AvePoint, Inc SC TO-I, filed Aug 27, 2024
AvePoint, Inc. (AVPT)
As filed with the Securities and Exchange Commission on August 27, 2024
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
AVEPOINT, INC.
(Name of Subject Company (Issuer))
AVEPOINT, INC. (Offeror)
(Names of Filing Persons (Identifying Status as Offeror, Issuer or Other Person))
Warrants exercisable for shares of common stock at an exercise price of $11.50 per share
(Title of Class of Securities)
053604112
(CUSIP Number of Class of Securities)
Tianyi Jiang
Chief Executive Officer and Director
AvePoint, Inc.
525 Washington Blvd, Suite 1400
Jersey City, NJ 07310
(201) 793-1111
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
With copies to:
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Brian Michael Brown 525 Washington Blvd, Suite 1400 Jersey City, NJ 07310 (201) 793-1111 |
John T. McKenna Cooley LLP Palo Alto, CA 94304 |
☐ Check the box if the filing relates solely to preliminary communications before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
☐ third-party tender offer subject to Rule 14d-1.
☒ issuer tender offer subject to Rule 13e-4.
☒ going-private transaction subject to Rule 13e-3.
☐ amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision relied upon:
☐ Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
☐ Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
INTRODUCTION
This combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of this Schedule TO (“Schedule TO”) relates to the tender offer by AvePoint, Inc., a Delaware corporation (“AvePoint” or the “Company”), to purchase for cash up to 17,576,241 of its outstanding public warrants to purchase shares of common stock, par value $0.01 per share, at a price of $2.50 per warrant, without interest (the “Offer Purchase Price”). The Company’s offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 27, 2024 (as amended or supplemented from time to time, the “Offer to Purchase”) and in the related Letter of Transmittal and Consent (as amended or supplemented from time to time, the “Letter of Transmittal and Consent”), copies of which are attached to this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively (which together, as amended or supplemented from time to time, constitute the “Offer”).
Concurrently with the Offer, the Company is also soliciting consents from holders of its outstanding Warrants (defined below) to amend the Warrant Agreement, dated as of September 16, 2019, by and between Apex Technology Acquisition Corporation (“Apex”) and Continental Stock Transfer & Trust Company (the “Warrant Agent”)(the “Warrant Agreement”), which governs all of the Warrants, to permit the Company to redeem each outstanding warrant for $2.00 in cash, without interest (the “Redemption Price”), which Redemption Price is 20% less than the Offer Purchase Price (the “Warrant Amendment”).
Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. Holders of the Warrants may not consent to the Warrant Amendment without tendering their Warrants in the Offer, and such holders may not tender their Warrants without consenting to the Warrant Amendment.
This Schedule TO relates only to the Company’s offer to purchase its outstanding Warrants. It is not an offer to purchase the Company’s outstanding Common Stock (as defined below). Whether or not the Offer is consummated and any non-tendered Warrants are redeemed, the Company’s Common Stock will remain outstanding, listed on Nasdaq, and the Company will remain an SEC registrant following the consummation of the Offer.
This Schedule TO is intended to satisfy the reporting requirements of Rules 13e-3 and 13e-4 under the Exchange Act. The information contained in the Offer to Purchase and the related Letter of Transmittal and Consent, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, is incorporated by reference in response to the items of this Schedule TO as set forth below.
Item 1. Summary Term Sheet.
The information set forth under “Summary Term Sheet” in the Offer to Purchase is incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and Address: The name of the subject company is AvePoint, Inc., a Delaware corporation. The address of its principal executive office is 525 Washington Blvd, Suite 1400, Jersey City, NJ 07310 and its telephone number is (201) 793-1111.
(b) Securities: The subject class of securities consists of the following outstanding warrants of the Company:
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warrants to purchase shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which were publicly issued and sold as part of the units in the initial public offering of Apex consummated on September 19, 2019, and assumed by the Company, and which entitle such warrant holders to purchase one share of Common Stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”). |
As of August 26, 2024, there were 17,576,241 Warrants outstanding. Any and all of the Warrants are eligible to be tendered pursuant to the Offer. All Warrants that are validly tendered and accepted for exchange will be cancelled.
(c) Trading Market and Price: The information set forth under “The Offer and Consent Solicitation, Section 5. Price Range of Warrants” in the Offer to Purchase is incorporated herein by reference.
Item 3. Identity and Background of Filing Person.
(a) Name and Address: AvePoint is the subject company and the filing person. The business address and telephone number of AvePoint are set forth under Item 2(a) above. AvePoint’s internet address is www.avepoint.com. Unless expressly stated otherwise, the information contained on its website or connected to its website is not incorporated by reference into this Schedule TO and should not be considered part of this Schedule TO.
The names of the executive officers and directors of the Company are set forth below. The business address for each such person is: c/o AvePoint, Inc., 525 Washington Blvd, Suite 1400, Jersey City, NJ 07310, and the telephone number for each such person is (201) 793-1111.
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Name |
Position |
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Xunkai Gong |
Executive Chairman |
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Tianyi Jiang |
Chief Executive Officer |
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James Caci |
Chief Financial Officer |
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Brian Michael Brown |
Chief Legal & Compliance Officer and Secretary |
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Jeff Epstein |
Director |
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John Ho |
Director |
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Janet Schijns |
Director |
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Jeff Teper |
Director |
The information set forth under “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) Material Terms: The information set forth under the following headings in the Offer to Purchase is incorporated herein by reference.
“Summary Term Sheet”
“Special Factors, Section 1. Purpose of the Offer”
“Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption)”
“Special Factors, Section 3. Board Presentation”
“Special Factors, Section 4. Effects of the Transaction on the Market for the Warrants”
“Special Factors, Section 5. Interests of Directors and Executive Officers”
“Special Factors, Section 6. Material U.S. Federal Income Tax Consequences”
“The Offer and Consent Solicitation, Section 1. General Terms”
“The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants”
“The Offer and Consent Solicitation, Section 3. Withdrawal Rights”
“The Offer and Consent Solicitation, Section 4. Acceptance of Warrants and Payment of Offer Purchase Price”
“The Offer and Consent Solicitation, Section 5. Price Range of Warrants”
“The Offer and Consent Solicitation, Section 6. Source and Amount of Funds; Fees and Expenses”
“The Offer and Consent Solicitation, Section 7. Information Concerning AvePoint, Inc.”
“The Offer and Consent Solicitation, Section 8. Plans, Proposals or Negotiations”
“The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities”
“The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments”
“The Offer and Consent Solicitation, Section 11. Forward-Looking Statements; Risk Factors”
“The Offer and Consent Solicitation, Section 12. The Depositary, Information Agent and Dealer Manager”
“The Offer and Consent Solicitation, Section 13. Additional Information; Miscellaneous”
(b) Purchases: The information set forth under “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference.
Item 5. Past Contracts, Transactions, Negotiations and Arrangements.
(e) Agreements Involving the Subject Company’s Securities: The information set forth under “The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities” in the Offer to Purchase is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes: The information set forth under “Special Factors, Section 1. Purpose of the Offer” in the Offer to Purchase is incorporated herein by reference.
(b) Use of the Securities Acquired: The Warrants tendered will be retired and cancelled by the Company.
(c) Plans: The information set forth under “The Offer and Consent Solicitation, Section 8. Plans, Proposals or Negotiations” in the Offer to Purchase is incorporated herein by reference.
(c)(1) None.
(c)(2) None.
(c)(3) None.
(c)(4) None.
(c)(5) None.
(c)(6) The information set forth under “The Offer and Consent Solicitation, Section 8. Plans, Proposals or Negotiations” and “Special Factors, Section 4. Effects of the Transaction on the Market for the Warrants” in the Offer to Purchase is incorporated herein by reference.
(c)(7) The information set forth under “Special Factors, Section 4. Effects of the Transaction on the Market for the Warrants” in the Offer to Purchase is incorporated herein by reference.
