Sixth Amendment to First Amended and Restated Investors Rights Agreement, dated September 16, 2019, among nCino, Inc. and certain holders of its capital stock
Exhibit 4.8
SIXTH AMENDMENT
TO
FIRST AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
THIS SIXTH AMENDMENT TO FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Amendment”) is made and effective as of the 16th day of September, 2019 (the “Effective Date”), by and among nCino, Inc., a Delaware corporation (the “Company”) and the Investors (as defined in the Agreement, as defined below) party hereto (collectively with the Company, the “Parties”).
RECITALS
WHEREAS, the Company and certain of the Investors had previously entered into that certain First Amended and Restated Investors’ Rights Agreement, dated as of February 12, 2015, as amended by that certain First Amendment to First Amended and Restated Investors’ Rights Agreement, dated May 25, 2016, that certain Second Amendment to First Amended and Restated Investors’ Rights Agreement, dated November 23, 2016, that certain Third Amendment to First Amended and Restated Investors’ Rights Agreement, dated July 31, 2017, that certain Fourth Amendment to First Amended and Restated Investors’ Rights Agreement, dated January 16, 2018, and that certain Fifth Amendment to First Amended and Restated Investors’ Rights Agreement, dated July 12, 2018 (the “Agreement”).
WHEREAS, the Parties wish to (1) expand the definition of “Registrable Securities”, as defined in the Agreement, to include shares of Common Stock (as defined in the Agreement) purchased pursuant to that certain Common Stock Purchase Agreement dated as of the Effective Date, by and among the Company and the Purchasers listed on Exhibit A thereto, and (2) allow for additional Investors.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Investors hereby agree as follows:
AGREEMENT
1. Definitions. All capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Agreement.
2. Amendment.
| a. | The Parties hereby agree to amend the Agreement by amending and restating Section 1.22 in its entirety as follows: |
“1.22 “Registrable Securities” means (i) any Common Stock issued to, or purchased by, the Investors pursuant to (A) the Purchase Agreement, (B) that certain Purchase and Sale Agreement dated as of February 12, 2015 by and among the Insight Investors, SunTrust Banks, Inc. (or any affiliates thereof), the Company and Live Oak Bancshares, Inc., (C) that certain Common Stock Purchase Agreement dated as of May 25, 2016, by and among the Company and the Purchasers listed on Exhibit A thereto (the “2016 Primary Purchase Agreement”), (D) that certain Purchase and Sale Agreement dated as of May 25, 2016, by and among the Company and the stockholders and Purchaser listed on Exhibit A thereto (the “2016 Secondary Purchase Agreement”), (E) that certain Common Stock Purchase Agreement dated as of January 28, 2014 by and between the Company and
the Investors listed on Exhibit A thereto, (F) that certain Offer to Purchase and Letter of Transmittal distributed to certain stockholders of the Company by the Insight Investors on or about November 23, 2016 (the “2016 Offer to Purchase”), (G) that certain Common Stock Purchase Agreement, dated as of July 31, 2017, by and among the Company and the Investors listed on Exhibit A thereto (the “2017 Common Stock Purchase Agreement”), (H) that certain Common Stock Purchase Agreement, dated as of January 16, 2018, by and among the Company and the Investors listed on Exhibit A thereto (the “2018 Common Stock Purchase Agreement”), (I) that certain Purchase and Sale Agreement dated as of the January 16, 2018, by and among Salesforce Ventures LLC and the selling stockholder set forth therein (the “2018 Secondary Purchase Agreement”); (J) that certain Offer to Purchase and Letter of Transmittal distributed to certain stockholders of the Company by certain investment advisory clients of Wellington Management Company LLP, certain investment funds affiliated with Bessemer Venture Partners IX, L.P., and certain Insight Investors on or about June 7, 2018 (the “2018 Offer to Purchase”); or (K) that certain Common Stock Purchase Agreement, dated as of September 16, 2019, by and among the Company and the Investors listed on Exhibit A thereto (the “2019 Common Stock Purchase Agreement”) and (ii) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clause (i) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 6.1, and excluding for purposes of Section 2 any shares for which registration rights have terminated pursuant to Subsection 2.13 of this Agreement.”
