UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 29, 2021 (July 23, 2021)
AvePoint, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
001-39048 | 83-4461709 |
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(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
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525 Washington Blvd, Suite 1400 Jersey City, NJ (Address of principal executive offices) |
07310 (Zip Code) |
Registrant’s telephone number, including area code: (201) 793-1111
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Apex Technology Acquisition Corporation |
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533 Airport Blvd, Suite 400, Burlingame, CA 94010 |
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(Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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Common Stock, par value $0.0001 per share |
AVPT |
The Nasdaq Global Select Market |
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Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share |
AVPTW |
The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
On July 26, 2021, AvePoint, Inc., a Delaware corporation (the “Company”), consummated an internal reorganization transaction consisting of the merger (the “Rollup Merger”) of AvePoint US, LLC, a Delaware limited liability company and a wholly owned direct subsidiary of the Company (the “LLC”), with and into the Company, with the Company surviving, pursuant to that certain Agreement and Plan of Merger, dated as of July 23, 2021, by and between the Company and the LLC (“Rollup Merger Agreement”). Pursuant to the terms of the Rollup Merger Agreement, the Rollup Merger became effective upon the filing of the Certificate of Merger with the Delaware Secretary of State.
Substantially simultaneously with the execution of the Rollup Merger Agreement, the Company entered into that certain assignment and assumption agreement (the “Assignment and Assumption Agreement”) by and among the Company, the LLC, and HSBC Ventures USA Inc. (“Bank”), pursuant to which the Company would, at the Effective Time (as defined below) of the Rollup Merger, assume the LLC's obligations as borrower under the previously disclosed and filed loan and security agreement, dated as of April 7, 2020 by and among the Company, AvePoint Public Sector, Inc., AvePoint Holdings USA, LLC (together with AvePoint Public Sector, Inc., the “Guarantors”), and Bank (as amended on July 1, 2021 and as may be further amended, restated, or otherwise modified, the “Loan Agreement”).
On July 26, 2021 (the “Effective Time”), the Certificate of Merger for the Rollup Merger was filed with the Delaware Secretary of State and the Rollup Merger and the Assignment and Assumption Agreement became effective.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Rollup Merger Agreement.
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Item 1.01 |
Entry into a Material Definitive Agreement. |
Rollup Merger Agreement
On July 23, 2021, the Board of Directors of the Company (the “Board”) and the sole Member of the LLC deemed it advisable and in the best interests of each entity and their respective stockholders and members, as the case may be, that the Company and the LLC combine. In furtherance of that goal, and as directed by the Board and the sole Member of the LLC, the Company and the LLC entered into the Rollup Merger Agreement pursuant to which the Rollup Merger would be consummated.
On July 26, 2021 at the Effective Time, the Certificate of Merger for the Rollup Merger was filed with the Delaware Secretary of State. At the Effective Time, the separate existence of the LLC ceased and the LLC was merged with and into the Company and each LLC membership unit and/or membership interest outstanding immediately prior to the Effective Time was cancelled without consideration. On and after the Effective Time, each outstanding share of Company capital stock remains outstanding and shall continue to represent one share of the capital stock of the Surviving Company (as defined herein), of the same class and series as such share represented (of the Company) prior to the Effective Time. The Company will continue as the surviving company in the Merger (the “Surviving Company”). The Certificate of Incorporation and Bylaws of the Company in effect at the Effective Time shall continue to be the Certificate of Incorporation and Bylaws of the Surviving Company.
A copy of the Rollup Merger Agreement referenced herein is filed as Exhibit 2.1 hereto and is incorporated herein by reference. The above descriptions of the Rollup Merger Agreement and the Certificate of Merger contained herein are qualified in their entirety by the full text of such exhibits.
Loan Agreement – Assignment and Assumption Agreement; Limited Consent
On July 23, 2021, the Company entered into the Assignment and Assumption Agreement pursuant to which the Company would assume the LLC's obligations as Borrower under the Loan Agreement as of the Effective Time (the “Assumption”). The Company, the Guarantors, and the Bank also entered into that certain limited consent, dated as of July 23, 2021 (the “Limited Consent”), whereby the Bank consented to the Rollup Merger and the Assumption, and all other actions taken by or necessary or permissible to be taken by the Company, the LLC, or the Guarantors related thereto, whether occurring prior to, on, or after the Effective Time.
