0001193125-17-229412.txt : 20170717 0001193125-17-229412.hdr.sgml : 20170717 20170717164956 ACCESSION NUMBER: 0001193125-17-229412 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20170717 DATE AS OF CHANGE: 20170717 GROUP MEMBERS: SILVER LAKE KRAFTWERK FUND, L.P. GROUP MEMBERS: SILVER LAKE TECHNOLOGY ASSOCIATES KRAFTWERK, L.P. GROUP MEMBERS: SILVER LAKE TECHNOLOGY INVESTORS KRAFTWERK, L.P. GROUP MEMBERS: SLTA KRAFTWERK (GP), L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Tintri, Inc. CENTRAL INDEX KEY: 0001554875 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 262906978 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-90042 FILM NUMBER: 17967926 BUSINESS ADDRESS: STREET 1: 303 RAVENDALE DR CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 650-810-8200 MAIL ADDRESS: STREET 1: 303 RAVENDALE DR CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Silver Lake Group, L.L.C. CENTRAL INDEX KEY: 0001418226 IRS NUMBER: 260895325 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2775 SAND HILL ROAD, SUITE 100 CITY: MENLO PARK STATE: CA ZIP: 94025 BUSINESS PHONE: 6502338120 MAIL ADDRESS: STREET 1: 2775 SAND HILL ROAD, SUITE 100 CITY: MENLO PARK STATE: CA ZIP: 94025 SC 13D 1 d420596dsc13d.htm SCHEDULE 13D Schedule 13D

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.     )*

 

 

TINTRI, INC.

(Name of Issuer)

Common Stock, $0.00005 par value per share

(Title of Class of Securities)

88770Q105

(CUSIP Number)

Karen M. King, Esq.

Silver Lake

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

(650) 233-8120

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

With copies to:

Daniel N. Webb, Esq.

Simpson Thacher & Bartlett LLP

2475 Hanover Street

Palo Alto, California 94304

(650) 251-5000

July 6, 2017

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ☐

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP NO. 88770Q105  

 

  1.   

Names of Reporting Persons.

 

Silver Lake Kraftwerk Fund, L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,245,658

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,245,658

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,245,658

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

17.3%

14.  

Type of Reporting Person (See Instructions)

 

PN

 

2


CUSIP NO. 88770Q105  

 

  1.   

Names of Reporting Persons.

 

Silver Lake Technology Investors Kraftwerk, L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

162,792

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

162,792

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

162,792

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0.5%

14.  

Type of Reporting Person (See Instructions)

 

PN

 

3


CUSIP NO. 88770Q105  

 

  1.   

Names of Reporting Persons.

 

Silver Lake Technology Associates Kraftwerk, L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,408,450

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,408,450

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,408,450

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

17.8%

14.  

Type of Reporting Person (See Instructions)

 

PN

 

4


CUSIP NO. 88770Q105  

 

  1.   

Names of Reporting Persons.

 

SLTA Kraftwerk (GP), L.L.C.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,408,450

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,408,450

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,408,450

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

17.8%

14.  

Type of Reporting Person (See Instructions)

 

OO

 

5


CUSIP NO. 88770Q105  

 

  1.   

Names of Reporting Persons.

 

Silver Lake Group, L.L.C.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,408,450

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,408,450

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,408,450

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

17.8%

14.  

Type of Reporting Person (See Instructions)

 

OO

 

6


Item 1. Security and Issuer

This Schedule 13D (the “Schedule 13D”) relates to the Common Stock, par value $0.00005 per share (the “Common Stock”), of Tintri, Inc., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 303 Ravendale Drive, Mountain View, CA 94043.

 

Item 2. Identity and Background

(a) and (f) This Schedule 13D is being filed jointly on behalf of the following persons (collectively, the “Reporting Persons”), each of which is a Delaware entity:

 

  1. Silver Lake Kraftwerk Fund, L.P. (“SLK”),

 

  2. Silver Lake Technology Investors Kraftwerk, L.P. (“SLTIK”, and together with SLK, the “Silver Lake Investors”),

 

  3. Silver Lake Technology Associates Kraftwerk, L.P. (“SLTA Kraftwerk”),

 

  4. SLTA Kraftwerk (GP), L.L.C. (“SLTA GP Kraftwerk”), and

 

  5. Silver Lake Group, L.L.C. (“SLG”).

The Reporting Persons have entered into an agreement of joint filing, a copy of which is attached hereto as Exhibit A.

(b) and (c) The general partner of SLK and SLTIK is SLTA Kraftwerk. The general partner of SLTA Kraftwerk is SLTA GP Kraftwerk. The managing member of SLTA GP Kraftwerk is SLG. Certain information concerning the identity and background of each of the managing members of SLG is set forth in Annex A attached hereto, which is incorporated herein by reference in response to this Item 2.

The principal business of each of SLK and SLTIK is to invest in securities. The principal business of SLTA Kraftwerk is to serve as the general partner of SLK and SLTIK and to manage investments through other partnerships and limited liability companies. The principal business of SLTA GP Kraftwerk is to serve as the general partner of SLTA Kraftwerk and to manage investments through other partnerships and limited liability companies. The principal business of SLG is to serve as the managing member of SLTA GP Kraftwerk and to manage investments through other partnerships and limited liability companies.

The principal office of each of the Reporting Persons is located at c/o Silver Lake, 2775 Sand Hill Road, Suite 100, Menlo Park, California 94025.

(d) and (e) None of the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the persons listed on Annex A attached hereto has, during the past five years, been convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors), nor been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3. Source and Amount of Funds or Other Consideration

In July 2015, SLK and SLTIK purchased from the Issuer 1,475,551 and 45,792 shares of the Issuer’s Series F Convertible Preferred Stock (such amounts reflected after giving effect to the Issuer’s one-for-six reverse stock split in June 2017), respectively, for an aggregate purchase price of $67,000,004. The purchase of the securities was funded from general funds available to the Reporting Persons, including capital contributions from investors. On July 6, 2017, immediately prior to the consummation of the Issuer’s initial public offering (the “IPO”), SLK and SLTIK received 4,426,646 and 137,375 shares of the Issuer’s Common Stock, respectively, upon the automatic conversion of the Series F Convertible Preferred Stock.

On July 6, 2017, as part of the IPO, SLK and SLTIK purchased 819,012 and 25,417 shares of Common Stock, respectively, at the initial public offering price to the public of $7.00 per share for total consideration of $5,733,084 and $177,919, respectively, or $5,911,003 in the aggregate. The aggregate funds used in connection with the purchase were provided from general funds available to the Reporting Persons, including capital contributions from investors.

 

7


Item 4. Purpose of the Transaction.

The information set forth in or incorporated by reference in Item 3 and Item 6 of this Schedule 13D is incorporated by reference in its entirety into this Item 4.

Each of the Reporting Persons acquired the Common Stock for investment purposes.

Mr. Adam Grosser, Managing Director at Silver Lake Kraftwerk, currently serves as a member of the board of directors of the Issuer.

As described further in Item 6 below, the Silver Lake Investors are parties to a Note Purchase Agreement pursuant to which the Silver Lake Investors have agreed to purchase from the Issuer, at the Issuer’s election, one or more subordinated convertible promissory notes (“Convertible Notes”) having an aggregate maximum principal amount of $6,231,607.50, in the case of SLK, and $193,392.50, in the case of SLTIK. At any time on or after December 1, 2019, at the Issuer’s election, the Issuer may convert the amounts outstanding under the Convertible Notes held by the Silver Lake Investors, if any, into shares of Common Stock at a price of $7.00 per share, the offering price per share in the Issuer’s IPO.