(c)(8) None.
(c)(9) None.
(c)(10) None.
Item 7. Source and Amount of Funds or Other Consideration.
(a) Source of Funds: The information set forth under “The Offer and Consent Solicitation, Section 6. Source and Amount of Funds; Fees and Expenses” in the Offer to Purchase is incorporated herein by reference.
(b) Conditions: None.
(d) Borrowed Funds: Not Applicable.
Item 8. Interest in Securities of the Subject Company.
(a) Securities Ownership: The information set forth under “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference.
(b) Securities Transactions: The information set forth under “The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities” and “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations: The information set forth under “The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities” and “The Offer and Consent Solicitation, Section 12. The Depositary, Information Agent and Dealer Manager” in the Offer to Purchase is incorporated herein by reference. None of the Company, its directors, officers or employees, nor Continental Stock Transfer & Trust Company, the depositary for the Offer, Sodali & Co., the information agent for the Offer, nor Evercore Group L.L.C., the dealer manager for the Offer, is making any recommendation as to whether holders of Warrants should tender their Warrants and consent to the Warrant Amendment. Holders of Warrants must make their own decision as to whether to tender some or all of their Warrants and consent to the Warrant Amendment.
Item 10. Financial Statements.
(a) Financial Information: The information set forth under “The Offer and Consent Solicitation, Section 7. Information Concerning AvePoint, Inc.” in the Offer to Purchase is incorporated herein by reference.
(b) Pro Forma Information: Not applicable.
Item 11. Additional Information.
(a) Agreements, Regulatory Requirements and Legal Proceedings: The information set forth under “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference. To the knowledge of the Company, no material legal proceedings relating to the tender offer are pending.
(c) Other Material Information: The information set forth under “Summary Term Sheet”, “The Offer and Consent Solicitation, Section 11. Forward-Looking Statements; Risk Factors” and “The Offer and Consent Solicitation, Section 13. Additional Information; Miscellaneous” in the Offer to Purchase is incorporated herein by reference. The Company will amend this Schedule TO to include documents that it may file with the SEC after the date of the Offer to Purchase pursuant to Sections 13(a), 13(c) or 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and prior to the expiration of the Offer, to the extent required by Rule 13e-4(d)(2) of the Exchange Act.
Item 12. Exhibits.
(a) Exhibits
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Exhibit Number |
Description |
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(a)(1)(A) |
Offer to Purchase and Consent Solicitation, dated August 27, 2024. |
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(a)(1)(B) |
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(a)(1)(C) |
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(a)(1)(D) |
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(a)(1)(E) |
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(a)(5) |
Press Release, dated August 27, 2024, announcing cash tender offer for AvePoint, Inc. warrants. |
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(c) |
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(d) |
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107 |
(b) Filing Fee Exhibit
Filing Fee Exhibit is filed herewith.
Item 13. Information Required by Schedule 13E-3.
The following sets forth information required by Schedule 13E-3 that has not already been set forth in Items 1-12 above. The information set forth in the Offer to Purchase is incorporated herein by reference to the items required by Schedule 13E-3.
Item 2. Subject Company Information.
(d) Dividends: Not applicable.
(e) Prior public offerings: None.
(f) Prior securities purchases: None.
Item 3. Identity and Background of Filing Person.
(b) Business and background of entities: Not applicable.
(c) Business and background of natural persons: The information set forth in Schedule I to the Offer to Purchase regarding the Company’s directors and executive officers is incorporated herein by reference.
Item 4. Terms of the Transaction.
(c) Different terms: The information set forth under “Summary Term Sheet. The Offer” and “Summary Term Sheet. The Consent Solicitation” in the Offer to Purchase is incorporated herein by reference.
(d) Appraisal rights: Holders of the Warrants are not entitled to any appraisal rights or any other similar rights with respect to the transaction.
(e) Provisions for unaffiliated security holders: None.
(f) Eligibility for listing or trading: Not applicable.
Item 5. Past Contracts, Transactions, Negotiations and Arrangements.
(a) Transactions: The information set forth under “The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities” in the Offer to Purchase is incorporated herein by reference.
(b) Significant corporate events: On May 7, 2024, Xunkai Gong and Jeff Teper were re-elected as Company Directors.
(c) Negotiations or contacts: Not applicable.
(e) Agreements involving the subject company’s securities: The information set forth under “The Offer and Consent Solicitation, Section 9. Transactions and Agreements Concerning the Company’s Securities” in the Offer to Purchase is incorporated herein by reference.
Item 7. Purposes, Alternatives, Reasons and Effects.
(a) Purposes: The information set forth under “Special Factors, Section 1. Purpose of the Offer” in the Offer to Purchase is incorporated herein by reference.
(b) Alternatives: None.
(c) Reasons: The information set forth under “Special Factors, Section 1. Purpose of the Offer” in the Offer to Purchase is incorporated herein by reference.
(d) Effects: The information set forth under “Special Factors, Section 4. Effects of the Transaction on the Market For the Warrants” and “Special Factors, Section 6. Material U.S. Federal Income Tax Consequences” in the Offer to Purchase is incorporated herein by reference.
Item 8. Fairness of the Transaction.
(a) Fairness: The information set forth under “Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption” in the Offer to Purchase is incorporated herein by reference.
(b) Factors considered in determining fairness: The information set forth under “Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption” in the Offer to Purchase is incorporated herein by reference.
(c) Approval of security holders: The information set forth under “Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption” in the Offer to Purchase is incorporated herein by reference.
(d) Unaffiliated representative: The information set forth under “Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption” in the Offer to Purchase is incorporated herein by reference.
(e) Approval of directors: The information set forth under “The Offer and Consent Solicitation, Section 6. Fairness of the Offer” in the Offer to Purchase is incorporated herein by reference.
(f) Other offers: Not applicable.
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a) Report, opinion or appraisal: The information set forth under “Special Factors, Section 3. Board Presentation” in the Offer to Purchase is incorporated herein by reference.
(b) Preparer and summary of the report, opinion or appraisal: The information set forth under “Special Factors, Section 3. Board Presentation” in the Offer to Purchase is incorporated herein by reference.
(c) Availability of documents: Not applicable.
Item 10. Source and Amount of Funds or Other Consideration
(c) Expenses: The information set forth under “The Offer and Consent Solicitation, Section 6. Source and Amount of Funds; Fees and Expenses” in the Offer to Purchase is incorporated herein by reference.
Item 12. The Solicitation or Recommendation.
(d) Intent to tender or vote in a going-private transaction: The information set forth under “Summary Term Sheet — Participation by Executive Officers and Directors” and “Special Factors, Section 5. Interests of Directors and Executive Officers” in the Offer to Purchase is incorporated herein by reference.
(e) Recommendations of others: The information set forth under “The Offer and Consent Solicitation, Section l.C. General Terms — Board Approval of the Offer; No Recommendation; Holder’s Own Decision.” in the Offer to Purchase is incorporated herein by reference.
Item 14. Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or recommendations. Not applicable.
(b) Employees and corporate assets. Not applicable.
Item 15. Additional Information.
(b) Not applicable.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.
Dated: August 27, 2024
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AVEPOINT, INC. |
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By: |
/s/ Brian Michael Brown |
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Name: |
Brian Michael Brown |
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Title: |
Chief Legal & Compliance Officer and Secretary |
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Exhibit (a)(1)(A)
OFFER TO PURCHASE
BY
AVEPOINT, INC.
OF
UP TO 17,576,241 OF ITS WARRANTS TO PURCHASE SHARES OF COMMON STOCK
AT A PURCHASE PRICE OF $2.50 IN CASH PER WARRANT
AND
CONSENT SOLICITATION
THE OFFER PERIOD AND YOUR RIGHT TO WITHDRAW WARRANTS THAT YOU TENDER WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, AT THE END OF THE DAY ON SEPTEMBER 24, 2024, UNLESS THE OFFER PERIOD IS EXTENDED. THE COMPANY MAY EXTEND THE OFFER PERIOD AT ANY TIME.