A copy of the Assignment and Assumption Agreement and the Limited Consent referenced herein are filed as Exhibits 10.1 and 10.2, respectively, hereto and are incorporated herein by reference. The above descriptions of the Assignment and Assumption Agreement and the Limited Consent contained herein are qualified in their entirety by the full text of such exhibits.
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Item 2.01 |
Completion of Acquisition or Disposition of Assets. |
On July 26, 2021, the Company and the LLC consummated the Rollup Merger at the Effective Time. The information set forth in Item 1.01 relating to the Rollup Merger under the heading “Rollup Merger Agreement” is herein incorporated into this Item 2.01 by reference.
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Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
On July 26, 2021, the Assignment and Assumption Agreement became effective and the Company became the Borrower under the Loan Agreement. The information set forth in Item 1.01 relating to the Loan Agreement and the Assignment and Assumption Agreement under the heading “Loan Agreement – Assignment and Assumption Agreement; Limited Consent” is herein incorporated into this Item 2.03 by reference.
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Item 9.01 |
Financial Statement and Exhibits. |
(d) Exhibits.
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Incorporated by Reference |
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Exhibit |
Description |
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File No. |
Exhibit |
Filing Date |
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2.1* |
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10.1* |
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10.2* |
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Filed herewith |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AvePoint, Inc. |
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Dated: July 29, 2021 |
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By: |
/s/ Brian Michael Brown | |
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Brian Michael Brown |
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Chief Operating Officer, General Counsel, and Secretary |
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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement And Plan Of Merger (“Agreement”), dated as of July 23, 2021, by and between AvePoint US, LLC, a Delaware limited liability company (the “LLC”), and AvePoint, Inc., a Delaware corporation (the “Company”).
Recitals
A. The Board of Directors of the Company (the “Board”) and the sole Member of the LLC deem it advisable and in the best interests of each entity and their respective stockholders and members, as the case may be, that the Company and the LLC combine.
B. The combination of the Company and the LLC shall be effected by the terms of this Agreement through a transaction in which the LLC will merge with and into the Company, with the Company as the surviving entity and with the separate existence of the LLC ceasing (the “Merger”).
Agreement
The parties agree as follows:
ARTICLE 1
THE MERGER
1.1 Effective Time of the Merger. Subject to the provisions of this Agreement, a certificate of merger as is required by the relevant provisions of the Delaware General Corporation Law (“DGCL”) and the Delaware Limited Liability Company Act (the “DLLCA”) substantially in the form attached hereto as Exhibit A (the “Certificate of Merger”) shall be duly executed and delivered to the Delaware Secretary of State, as appropriate, for filing, as provided in the DGCL and the DLLCA, as soon as practicable after the date of this Agreement. The Merger shall become effective upon the filing of the Certificate of Merger with the Delaware Secretary of State (the “Effective Time”).
1.2 Effects of the Merger.
(a) At the Effective Time, the separate existence of the LLC shall cease and the LLC shall be merged with and into the Company. The Company will continue as the surviving company in the Merger (the “Surviving Company”). The Surviving Company’s principal place of business shall be AvePoint, Inc., 901 East Byrd Street, Ste. 900, Richmond, VA 23219.
(b) At and after the Effective Time, the Company shall possess all the assets, rights, privileges, powers and franchises of a public as well as of a private nature, and be subject to all the restrictions, disabilities and duties of the LLC; and all and singular assets, rights, privileges, powers and franchises of the LLC, and all property, real, personal and mixed (whether tangible or intangible), and all debts due to the LLC on whatever account, as well as all other things in action or belonging to the LLC, shall be vested in the Company, and all assets, property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter the property of the Company as they were of the LLC, and the title to any real estate vested by deed or otherwise, in the LLC, shall not revert or be in any way impaired; but all rights of creditors and all liens upon any property of the LLC shall be preserved unimpaired, and all debts, liabilities, obligations, restrictions and duties of the LLC, pursuant to contracts in place as of the Effective Time or otherwise, shall thereafter attach to the Company, and may be enforced against it to the same extent as if such debts, liabilities, obligations and restrictions had been incurred by it.