Although no Reporting Person currently has any specific plan or proposal to sell the Common Stock and/or otherwise increase or decrease their investment in the Issuer, each Reporting Person, consistent with its investment purpose and subject to the agreements described in Item 6 below, at any time and from time to time may acquire additional shares of Common Stock or securities exercisable for or into shares of Common Stock or dispose of any or all of its shares of Common Stock (including, without limitation, distributing some or all of such shares of Common Stock to such Reporting Person’s members, partners, stockholders or beneficiaries, as applicable and in accordance with the agreements described in Item 6 below), depending upon an ongoing evaluation of its investment in the Common Stock, the price and availability of the Issuer’s securities, the Issuer’s business and the Issuer’s prospects, applicable legal restrictions, prevailing market conditions, other investment opportunities, tax considerations, liquidity requirements of such Reporting Person and/or other investment considerations. Subject to the terms of the Amended and Restated Investors’ Rights Agreement (described in Item 6 below), the Reporting Persons may request or demand a registration statement be filed by the Issuer and be made available and effective so that they may, if they later decide, deliver to the Issuer take-down notices in connection therewith or otherwise to sell shares of Common Stock utilizing such registration statement.

Each Reporting Person, solely in its capacity as a shareholder of the Issuer may engage in communications with one or more other shareholders or other securityholders of the Issuer, one or more officers of the Issuer and/or one or more members of the board of directors of the Issuer and/or one or more representatives of the Issuer regarding the Issuer, including but not limited to its operations. Each of the Reporting Persons, in its capacity as a shareholder of the Issuer, may discuss ideas that, if effected, may relate to or result in any of the matters listed in Items 4(a)-(j) of Schedule 13D.

Other than as described above, none of the Reporting Persons nor, to the knowledge of each Reporting Person, any individuals listed in Annex A attached hereto, currently has any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a) through (j) of Schedule 13D, although the Reporting Persons may, at any time and from time to time, review or reconsider their position, change their purpose and/or formulate plans or proposals with respect thereto. As a result of these activities, one or more of the Reporting Persons may suggest or take a position with respect to potential changes in the operations, management, or capital structure of the Issuer as a means of enhancing shareholder value. Such suggestions or positions may include one or more plans or proposals that relate to or would result in any of the actions described in Items 4(a) through (j) of Schedule 13D.

 

Item 5. Interest in Securities of the Issuer.

The information contained in rows 7, 8, 9, 10, 11 and 13 on each of the cover pages of this Schedule 13D and the information set forth or incorporated in Items 2, 3 and 6 of this Schedule 13D is incorporated by reference in its entirety into this Item 5.

(a) – (b) By virtue of the relationships and agreements among the Reporting Persons described herein, the Reporting Persons may be deemed to constitute a group within the meaning of Section 13(d)(5) of the rules and regulations promulgated by the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”). As such, the Reporting Persons may be deemed to beneficially own an aggregate of 5,408,450 shares of Common Stock of the Issuer, which includes 5,245,658 shares of Common Stock held by SLK and 162,792 shares of Common Stock held by SLTIK, representing in the aggregate approximately 17.8% of the issued and outstanding shares of Common Stock of the Issuer.

 

8


The percentages of beneficial ownership in this Schedule 13D are based on 30,322,430 shares of Common Stock outstanding following the IPO, which reflects 21,750,430 shares of Common Stock outstanding as of May 31, 2017 (after giving effect to the conversion of all outstanding shares of the Issuer’s convertible preferred stock into shares of Common Stock and the repurchase by the Issuer of 589,624 shares of Common Stock on June 1, 2017) and the sale by the Issuer of 8,572,000 shares of Common Stock in the IPO, as reported in the Issuer’s prospectus filed with the Commission pursuant to Rule 424(b) on June 30, 2017.

Information with respect to the beneficial ownership of Common Stock by the individuals listed in Annex A is set forth in Annex A attached hereto and incorporated herein by reference in response to this Item 5.

(c) Except as set forth in Item 3 to this Schedule 13D, none of the Reporting Persons have effected any transaction in the Issuer’s Common Stock during the past 60 days.

(d) No one other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the securities of the Issuer reported on this Schedule 13D.

(e) Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The information set forth or incorporated in Item 3 and Item 4 is incorporated by reference in its entirety into this Item 6.

Amended and Restated Investors’ Rights Agreement

The Silver Lake Investors are parties to an Amended and Restated Investors’ Rights Agreement dated as of July 24, 2015, as amended by the Omnibus Amendment dated June 1, 2017 (the “Rights Agreement”), with the Issuer and certain other investors of the Issuer (the “Other Investors”).

Pursuant to the Rights Agreement, the Silver Lake Investors and the Other Investors have the right to require the Issuer to register certain of their shares of Common Stock under the Securities Act of 1933, as amended (the “Securities Act”), or to participate in future registrations of securities by the Issuer, under the circumstances described below. If not otherwise exercised, the rights described below will expire five years following the completion of the IPO, following a change of control of the Issuer or, with respect to any party, at such time as such party holds less than one percent of the Issuer’s outstanding shares and is able to sell all of its shares pursuant to Rule 144 of the Securities Act in any 90-day period.

Subject to specified limitations set forth in the Rights Agreement, beginning six months after the effective date of the IPO, holders of at least 66 and 2/3% of the securities registrable under the Rights Agreement may request in writing that the Issuer register all or a portion of their registrable shares under the Securities Act if the total amount of registrable shares registered can reasonably be anticipated to have an aggregate offering price of at least $10 million, before deducting underwriter’s discounts and commissions related to the issuance. The Issuer is required to effect up to three registrations pursuant to this provision. Subject to specified limitations set forth in the Rights Agreement, the Issuer may delay filing a registration statement pursuant to this provision for up to 90 days on no more than one occasion in any 12-month period.

In the event that the Issuer proposes to register any of its shares under the Securities Act, either for its own account or for the account of other security holders, each holder of registrable shares under the Rights Agreement is entitled to notice of such registration and is entitled to certain “piggyback” registration rights allowing it to include its shares in such registration, subject to certain marketing and other limitations. Any such limitations on the number of registrable securities that may be included by such holders must be on a pro-rata basis.

If the Issuer is eligible to file a registration statement on Form S-3, the holders of a majority of the registrable securities under the Rights Agreement may request in writing that the Issuer file a shelf registration statement to permit the sale or distribution of all or a portion of their registrable shares if the proposed aggregate offering price of the registrable shares to be registered by the holders requesting registration is at least $1.0 million, subject to the exceptions set forth in the Rights Agreement. The Issuer is required to effect up to two registrations on Form S-3 pursuant to this provision in any 12-month period and, subject to specified limitations set forth in the Rights Agreement, the Issuer may delay filing a registration statement for 90 days pursuant to this provision on no more than one occasion in any 12-month period.

 

9


The foregoing description of the Rights Agreement is qualified in its entirety by reference to the Rights Agreement and the Omnibus Amendment which are filed as Exhibits B and C, respectively, to this Schedule 13D and incorporated by reference herein.

Note Purchase Agreement

The Silver Lake Investors are parties to a Note Purchase Agreement dated as of May 4, 2017, as amended by Amendment No. 1 to the Note Purchase Agreement dated as of July 6, 2017 (the “Note Purchase Agreement”), with the Issuer and certain other investors of the Issuer.