| b. | The Parties hereby agree to amend the Agreement by amending and restating Section 6.13 in its entirety as follows: |
“6.13 Additional Investors. Notwithstanding anything to the contrary contained herein, any purchaser of shares of Common Stock on or after the date hereof pursuant to the Purchase Agreement, the 2016 Primary Purchase Agreement, the 2016 Secondary Purchase Agreement, the 2016 Offer to Purchase, the 2017 Common Stock Purchase Agreement, the 2018 Common Stock Purchase Agreement, the 2018 Secondary Purchase Agreement, the 2018 Offer to Purchase, or the 2019 Common Stock Purchase Agreement may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder. Immediately thereafter, Schedule A to this Agreement will be amended to list the new Investors hereunder.”
| c. | The Parties hereby agree to amend the Agreement by amending and restating Schedule A to the Agreement in its entirety with the Schedule A attached hereto. |
3. Effect of Amendment. Except as amended and/or modified by this Amendment, the Agreement is hereby ratified and confirmed and all other terms of the Agreement are and shall remain in full force and effect, unaltered and unchanged by this Amendment. In the event of any conflict between the provisions of this Amendment and the provisions of the Agreement, the provisions of this Amendment shall govern and control.
4. Counterparts. This Amendment (i) may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document and (ii) may be executed by facsimile or PDF signatures. All counterparts shall be construed together and shall constitute one agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Sixth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| NCINO, INC. | ||
| By: | /s/ Pierre Naudé | |
| Name: | Pierre Naudé | |
| Title: | Chief Executive Officer | |
IN WITNESS WHEREOF, the Parties have executed this Sixth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTORS: | ||||||
| INSIGHT VENTURE PARTNERS IX, L.P. | INSIGHT VENTURE PARTNERS IX (CO-INVESTORS), L.P. | |||||
| By: | Insight Venture Associates IX, L.P. | By: | Insight Venture Associates IX, L.P. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | Insight Venture Associates IX, Ltd. | By: | Insight Venture Associates IX, Ltd. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | /s/ Blair Flicker | By: | /s/ Blair Flicker | |||
| Name: | Blair Flicker | Name: | Blair Flicker | |||
| Title: | Authorized Officer | Title: | Authorized Officer | |||
| INSIGHT VENTURE PARTNERS (CAYMAN) IX, L.P. | INSIGHT VENTURE PARTNERS (DELAWARE) IX, L.P. | |||||
| By: | Insight Venture Associates IX, L.P. | By: | Insight Venture Associates IX, L.P. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | Insight Venture Associates IX, Ltd. | By: | Insight Venture Associates IX, Ltd. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | /s/ Blair Flicker | By: | /s/ Blair Flicker | |||
| Name: | Blair Flicker | Name: | Blair Flicker | |||
| Title: | Authorized Officer | Title: | Authorized Officer | |||
IN WITNESS WHEREOF, the Parties have executed this Sixth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTORS: | ||||||
| INSIGHT VENTURE PARTNERS GROWTH-BUYOUT COINVESTMENT FUND, L.P. | INSIGHT VENTURE PARTNERS GROWTH-BUYOUT COINVESTMENT FUND (B), L.P. | |||||
| By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P. | By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd. | By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | /s/ Blair Flicker | By: | /s/ Blair Flicker | |||
| Name: | Blair Flicker | Name: | Blair Flicker | |||
| Title: | Authorized Officer | Title: | Authorized Officer | |||
| INSIGHT VENTURE PARTNERS GROWTH-BUYOUT COINVESTMENT FUND (CAYMAN), L.P. | INSIGHT VENTURE PARTNERS GROWTH-BUYOUT COINVESTMENT FUND (DELAWARE), L.P. | |||||
| By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P. | By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd. | By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd. | |||
| Its: | General Partner | Its: | General Partner | |||
| By: | /s/ Blair Flicker | By: | /s/ Blair Flicker | |||
| Name: | Blair Flicker | Name: | Blair Flicker | |||
| Title: | Authorized Officer | Title: | Authorized Officer | |||
IN WITNESS WHEREOF, the Parties have executed this Sixth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTORS: | ||
| lthan Creek Master Investors (Cayman) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
| Wolf Creek Investors (Bermuda) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
| Wolf Creek Partners, L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
| Bay Pond Investors (Bermuda) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
| Bay Pond Partners, L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
| Hadley Harbor Master Investors (Cayman) II L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Emily D. Babalas | |
| Name: | Emily D. Babalas | |
| Title: | Managing Director & Counsel | |
SCHEDULE A
Investors
Legal Entity Name and Address
Bessemer Venture Partners IX L.P.