1.3 Cancellation of LLC Membership Units and/or Membership Interests; Treatment of Company Shares. At the Effective Time, each LLC membership unit and/or membership interest outstanding immediately prior to the Effective Time shall be cancelled without consideration. At the Effective Time, each outstanding share of Company capital stock shall remain outstanding and shall continue to represent one share of the capital stock of the Surviving Company, of the same class and series as such share represented (of the Company) prior to the Effective Time.
1.4 Certificate of Incorporation and Bylaws. The Certificate of Incorporation and Bylaws of the Company in effect on the Effective Time shall continue to be the Certificate of Incorporation and Bylaws of the Surviving Company.
1.5 Directors. The directors of the Company immediately preceding the Effective Time shall become the directors of the Surviving Company on and after the Effective Time to serve until the expiration of their terms and until their successors are elected and qualified.
1.6 Officers. The officers of the Company immediately preceding the Effective Time shall become the officers of the Surviving Company on and after the Effective Time to serve at the pleasure of its Board of Directors.
1.7 Conditions to Merger. The obligation of the Company and the LLC to effect the Merger is subject to satisfaction of the following conditions (any or all of which may be waived by the parties in their sole discretion to the extent permitted by law):
(c) The Board of the Company shall have approved this Agreement and the Merger contemplated hereby prior to the Effective time; and
(d) The Sole Member of the LLC shall have approved this Agreement and the Merger contemplated hereby prior to the Effective time.
ARTICLE 2
CLOSING
2.1 Closing. The closing (the “Closing”) of the Merger shall take place at the offices of AvePoint, Inc., 901 East Byrd Street, Ste. 900, Richmond, VA 23219, on the date hereof. The date of the Closing is referred to herein as the “Closing Date.”
ARTICLE 3
MISCELLANEOUS PROVISIONS
3.1 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.
3.2 Interpretation. Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular the plural and the part the whole, (b) “or” has the inclusive meaning frequently identified with the phrase “and/or” and (c) “including” has the inclusive meaning frequently identified with the phrase “but not limited to.” The Section and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect.
3.3 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to its provisions concerning conflict of laws that would cause the laws of another jurisdiction to govern.
3.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written above, and all of which shall constitute one and the same instrument. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
3.5 Severability. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
3.6 Successors and Assigns. This Agreement shall be binding upon each of the parties hereto and each of their respective successors and assigns, if any. This Agreement shall inure to the benefit of: the Company, the LLC and the respective successors and assigns, if any, of the foregoing
3.7 Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto relating to the subject matter hereof and supersedes all prior agreements and understandings among or between any of the parties relating to the subject matter. This Agreement may not be amended, modified or revoked, in whole or in part, except by an agreement in writing signed by each of the parties hereto.
[Signature Page Follows]
This Agreement and Plan of Merger has been executed by the parties hereto on the date first written above.
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COMPANY: |
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| AvePoint, Inc. | |||
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By: |
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Tianyi Jiang |
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Chief Executive Officer |
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LLC: |
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| AvePoint US, LLC | |||
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By: |
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Brian Brown |
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COO and General Counsel |
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[Signature page to Agreement and Plan of Merger]
Exhibit A
Certificate of Merger
[Attached]
CERTIFICATE OF MERGER
MERGING
AVEPOINT US, LLC
WITH AND INTO
AVEPOINT, INC.
| Pursuant to Section 264(c) of the Delaware General Corporation Law and Section 18-209 of the Delaware Limited Liability Company Act |
AvePoint, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), Does Hereby Certify:
First: The name of the Corporation, which is the constituent corporation, is AvePoint, Inc., a Delaware corporation, and the name of the constituent limited liability company being merged into this Corporation is AvePoint US, LLC, a Delaware limited liability company (the “LLC”).
Second: The Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by the Corporation and the LLC in accordance with Section 264(c) of the Delaware General Corporation Law and Section 18-209 of the Delaware Limited Liability Company Act.
Third: The name of the surviving corporation is “AvePoint, Inc.” and the Certificate of Incorporation and Bylaws of the Corporation in effect on the Effective Time shall continue to be the Certificate of Incorporation and Bylaws of the surviving corporation.
Fourth: The merger is to become effective on the date of the filing of this certificate of merger.
Fifth: The Agreement and Plan of Merger is on file at AvePoint, Inc., 901 East Byrd Street, Ste. 900, Richmond, VA 23219, the place of business of the surviving corporation.