Pursuant to the Note Purchase Agreement, the Silver Lake Investors have agreed to purchase from the Issuer, at the Issuer’s election, one or more Convertible Notes having an aggregate maximum principal amount of $6,231,607.50, in the case of SLK, and $193,392.50, in the case of SLTIK. If and when issued, the Convertible Notes will have an interest rate of 8.0% per annum and will mature 540 days from the date of issuance. At any time on or after December 1, 2019, at the Issuer’s election, the Issuer may convert the amounts outstanding under the Convertible Notes held by the Silver Lake Investors, if any, into shares of Common Stock at a price of $7.00 per share, the offering price per share in the Issuer’s IPO. The obligations of the Issuer to issue and the Silver Lake Investors to purchase Convertible Notes will expire upon the earliest to occur of (i) December 31, 2019; (ii) a change of control of the Issuer; or (iii) upon written agreement of the Issuer and investors holding 66 and 2/3% of the aggregate principal amount of Convertible Notes issuable under the Note Purchase Agreement. As of the date hereof, the Silver Lake Investors have not purchased any Convertible Notes.

The foregoing description of the Note Purchase Agreement is qualified in its entirety by reference to the Note Purchase Agreement and Amendment No. 1 to the Note Purchase Agreement which are filed as Exhibits D and E, respectively, to this Schedule 13D and incorporated by reference herein.

Lock-Up Agreement

In connection with the IPO, the Issuer, each of the Silver Lake Investors and certain officers, directors and other investors of the Issuer entered into a lock-up agreement and agreed that, without the prior written consent of Morgan Stanley & Co. LLC on behalf of the underwriters, such persons will not, during the period ending 180 days after the date of the prospectus relating to the IPO: (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned, as such term is used in Rule 13d-3 of Exchange Act, by the locked-up party or any securities convertible into or exercisable or exchangeable for shares of Common Stock; or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, in each case, whether any such transaction described above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, each such person agreed that, without the prior written consent of Morgan Stanley & Co. LLC on behalf of the underwriters, no such person will, during the restricted period, make any demand for, or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock.

The foregoing description of the lock-up agreement is qualified in its entirety by reference to the lock-up agreements, which are filed as Exhibits F and G to this Schedule 13D and incorporated by reference herein.

 

Item 7. Material to Be Filed as Exhibits

 

A. Agreement of Joint Filing by and among the Reporting Persons

 

B. Amended and Restated Investors’ Rights Agreement dated as of July 24, 2015, between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 4.1 to the Issuer’s Registration Statement on Form S-1 filed on June 1, 2017)

 

C. Omnibus Amendment dated as of June 1, 2017 between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 10.15 to the Issuer’s Registration Statement on Form S-1 filed on June 1, 2017)

 

D. Note Purchase Agreement, dated May 4, 2017, between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 10.16 to the Issuer’s Registration Statement on Form S-1 filed on June 29, 2017)

 

10


E. Amendment No. 1 to Note Purchase Agreement, effective as of July 6, 2017, between the Issuer, the Silver Lake Investors and the other parties thereto

 

F. Lock-Up Agreement of Silver Lake Kraftwerk Fund, L.P. dated as of March 10, 2017

 

G. Lock-Up Agreement of Silver Lake Technology Investors Kraftwerk, L.P. dated as of March 10, 2017

 

11


Signatures

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: July 17, 2017

 

Silver Lake Kraftwerk Fund, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
  By: SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Technology Investors Kraftwerk, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
  By: SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Technology Associates Kraftwerk, L.P.
By:   SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
SLTA Kraftwerk (GP), L.L.C.
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Group, L.L.C.
By:   /s/ Karen M. King
  Name: Karen M. King
  Title: Managing Director and Chief Legal Officer

 

12


Annex A

The following sets forth the name and principal occupation of each of the managing members of Silver Lake Group, L.L.C. Other than Mr. Durban, who is a citizen of Germany, each of such persons is a citizen of the United States.

Silver Lake Group, L.L.C.

 

Name

  

Business Address

   Principal Occupation

Michael Bingle

  

c/o Silver Lake

9 West 57th Street, 32nd Floor

New York, New York 10019

   Managing Director and Managing
Member of Silver Lake Group, L.L.C.

James Davidson

  

c/o Silver Lake

2775 Sand Hill Road, Suite 100

Menlo Park, California 94025

   Co-Founder, Managing Director and
Managing Member of Silver Lake
Group, L.L.C.

Egon Durban

  

c/o Silver Lake

2775 Sand Hill Road, Suite 100

Menlo Park, California 94025

   Managing Director and Managing
Member of Silver Lake Group, L.L.C.

Kenneth Hao

  

c/o Silver Lake

2775 Sand Hill Road, Suite 100

Menlo Park, California 94025

   Managing Director and Managing
Member of Silver Lake Group, L.L.C.

Greg Mondre

  

c/o Silver Lake

9 West 57th Street, 32nd Floor

New York, New York 10019

   Managing Director and Managing
Member of Silver Lake Group, L.L.C.

None of the persons listed above beneficially owns any Common Stock of the Issuer or has engaged in any transactions in Common Stock in the previous 60 days.

 

13


EXHIBIT INDEX

 

A. Agreement of Joint Filing by and among the Reporting Persons

 

B. Amended and Restated Investors’ Rights Agreement dated as of July 24, 2015, between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 4.1 to the Issuer’s Registration Statement on Form S-1 filed on June 1, 2017)

 

C. Omnibus Amendment dated as of June 1, 2017 between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 10.15 to the Issuer’s Registration Statement on Form S-1 filed on June 1, 2017)

 

D. Note Purchase Agreement, dated May 4, 2017, between the Issuer, the Silver Lake Investors and the other parties thereto (incorporated by reference to Exhibit 10.16 to the Issuer’s Registration Statement on Form S-1 filed on June 29, 2017)

 

E. Amendment No. 1 to Note Purchase Agreement, effective as of July 6, 2017, between the Issuer, the Silver Lake Investors and the other parties thereto

 

F. Lock-Up Agreement of Silver Lake Kraftwerk Fund, L.P. dated as of March 10, 2017

 

G. Lock-Up Agreement of Silver Lake Technology Investors Kraftwerk, L.P. dated as of March 10, 2017

 

14

EX-99.A 2 d420596dex99a.htm EX-99.A EX-99.A

Exhibit A

JOINT FILING AGREEMENT

PURSUANT TO RULE 13D-1(K)(1)

The undersigned acknowledge and agree that the Statement on Schedule 13D filed with the Securities and Exchange Commission on or about the date hereof with respect to the beneficial ownership by the undersigned of the Common Stock, par value $0.00005 per share, of Tintri, Inc., a Delaware corporation, is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned that is named as a reporting person in such filing without the necessity of filing an additional joint filing agreement. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that it knows or has reason to believe that such information is inaccurate. This joint filing agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument.

Dated: July 17, 2017

 

Silver Lake Kraftwerk Fund, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
  By: SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Technology Investors Kraftwerk, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
  By: SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Technology Associates Kraftwerk, L.P.
By:   SLTA Kraftwerk (GP), L.L.C., its general partner
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
SLTA Kraftwerk (GP), L.L.C.
By:   /s/ Adam Grosser
  Name: Adam Grosser
  Title: Managing Director
Silver Lake Group, L.L.C.
By:   /s/ Karen M. King
  Name: Karen M. King
  Title: Managing Director and Chief Legal Officer
EX-99.E 3 d420596dex99e.htm EX-99.E EX-99.E

Exhibit E

AMENDMENT NO. 1 TO

NOTE PURCHASE AGREEMENT

This Amendment No. 1 (this “Amendment”) to that certain Note Purchase Agreement, dated as of May 4, 2017 (the “Agreement”), is entered into by and among Tintri, Inc., a Delaware corporation (the “Company”), and the persons and entities listed on Schedule II hereto (each an “Investor” and, collectively, the “Investors”) as of the Effective Date (defined below).