c/o Bessemer Venture Partners
1865 Palmer Avenue
Suite 104
Larchmont, NY 10538
Tel. 914 ###-###-####
***@***
Bessemer Venture Partners IX Institutional L.P.
c/o Bessemer Venture Partners
1865 Palmer Avenue
Suite 104
Larchmont, NY 10538
Tel. 914 ###-###-####
***@***
Hadley Harbor Master Investors (Cayman) II L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Ithan Creek Master Investors (Cayman) L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Wolf Creek Investors (Bermuda) L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Wolf Creek Partners, L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Bay Pond Investors (Bermuda) L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Bay Pond Partners, L.P.
c/o Wellington Management Company LLP
280 Congress Street
Boston, Massachusetts 02210
Attn: Legal & Compliance Department
Facsimile Number: 617 ###-###-####
Email: ***@***
Insight Venture Partners IX, L.P
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners (Cayman) IX, L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners IX (Co-Investors), L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners (Delaware) IX, L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners Growth-Buyout Coinvestment Fund, L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners Growth-Buyout Coinvestment Fund (B), L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners Growth-Buyout Coinvestment Fund (Cayman), L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
Insight Venture Partners Growth-Buyout Coinvestment Fund (Delaware), L.P.
c/o Insight Venture Partners
1114 Avenue of the Americas
36th Floor
New York, NY 10036
Attn: Blair Flicker
Tel. 212 ###-###-####
***@***
SunTrust Banks, Inc.
303 Peachtree Street
29th Floor
Atlanta, GA 30308
Attn: Richard Blumberg
Tel. 404 ###-###-####
Fax. 404 ###-###-####
***@***
Salesforce Ventures LLC
The Landmark @ One Market Street, Suite 300
San Francisco, CA 94105
Attn: John Somorjai
Accenture LLP
161 North Clark St.
Chicago, IL 60601
Attn: General Counsel
***@***
Regions Financial Corporation
Attn: David R. Turner, Jr.
Senior Executive Vice President and Chief Financial Officer
1900 5th Ave North, 30th Floor
Birmingham, AL 35203c
Tel. 205 ###-###-####
***@***
T. Rowe Price New Horizons Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price New Horizons Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price U.S. Equities Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
MassMutual Select Funds - MassMutual Select T. Rowe Price Small and Mid Cap Blend Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Small-Cap Stock Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Institutional Small-Cap Stock Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Personal Strategy Income Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Personal Strategy Balanced Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Personal Strategy Growth Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Moderate Allocation Portfolio
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
U.S. Small-Cap Stock Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
VALIC Company I - Small Cap Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
TD Mutual Funds - TD U.S. Small-Cap Equity Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price U.S. Small-Cap Core Equity Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
Minnesota Life Insurance Company
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
Costco 401(k) Retirement Plan
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
MassMutual Select Funds - MassMutual Select T. Rowe Price Small and Mid Cap Blend Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Small-Cap Value Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price U.S. Small-Cap Value Equity Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price U.S. Equities Trust
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
MassMutual Select Funds - MassMutual Select T. Rowe Price Small and Mid Cap Blend Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Global Technology Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
TD Mutual Funds - TD Science & Technology Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
UniSuper
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Communications & Technology Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
TD Mutual Funds - TD Global Entertainment & Communications Fund
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
T. Rowe Price Financial Services Fund, Inc.
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
The Bunting Family III, LLC
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
The Bunting Family VI Socially Responsible LLC
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
Jeffrey LLC
c/o T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn.: Andrew Baek, Vice President
Phone: 410 ###-###-####
Email: ***@***