Sixth: A copy of the Agreement and Plan of Merger will be furnished by the Corporation on request, without cost, to any member of the LLC or any stockholder of the Corporation.
In Witness Whereof, AvePoint, Inc. has caused this Certificate of Merger to be executed in its corporate name as of this 23rd day of July, 2021.
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AvePoint, Inc. |
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By: |
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Tianyi Jiang |
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Chief Executive Officer |
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Exhibit 10.1
Execution Version
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT and ASSUMPTION AGREEMENT, dated as of July 23, 2021 (this “Agreement”) is entered into between AvePoint US, LLC (f/k/a Athena Technology Merger Sub 2, LLC), a Delaware limited liability company (the “Assignor”), and AvePoint, Inc. (f/k/a Apex Technology Acquisition Corporation), a Delaware corporation (the “Assignee”), and consented to by HSBC Ventures USA Inc. (together with its successors and permitted assigns, the “Bank”).
W I T N E S S E T H:
WHEREAS, the Assignor has entered into that certain (i) Loan and Security Agreement, dated as of April 7, 2020 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “LSA”), among the Assignor, as the Borrower, the other Loan Parties party thereto, the Bank and certain other parties party thereto from time to time and (ii) that certain Limited Consent and Waiver to Loan and Security Agreement, dated as of the date hereof (the “Consent”), among the Assignor, the guarantors party thereto and the Bank;
WHEREAS, pursuant to the Combination Agreement (as defined in the Consent), the Assignor shall merge with and into the Assignee, with the Assignee as the surviving entity and as a result of which, the Assignee shall assume all rights and obligations of the Assignor by operation of law, including such rights and obligations of Assignor as the “Borrower” under the LSA and the other Loan Documents; and
WHEREAS, the Assignor wishes to assign, transfer and convey to the Assignee all of the Assignor’s rights as the “Borrower” under, and the Assignee wishes to assume from the Assignor all of the Assignor’s obligations and liabilities as “Borrower” under, the LSA and the other Loan Documents (as each of such terms is defined in the LSA).
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to them in the LSA.
II. Assignment and Assumption.
1. Assignment of Rights and Obligations. At the time the Certificate of Merger (as defined in the Combination Agreement) is duly filed with the Secretary of State of Delaware and the Merger (as defined in the Combination Agreement) becomes effective (the “Effective Time”), the Assignor hereby reaffirms and ratifies the validity and enforceability of all of the Liens and security interests heretofore granted and pledged pursuant to the Loan Documents to the Bank as collateral security for the Obligations and irrevocably assigns, transfers and conveys to the Assignee all of the Assignor’s rights, indebtedness, Obligations (including, without limitation, all Obligations in respect of the Advances), covenants, agreements, terms, conditions, duties and liabilities as the “Borrower” and a “Loan Party” under or with respect to the LSA, any of the other Loan Documents and any and all certificates and other documents executed by the Assignor in connection therewith (collectively, the “Assumed Obligations”).
2. Assumption of Agreements and Obligations. Effective as of the Effective Time and the execution by the Assignee of this Agreement, the Assignee hereby (a) expressly assumes, confirms and agrees to perform and observe all of the Assumed Obligations as the “Borrower” or a “Loan Party” under and with respect to the LSA, any of the other Loan Documents and any and all certificates and other documents executed by the Assignor in connection therewith as fully as if the Assignee were originally the “Borrower” or a “Loan Party” in respect thereof and the signatory thereto, (b) reaffirms and ratifies any grant and pledge to Bank of a security interest in the Collateral to secure prompt repayment of any and all Obligations and prompt performance by it of each of its covenants and duties under the Loan Documents, and the validity and enforceability of all of the Liens and security interests heretofore granted and pledged pursuant to the Loan Documents to the Bank as collateral security for the Obligations and (c) acknowledges that all of such Liens and security interests, and all Collateral heretofore granted, pledged or otherwise created as security for the Obligations continue to be and remain collateral security for the Obligations from and after the date hereof. The Assignee shall become a party to each Loan Document to which the Assignor is a party by its execution of this Agreement, to the extent the Assignee is not already party to such Loan Document.