RECITALS

A. Pursuant to Section 6(a) of the Agreement, the Agreement, at such time as no Notes are outstanding thereunder, with the written consent of the Company and Investors representing the Required Pro Rata Percentage, provided that no such amendment shall increase or decrease an Investor’s Total Committed Investment Amount without the affected Investor’s written consent.

B. As of the date hereof, there are no Notes outstanding under the Agreement.

C. The Company and the undersigned Investors, which constitute all of the entities listed on the Schedule of Investors attached as Schedule II to the Agreement (the “Schedule of Investors”), desire to amend the Agreement as set forth below and to accept the rights created pursuant hereto on behalf of themselves and all Investors.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Amendment to the Agreement. Except as specifically provided for in this Section 1, the terms of the Agreement shall be unmodified and shall remain in full force and effect.

(a) The last sentence of Section 1(a) of the Agreement shall be deleted and replaced in its entirety with the following:

“‘Expiration Event’ shall mean December 31, 2019.”

(b) Section 6(l) of the Agreement shall be deleted and replaced in its entirety with the following:

Expiration. This Agreement (i) may be terminated at any time by mutual written agreement of the Company and Investors representing the Required Pro Rata Percentage and (ii) shall terminate automatically upon a Change of Control.”

(c) The Schedule of Investors shall be deleted and replaced in its entirety with Schedule I hereto.

(d) The Form of Note attached as Exhibit A to the Agreement shall be deleted and replaced in its entirety with the Form of Note attached as Exhibit A hereto.


2. Miscellaneous.

(a) Defined Terms. Capitalized terms that are used but not defined herein are used as defined in the Agreement.

(b) Governing Law. This Amendment and all actions arising out of or in connection with this Amendment shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California or of any other state.

(c) Entire Agreement. This Amendment, together with the Agreement and the other Transaction Documents, constitute and contain the entire agreement among the Company and Investors and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.

(d) Counterparts. This Amendment may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.

(e) Further Assurances. Each party hereto agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such other acts and things as may be reasonably necessary to more fully effectuate this Amendment.

(f) Effective Date. This Amendment shall be effective upon, and not prior to, the occurrence of the Initial Public Offering (the “Effective Date”).

(Signature Page Follows)

 

-2-


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

COMPANY:

TINTRI, INC.

a Delaware corporation

By:   /s/ Ken Klein
  Ken Klein, Chief Executive Officer

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTORS:
NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP
By:   NEA Partners 12, Limited Partnership, its General Partner
By:   NEA 12 GP, LLC, its General Partner
By:   /s/ Peter Sonsini
Name:   Peter Sonsini
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTOR:
LIGHTSPEED VENTURE PARTNERS VIII, L.P.
By:   Lightspeed General Partner VIII, L.P., its General Partner
By:   Lightspeed Ultimate General Partner VIII, Ltd., its General Partner
By:   /s/ Christopher Schaepe
Name:   Christopher Schaepe
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTORS:
SILVER LAKE KRAFTWERK FUND, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
By:   /s/ Adam Grosser
Name:   Adam Grosser
Title:    
SILVER LAKE TECHNOLOGY INVESTORS KRAFTWERK, L.P.
By:   Silver Lake Technology Associates Kraftwerk, L.P., its general partner
By:   /s/ Adam Grosser
Name:   Adam Grosser
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTORS:
MENLO VENTURES XI, L.P.
By:  

MV MANAGEMENT XI, L.L.C.

Its General Partner

By:   /s/ Mark Siegel
Name:   Mark Siegel
Title:    
MMEF XI, L.P.
By:  

MV MANAGEMENT XI, L.L.C.

Its General Partner

By:   /s/ Mark Siegel
Name:   Mark Siegel
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTORS:
INSIGHT VENTURE PARTNERS VIII, L.P.
By:  

Insight Venture Associates VIII, L.P.

its General Partner

By:  

Insight Venture Associates VIII, Ltd.,

its General Partner

By:   /s/ Blair Flicker
Name:   Blair Flicker
Title:    
INSIGHT VENTURE PARTNERS (DELAWARE) VIII, L.P.
By:  

Insight Venture Associates VIII, L.P.

its General Partner

By:  

Insight Venture Associates VIII, Ltd.,

its General Partner

By:   /s/ Blair Flicker
Name:   Blair Flicker
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTORS:
INSIGHT VENTURE PARTNERS (CAYMAN) VIII, L.P.
By:   Insight Venture Associates VIII, L.P. its General Partner
By:   Insight Venture Associates VIII, Ltd., its General Partner
By:   /s/ Blair Flicker
Name:   Blair Flicker
Title:    
INSIGHT VENTURE PARTNERS VIII (CO-INVESTORS), L.P.
By:   Insight Venture Associates VIII, L.P. its General Partner
By:  

Insight Venture Associates VIII, Ltd.,

its General Partner

By:   /s/ Blair Flicker
Name:   Blair Flicker
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


The parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.

 

INVESTOR:
STAR TRINITY, L.P.
By:   Star Trinity GP, LLC its General Partner
By:   /s/ Blair Flicker
Name:   Blair Flicker
Title:    

 

[Signature page for Amendment No. 1 to Note Purchase Agreement]


SCHEDULE I

INVESTMENT COMMITMENT SCHEDULE

 

Investor

  

Pro Rata
Percentage

   

Total Committed
Investment Amount

 

New Enterprise Associates 12, Limited Partnership

     27.100   $ 6,775,000.00  

1954 Greenspring Avenue, Suite 600

Timonium, MD 21093

Attn: Stephanie Brecher

Email: sbrecher@NEA.com

    

Lightspeed Venture Partners VIII, L.P.

     17.100   $ 4,275,000.00  

2200 Sand Hill Road

Menlo Park, CA 94025

Attn: Chris Schaepe

Email: CSchaepe@lsvp.com

    

Silver Lake Kraftwerk Fund, L.P.

     24.926   $ 6,231,607.50  

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

Attn: Karen M. King

    

Silver Lake Technology Investors Kraftwerk Fund, L.P.

     0.774   $ 193,392.50  

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

Attn: Karen M. King

    

Menlo Ventures XI, L.P.

     4.630   $ 1,157,400.00  

2884 Sand Hill Road, Ste. 100

Menlo Park, CA 94025

Attn: Mark Siegel

Email: mark@menlovc.com

    

MMEF XI, L.P.

     0.170   $ 42,600.00  

2884 Sand Hill Road, Ste. 100

Menlo Park, CA 94025

Attn: Mark Siegel

Email: mark@menlovc.com

    

Insight Venture Partners VIII, L.P.

     10.907   $ 2,726,720.26  

1114 Avenue of the Americas, 36th Floor

New York, NY 10036

Attn: Blair Flicker, General Counsel

Email: BFlicker@insightpartners.com

    

Insight Venture Partners (Delaware) VIII, L.P.

     3.459   $ 864,834.86  

1114 Avenue of the Americas, 36th Floor

New York, NY 10036

Attn: Blair Flicker, General Counsel

Email: BFlicker@insightpartners.com

    


Insight Venture Partners (Cayman) VIII, L.P.

