APEX TECH Item 1.01 Entry into a Material Definitive Agreement.
This section describes the material provisions of the Business Combination Agreement (as defined below) but does not purport to describe all of the terms thereof. The following summary is qualified in its entirety by reference to the complete text of the Business Combination Agreement, a copy of which is attached hereto as Exhibit 2.1. Unless otherwise defined herein, the capitalized terms used below are defined in the Business Combination Agreement.
Business Combination Agreement
On
Transaction Consideration
Upon the consummation of the Mergers, the aggregate consideration to be paid to
AvePoint equityholders will be (i) an amount in cash of approximately
Representations, Warranties and Covenants
The parties to the Business Combination Agreement have made customary representations, warranties and covenants, including, among others, with respect to the conduct of the businesses of AvePoint and Apex during the period between execution of the Business Combination Agreement and the consummation of the Business Combination. Certain of the representations are subject to specified exceptions and qualifications contained in the Business Combination Agreement or in information provided pursuant to certain disclosure schedules to the Business Combination Agreement.
Conditions to Closing
The obligations of AvePoint and Apex to consummate the Proposed Transactions,
including the Mergers, are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing of various conditions, including, among
other things: (i) the accuracy of the representations and warranties of Apex and
AvePoint, respectively; (ii) the performance by Apex and AvePoint, respectively,
of its covenants and agreements; (iii) the absence of any material adverse
effect that is continuing with respect to Apex or AvePoint, respectively,
between the date of the Business Combination Agreement and the date of the
Closing, (iv) the approval of AvePoint's and Apex's stockholders; (v) the
effectiveness of the Registration Statement and the submission by Apex of the
supplemental listing application to the
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Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including: (i) mutual written consent of Apex and AvePoint; (ii) subject to certain cure periods, by either AvePoint or Apex, as applicable, if there has been a breach of any representation, warranty, covenant or other agreement made by AvePoint or Apex, as applicable, that would result in the failure of related closing conditions; (iii) by either Apex or AvePoint if the Effective Time does not occur prior to the date that is 180 days after the date of the Business Combination Agreement, subject to certain exceptions; (iv) by either Apex or AvePoint if the transaction is prohibited by law or a government order; (v) by either Apex or AvePoint if approval is not obtained from Apex stockholders at the special meeting of Apex stockholders; and (vi) by Apex if approval is not obtained from AvePoint's stockholders within 48 hours after the Registration Statement becomes effective.
The foregoing description of the Business Combination Agreement and the Business Combination does not purport to be complete and is qualified in its entirety by the terms and conditions of the Business Combination Agreement, a copy of which . . .
Item 3.02 Unregistered Sales of
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities of Apex that may be issued in connection with the Subscription Agreements will not be registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Item 7.01. Regulation FD Disclosure.
On
Furnished as Exhibit 99.2 is a copy of an investor presentation to be used by the Company in connection with the Private Placements.
Apex and AvePoint will also hold a conference call at
The information in this Item 7.01 and Exhibits 99.1, 99.2 and 99.3 attached hereto shall not be deemed "filed" for purposes of Section 18 of Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.
Important Information About the Business Combination and Where to Find It
In connection with the proposed Business Combination, Apex intends to file the
Proxy with the
Participants in the Solicitation
Apex and its directors and executive officers may be deemed participants in the
solicitation of proxies from Apex's stockholders with respect to the Business
Combination. A list of the names of those directors and executive officers and a
description of their interests in Apex is contained in Apex's annual report on
Form 10-K for the fiscal year ended
AvePoint and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Apex in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination will be included in the Proxy.
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Forward-Looking Statements
This Current Report on Form 8-K "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that are not historical facts, and involve risks and uncertainties that could cause actual results of Apex and AvePoint to differ materially from those expected and projected. These forward-looking statements can be identified by the use of forward-looking terminology, including the words "believes," "estimates," "anticipates," "expects," "intends," "plans," "may," "will," "potential," "projects," "predicts," "continue," or "should," or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include, without limitation, statements regarding estimates and forecasts of revenue and other financial and performance metrics and projections of market opportunity and expectations, Apex's ability to enter into definitive agreements or consummate a transaction with AvePoint; Apex's ability to obtain the financing necessary consummate the Proposed Transactions; and the expected timing of completion of the Proposed Transactions.
These forward-looking statements involve significant risks and uncertainties
that could cause the actual results to differ materially from the expected
results. Most of these factors are outside Apex's and are difficult to predict.
Factors that may cause such differences include, but are not limited to: (i) the
occurrence of any event, change or termination of the Business Combination
Agreement or could otherwise cause the Business Combination to fail to close;
(ii) the outcome of any legal proceedings that may be instituted against Apex
and AvePoint following the execution of the Business Combination Agreement and
the Business Combination; (iii) any inability to complete the Business
Combination, including due to failure to obtain approval of the stockholders of
Apex, the risk that any required regulatory approvals are not obtained, are
delayed or are subject to unanticipated conditions that could adversely affect
the combined company or other conditions to closing in the Business Combination
Agreement; (iv) the amount of redemption requests made by the Apex Stockholders,
(v) the receipt of an unsolicited offer from another party for an alternative
business transaction that could interfere with the Business Combination; (vi)
the inability to maintain the listing of the shares of common stock of the
post-acquisition company on
Apex cautions that the foregoing list of factors is not exclusive. Apex cautions
readers not to place undue reliance upon any forward-looking statements, which
speak only as of the date made. Apex does not undertake or accept any obligation
or undertaking to release publicly any updates or revisions to any
forward-looking statements to reflect any change in its expectations or any
change in events, conditions or circumstances on which any such statement is
based. Further information about factors that could materially affect Apex,
including its results of operations and financial condition, is set forth under
"Risk Factors" in Part I, Item 1A of Apex's Annual Report on Form 10-K for the
fiscal year ended
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Business Combination Agreement, datedNovember 23, 2020 . 10.1 Form of Named Executive Equity Agreement. 10.2 Form of Registration Rights Agreement 10.3 Form of Lock-Up Agreement 10.4 Insider Letter Agreement, datedNovember 23, 2020 . 10.5 Stockholder Support Agreement, datedNovember 23, 2020 . 10.6 Sponsor Support Agreement, datedNovember 23, 2020 . 10.7 Form of Subscription Agreement. 99.1 Press Release, datedNovember 23, 2020 . 99.2 Investor Presentation, datedNovember 23, 2020 . 99.3 Conference Call Script datedNovember 23, 2020 . 104.1 Cover page interactive data file (embedded within the Inline XBRL document). * Certain exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Company agrees to supplementally furnish a copy of any omitted exhibit or schedule to theSEC upon its request. 6
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