3. Representation and Warranties. To induce the Bank to consent to the assignment and assumption provided for herein, the Assignee hereby represents and warrants that the representations and warranties made by the Assignee as the “Borrower” or a “Loan Party” under the Loan Documents are true and correct, and that the representations and warranties made by the Assignor as the “Borrower” or a “Loan Party” under the Loan Documents are, as to the Assignee, (i) with respect to representations and warranties that contain a materiality qualification, true and correct (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all respects as of such earlier date) and (ii) with respect to representations and warranties that do not contain a materiality qualification, are true and correct in all material respects (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date).
III. General.
1. Due Execution and Delivery; Enforceability. Each of Assignor and Assignee represents and warrants that the execution, delivery, and performance of this Agreement are within the Assignor or Assignee’s powers, as applicable, have been duly authorized, and (a) are not in conflict with nor constitute a breach of any provision contained in the Assignor or Assignee’s Operating Documents, as applicable, (b) do not contravene, conflict with, constitute a default under or violate any material requirement of applicable law, (c) do not contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority in the United States by which the Assignor or Assignee or any of their property or assets, as applicable, may be bound or affected, (d) do not require any action by, filing, registration, or qualification with, or approval from, any Governmental Authority in the United States (except such approvals which have already been obtained and are in full force and effect), and (e) do not constitute an event of default under any material agreement by which the Assignor or Assignee, as applicable, is bound. Neither the Assignor nor the Assignee is in default under any agreement by which it is bound, except to the extent such default would not reasonably be expected to cause a Material Adverse Effect. This Agreement has been duly executed and delivered by each of the Assignor and the Assignee. This Agreement constitutes a legal, valid and binding obligation of each of the Assignor and the Assignee, enforceable against each of the Assignor and Assignee in accordance with its terms.
2. No Amendments; Confirmation. Each Loan Document is hereby deemed to be amended to the extent, but only to the extent, necessary for Assignee to become a party thereunder and to effect the assignment and assumption provided for hereby. Except as expressly amended, modified and supplemented hereby, the provisions of the LSA and the other Loan Documents are and shall remain in full force and effect.
3. Further Assurances; Notices. Each of Assignor and the Assignee agrees to execute such further documents and to do such further things as the Bank may reasonably request in order to more fully effect this Agreement and the transactions contemplated hereby. The address for notices for the Assignee given pursuant to the LSA and the other Loan Documents shall be as set forth below:
c/o AvePoint, Inc.
Riverfront Plaza West
901 East Byrd Street, 9th Floor
Richmond, VA 23219
Attn: General Counsel
Email: legal@avepoint.com
4. Miscellaneous. Except as otherwise expressly set forth herein, nothing in this Agreement shall be deemed to constitute an amendment, modification or waiver of any provision of the LSA nor shall anything contained herein be deemed to imply any willingness of the Bank to agree to, or otherwise prejudice any rights of the Bank with respect to, any similar amendments, consents, waivers or agreements that may be requested for any future period, and this Agreement shall not be construed as a waiver of any other provision of the Loan Documents or to permit any Loan Party to take any other action which is prohibited by the terms of the LSA or the other Loan Documents. Each reference in the LSA or any other Loan Document to this “Agreement”, “hereunder”, “herein”, “hereof”, “thereunder”, “therein”, “thereof”, or words of like import referring to the Agreement or any other Loan Document shall mean and refer to such agreement as supplemented by this Amendment. This Agreement is a Loan Document. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. This Agreement and any claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) arising out of or relating thereto and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law. The words “execution,” “signed,” “signature” and words of like import in this Agreement or any other document executed in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature, or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
5. No Advances. Notwithstanding anything herein or in any other Loan Document to the contrary, the parties hereto agree that, commencing on the date hereof, no Advances shall be requested and Bank shall have no commitment or obligation to make any Advances until the occurrence of the Amendment Effective Date (as defined in the Consent). From the date hereof until the Amendment Effective Date, the unused facility fee shall continue to accrue and be paid in accordance with Section 2.5(b) of the LSA, notwithstanding that the Bank has no commitment or obligation to make Advances during such period.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
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AVEPOINT US, LLC (f/k/a Athena Technology Merger Sub 2, LLC), a Delaware limited liability company, as Assignor |
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| By: | |||
| Name: Brian Michael Brown | |||
| Title: Chief Operating Officer and General Counsel | |||
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AVEPOINT, INC. (f/k/a Apex Technology Acquisition Corporation), a Delaware corporation, as Assignee |
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| By: | |||
| Name: Brian Michael Brown | |||
| Title: Chief Operating Officer and General Counsel | |||
[Signature Page to Assignment and Assumption Agreement]
Accepted and agreed to:
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HSBC VENTURES USA INC., |
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as the Bank |
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[Signature Page to Assignment and Assumption Agreement]
Exhibit 10.2
Execution Version
LIMITED CONSENT AND WAIVER TO
LOAN AND SECURITY AGREEMENT
LIMITED CONSENT AND WAIVER TO LOAN AND SECURITY AGREEMENT, dated as of July 23, 2021 (this “Consent”), among AVEPOINT US, LLC (f/k/a Athena Technology Merger Sub 2, LLC), a Delaware corporation (the “Original Borrower”), AVEPOINT, INC. (f/k/a Apex Technology Acquisition Corporation), a Delaware corporation (“Holdings”), the other guarantors party hereto, and HSBC VENTURES USA INC. (together with its successors and assigns, “Bank”).