     2.821   $ 705,326.56  

1114 Avenue of the Americas, 36th Floor

New York, NY 10036

Attn: Blair Flicker, General Counsel

Email: BFlicker@insightpartners.com

    

Insight Venture Partners VIII (Co-Investors), L.P.

     0.389   $ 97,315.24  

1114 Avenue of the Americas, 36th Floor

New York, NY 10036

Attn: Blair Flicker, General Counsel

Email: BFlicker@insightpartners.com

    

Star Trinity, L.P.

     7.723   $ 1,930,803.08  

1114 Avenue of the Americas, 36th Floor

New York, NY 10036

Attn: Blair Flicker, General Counsel

Email: BFlicker@insightpartners.com

    
  

 

 

   

 

 

 

TOTAL

     100   $ 25,000,000.00  
  

 

 

   

 

 

 

 


EXHIBIT A

FORM OF NOTE

[Attached]


THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF (A) THAT CERTAIN SUBORDINATION AGREEMENT DATED AS OF MAY 4, 2017 BY AND AMONG SILICON VALLEY BANK AND THE PARTIES HERETO and (B) CERTAIN SUBORDINATION AGREEMENT DATED AS OF MAY 4, 2017 BY AND AMONG TRIPLEPOINT CAPITAL LLC AND THE PARTIES HERETO.

TINTRI, INC.

SUBORDINATED CONVERTIBLE PROMISSORY NOTE

 

$[                    ]   [DATE]

FOR VALUE RECEIVED, Tintri, Inc., a Delaware corporation (the “Company”), promises to pay to [                    ], or its registered assigns (“Investor”), in lawful money of the United States of America the principal sum of [                    ] Dollars ($[                    ]), or such lesser amount as shall equal the outstanding principal amount hereof, together with interest from the date of this Subordinated Convertible Promissory Note (this “Note”) on the unpaid principal balance at a rate equal to 8.0% per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All unpaid principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be due and payable on the earlier of (i) [insert date that is 540 days from the date of issuance] (the “Maturity Date”), or (ii) when, upon the occurrence and during the continuance of an Event of Default, such amounts are declared due and payable by Investor or made automatically due and payable, in each case, in accordance with the terms hereof. This Note is one of the “Notes” issued pursuant to the Purchase Agreement.

The following is a statement of the rights of Investor and the conditions to which this Note is subject, and to which Investor, by the acceptance of this Note, agrees:

1. Payments.

(a) Interest. Accrued interest on this Note shall be payable at maturity.

(b) Voluntary Prepayment. This Note may not be prepaid, in whole or in part, without the written consent of the Requisite Investors, provided that (i) any prepayment of this Note may only be made in connection with the prepayment of all Notes on a pro rata basis, based on the respective aggregate outstanding principal amounts of each such Note and (ii) any such prepayment will be applied first to the payment of expenses due under this Note, second to interest accrued on this Note and third, if the amount of prepayment exceeds the amount of all such expenses and accrued interest, to the payment of principal of this Note.


(c) Mandatory Prepayment. In the event of a Change of Control, the outstanding principal amount of this Note, plus all accrued and unpaid interest, in each case that has not otherwise been converted into equity securities pursuant to Section 4, shall be due and payable immediately prior to the closing of such Change of Control, together with a premium equal to 50% of the outstanding principal amount to be prepaid.

2. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note and the other Transaction Documents:

(a) Failure to Pay. The Company shall fail to pay (i) when due any principal payment on the due date hereunder or (ii) any interest payment or other payment required under the terms of this Note or any other Transaction Document on the date due and such payment shall not have been made within five (5) business days of the Company’s receipt of written notice to the Company of such failure to pay;

(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) admit in writing its inability to pay its debts generally as they mature, (iii) make a general assignment for the benefit of its or any of its creditors, (iv) be dissolved or liquidated, (v) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (vi) take any action for the purpose of effecting any of the foregoing;

(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries, if any, or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within 45 days of commencement;

(d) Breaches of Covenants. The Company shall fail to observe or perform any other material covenant, obligation, condition or agreement contained in this Note or the other Transaction Documents and such failure shall continue for fifteen (15) business days after the Company’s receipt of written notice to the Company of such failure; or

(e) Representations and Warranties. Any representation, warranty, certificate, or other statement (financial or otherwise) made or furnished by or on behalf of the Company to Investor in writing in connection with this Note or any of the other Transaction Documents, or as an inducement to Investor to enter into this Note and the other Transaction Documents, shall be false, incorrect, incomplete or misleading in any material respect when made or furnished (each a “Breach”) and such Breach shall continue for fifteen (15) business days after the Company’s receipt of written notice from the Requisite Investors of such Breach.

3. Rights of Investor upon Default. Upon the occurrence of an Event of Default (other than pursuant to Section 2(b) or 2(c)) and at any time thereafter during the continuance of such Event of Default, Investor may, with the written consent of the Requisite Investors, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without

 

-2-


presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Sections 2(b) or 2(c), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may, with the written consent of the Requisite Investors, exercise any other right, power or remedy granted to it by the Transaction Documents or otherwise permitted to it by law, either by suit in equity or by action at law, or both.

4. Conversion.

(a) Conversion. At any time on or after December 1, 2019, upon the election of the Company pursuant to the approval of a majority of the members of the Company’s board of directors and subject to the terms and conditions hereof, the outstanding principal amount of this Note and all accrued and unpaid interest on this Note shall automatically convert into fully paid and nonassessable shares of common stock at the Conversion Price.

(b) Conversion Procedure.

(i) Conversion Procedure. If this Note is to be automatically converted pursuant to Section 4(a), the Company shall deliver written notice (the “Conversion Notice”) to Investor at the address last shown on the records of the Company for Investor or given by Investor to the Company for the purpose of notice, notifying Investor that the Company has elected to cause this Note to be converted pursuant to Section 4(a) hereof and specifying (a) the Conversion Price, (b) the principal amount of the Note, together with all accrued and unpaid interest, (c) the date on which such conversion is expected to occur (the date and time such conversion actually occurs, the “Conversion Date”) and (d) calling upon such Investor to surrender to the Company, in the manner and at the place designated, the Note. Investor agrees to deliver the original of this Note (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby the holder agrees to indemnify the Company from any loss incurred by it in connection with this Note) on or prior to the Conversion Date for cancellation; provided, however, that upon the Conversion Date, this Note shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence. The Company shall, as soon as practicable thereafter (but in any event within ten (10) business days), issue and deliver to such Investor a certificate or certificates (or a notice of issuance of uncertificated shares, if applicable) for the number of shares to which Investor shall be entitled upon such conversion, including a check payable to Investor for any cash amounts payable as described in Section 4(b)(ii). Any conversion of this Note pursuant to Section 4(a) shall be deemed to have been made immediately prior to the Conversion Date and on and after such date the Persons entitled to receive the shares issuable upon such conversion shall be treated for all purposes as the record holder of such shares.

(ii) Fractional Shares; Interest; Effect of Conversion. No fractional shares shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to the Investor upon the conversion of this Note, the Company shall pay to Investor an amount equal to the product obtained by multiplying the applicable conversion price by the fraction of a share not issued pursuant to the previous sentence. In addition, to the extent not converted into shares of capital stock, the Company shall pay to Investor any interest accrued on the amount converted and on the amount to be paid by the Company pursuant to the previous sentence. Upon conversion of this Note in full and the payment of the amounts specified in this paragraph, the Company shall be forever released from all its obligations and liabilities under this Note and this Note shall be deemed of no further force or effect, whether or not the original of this Note has been delivered to the Company for cancellation.

