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EXHIBIT 4.4
MARIMBA, INC.
AMENDMENT AND
WAIVER OF REGISTRATION RIGHTS
THIS AMENDMENT AND WAIVER OF REGISTRATION RIGHTS (this "Waiver")
is entered into as of January ___, 1999, by and among Marimba, Inc., a Delaware
corporation (the "Company"), and the undersigned holders ("Holder(s)") of the
Company's capital stock.
WHEREAS, the Company intends to offer, issue, and sell directly
to the public certain shares (the "Shares") of the Company's common stock (the
"Offering) and will undertake a registration of the Shares (the "Registration")
by preparing, executing, and filing with the Securities and Exchange Commission
a registration statement on Form S-1 (the "Registration Statement") under the
Securities Act of 1933, as amended;
WHEREAS, Xxx Xxxxxx, Xxxxxx xxx Xxxx, Xxxxxxxx Xxxxx and Xxxx
Xxxxx (collectively, the "Founders") may elect to sell not more than 10% of each
Founder's equity holdings in the Company in the Offering;
WHEREAS, the Company and the undersigned Holder(s) (as such terms
are defined in the Rights Agreement) are parties to that certain Amended and
Restated Investors' Rights Agreement dated as of August 25, 1997 (the "Rights
Agreement"), which grants the undersigned Holder(s), among other things, certain
registration rights in connection with the Registration;
WHEREAS, the undersigned Holder(s) desire to facilitate a
successful Offering by waiving all such registration rights in connection with
the Registration;
WHEREAS, the undersigned Holder(s) understand that the Company
and the underwriters of the Offering will proceed with the Offering in reliance
on this Waiver; and
WHEREAS, the 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 (as defined in the Rights
Agreement), and the Holders of at least a majority of the Registrable Securities
then outstanding and held by the Series B Investors (as defined in the Rights
Agreement) will bind all such Holders under Section 4.7 of the Rights Agreement;
NOW, THEREFORE, the undersigned hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings assigned to them in the Rights Agreement.
2. Registration Right. With respect to the Registration, the
undersigned Holder(s) hereby amend the Rights Agreement to waive the right (and
all notice rights related thereto) to request registration of any Registrable
Securities in the Offering (provided such Offering is consummated prior to July
31, 1999), that may arise under Section 1.3 of the Rights Agreement.
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3. Counterparts. This Waiver may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
and Waiver as of ____________, 1999.
MARIMBA, INC.:
By:
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Xxxx Xxxxxx,
Vice President, Finance and
Chief Financial Officer
Address: 000 Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
FOUNDERS:
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XXXXXXXX XXXXX
Address: c/o Marimba, Inc.
000 Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
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XXX XXXXXX
Address: c/o Marimba, Inc.
000 Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
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XXXX XXXXX
Address: c/o Marimba, Inc.
000 Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
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XXXXXX X. XXX XXXX
Address: c/o Marimba, Inc.
000 Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
SIGNATURE PAGE TO REG. RIGHTS WAIVER
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STOCKHOLDER:
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(Print or Type Holder's Name)
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(Signature of Holder or Authorized
Signatory)
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(Print or Type Name and Title, if Holder
is not an individual)
SIGNATURE PAGE TO REG. RIGHTS WAIVER