AvePoint, Inc., a Delaware corporation (the “Company,” “we,” “us,” or “our”), hereby offers to purchase up to 17,576,241 of its outstanding warrants described below at a purchase price of $2.50 in cash, without interest (the “Offer Purchase Price”), for each outstanding warrant tendered. The “Offer Period” is the period commencing on August 27, 2024 and ending at 12:00 midnight, Eastern Time, at the end of the day on September 24, 2024, or such later date to which the Company may extend the Offer (the “Expiration Date”). The offer is made upon the terms and conditions in this Offer to Purchase and Consent Solicitation (the “Offer Letter”) and the related Letter of Transmittal and Consent (the “Letter of Transmittal and Consent” and, together with the Offer Letter, as each may be amended or supplemented from time to time, the “Offer”).
The warrants eligible to be tendered pursuant to the Offer comprise the 17,576,241 publicly traded warrants to purchase shares of our common stock that were publicly issued and sold as part of the units in the initial public offering of Apex Technology Acquisition Corporation (“Apex”) consummated on September 19, 2019 (the “Apex IPO”), and assumed by the Company on July 1, 2021, and which entitle such warrant holders to purchase one share of common stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”).
Concurrently with the Offer, we also are soliciting consents (the “Consent Solicitation”) from holders of the Warrants to amend the Warrant Agreement, dated as of September 16, 2019, by and between Apex and Continental Stock Transfer & Trust Company (the “Warrant Agent”)(the “Warrant Agreement”), which governs all of the Warrants, to permit the Company to redeem each outstanding Warrant for $2.00 in cash, without interest (the “Redemption Price”), which Redemption Price is 20% less than the Offer Purchase Price (the “Warrant Amendment”). Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. If the Warrant Amendment is adopted, we intend to issue a notice of redemption to redeem all remaining outstanding Warrants following the consummation of the Offer. The redemption would occur 15 days after issuing the notice of redemption (the “Redemption”).
If the Warrants are registered in your name, the execution and delivery of the Letter of Transmittal and Consent will constitute your consent to the Warrant Amendment and will also authorize and direct the Warrant Agent (as defined below) to execute and deliver a written consent to the Warrant Amendment on your behalf with respect to all Warrants that you tender. Custodial entities that are participants in The Depository Trust Company (“DTC”) may tender their Warrants through the Automatic Tender Option Program (“ATOP”) maintained by DTC, by which the custodial entity and the beneficial owner on whose behalf the custodial entity is acting agree to be bound by the Letter of Transmittal and Consent and which constitutes their consent to the Warrant Amendment and also authorizes and directs the Warrant Agent to execute and deliver a written consent to the Warrant Amendment on their behalf with respect to all Warrants thereby tendered. You must deliver your consent to the proposed Warrant Amendment in order to participate in the Offer.
Our Warrants are listed on The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “AVPTW.” On August 26, 2024, the last reported sale price on Nasdaq for the Warrants was $1.87. As of August 26, 2024, 17,576,241 Warrants were outstanding. Warrant holders should obtain current market quotations for the Warrants before deciding whether to tender their Warrants pursuant to the Offer.
The Offer permits holders of Warrants to tender any and all Warrants in exchange for the Offer Purchase Price for each Warrant tendered. A holder may tender as few or as many Warrants as the holder elects. Holders are also entitled to exercise their Warrants during the Offer Period in accordance with the terms of the Warrants.
If you elect to tender Warrants in response to the Offer and Consent Solicitation, please follow the instructions in this Offer Letter and the related documents, including the Letter of Transmittal and Consent. If you wish to exercise your Warrants in accordance with their terms, please follow the instructions for exercise included in the Warrants.
If you tender Warrants, you may withdraw your tendered Warrants at any time before the Expiration Date and retain them on their current terms or amended terms if the Warrant Amendment is adopted, by following the instructions in this Offer Letter. If you withdraw the tender of your Warrants, your consent to the Warrant Amendment will be withdrawn as a result.
See “The Offer and Consent Solicitation, Section 11. Forward-Looking Statements; Risk Factors” for a discussion of information that you should consider before tendering Warrants in the Offer.
The Offer and Consent Solicitation will commence on August 27, 2024 and end on the Expiration Date.
A detailed discussion of the Offer and Consent Solicitation is contained in this Offer Letter. We may amend or terminate the Offer and Consent Solicitation at any time with requisite notice, as further described in this Offer Letter. Holders of Warrants are strongly encouraged to read this entire package of materials, and the publicly filed information about the Company referenced herein, as well as any supplemental disclosure regarding the Offer and Consent Solicitation before making a decision regarding the Offer and Consent Solicitation.
THE COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER AND CONSENT SOLICITATION. HOWEVER, NONE OF THE COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES, NOR THE WARRANT AGENT, SODALI & CO., THE INFORMATION AGENT FOR THE OFFER (THE “INFORMATION AGENT”), OR EVERCORE GROUP L.L.C, THE COMPANY’S DEALER MANAGER FOR THE OFFER (THE “DEALER MANAGER” OR “EVERCORE”), MAKES ANY RECOMMENDATION AS TO WHETHER YOU SHOULD TENDER WARRANTS OR CONSENT TO THE WARRANT AMENDMENT. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS AND CONSENT TO THE WARRANT AMENDMENT.
Neither the U.S. Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of the Offer or passed upon the merits or fairness of the Offer or the accuracy or adequacy of the disclosure in this Offer Letter or the Letter of Transmittal and Consent. Any representation to the contrary is a criminal offense.
The Dealer Manager for the Offer and Consent Solicitation is:
Evercore Group L.L.C.
Offer to Purchase and Consent Solicitation, dated August 27, 2024
IMPORTANT PROCEDURES
If you want to tender some or all of your Warrants, you must do one of the following before the Expiration Date:
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if your Warrants are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, contact the nominee and have the nominee tender your Warrants for you, which typically can be done electronically; |
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if you hold Warrant certificates in your own name, complete and sign the Letter of Transmittal and Consent according to its instructions, and deliver the Letter of Transmittal and Consent, together with any required signature guarantee, the certificates for your Warrants and any other documents required by the Letter of Transmittal and Consent, to the Warrant Agent; or |
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if you are an institution participating in DTC, called the “book-entry transfer facility” in this Offer Letter, tender your Warrants according to the procedure for book-entry transfer described under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants.” |
If you want to tender your Warrants, but:
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your certificates for the Warrants are not immediately available or cannot be delivered to the Warrant Agent; |
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you cannot comply with the procedure for book-entry transfer; or |
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your other required documents cannot be delivered to the Warrant Agent before the expiration of the Offer, |
then you can still tender your Warrants if you comply with the guaranteed delivery procedure described under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants.”
TO TENDER YOUR WARRANTS, YOU MUST CAREFULLY FOLLOW THE PROCEDURES DESCRIBED IN THIS OFFER LETTER, THE LETTER OF TRANSMITTAL AND CONSENT AND THE OTHER DOCUMENTS DISCUSSED HEREIN RELATED TO THE OFFER.
WARRANTS NOT TENDERED FOR PURCHASE WILL EXPIRE IN ACCORDANCE WITH THEIR TERMS ON JULY 1, 2026, OR EARLIER UPON REDEMPTION, AND OTHERWISE REMAIN SUBJECT TO THEIR ORIGINAL TERMS, UNLESS THE WARRANT AMENDMENT IS APPROVED BY AT LEAST 50.1% OF THE HOLDERS OF THE WARRANTS.