 

-3-


(c) Notices of Record Date. In the event of:

(i) Any taking by the Company of a record of the holders of any class of securities of the Company for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right;

(ii) Any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any transfer of all or substantially all of the assets of the Company to any other Person or any consolidation or merger involving the Company; or

(iii) Any voluntary or involuntary dissolution, liquidation or winding-up of the Company,

the Company will mail to Investor at least ten (10) days prior to the earliest date specified therein, a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend, distribution or right and the amount and character of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is expected to become effective and the record date for determining stockholders entitled to vote thereon.

5. Subordination. The Obligations evidenced by this Note are hereby expressly subordinated in right of payment to the prior payment in full of all of the Company’s Senior Indebtedness and any liens on property of the Company in favor of Investor are hereby expressly subordinated in priority to any liens on the Company’s property in favor of any holder of Senior Indebtedness. By acceptance of this Note, Investor agrees to execute and deliver customary forms of subordination agreement reasonably requested from time to time by holders of Senior Indebtedness, and as a condition to Investor’s rights hereunder, the Company may require that Investor execute such forms of subordination agreement, provided that such forms are reasonably acceptable to the Requisite Investors. Notwithstanding the foregoing, Investor shall be entitled to receive (i) equity securities of the Company from the conversion of all or any part of the Obligations and payments of cash in lieu of issuing fractional shares in connection with any such conversions, (ii) any note, instrument or other evidence of indebtedness which may be issued by the Company in exchange for or in substitution of this Note, provided that such note, instrument or other evidence of indebtedness is subordinated to the Senior Indebtedness on the same terms and conditions as set forth in this Section 5 and (iii) other payments consented to in writing by holders of Senior Indebtedness.

6. Definitions. As used in this Note, the following capitalized terms have the following meanings:

Change of Control” shall mean (i) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.

 

-4-


Conversion Price” shall mean a price per share equal to [the offering price per share of the Company’s common stock sold in the Initial Public Offering (before deduction for any underwriter’s discounts and expenses related to the issuance)]1 / [the average closing price of the Company’s common stock on the Nasdaq Stock Market over the thirty (30) day period preceding the date of the Conversion Notice]2.

Event of Default” has the meaning given in Section 2 hereof.

Initial Public Offering” shall mean the closing of the Company’s first firm commitment underwritten initial public offering of the Company’s common stock pursuant to a registration statement filed under the Securities Act.

Investor” shall mean the Person specified in the introductory paragraph of this Note or any Person who shall at the time be the registered holder of this Note.

Investors” shall mean the investors that have purchased Notes.

Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, claim, charge or other encumbrance.

Notes shall mean the subordinated convertible promissory notes issued pursuant to the Purchase Agreement.

Obligations” shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor of every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note and the other Transaction Documents, including, all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq.), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding. Notwithstanding the foregoing, the term “Obligations” shall not include any obligations of Company under or with respect to any warrants to purchase Company’s capital stock.

Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

 

1  For use with any Notes to be issued to New Enterprise Associates 12, Limited Partnership, Lightspeed Venture Partners VIII, L.P., Silver Lake Kraftwerk Fund, L.P., Silver Lake Technology Investors Kraftwerk Fund, L.P., Menlo Ventures XI, L.P., and MMEF XI, L.P., or their valid assignees.
2  For use with any Notes to be issued to Insight Venture Partners VIII, L.P., Insight Venture Partners (Delaware) VIII, L.P., Insight Venture Partners (Cayman) VIII, L.P., Insight Venture Partners VIII (Co-Investors), L.P., and Star Trinity, L.P., or their valid assignees.

 

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Purchase Agreement” shall mean the Note Purchase Agreement, dated as of May 4, 2017 (as amended, modified or supplemented), by and among the Company and the Investors (as defined in the Purchase Agreement) party thereto, as amended.

Requisite Investors” shall mean Investors holding at least 2/3 of the aggregate outstanding principal amount of the Notes.

Securities Act” shall mean the Securities Act of 1933, as amended.

Senior Indebtedness” shall mean, unless expressly subordinated to or made on a parity with the amounts due under this Note, the principal of (and premium, if any), unpaid interest on and amounts reimbursable, fees, expenses, costs of enforcement and other amounts due in connection with, (i) indebtedness for borrowed money of the Company, to banks, commercial finance lenders or other lending institutions regularly engaged in the business of lending money (excluding (A) any indebtedness convertible into equity securities of the Company and (B) indebtedness in connection with capital leases or operating leases used solely for the purchase, finance or acquisition of equipment and where such indebtedness is secured solely by such equipment), and (ii) any extension, refinance, renewal, replacement, defeasance or refunding of any indebtedness described in clause (i).

Transaction Documents” shall mean this Note, each of any other Notes and the Purchase Agreement.

7. Miscellaneous.

(a) Successors and Assigns; Transfer of this Note or Securities Issuable on Conversion Hereof; No Transfers to Bad Actors; Notice of Bad Actor Status.

(i) Subject to the restrictions on transfer described in this Section 7(a), the rights and obligations of the Company and Investor shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

(ii) With respect to any offer, sale or other disposition of this Note or securities into which such Note may be converted, Investor will give written notice to the Company prior thereto, describing briefly the manner thereof, together with a written opinion of Investor’s counsel, or other evidence if reasonably satisfactory to the Company, to the effect that such offer, sale or other distribution may be effected without registration or qualification (under any federal or state law then in effect); provided, however, that no such opinion shall be required in connection with an Investor’s transfer of this Note, for no value, to an affiliate of such Investor. Upon receiving such written notice and reasonably satisfactory opinion, if so requested, or other evidence, the Company, as promptly as practicable, shall notify Investor that Investor may sell or otherwise dispose of this Note or such securities, all in accordance with the terms of the notice delivered to the Company. If a determination has been made pursuant to this Section 7(a) that the opinion of counsel for Investor, or other evidence, is not reasonably satisfactory to the Company, the Company shall so notify Investor promptly after such determination has been made. Each Note thus transferred and each certificate, instrument or book entry representing the securities thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions.

 

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(iii) Subject to Section 7(a)(ii), transfers of this Note shall be registered upon registration books maintained for such purpose by or on behalf of the Company as provided in the Purchase Agreement. Prior to presentation of this Note for registration of transfer, the Company shall treat the registered holder hereof as the owner and holder of this Note for the purpose of receiving all payments of principal and interest hereon and for all other purposes whatsoever, whether or not this Note shall be overdue and the Company shall not be affected by notice to the contrary.

(iv) Neither this Note nor any of the rights, interests or obligations hereunder may be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Requisite Investors.

(v) Investor agrees not to sell, assign, transfer, pledge or otherwise dispose of this Note or any securities into which this Note may be converted, to any person (other than the Company) unless and until the proposed transferee confirms to the reasonable satisfaction of the Company that neither the proposed transferee nor any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members nor any person that would be deemed a beneficial owner of those securities (in accordance with Rule 506(d) of the Securities Act) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act, except as set forth in Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed, reasonably in advance of the transfer, in writing in reasonable detail to the Company. Investor will promptly notify the Company in writing if Investor or, to Investor’s knowledge, any person specified in Rule 506(d)(1) under the Securities Act becomes subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act.

(b) Waiver and Amendment. Any provision of this Note may be amended, waived or modified upon the written consent of (a) the Company pursuant to approval by a majority of the members then serving on the Company’s Board of Directors and (b) the Requisite Investors; provided, however, that no such amendment, waiver or consent shall: (i) reduce the principal amount of this Note without Investor’s written consent, (ii) reduce the rate of interest of this Note without Investor’s written consent or (iii) otherwise adversely and disproportionately affect the rights or obligations of the Investor relative to the rights or obligations of all other Investors without Investor’s prior written consent.