WHEREAS, the Loan Parties and Bank are party to that certain Loan and Security Agreement dated as of April 7, 2020 (as amended by that certain Limited Consent and First Amendment to Loan and Security Agreement, dated as of July 1, 2021, and in effect immediately prior to the date hereof, the “Existing Agreement”, and as the Existing Agreement shall be further amended, restated, modified or supplemented from time to time, the “Agreement”), providing for extensions of credit to be made by Bank to Borrower from time to time;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of July 23, 2021 (the “Combination Agreement”), by and between the Original Borrower and Holdings, the Original Borrower will merge with and into Holdings, with Holdings as the surviving corporation (in such capacity, the “New Borrower”) (such transactions collectively being referred to herein as the “Combination” and the date of the closing of such transactions being referred to herein as the “Combination Effective Date”);
WHEREAS, the Original Borrower has requested that Bank consent to (a) the Combination and (b) the assumption by the New Borrower of all obligations of the Original Borrower under the Agreement and the other Loan Documents (the “Assumption”) pursuant to that certain Assignment and Assumption Agreement, dated as of the date hereof (the “Assignment Agreement”), substantially in the form of Annex A hereto; and
WHEREAS, the Original Borrower has requested that Bank waive any Default or Event of Default that has arisen or could arise under the Loan Documents directly as a result of the Combination or the Assumption (collectively, the “Specified Defaults”).
WHEREAS, subject to the terms and conditions herein, Bank has agreed to (a) consent to the Combination and the Assumption and (b) waive the Specified Defaults, as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise expressly defined herein, terms defined in the Existing Agreement are used herein as defined therein.
Section 2. Limited Consent.
(a) Subject to the satisfaction of the terms and conditions set forth in Section 4(a) hereof, Bank hereby consents to the Combination and the Assumption, and all other actions taken by or necessary or permissible to be taken by Holdings or the Loan Parties related thereto, whether occurring prior to, on, or after the Combination Effective Date.
(b) The parties hereto agree that the limited consent set forth in Section 2(a) hereof shall be limited precisely as written and, except as expressly set forth therein, shall not be deemed to be a consent to or amendment, waiver or modification of any other term or condition of the Existing Agreement or any other Loan Document or a consent to any other transaction.
Section 3. Limited Waiver.
(a) Subject to the satisfaction of the terms and conditions set forth in Section 4 hereof, Bank hereby grants a limited waiver of the Specified Defaults.
(b) The limited waiver in Section 3(a) hereof shall be effective only to the extent specifically set forth therein and shall not (i) be construed as a consent to or waiver of any breach, Default or Event of Default other than as specifically waived herein nor as a waiver of any breach, Default or Event of Default of which Bank have has been informed by Holdings or any Loan Party, (ii) affect the right of Bank to demand compliance by Holdings and each Loan Party with all terms and conditions of this Consent, the Agreement and the other Loan Documents, except as specifically consented to, modified or waived by the terms hereof, (iii) be deemed a consent to or waiver of any future transaction or action on the part of Holdings or any Loan Party requiring Bank’s consent or approval under this Consent, the Agreement or the other Loan Documents, or (iii) except as set forth specifically herein, diminish, prejudice or waive any of Bank’s rights and remedies under this Consent, the Agreement, any of the other Loan Documents, or applicable law, whether arising as a consequence of any Default or Event of Default which may now exist or otherwise, and Bank hereby reserves all of such rights and remedies.
