FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 4.6
Execution Copy
FOURTH AMENDMENT
TO
FIRST AMENDED AND RESTATED
THIS FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Amendment”) is made and effective as of the 16th day of January, 2018 (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, as amended by that certain Second Amendment to First Amended and Restated Investors’ Rights Agreement, dated November 23, 2016, and that certain Third Amendment to First Amended and Restated Investors’ Rights Agreement, dated July 31, 2017 (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 (i) Common Stock Purchase Agreement dated as of the Effective Date, by and among the Company and the Purchasers listed on Exhibit A thereto, and (ii) Purchase and Sale Agreement dated as of the Effective Date, by and among Salesforce Ventures LLC and the selling stockholder set forth therein, 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 “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”), or (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”); 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 Offer to Purchase, the 2017 Common Stock Purchase Agreement, the 2018 Common Stock Purchase Agreement, or the 2018 Secondary 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 Fourth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| NCINO, INC. | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Chief Executive Officer | |
[Signature Pages to Fourth Amendment to First Amended and Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the Parties have executed this Fourth 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/ Xxxxx Xxxxxxx |
By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | Name: | Xxxxx Xxxxxxx | |||
| 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/ Xxxxx Xxxxxxx |
By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | Name: | Xxxxx Xxxxxxx | |||
| Title: |
Authorized Officer |
Title: |
Authorized Officer | |||
{Signature Pages to Fourth Amendment to First Amended and Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the Parties have executed this Fourth 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/ Xxxxx Xxxxxxx |
By: |
/s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | Name: | Xxxxx Xxxxxxx | |||
| 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/ Xxxxx Xxxxxxx |
By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | Name: | Xxxxx Xxxxxxx | |||
| Title: |
Authorized Officer |
Title: |
Authorized Officer | |||
[Signature Pages to Fourth Amendment to First Amended and Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTORS: | ||
| Ithan Creek Master Investors (Cayman) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director and Counsel | |
| Wolf Creek Investors (Bermuda) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director and Counsel | |
| Wolf Creek Partners, L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director and Counsel | |
| Bay Pond Investors (Bermuda) L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director and Counsel | |
| Bay Pond Partners, L.P. | ||
| By: Wellington Management Company LLP, as investment adviser | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director and Counsel | |
IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTOR: | ||
| SUNTRUST BANKS, INC. | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Senior Vice President | |
[Signature Pages to Fourth Amendment to First Amended and Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment to First Amended and Restated Investors’ Rights Agreement as of the date first written above.
| INVESTOR: | ||
| SALESFORCE VENTURES LLC | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | President | |
Address:
Salesforce Ventures LLC
The Landmark @ Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
[Signature Pages to Fourth Amendment to First Amended and Restated Investors’ Rights Agreement]
SCHEDULE A
Investors
| Legal Entity Name and Address |
| Ithan Creek Master Investors (Cayman) L.P. c/o Wellington Management Company, LLP 000 Xxxxxxxx Xxxxxx |
| Xxxxxx, Xxxxxxxxxxxxx 00000 |
| Attn: Legal & Compliance Department |
| Facsimile Number: 000-000-0000 |
| Email: xxxxxx@xxxxxxxxxx.xxx |
| Wolf Creek Investors (Bermuda) L.P. c/o Wellington Management Company, LLP 000 Xxxxxxxx Xxxxxx |
| Xxxxxx, Xxxxxxxxxxxxx 00000 |
| Attn: Legal & Compliance Department |
| Facsimile Number: 000-000-0000 |
| Email: xxxxxx@xxxxxxxxxx.xxx |
| Wolf Creek Partners, L.P. c/o Wellington Management Company, LLP 000 Xxxxxxxx Xxxxxx |
| Xxxxxx, Xxxxxxxxxxxxx 00000 |
| Attn: Legal & Compliance Department |
| Facsimile Number: 000-000-0000 |
| Email: xxxxxx@xxxxxxxxxx.xxx |
| Bay Pond Investors (Bermuda) L.P. c/o Wellington Management Company, LLP 000 Xxxxxxxx Xxxxxx |
| Xxxxxx, Xxxxxxxxxxxxx 00000 |
| Attn: Legal & Compliance Department |
| Facsimile Number: 000-000-0000 |
| Email: xxxxxx@xxxxxxxxxx.xxx |
| Bay Pond Partners, L.P. c/o Wellington Management Company, LLP 000 Xxxxxxxx Xxxxxx |
| Xxxxxx, Xxxxxxxxxxxxx 00000 |
| Attn: Legal & Compliance Department |
| Facsimile Number: 000-000-0000 |
| Email: xxxxxx@xxxxxxxxxx.xxx |
| Insight Venture Partners IX, L.P c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners (Cayman) IX, L.P. c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners IX (Co-Investors), L.P. c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners (Delaware) IX, L.P. c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners Growth-Buyout Coinvestment Fund, L.P. |
| c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners Growth-Buyout Coinvestment Fund (B), L.P. |
| c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners Growth-Buyout Coinvestment Fund (Cayman), L.P. c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| Insight Venture Partners Growth-Buyout Coinvestment Fund (Delaware), L.P. c/o Insight Venture Partners 1114 Avenue of the Xxxxxxxx 00xx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxxx |
| Tel. 000-000-0000 xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
| SunTrust Banks, Inc. 000 Xxxxxxxxx Xxxxxx 00xx Xxxxx |
| Xxxxxxx, XX 00000 |
| Attn: Xxxxxxx Xxxxxxxx |
| Tel. 000-000-0000 |
| Fax. 000-000-0000 |
| Xxxxxxx.xxxxxxxx@xxxxxxxx.xxx |
| Salesforce Ventures LLC |
| The Landmark @ Xxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxx Xxxxxxxxx, XX 00000 |
| Attn: Xxxx Xxxxxxxx |
| Accenture LLP 000 Xxxxx Xxxxx Xx. |
| Xxxxxxx, XX 00000 |
| Attn: General Counsel |
| xxxxxxx@xxxxxxxxx.xxx |
| Regions Financial Corporation |
| Attn: Xxxxx X. Xxxxxx, Xx. |
| Senior Executive Vice President and Chief Financial Officer 0000 0xx Xxx Xxxxx, 00xx Xxxxx |
| Xxxxxxxxxx, XX 00000x |
| Tel. 000-000-0000 |
| Xxxxx.Xxxxxx@Xxxxxxx.xxx |
