By: MM Attractor Ventures LLC,
Its General Partner
/s/ XXXXXX XXXXXXX
----------------------------------------
By: Xxxxxx Xxxxxxx
Address: c/o Attractor Investment Management Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
31
PEOPLESOFT, INC.
By: /s/ XXXXX XXXXXX
--------------------------------------------
Xxxxx Xxxxxx
Title: Senior Vice President, Product Strategy
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
32
LBI Group INC.
/s/ XXXX XXXXXXXXXX
----------------------------------------
By: Xxxx Xxxxxxxxxx
Its: Senior Vice President
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
33
XXXXXX & XXXXX XXXXXX AS TRUSTEES
OF THE XXXXXX FAMILY TRUST DATED
9/25/96
/s/ XXXXXX XXXXXX
----------------------------------------
By: Xxxxxx Xxxxxx
Trustee
Address: c/o Xxxxxx and Xxxxx Xxxxxx
00 Xxxx Xxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
34
/s/ XXXXXXX X. XXXX
----------------------------------------
Xxxxxxx X. Xxxx
Address: 000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
00
XXXXXXXXX & XXXXX XXXXXXXXXX
By: /s/ XXXX XXXXX
------------------------------------
Xxxx Xxxxx,
Co-Controller
Address: Xxxxxxxxx & Xxxxx
4th Floor Accounting
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
36
/s/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx
Address: x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
37
XXXX FAMILY 1982 TRUST
By: /s/ XXXXXX X. XXXX
-------------------------------------------
Xxxxxx X. Xxxx or Xxxxxx X. Xxxx, Trustees
Address: 00 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
SIGNATURE PAGE TO MARIMBA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
38
SCHEDULE A
Schedule of Investors
ATTRACTOR INSTITUTIONAL LP
ATTRACTOR LP
ATTRACTOR DEARBORN PARTNERS LP
c/o Attractor Investment
Management, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
CPQ HOLDINGS, INC.
c/o Compaq Computer Corporation
20555 SH 249
M110701
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
DMG EMPLOYEE COINVESTMENT FUND, L.P.
DMG TECHNOLOGY VENTURES, L.L.C.
c/o DMG Technology Group
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
ITOCHU CORPORATION
0-0, Xxxx-Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000-00, Xxxxx
Attn: Xxxx Xxxxxxxxx
ITOCHU TECHNO-SCIENCE CORPORATION
00-0 Xxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000, Xxxxx
Attn: Xxxxxxx Xxxxxxxxx
ITOCHU TECHNOLOGY, INC.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
S-1
39
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII, L.P.
KPCB INFORMATION SCIENCES ZAIBATSU FUND II, L.P.
KPCB JAVA FUND, L.P.
KPCB VII FOUNDERS FUND, L.P.
c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx XxxXxxxxx
LB I GROUP INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
NATIONAL SEMICONDUCTOR CORPORATION
0000 Xxxxxxxxxxxxx Xxxxx
Mail Stop X0-000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
PEOPLESOFT, INC.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
XXXXXX & XXXXX XXXXXX AS
TRUSTEES OF THE XXXXXX
FAMILY TRUST DATED 9/25/96
00 Xxxx Xxx
Xxxxxxxx, XX 00000
XXXXXXX X. XXXX
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
XXXXXXXXX & XXXXX CALIFORNIA
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXXX X. XXXXX
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
S-2
40
XXXX FAMILY 1982 TRUST
00 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
S-3