THE OFFER RELATES TO THE WARRANTS THAT WERE PUBLICLY ISSUED IN CONNECTION WITH THE APEX IPO, WHICH TRADE ON NASDAQ UNDER THE SYMBOL “AVPTW.” ANY AND ALL OUTSTANDING WARRANTS ARE ELIGIBLE TO BE TENDERED PURSUANT TO THE OFFER. AS OF AUGUST 26, 2024, THERE WERE 17,576,241 WARRANTS OUTSTANDING.
THE COMPANY RESERVES THE RIGHT TO EXERCISE ITS ABILITY TO REDEEM THE WARRANTS IF AND WHEN IT IS PERMITTED TO DO SO PURSUANT TO THE TERMS OF THE WARRANTS.
If you have any questions or need assistance, you should contact Sodali & Co., the Information Agent for the Offer. You may request additional copies of this Offer Letter, the Letter of Transmittal and Consent or the Notice of Guaranteed Delivery from the Information Agent. The Information Agent may be reached at:
Sodali & Co.
333 Ludlow Street
5th Floor, South Tower
Stamford, CT 06902
Telephone: (800) 662-5200
Email: AVPT.info@investor.sodali.com
The address of the Warrant Agent is:
Continental Stock
Transfer & Trust Company
Attn: Corporate Actions
1 State Street 30th Floor
New York, NY 10004
Secure Electronic Upload: https://cstt.citrixdata.com/r-rcae2848970a24e0eb30aad0c5775887e
Telephone: (917) 262-2378
Email: tenders+avepoint@continentalstock.com
TABLE OF CONTENTS
| Page | ||
| SUMMARY TERM SHEET | 1 | |
| SPECIAL FACTORS | 1 | |
| 1. PURPOSE OF THE OFFER | 1 | |
| 2. FAIRNESS OF THE TRANSACTION (OFFER, CONSENT SOLICITATION AND REDEMPTION) | 1 | |
| 3. BOARD PRESENTATION | 4 | |
| 4. EFFECTS OF THE TRANSACTION ON THE MARKET FOR THE WARRANTS | 5 | |
| 5. INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS | 7 | |
| 6. MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES | 10 | |
| THE OFFER AND CONSENT SOLICITATION | 14 | |
| 1. GENERAL TERMS | 14 | |
| 2. PROCEDURE FOR TENDERING WARRANTS | 15 | |
| 3. WITHDRAWAL RIGHTS | 18 | |
| 4. ACCEPTANCE OF WARRANTS AND PAYMENT OF OFFER PURCHASE PRICE | 19 | |
| 5. PRICE RANGE OF WARRANTS | 20 | |
| 6. SOURCE AND AMOUNT OF FUNDS; FEES AND EXPENSES | 20 | |
| 7. INFORMATION CONCERNING AVEPOINT, INC. | 21 | |
| 8. PLANS, PROPOSALS OR NEGOTIATIONS | 24 | |
| 9. TRANSACTIONS AND AGREEMENTS CONCERNING THE COMPANY’S SECURITIES | 24 | |
| 10. CONDITIONS; TERMINATION; WAIVERS; EXTENSIONS; AMENDMENTS | 25 | |
| 11. FORWARD-LOOKING STATEMENTS; RISK FACTORS | 27 | |
| 12. THE WARRANT AGENT, INFORMATION AGENT AND DEALER MANAGER | 29 | |
| 13. ADDITIONAL INFORMATION; MISCELLANEOUS | 29 | |
We are not making the Offer to, and will not accept any tendered Warrants from, holders of Warrants in any jurisdiction where it would be unlawful to do so. However, we may, at our discretion, take any actions necessary for us to make the Offer to holders of Warrants in any such jurisdiction.
We have not authorized anyone to provide you with information or to make any representation in connection with the Offer other than those contained in this Offer Letter or in the Letter of Transmittal and Consent. We, the Dealer Manager, Information Agent and Warrant Agent take no responsibility for, and provide no assurance as to the reliability of, any other information that others may give you. You should not assume that the information provided in this Offer Letter is accurate as of any date other than the date as of which it is shown, or if no date is otherwise indicated, the date of this Offer Letter.
We have no contract, arrangement or understanding relating to the payment of, and will not, directly or indirectly, pay, any commission or other remuneration to any broker, dealer, salesperson, agent or any other person, including the Dealer Manager, for soliciting tenders in the Offer. In addition, none of the Warrant Agent, the Information Agent, the Dealer Manager or any broker, dealer, salesperson, agent or any other person is engaged or authorized to express any statement, opinion, recommendation or judgment with respect to the relative merits and risks of the Offer and Consent Solicitation. Our officers, directors and regular employees may solicit tenders from holders of the Warrants and will answer inquiries concerning the terms of the Offer and Consent Solicitation, but they will not receive additional compensation for soliciting tenders or answering any such inquiries.
SUMMARY TERM SHEET
Unless otherwise stated in this Offer Letter, references to “we,” “our,” “us,” or the “Company” refer to AvePoint, Inc. This summary term sheet highlights important information regarding the Offer. To understand the Offer fully and for a more complete description of the terms of the Offer, you should carefully read this entire Offer Letter and the related Letter of Transmittal and Consent that constitute the Offer. We have included references to the sections of this Offer Letter where you will find a more complete description of the topics addressed in this summary term sheet.
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The Company |
AvePoint Inc., a Delaware corporation. Our principal executive offices are located at 525 Washington Blvd., Suite 1400, Jersey City, NJ, 07310. Our telephone number is (201) 793-1111. |
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The Warrants |
As of August 26, 2024, the Company had 17,576,241 Warrants outstanding. Each Warrant is exercisable for one share of our common stock, par value $0.0001 per share (the “Common Stock”), at an exercise price of $11.50. By their terms, the Warrants will expire on July 1, 2026, unless sooner exercised or redeemed by the Company in accordance with the terms of the Warrants. The Offer relates to the Warrants that were sold as part of the units issued in connection with the Apex IPO, which trade on Nasdaq under the symbol “AVPTW.” Any and all outstanding Warrants are eligible to be tendered pursuant to the Offer. |
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Market Price of the Warrants |
The Warrants are listed on Nasdaq under the symbol “AVPTW.” On August 26, 2024, the last reported sale price on Nasdaq for the Warrants was $1.87. |
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The Offer |
The Offer is to permit holders of Warrants to tender any and all outstanding Warrants for a purchase price of $2.50 in cash, without interest, for each Warrant tendered. A holder may tender as few or as many Warrants as the holder elects.
See “The Offer and Consent Solicitation, Section 1. General Terms.” |
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The Consent Solicitation |
In order to tender the Warrants in the Offer, holders of the Warrants are required to consent (by executing the Letter of Transmittal and Consent or requesting that their broker or nominee consent on their behalf) to an amendment to the Warrant Agreement governing the Warrants as set forth in the Warrant Amendment attached as Annex A. If approved by at least 50.1% of the holders of the Warrants, the Warrant Amendment would permit the Company to redeem each Warrant that is outstanding upon the closing of the Offer for $2.00 in cash, without interest, which is 20% less than the Offer Purchase Price. If the Warrant Amendment is adopted, we intend to issue a notice of redemption to redeem all remaining outstanding Warrants following the consummation of the Offer. The Redemption would occur 15 days after issuing the notice of redemption.
See “The Offer and Consent Solicitation, Section 1. General Terms.” |
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Fairness of the Transaction |
On August 18, 2024, our board of directors approved the fairness of the Offer, the Consent Solicitation, and the Redemption (collectively, the “Transaction”). References herein to the Transaction include the Offer, the Consent Solicitation and the Redemption.
See “Special Factors, Section 2. Fairness of the Transaction (Offer, Consent Solicitation and Redemption).” |
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U.S. Federal Income Tax Consequences of the Offer and Warrant Amendment |
The exchange of Warrants for cash pursuant to the Offer will be a taxable sale of the Warrants for U.S. federal income tax purposes. A U.S. Holder generally will recognize a gain or loss in an amount equal to the difference between the amount of cash received and the U.S. Holder’s adjusted tax basis in the Warrants. A Non-U.S. Holder generally will not be subject to U.S. federal income tax on any gain or loss realized on the exchange of Warrants for cash pursuant to the Offer, except in certain circumstances, such as if such gain or loss is effectively connected with such Non-U.S. Holder’s conduct of a trade or business in the United States and certain other requirements are met.