Section 4. Conditions Precedent.
(a) The limited consent set forth in Section 2(a) hereof shall become effective upon satisfaction of the following conditions:
(i) Bank shall have received, in form and substance satisfactory to Bank:
(1) a duly executed copy of this Consent; and
(2) a duly executed copy of the Combination Agreement, together with all exhibits, annexes and schedules thereto.
(ii) There being no outstanding Advances as of the date hereof and no Advances requested as of the date hereof.
(iii) The Loan Parties shall have paid all fees, costs and expenses due, payable and invoiced under this Consent, the Existing Agreement and the other Loan Documents on the date hereof.
(iv) Bank shall have received such other documents or agreements as Bank may reasonably request in accordance with Section 6.11 of the Agreement.
(v) (x) The representations and warranties contained herein, in the Agreement and in each other Loan Document shall be true and correct in all respects on and as of such date, and (y) no Default or Event of Default shall have occurred and be continuing.
(b) The limited waiver set forth in Section 3(a) hereof shall become effective upon satisfaction of the following conditions:
(i) Bank shall have received, in form and substance satisfactory to Bank:
(1) evidence that the Combination shall have occurred in accordance with the terms and provisions of the Combination Agreement, which shall not have been amended since the date of the Combination Agreement;
(2) a duly executed Assignment Agreement; and
(3) such other documents or certificates, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
(ii) (x) The representations and warranties contained herein, in the Agreement and in each other Loan Document shall be true and correct in all respects on and as of the Combination Effective Date, and (y) no Default or Event of Default shall have occurred and be continuing.
(iii) There being no outstanding Advances as of the Combination Effective Date and no Advances requested as of the Combination Effective Date.
(iv) The Loan Parties shall have paid all fees, costs and expenses due, payable and invoiced under this Consent, the Existing Agreement and the other Loan Documents on the Combination Effective Date.
(v) Bank shall have received such other documents or agreements as Bank may reasonably request in accordance with Section 6.11 of the Agreement.
Section 5. Representations and Warranties. Holdings and each Loan Party, as of the date hereof and as of the Combination Effective Date, represents and warrants to Bank, both immediately prior to and after giving effect to the limited consent set forth in Section 2(a) hereof and/or the limited waiver set forth in Section 3(a) hereof, on the applicable date, that:
(a) the execution, delivery and performance by such Loan Party or Holdings of this Consent are within such Loan Party’s or Holdings’ powers, have been duly authorized, and (i) are not in conflict with nor constitute a breach of any provision contained in such Loan Party’s or Holdings’ Operating Documents, (ii) do not contravene, conflict with, constitute a default under or violate any material requirement of applicable law, (iii) do not contravene, conflict or violate any applicable order, writ, judgment injunction, decree, determination or award of any Governmental Authority in the United States by which Holdings or any Loan Party or any of its Subsidiaries or any of their property or assets may be bound or affected, (iv) do not require any action by, filing, registration, or qualification with, or approval from, any Governmental Authority in the United States (except such approvals which have already been obtained and are in full force and effect), and (v) do not constitute an event of default under any material agreement by which such Loan Party or Holdings is bound;
(b) neither Holdings nor any Loan Party is in default under any agreement by which it is bound, except to the extent such default would not reasonably be expected to cause a Material Adverse Effect;
(c) this Consent has been duly executed and delivered by Holdings and each Loan Party. This Consent constitutes a legal, valid and binding obligation of Holdings and such Loan Party, enforceable against Holdings and such Loan Party in accordance with its terms;
(d) the representations and warranties of Holdings and each Loan Party contained in the Agreement and in any other Loan Document are (i) with respect to representations and warranties that contain a materiality qualification, true and correct (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all respects as of such earlier date) and (ii) with respect to representations and warranties that do not contain a materiality qualification, are true and correct in all material respects (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date), and the representations and warranties contained in Section 5.7(c) of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.2(a)(ii) of the Agreement; and
(e) no Default or Event of Default has occurred and is continuing.