(c) Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and faxed, mailed or delivered to each party at the respective addresses of the parties as set forth in the Purchase Agreement, or at such other address or facsimile number as the Company shall have furnished to Investor in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by facsimile (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid. In the event of any conflict between the Company’s books and records and this Note or any notice delivered hereunder, the Company’s books and records will control absent fraud or error. Subject to the limitations set forth in Delaware General Corporation Law §232(e), Investor consents to the delivery of any notice to stockholders given by the Company under the Delaware General Corporation Law or the Company’s certificate of incorporation or bylaws by (i) facsimile telecommunication to any facsimile number for Investor in the Company’s records, (ii) electronic mail to any electronic mail address for Investor in the Company’s records, (iii) posting on an electronic network together with separate notice to Investor of such specific posting or (iv) any other form of electronic transmission (as defined in the Delaware General Corporation Law) directed to Investor. This consent may be revoked by Investor by written notice to the Company and may be deemed revoked in the circumstances specified in Delaware General Corporation Law §232.

 

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(d) Pari Passu Notes. Investor acknowledges and agrees that the payment of all or any portion of the outstanding principal amount of this Note and all interest hereon shall be pari passu in right of payment and in all other respects to any other Notes. In the event Investor receives payments in excess of its pro rata share of the Company’s payments to the holders of all of the Notes, then Investor shall hold in trust all such excess payments for the benefit of the holders of the other Notes and shall pay such amounts held in trust to such other holders upon demand by such holders.

(e) Payment. Unless converted into the Company’s equity securities pursuant to the terms hereof, payment shall be made in lawful tender of the United States.

(f) Usury. In the event any interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note.

(g) Waivers. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.

(h) Governing Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California, or of any other state.

(i) Jurisdiction and Venue. Each of Investor and the Company irrevocably consents to the exclusive jurisdiction of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California), in connection with any matter based upon or arising out of this Note or the matters contemplated herein, and agrees that process may be served upon them in any manner authorized by the laws of the State of California for such persons.

(j) Waiver of Jury Trial; Judicial Reference. By acceptance of this Note, Investor hereby agrees and the Company hereby agrees to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note or any of the Transaction Documents. If the jury waiver set forth in this paragraph is not enforceable, then any claim or cause of action arising out of or relating to this Note, the Transaction Documents or any of the transactions contemplated therein shall be settled by judicial reference pursuant to California Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This paragraph shall not restrict a party from exercising remedies under the Uniform Commercial Code or from exercising pre-judgment remedies under applicable law.

(Signature Page Follows)

 

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The Company has caused this Note to be issued as of the date first written above.

 

TINTRI, INC.

a Delaware corporation

By:    
  Ken Klein, Chief Executive Officer

 

[Signature Page to Subordinated Convertible Promissory Note]

EX-99.F 4 d420596dex99f.htm EX-99.F EX-99.F

Exhibit F

March 10, 2017

Morgan Stanley & Co. LLC

c/o Morgan Stanley & Co. LLC

1585 Broadway

New York, NY 10036

Ladies and Gentlemen:

The undersigned understands that Morgan Stanley & Co. LLC (“Morgan Stanley”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Tintri, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters, including Morgan Stanley (the “Underwriters”), of shares (the “Shares”) of the common stock, $0.00005 par value per share, of the Company (the “Common Stock”).

To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:

 

  (a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during the Restricted Period in connection with subsequent sales of Common Stock or other securities acquired in such open market transactions;

 

  (b) the sale of shares of Common Stock pursuant to the Underwriting Agreement;

 

  (c)

transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift, or gifts, or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of


  the undersigned or one or more immediate family members of the undersigned (for purposes of this letter, “immediate family” shall mean any spouse or domestic partner and any relationship by blood, current or former marriage or adoption, not more remote than first cousin), or (iv) if the undersigned is a trust, to any trustee or beneficiary of the undersigned or the estate of any such trustee or beneficiary;

 

  (d) transfers or distributions of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock by a stockholder that is a corporation, partnership, limited liability company or other business entity (i) to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or managed by or is under common control with such stockholder or (ii) as part of a transfer or distribution to an equity holder of such stockholder or to the estate of any such equity holder;

 

  (e) (i) the receipt by the undersigned from the Company of shares of Common Stock upon the exercise or settlement of options or restricted stock units granted under a stock incentive plan or other equity award plan which plan is described in the registration statement related to the Public Offering (the “Registration Statement”) and the Prospectus or (ii) the transfer of shares of Common Stock or any securities convertible into Common Stock to the Company upon a vesting event of the Company’s securities or upon the exercise of options or warrants to purchase the Company’s securities granted under a stock incentive plan or other equity award plan which plan is described in the Registration Statement and Prospectus, in each case on a “cashless” or “net exercise” basis and to the extent permitted by the instruments representing such options or warrants or to cover tax obligations of the undersigned in connection with such vesting or exercise, so long as such “cashless exercise” or “net exercise” is effected solely by the surrender of outstanding options or warrants (or the Common Stock issuable upon the exercise thereof) to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise price and/or tax obligations; provided that in the case of (i), the shares received upon such exercise or settlement of the option or restricted stock unit are subject to the terms of this letter, and provided further in the cases of (i) or (ii) that no filing under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer shall be required or shall be voluntarily made within 60 days after the date of the Prospectus, and after such 60th day, if the undersigned is required to file a report under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer during the Restricted Period, the undersigned shall include a statement in such report to the effect that, in the case of (i), such transfer relates to the exercise or settlement of options or restricted stock units, the shares of Common Stock received upon such transfer are subject to the terms of this letter and no shares or securities were sold, and in the case of (ii), the purpose of such transfer was to exercise options or warrants to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the undersigned in connection with such vesting or exercise;


  (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period;

 

  (g) the transfer of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock that occurs by operation of law pursuant to a qualified domestic order in connection with a court order or in connection with a divorce settlement, provided that any filing under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer by or on behalf of the undersigned that is made during the Restricted Period as a result of such transfer shall include a statement that such transfer has occurred by operation of law;

 

  (h) any transfer of Common Stock to the Company pursuant to arrangements under which the Company has the option to repurchase such shares or securities or a right of first refusal with respect to transfers of such shares or securities, in each case at the lower of cost or fair market value in connection with the termination of employment or service of the undersigned with the Company, provided that any filings under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, shall state that the transfer is in connection with (i) a repurchase by the Company at the lower of cost or fair market value in connection with the termination of employment or service of the undersigned with the Company or (ii) the exercise of the Company’s right of first refusal with respect to the transfer of such shares or securities;

 

  (i) the conversion or reclassification of the outstanding preferred stock or other classes of common stock of the Company into shares of Common Stock in connection with the consummation of the Public Offering, provided that any such shares of Common Stock received upon such conversion or reclassification shall remain subject to the terms of this letter; and

 

  (j)

the transfer of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock after the closing of the Public Offering pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Stock involving a change of control of the Company; provided that such transaction must be approved by the board of directors of the Company and, in the event


  that the tender offer, merger, consolidation or other such transaction is not completed, the Common Stock owned by the undersigned shall remain subject to the terms of this letter. For purposes of this agreement, “change of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of shares of Common Stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity).

provided that in the case of any transfer or distribution pursuant to clause (c), (d) or (g), each transferee, donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter for the balance of the Restricted Period prior to such transfer or distribution;

provided further that in the case of any transfer or distribution pursuant to clause (c), (A) such transfer shall not involve a disposition of value and (B) no filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period (other than any required Form 5 filing); and

provided further that in the case of any transfer or distribution pursuant to clause (d), (A) such transfer shall not involve a disposition of value and (B) no filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period.