The U.S. federal income tax consequences of the Warrant Amendment are not free from doubt. If the Warrant Amendment is approved, the Company intends to treat all Warrants that are not exchanged for cash pursuant to the Offer as having been exchanged for “new” Warrants pursuant to the Warrant Amendment and such deemed exchange as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the “Code”). Because there is a lack of direct legal authority regarding the U.S. federal income tax consequences of the deemed exchange of Warrants for “new” Warrants pursuant to the Warrant Amendment, there can be no assurance in this regard and alternative characterizations by the Internal Revenue Service (“IRS”) or a court are possible, including ones that would require Holders to recognize taxable income or gain on the deemed exchange. It is also possible that, if the Warrant Amendment is approved, the redemption of all Warrants that are not exchanged for cash pursuant to the Offer may be treated as integrated with the Warrant Amendment such that a Holder is deemed to sell its Warrants in exchange for an amount of cash equal to the Redemption Price.
See “Special Factors, Section 6. Material U.S. Federal Income Tax Consequences.” |
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Reasons for the Offer |
The Offer is being made to all holders of Warrants. The purpose of the Offer is to reduce the number of potential shares of Common Stock that would become outstanding upon the exercise of the Warrants, thus providing investors and potential investors with greater clarity as to the Company’s go-forward capital structure.
See “Special Factors, Section 1. Purpose of the Offer.” |
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Expiration Date of Offer |
12:00 midnight, Eastern Time, at the end of the day on September 24, 2024, or such later date to which we may extend the Offer. All Warrants and related paperwork must be received by the Warrant Agent by this time, as instructed herein.
See “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.” |
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Withdrawal Rights |
If you tender your Warrants and change your mind, you may withdraw your tendered Warrants at any time until the Expiration Date. See “The Offer and Consent Solicitation, Section 3. Withdrawal Rights.” |
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Participation by Executive Officers and Directors |
To our knowledge, none of our directors or executive officers beneficially own Warrants. See “Special Factors, Section 5. Interests of Directors and Executive Officers.” |
| Conditions of the Offer | We will not accept for payment, purchase or pay for any Warrants tendered, and may terminate or amend the Offer or may postpone the acceptance for payment of, or the purchase of and the payment for the Warrants tendered, subject to the rules under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), if: | |
| ● | there has been instituted, threatened in writing or is pending any action, suit or proceeding by any government or governmental, regulatory or administrative agency or instrumentality, or by any other person, before any court, authority or other tribunal that, in our reasonable judgment, would or would be reasonably likely to prohibit, prevent, restrict or delay consummation of the Offer or materially impair the contemplated benefits to us of the Offer, or that is, or is reasonably likely to be, materially adverse to our business, operations, properties, condition, assets, liabilities or prospects; | |
| ● | any order, statute, rule, regulation, executive order, stay, decree, judgment or injunction has been proposed, enacted, entered, issued, promulgated, enforced or deemed applicable by any court or governmental, regulatory or administrative agency or instrumentality that, in our reasonable judgment, would or would be reasonably likely to prohibit, prevent, restrict or delay consummation of the Offer or materially impair the contemplated benefits to us of the Offer, or that is, or is reasonably likely to be, materially adverse to our business, operations, properties, condition, assets, liabilities or prospects; or | |
| ● | in our reasonable judgment, there shall have occurred or be reasonably likely to occur, any material adverse change to our business, operations, properties, condition, assets, liabilities, or prospects. | |
| The foregoing conditions are solely for our benefit, and we may assert one or more of the conditions regardless of the circumstances giving rise to any such conditions. We may also, in our sole and absolute discretion, waive these conditions in whole or in part, subject to the potential requirement to disseminate additional information and extend the Offer. The determination by us as to whether any condition has occurred shall be conclusive and binding on all parties; provided, that any such determination may be challenged by a holder of Warrants in any court of competent jurisdiction. The failure by us at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed a continuing right which may be asserted at any time and from time to time prior to the Expiration Date. If any of the conditions described above occur prior to the Expiration Date, we will promptly disclose our decision whether or not to waive such condition and, if the condition is material, we may be required to extend the Offer. We will amend this Offer Letter to report material changes, such as if a material condition to the Offer is waived, as required by Rule 13e-4(c)(3) under the Exchange Act. | ||
| See “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.” |
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No Recommendation by Board of Directors |
Our board of directors has approved the Offer and Consent Solicitation. However, none of the Company, its directors, officers or employees, nor the Warrant Agent, the Information Agent or the Dealer Manager makes any recommendation as to whether holders of Warrants should tender their Warrants and consent to the Warrant Amendment. Holders of Warrants must make their own decision as to whether to tender some or all of their Warrants and consent to the Warrant Amendment. See “The Offer and Consent Solicitation, Section 1.C. General Terms — Board Approval of the Offer; No Recommendation; Holder’s Own Decision.” |
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How to Tender Warrants |
To tender your Warrants, you must complete the actions described herein under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants” before the Offer expires. |
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Questions or Assistance |
Please direct questions or requests for assistance, or for additional copies of this Offer Letter, Letter of Transmittal and Consent or other materials to the Information Agent. The contact information for the Information Agent is located on the back cover of this Offer Letter. |
SPECIAL FACTORS
1. PURPOSE OF THE OFFER
The Offer is being made to all holders of Warrants. The purpose of the Offer is to reduce the number of potential shares of Common Stock that would become outstanding upon the exercise of the Warrants. The Company’s board of directors believes that given the Company’s strong cash flow generation and cash and cash equivalents on the balance sheet, it is a prudent use of capital at this time to allow holders of Warrants to tender their Warrants for the Offer Purchase Price. The Company can potentially reduce the substantial number of shares of Common Stock that would be issuable upon exercise of the Warrants, thus reducing the potential future dilutive impact of the Warrants, and providing investors and potential investors with greater clarity as to the Company’s go-forward capital structure. The Warrants acquired pursuant to the tender will be retired and cancelled. The Offer is not made pursuant to a plan to periodically increase any securityholder’s proportionate interest in the assets or earnings and profits of the Company.
2. FAIRNESS OF THE TRANSACTION (OFFER, CONSENT SOLICITATION AND REDEMPTION)
On August 18, 2024, the board of directors approved the commencement of the Offer and that the Transaction is fair to the holders of Warrants. To the Company’s knowledge, based on required public filings by Company affiliates, no holders of Warrants are affiliates of the Company and therefore the Company believes that all Warrant holders are unaffiliated Warrant holders. The board of directors evaluated information assembled and provided by the Company’s management in reaching its determination.