Section 6. No Advances. Notwithstanding anything herein or in any other Loan Document to the contrary, the parties hereto agree that, commencing on the date hereof, no Advances shall be requested and Bank shall have no commitment or obligation to make any Advances until the occurrence of the Amendment Effective Date (as hereinafter defined). For purposes hereof, the term “Amendment Effective Date” means the first date upon which all of the following shall have occurred: (i) Holdings and each Loan Party shall have entered into such amendments to the Agreement and other Loan Documents in respect of the Combination and Assumption, all as requested by Bank and in form and substance satisfactory to Bank (in its sole discretion) (collectively, the “Post-Closing Amendments”), (ii) Holdings and each Loan Party shall have delivered (or caused to be delivered) to Bank such Pledge Agreements and such other Collateral-related instruments, documents and financing statements in respect of the Combination, the Assumption and the Post-Closing Amendments, all as requested by Bank and in form and substance satisfactory to Bank (in its sole discretion), and (iii) Holdings and each Loan Party shall have delivered (or caused to be delivered) to Bank such opinions, officer and secretary certificates, corporate and limited liability company authority documents and such other documents in connection with the matters referenced in the foregoing clauses (i) and (ii), all as requested by Bank and in form and substance satisfactory to Bank (in its sole discretion). From the date hereof until the Amendment Effective Date, the unused facility fee shall continue to accrue and be paid in accordance with Section 2.5(b) of the Agreement, notwithstanding that Bank has no commitment or obligation to make Advances during such period.
Section 7. Ratification. Each Loan Party hereby ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted and pledged by such Loan Party pursuant to the Agreement to Bank as collateral security for the Obligations, and acknowledges that all of such Liens and security interests, and all Collateral heretofore granted, pledged or otherwise created as security for the Obligations continue to be and remain collateral security for the Obligations from and after the date hereof. Each Loan Party hereby acknowledges and agrees that the Agreement and all other Loan Documents remain in full force and effect, and each Loan Party confirms and ratifies all of its Obligations thereunder.
Section 8. Miscellaneous. Except as otherwise expressly set forth herein, nothing in this Consent shall be deemed to constitute an amendment, consent, modification or waiver of any provision of the Agreement nor shall anything contained herein be deemed to imply any willingness of Bank to agree to, or otherwise prejudice any rights of Bank with respect to, any similar amendments, consents, waivers or agreements that may be requested for any future period, and this Consent shall not be construed as a waiver of any other provision of the Loan Documents or to permit any Loan Party to take any other action which is prohibited by the terms of the Agreement or the other Loan Documents. Each reference in the Agreement or any other Loan Document to this “Agreement”, “hereunder”, “herein”, “hereof”, “thereunder”, “therein”, “thereof”, or words of like import referring to the Agreement or any other Loan Document shall mean and refer to such agreement as supplemented by this Consent. This Consent is a Loan Document. This Consent may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. This Consent and any claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) arising out of or relating thereto and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law. The words “execution,” “signed,” “signature” and words of like import in this Consent or any other document executed in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature, or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
Section 9. Post-Closing Covenant. Within 30 days of the Combination Effective Date (which date may be extended by express written consent (which may be e-mail) of Bank in its sole discretion, the “Post-closing Deadline”), the Amendment Effective Date shall have occurred. If the Amendment Effective Date does not occur by the Post-closing Deadline, there shall be an immediate Event of Default as of such Post-closing Deadline.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed and delivered as of the day and year first above written.
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LOAN PARTIES |
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AVEPOINT US, LLC (f/k/a Athena Technology Merger Sub 2, LLC), |
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| By: | |||
| Name: Brian Michael Brown | |||
| Title: Chief Operating Officer and General Counsel | |||
| AVEPOINT PUBLIC SECTOR, INC. | |||
| By: | |||
| Name: Brian Michael Brown | |||
| Title: Sole Director | |||
| AVEPOINT HOLDINGS USA, LLC | |||
| By: | |||
| Name: Brian Michael Brown | |||
| Title: Manager | |||
| HOLDINGS | |||
| AVEPOINT, INC. (f/k/a Apex Technology Acquisition Corporation) | |||
| By: | |||
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Name: Brian Michael Brown |
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| Title: Chief Operating Officer and General Counsel | |||
Signature Page to HSBC/AvePoint Limited Consent and Waiver
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BANK |
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HSBC VENTURES USA INC. |
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| By: | |||
| Name: | |||
| Title: | |||
Signature Page to HSBC/AvePoint Limited Consent and Waiver
ANNEX A
Assignment Agreement
[See attached.]