In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.

If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in or in connection with the Public Offering.

If the undersigned is an officer or director of the Company, (i) Morgan Stanley agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Morgan Stanley will notify the Company of the impending release or waiver, and (ii) the


Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by Morgan Stanley hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.

This agreement shall automatically terminate upon the earliest to occur of: (1) the date the Company provides the Underwriters with written notice that it does not intend to proceed with the Public Offering, but only in the event such notice is given prior to the execution of the Underwriting Agreement; (2) the termination of the Underwriting Agreement before the sale of any Common Stock to the Underwriters; or (3) December 31, 2017, if the Underwriting Agreement has not been executed by that date (provided that the Company may by written notice to the undersigned prior to December 31, 2017 extend such date for a period of up to an additional three months).

 

Very truly yours,
/s/ Adam Grosser

(Signature)

 

Silver Lake Kraftwerk Fund, L.P.

(Print Name of Stockholder)

 

Adam Grosser

(Print Name of Authorized Signatory, if applicable)


Managing Director
(Print Title of Authorized Signatory, if applicable)
 
 
 

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

(Address)

 
EX-99.G 5 d420596dex99g.htm EX-99.G EX-99.G

Exhibit G

March 10, 2017

Morgan Stanley & Co. LLC

c/o Morgan Stanley & Co. LLC

1585 Broadway

New York, NY 10036

Ladies and Gentlemen:

The undersigned understands that Morgan Stanley & Co. LLC (“Morgan Stanley”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Tintri, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters, including Morgan Stanley (the “Underwriters”), of shares (the “Shares”) of the common stock, $0.00005 par value per share, of the Company (the “Common Stock”).

To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:

 

  (a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during the Restricted Period in connection with subsequent sales of Common Stock or other securities acquired in such open market transactions;

 

  (b) the sale of shares of Common Stock pursuant to the Underwriting Agreement;

 

  (c)

transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift, or gifts, or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of


  the undersigned or one or more immediate family members of the undersigned (for purposes of this letter, “immediate family” shall mean any spouse or domestic partner and any relationship by blood, current or former marriage or adoption, not more remote than first cousin), or (iv) if the undersigned is a trust, to any trustee or beneficiary of the undersigned or the estate of any such trustee or beneficiary;

 

  (d) transfers or distributions of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock by a stockholder that is a corporation, partnership, limited liability company or other business entity (i) to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or managed by or is under common control with such stockholder or (ii) as part of a transfer or distribution to an equity holder of such stockholder or to the estate of any such equity holder;

 

  (e) (i) the receipt by the undersigned from the Company of shares of Common Stock upon the exercise or settlement of options or restricted stock units granted under a stock incentive plan or other equity award plan which plan is described in the registration statement related to the Public Offering (the “Registration Statement”) and the Prospectus or (ii) the transfer of shares of Common Stock or any securities convertible into Common Stock to the Company upon a vesting event of the Company’s securities or upon the exercise of options or warrants to purchase the Company’s securities granted under a stock incentive plan or other equity award plan which plan is described in the Registration Statement and Prospectus, in each case on a “cashless” or “net exercise” basis and to the extent permitted by the instruments representing such options or warrants or to cover tax obligations of the undersigned in connection with such vesting or exercise, so long as such “cashless exercise” or “net exercise” is effected solely by the surrender of outstanding options or warrants (or the Common Stock issuable upon the exercise thereof) to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise price and/or tax obligations; provided that in the case of (i), the shares received upon such exercise or settlement of the option or restricted stock unit are subject to the terms of this letter, and provided further in the cases of (i) or (ii) that no filing under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer shall be required or shall be voluntarily made within 60 days after the date of the Prospectus, and after such 60th day, if the undersigned is required to file a report under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer during the Restricted Period, the undersigned shall include a statement in such report to the effect that, in the case of (i), such transfer relates to the exercise or settlement of options or restricted stock units, the shares of Common Stock received upon such transfer are subject to the terms of this letter and no shares or securities were sold, and in the case of (ii), the purpose of such transfer was to exercise options or warrants to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the undersigned in connection with such vesting or exercise;


  (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period;

 

  (g) the transfer of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock that occurs by operation of law pursuant to a qualified domestic order in connection with a court order or in connection with a divorce settlement, provided that any filing under Section 16(a) of the Exchange Act or any other public filing or disclosure of such transfer by or on behalf of the undersigned that is made during the Restricted Period as a result of such transfer shall include a statement that such transfer has occurred by operation of law;

 

  (h) any transfer of Common Stock to the Company pursuant to arrangements under which the Company has the option to repurchase such shares or securities or a right of first refusal with respect to transfers of such shares or securities, in each case at the lower of cost or fair market value in connection with the termination of employment or service of the undersigned with the Company, provided that any filings under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, shall state that the transfer is in connection with (i) a repurchase by the Company at the lower of cost or fair market value in connection with the termination of employment or service of the undersigned with the Company or (ii) the exercise of the Company’s right of first refusal with respect to the transfer of such shares or securities;

 

  (i) the conversion or reclassification of the outstanding preferred stock or other classes of common stock of the Company into shares of Common Stock in connection with the consummation of the Public Offering, provided that any such shares of Common Stock received upon such conversion or reclassification shall remain subject to the terms of this letter; and

 

  (j)

the transfer of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock after the closing of the Public Offering pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Stock involving a change of control of the Company; provided that such transaction must be approved by the board of directors of the Company and, in the event


  that the tender offer, merger, consolidation or other such transaction is not completed, the Common Stock owned by the undersigned shall remain subject to the terms of this letter. For purposes of this agreement, “change of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of shares of Common Stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity).

provided that in the case of any transfer or distribution pursuant to clause (c), (d) or (g), each transferee, donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter for the balance of the Restricted Period prior to such transfer or distribution;

provided further that in the case of any transfer or distribution pursuant to clause (c), (A) such transfer shall not involve a disposition of value and (B) no filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period (other than any required Form 5 filing); and

provided further that in the case of any transfer or distribution pursuant to clause (d), (A) such transfer shall not involve a disposition of value and (B) no filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure of such transfer by or on behalf of the undersigned, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period.

In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.

If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in or in connection with the Public Offering.

If the undersigned is an officer or director of the Company, (i) Morgan Stanley agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Morgan Stanley will notify the Company of the impending release or waiver, and (ii) the


Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by Morgan Stanley hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.

This agreement shall automatically terminate upon the earliest to occur of: (1) the date the Company provides the Underwriters with written notice that it does not intend to proceed with the Public Offering, but only in the event such notice is given prior to the execution of the Underwriting Agreement; (2) the termination of the Underwriting Agreement before the sale of any Common Stock to the Underwriters; or (3) December 31, 2017, if the Underwriting Agreement has not been executed by that date (provided that the Company may by written notice to the undersigned prior to December 31, 2017 extend such date for a period of up to an additional three months).

 

Very truly yours,
/s/ Adam Grosser

(Signature)

 

Silver Lake Technology Investors Kraftwerk, L.P.

(Print Name of Stockholder)

 

Adam Grosser

(Print Name of Authorized Signatory, if applicable)


Managing Director
(Print Title of Authorized Signatory, if applicable)
 
 
 

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

(Address)