Factors Considered
The board of directors took into account a number of factors, including the following material factors, which were provided to the board by the Company’s management, in support of its determination that the Transaction is fair to the holders of the Warrants:
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For Warrant holders who participate in the tender offer, the Offer Purchase Price of $2.50 per Warrant constitutes (1) a 33.7% premium over the last reported sale price of the Warrants on Nasdaq of $1.87 on August 26, 2024, the business day before the Offer was launched, (2) a 41.4% premium over the 30-day volume weighted average price of the Warrants on Nasdaq before the Offer was launched ($1.7684) and (3) a 45.7% premium over the 60-day volume weighted average price of the Warrants on Nasdaq before the Offer was launched ($1.7156). |
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For Warrant holders who do not participate in the tender offer, the redemption price of $2.00 per Warrant constitutes (1) a 7.0% premium over the last reported sale price of the Warrants on Nasdaq of $1.87 on August 26, 2024, the business day before the Offer was launched, (2) a 13.1% premium over the 30-day volume weighted average price of the Warrants on Nasdaq before the Offer was launched ($1.7684) and (3) a 16.6% premium over the 60-day volume weighted average price of the Warrants on Nasdaq before the Offer was launched ($1.7156). |
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The theoretical value of a Warrant on August 26, 2024 using the Black-Scholes pricing model was $1.93 per Warrant, assuming a volatility of 34.45%, an interest rate of 3.783%, the actual Warrant expiration date of July 1, 2026, and the actual Warrant exercise price of $11.50. The 34.45% volatility was consistent with the Company’s historical stock volatility over the last 6 to 12 months. The 3.783% interest rate assumption was tied to Bloomberg’s standard estimate for the Black Scholes Pricing Model obtained from the OVME function on Bloomberg determined as on August 26, 2024. The Black-Scholes pricing model is one of a number of valuation models that have been developed to estimate the value of warrants and other equity linked securities. The model is based on assumed levels of volatility, interest rates and dividend rates in the future, and therefore the estimated valuation that the Black-Scholes model produces depends on judgments or approximations about these future events. However, the Black-Scholes model and other similar models are intended to estimate the value of warrants and other equity-linked securities that are both freely transferable and held by a financial institution or similar entity that has the ability to enter into offsetting hedging transactions. Given the limited liquidity of our Warrants and shares of our Common Stock along with the nature of the holders of our Warrants, there is no guarantee that our Warrants have either of these characteristics nor is there a guarantee that our shares of Common Stock are freely hedgeable and/or liquid. |
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The Offer is open to all holders of Warrants. All holders of Warrants have the same opportunity to participate in the tender and receive the $2.50 Offer Purchase Price. |
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There is a limited trading market for the Warrants — with limited liquidity and trading volume. The Offer provides all holders of the Warrants with an opportunity to obtain liquidity with respect to the Warrants without potential disruption to the Warrant market price, given the limited trading volume of the Warrants and the usual transaction costs associated with market sales, including brokerage fees and commissions. |
In evaluating the fairness of the Transaction, the factors considered in particular were recent market prices of the Warrants, historical market prices of the Warrants, and the Black-Scholes value of the Warrants, as discussed in detail above. Going concern value and liquidation value were not utilized for purposes of evaluating the fairness of the Transaction — these are not metrics which investors utilize in pricing warrants generally or the Warrants specifically. Purchase prices paid by the Company for the Warrants were not considered because the Company has not purchased its own Warrants since the consummation of the Company’s de-SPAC transaction in July 2021. Finally, the Company is not aware of any firm offers being made by any unaffiliated person during the past two years for (A) the merger or consolidation of the Company with or into another company, or vice versa; (B) the sale or other transfer of all or any substantial part of the assets of the Company; or (C) a purchase of the Company’s securities that would enable the holder to exercise control over the Company.
Fairness for Holders Who Tender or Who Do Not Tender
For Warrant holders who tender their Warrants in the Offer, the Company believes the Transaction is fair because these holders will receive $2.50 per Warrant, which is a premium to the market price on the date prior to the launch of the Offer ($1.87 per Warrant) and to the 30-day and 60-day volume weighted average price of the Warrants ($1.7684 and $1.7156, respectively). It is also a premium to the Black-Scholes value of the Warrants on the date prior to the launch of the Offer ($1.87 per Warrant). Given the illiquid market for the Warrants and the difficulty of finding buyers for large quantities of the Warrants, the Offer provides liquidity to the holders who might otherwise have difficulty selling their Warrants into the market with limited trading.
For Warrant holders who do not tender their Warrants in the Offer, the Company believes the Transaction is fair because these holders will receive $2.00 per Warrant when their Warrants are redeemed, which is also a premium to the market price on the day of launch of the Offer and to the 30-day and 60-day volume weighted average price of the Warrants. Also, these holders would be receiving $2.00 per Warrant but could have elected to receive $2.50 per Warrant.
In approving the Transaction, based on analysis assembled and prepared by management, our board of directors weighed the costs and risks, including the transaction costs associated with the Transaction, costs associated with the cash tender offer price, costs associated with legal counsel, the Dealer Manager and the Information Agent, the risks of not completing the Transaction, and the potential adverse impact of the Transaction on the trading market for untendered Warrants. Our board of directors determined that the benefits of the Transaction outweighed these costs and risks based on the factors described above.
Alternatives Considered
In evaluating the Transaction, the Company considered conducting an exchange offer for the Warrants as an alternative in which the Warrants would be exchanged for shares of Common Stock. For a discussion of various factors relevant to evaluating an exchange offer, see “Board Presentation” below. The Company ultimately concluded that the Transaction presented the optimal transaction approach. An exchange offer would require the filing of a Form S-4 with the SEC and potentially take a significant amount of time to execute. Funding an exchange offer with Common Stock would be a dilutive event for the holders of the Company’s Common Stock. The Company estimated that an exchange offer would also be more expensive and would require the direct involvement of the Company’s auditor, which would entail substantial additional work and expense. The Company has ample liquidity on hand to fund the Transaction.
Premium Price
Our board of directors, based on the recommendation of management, has approved an Offer which includes a premium to the market value of the Warrants as the board of directors believes the premium offer price will maximize participation in the Offer. Given our view that the Warrants are dilutive to current common shareholder ownership interests, the advantages of maximizing the Offer participation are viewed as outweighing the higher costs of offering a premium to the market value of the Warrants.
No Third Party Opinions
We did not retain any independent representative or consultant to render a fairness opinion or to provide any fairness analysis in connection with the Transaction. Additionally, we did not obtain any appraisals or valuations in connection with the determination of the Offer consideration. We concluded that the Transaction is fair and in the best interests of the Warrant holders based on an analysis assembled and prepared by management and presented to the board of directors, in light of the factors described above. However, the Company did consult with Evercore with respect to the structure of the Transaction and pricing of the Offer and the Redemption. Evercore did not provide any opinions, valuations or appraisals with respect to the Transaction.
Weighing of Factors
In view of the wide variety of factors considered in connection with its evaluation of the Transaction, the Company has found it impractical to, and therefore has not, quantified or otherwise attempted to assign relative weights to the specific factors considered in reaching a decision to approve the Transaction. However, as stated above, key factors considered were the recent market price of the Warrants, historical market prices of the Warrants, and the Black-Scholes value of the Warrants on the day prior to the launch of the Offer.
No Warrantholder Approval
The Offer does not require the approval of our Warrant holders; however, the Consent Solicitation requires the consent of holders of at least 50.1% of the outstanding Warrants to approve the Warrant Amendment. Although the Offer is not structured to require the approval of our Warrant holders, we believe that the Offer is fair to the Warrant holders with respect to the price offered. We base these beliefs on the following factors:
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all Warrant holders are offered the same consideration per Warrant; |
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Warrant holders are offered a premium to the market price of the Warrants; |
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Warrant holders are provided with full disclosure of the terms and conditions of the Transaction; and |
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Warrant holders are afforded sufficient time to consider the Transaction. |
All Warrant holders are being notified of the Transaction and the implications of the Transaction on their holdings, and all Warrant holders are afforded sufficient time to consider the Transaction. See “Special Factors — Section 4. Effects of the Transaction on the Market for the Warrants” for a detailed discussion of potential consequences that may result from remaining a holder of the Warrants.
3. BOARD PRESENTATION
Presentation
In connection with the Offer, Evercore, acting as Dealer Manager for the Offer, prepared a presentation for consideration by the board of directors of the Company to assist it in evaluating various considerations involved in undertaking a tender offer for the Warrants (the “Presentation”). The Presentation does not constitute an opinion, valuation or appraisal with respect to the Warrants. The Presentation (i) summarized the transaction rationale of the potential tender offer and (ii) presented a sensitivity analysis relating to the potential tender offer.
The transaction rationale set out in the Presentation stated that the transaction may:
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simplify the Company’s overall capital structure, |
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provide benefit in future capital raises and other strategic transactions, |
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reduce short interest in the stock, |
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remove accounting impact on the Company’s financial statements, and |
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limit potential share dilution. |
The Presentation did not comment on the Offer consideration or the fairness of the consideration to be offered to security holders or the fairness of the transaction to the Company or the Warrant holders.
The Presentation was not based on instructions received from the Company and was not limited by any limitations imposed by the Company or any affiliate of the Company on the scope of investigation which Evercore could undertake — e.g., the Company did not instruct Evercore what information to include in its Presentation. However, apart from the Presentation, the Company provided instruction to Evercore regarding the price the Company was willing to pay for the Warrants and the Company instructed Evercore to liaise with the Warrant holders on behalf of the Company to gauge potential interest of such holders in participating in the Offer and the price at which it would be attractive to participate in the Offer.
Evercore is an internationally recognized investment banking firm which is regularly engaged in providing financial advisory services in connection with tender offers. We selected Evercore to act as dealer manager in connection with the Offer on the basis of Evercore’s extensive experience in transactions similar to the Offer, its reputation in the investment community and its familiarity with the Company. Evercore in particular has extensive experience in advising companies with respect to exchange offers and tender offers for their warrants.
The Company has agreed to pay Evercore up to $1,000,000 for its services as Dealer Manager in connection with the Offer. The Company has also agreed to reimburse the reasonable and documented out-of-pocket expenses incurred by Evercore, including the cost of Evercore’s legal counsel, not to exceed $150,000. Payment of reasonable expenses incurred by Evercore as Dealer Manager and reasonable fees and expenses of Evercore’s legal counsel in connection with the Offer are not contingent upon the successful completion of the Offer.
Evercore and its affiliates engage in a wide range of financial services activities for its and their own accounts and the accounts of customers. In the ordinary course of these activities, Evercore and its affiliates provide cash management, bank transfer and foreign exchange services to the Company and its affiliates, for which services Evercore and its affiliates and related entities have received, and may in the future receive compensation.
A copy of the Presentation has been filed with the SEC as an exhibit to the Schedule TO. Evercore agreed that the Company could discuss the Presentation in this filing and include the Presentation as an exhibit to this filing.
4. EFFECTS OF THE TRANSACTION ON THE MARKET FOR THE WARRANTS
The board of directors, including our non-employee directors, after receiving analysis assembled and prepared by management, approved the Transaction with an Offer Purchase Price at a premium to the market price in order to provide the holders of the Warrants with an incentive to tender their Warrants in the Offer.
Benefits and Detriments
The primary benefits and detriments to the Company, participating Warrant holders and non-participating Warrant holders are described below. To the Company’s knowledge, based on required public filings by Company affiliates, no holders of Warrants are affiliates of the Company and therefore the Company believes that all Warrant holders are unaffiliated Warrant holders.
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Benefits |
Detriments |
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| To the Company | |||
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Warrants may be perceived by investors as imposing an effective cap on the Company’s share price, in the form of the Warrants’ exercise price. Removing the Warrants from the Company’s capital structure eliminates this potential perception of an effective cap. |
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If 100% of the Warrants are tendered, the Transaction will cost the Company approximately $43.9 million (exclusive of fees and expenses), which is a sum the Company could have profitably allocated elsewhere in its business. |
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Removing the Warrants from the Company’s capital structure will help investors and equity analysts value the Company more fairly and accurately. |
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The Transaction will demand attention from the Company’s management and board of directors. |
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3. |
Removing the Warrants can potentially reduce the substantial number of shares of Common Stock that would be issuable upon exercise of the Warrants, thus reducing the potential future dilutive impact of the Warrants and providing investors and potential investors with greater clarity as to the Company’s go-forward capital structure. |
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4. |
Removing the Warrants from the Company’s capital structure could make it easier for the Company to engage in strategic mergers and acquisitions, as the counterparty will not have to pay for, or spend resources evaluating, the Warrants. |
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5. |
Removing the Warrants from the Company’s capital structure can help reduce potential stigma associated with the legacy Company’s business combination with a Special Purpose Acquisition Company (“SPAC”). |
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To Warrant holders that participate in the Offer |
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Participating Warrant holders will receive a higher price if they tender their Warrants in the Offer rather than selling their Warrants in the open market at the current market price. |
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Participating Warrant holders may forego an increase in the value of their Warrants if the Company’s share price increases substantially in the future or if the Company is purchased by another company for a substantial premium to the Company’s current share price. |
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2. |
The Offer Purchase Price was determined following negotiations with parties holding more than a majority of the outstanding Warrants. |
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Participating Warrant holders will receive liquidity for a security with limited trading volume. |
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Participating Warrant holders who tender their Warrants for $2.50 in this Offer can avoid the risk of their Warrants expiring worthless. |
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To Warrant holders that do not participate in the Offer |
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Non-participating Warrant holders will receive a higher price for the redemption of their Warrants, relative to the recent trading prices of the Warrants, if the Warrant Amendment is adopted. |
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Non-participating Warrant holders will receive $2.00 upon the redemption of their Warrants, which is lower than the $2.50 participating Warrant holders will receive for the tender of their Warrants. |
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Non-participating Warrant holders who have their Warrants redeemed will avoid the risk of their Warrants expiring worthless. |
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If, for any reason, the Company did not redeem all of the untendered Warrants following the consummation of the Offer, the market for the Warrants would have less liquidity and volume, which would negatively affect the trading price of the Warrants and make it more difficult for non-participating Warrant holders to sell them in the market. |
Warrant Amendment and Redemption
The Warrants currently trade on Nasdaq under the symbol “AVPTW”.
If the holders of more than 50.1% of our outstanding Warrants agree to consent to the Warrant Amendment in the Consent Solicitation, if the other conditions described herein do not occur or, if they occur, are waived, then the Warrant Amendment will be adopted and we will have the right to redeem the Warrants that are not tendered in the Offer. We intend to issue a notice of redemption to redeem all untendered Warrants following the consummation of the Offer, and the redemption would occur 15 days after issuing the notice of redemption. Upon the redemption of the remaining untendered Warrants, the Nasdaq listing of the Warrants will be terminated, and we would seek to terminate the registration of the Warrants pursuant to Sections 12(b) and 12(g) and suspend any SEC reporting obligations in connection with the Warrants pursuant to 15(d) of the Exchange Act. However, regardless of whether the Offer is consummated, the Company’s Common Stock will remain listed on Nasdaq and registered with the SEC pursuant to Section 12(b) of the Exchange Act and we will remain an SEC registrant. See “Forward-Looking Statements; Risk Factors — The Warrant Amendment, if approved by the requisite holders of the Warrants, will allow us to redeem all outstanding Warrants at a price that is 20% lower than the Offer Purchase Price”, “Forward-Looking Statements; Risk Factors — There is no guarantee that your decision whether to tender your Warrants in the Offer will put you in a better future economic position,” and “Forward-Looking Statements; Risk Factors — The liquidity of the Warrants that are not tendered may be reduced”.
THE COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER AND CONSENT SOLICITATION. HOWEVER, NONE OF THE COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES, NOR THE WARRANT AGENT, THE INFORMATION AGENT OR THE DEALER MANAGER, MAKES ANY RECOMMENDATION AS TO WHETHER A WARRANT HOLDER SHOULD TENDER ANY WARRANTS AND CONSENT TO THE WARRANT AMENDMENT. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS AND CONSENT TO THE WARRANT AMENDMENT.
5. INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS
The names of the executive officers and directors of the Company are set forth below. The business address for each such person is: c/o AvePoint Inc., 525 Washington Blvd., Suite 1400, Jersey City, New Jersey 07310, and the telephone number for each such person is (201) 793-1111.
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Name |
Position |
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Xunkai Gong |
Executive Chairman |
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Tianyi Jiang |
Chief Executive Officer and Director |
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James Caci |
Chief Financial Officer |
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Brian Michael Brown |
Chief Legal & Compliance Officer, Secretary and Director |
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Janet Schijns |
Director |
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Jeff Teper |
Director |
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John Ho |
Director |
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Jeff Epstein |
Director |
As of August 26, 2024, 17,576,241 Warrants were outstanding.
To our knowledge, none of our directors or executive officers beneficially own Warrants.
Except as set forth below, we have not and, to the best of our knowledge, none of our current directors, executive officers or any person holding a controlling interest in us has, engaged in any transactions involving the Warrants during the 60-day period prior to the date of this Offer Letter.
NONE OF THE COMPANY OR ANY OF ITS DIRECTORS, OFFICERS OR EMPLOYEES, OR THE WARRANT AGENT, THE INFORMATION AGENT OR THE DEALER MANAGER MAKES ANY RECOMMENDATION AS TO WHETHER ANY HOLDER SHOULD TENDER ANY WARRANTS AND CONSENT TO THE WARRANT AMENDMENT. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS AND CONSENT TO THE WARRANT AMENDMENT.
The following table sets forth information regarding the beneficial ownership of our shares of Common Stock by:
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each person known by us to be the beneficial owner of more than 5% of our issued and outstanding shares of Common Stock; |
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each of our executive officers and directors; and |
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all our executive officers and directors as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days and restricted stock units that vest within 60 days. In addition, shares issuable pursuant to warrants, stock options or restricted stock units are deemed outstanding for computing the percentage of the person holding such options or restricted stock units but are not outstanding for computing the percentage of any other person.
The percentage ownership of our shares of Common Stock is based on 186,657,306 shares of Common Stock issued and outstanding as of June 30, 2024.
Beneficial Ownership
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Name of Beneficial Owner |
Shares |
Percent (1) |
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5% or Greater Stockholders |
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Zhijian Lu (2) |
19,811,851 | 10.54 | % | |||||
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65 Equity Partners (3) |
16,666,600 | 8.93 | % | |||||
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The Vanguard Group, Inc. (4) |
14,160,128 | 7.59 | % | |||||
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Blackrock Inc. (5) |
11,041,268 | 5.92 | % | |||||
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James Zhu (6) |
10,713,067 | 5.73 | % | |||||
| All 5% or Greater Stockholders | 72,392,914 | 38.70 | % | |||||
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Executive Officers and Directors |
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Xunkai Gong (7) |
21,896,194 | 11.46 | % | |||||
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Tianyi Jiang (8) |
20,985,472 | 10.94 | % | |||||
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John Ho (9) |
4,293,356 | 2.30 | % | |||||
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Brian Michael Brown (10) |
2,990,508 | 1.58 | % | |||||
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Jeff Epstein (11) |
1,121,058 | 0.60 | % | |||||
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Jeff Teper (12) |
545,631 | 0.29 | % | |||||
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James Caci (13) |
295,501 | 0.16 | % | |||||
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Janet Schijns (14) |
60,868 | 0.03 | % | |||||
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All executive officers and directors (15) |
52,188,588 | 27.36 | % | |||||
* Unless otherwise indicated, the business address of each of the directors, executive officers and 5% or greater stockholders of the Company is C/O AvePoint, Inc., 525 Washington Blvd, Suite 1400 Jersey City, NJ, 07310.
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(1) |
The percentage of beneficial ownership as to any person as of the Record Date is calculated by dividing the number of shares beneficially owned by such person, which includes the number of shares as to which such person has the right to acquire voting or investment power as of or within 60 days after June 30, 2024, by the sum of the number of shares outstanding as of June 30, 2024 plus the number of shares as to which such person has the right to acquire voting or investment power as of or within 60 days after June 30, 2024. Consequently, the denominator used for calculating such percentage may be different for each beneficial owner. Except as otherwise indicated below and under applicable community property laws, the Company believes that the beneficial owners of the Company’s common stock listed in the table have sole voting and investment power with respect to the shares shown. In all cases, stock options and RSUs that are not scheduled to vest as of or within 60 days after June 30, 2024 are excluded from this calculation. |
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(2) |
Consists of (i) 18,585,521 shares of common stock and (ii) 1,226,330 shares of common stock underlying options exercisable within 60 days of June 30, 2024. The 18,585,521 shares include (i) 84,848 shares held by Zhijian Lu, (ii) 1,608,724 shares held The Bridge Water Trust, (iii) 804,757 shares held by KEM Lily LLC, (iv) 6,571,492 shares held by Fire Stone Family Trust, (v) 7,102,219 shares held by KEM Phoenix LLC, (vi) 804,757 shares held by KEM Rose LLC and (vii) 1,608,724 shares held by The Cherry Tree Trust. Mr. Lu has sole voting and dispositive power with respect to the shares held in his name and shares underlying options. Mr. Lu shares voting and dispositive power with Yan Ji with respect to shares held by Fire Stone Family Trust, KEM Lily LLC, KEM Rose LLC and KEM Phoenix, LLC. Mr. Lu shares voting and dispositive power with Jeffrey Scott Bardsley with respect to shares held by The Bridge Water Trust. Mr. Lu shares voting and dispositive power with Wen Ji Bardsley with respect to shares held by The Cherry Tree Trust. |
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(3) |
Consists of 16,666,600 shares of common stock pursuant to the Schedule 13G filed with the SEC on September 25, 2023, disclosing the number of shares as of September 15, 2023. Ownership of these shares is shared equally by Anchor IV Pte. Ltd., Anchor @ 65 Equity Pte. Ltd., Anchor Fund @ 65 Limited Partnership, Anchor GP Pte. Ltd., 65EP Investment IV Pte. Ltd., 65EP Investments Pte. Ltd., 65 Equity Partners Management (Singapore) Pte. Ltd., 65 Equity Partners Management Pte. Ltd., 65 Equity Partners Group Pte. Ltd., and 65 Equity Partners Pte Ltd. (collectively, “65 Equity Partners”). The principal business address for 65 Equity Partners is 501 Orchard Road, #11-01 Wheelock Place, Singapore 238880. |
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(4) |
Consists of 14,160,128 shares of common stock pursuant to the Schedule 13G filed with the SEC on February 13, 2024, disclosing the number of shares as of December 29, 2023. The principal business address for The Vanguard Group, Inc. is 100 Vanguard Boulevard, Malvern, PA 19355 |
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(5) |
Consists of 11,041,268 shares of common stock pursuant to the Schedule 13G filed with the SEC on January 29, 2024, disclosing the number of shares as of December 31, 2023. The principal business address for Blackrock, Inc. is 50 Hudson Yards, New York, NY 10001. |
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(6) |
Consists of (i) 10,337,309 shares of common stock and (ii) 375,758 shares of common stock underlying options exercisable within 60 days of June 30, 2024. The 10,337,309 shares include (i) 347,123 shares held by James Zu, (ii) 402,378 shares held by MZ-Theta LLC, (iii) 919,609 shares held by MZ-Omega1 Trust, (iv) 842,209 shares held by The Shanmiao Trust, (v) 1,207,145 shares held by MZ-Alpha LLC, (vi) 1,207,145 shares held by MZ-Beta LLC, (vii) 402,378 shares held by MZ-Delta LLC, (viii) 402,378 shares held by MZ-Eta LLC, (ix) 2,333,040 shares held by MZ-Gamma LLC, (x) 842,209 shares held by The Zhijian 2020 Trust, (xi) 215,848 shares held by MZ-Iota Revocable Trust, (xii) 215,847 shares held by MZ-Kappa Revocable Trust and (xiii) 1,000,000 shares held by MZ-Omega2 Trust. Mr. Zhu shares voting and dispositive power with Sharron Shanmiao Ma with respect to the shares held by MZ-Alpha LLC, MZ-Beta LLC, MZ-Delta LLC, MZ-Eta LLC, MZ-Gamma LLC, MZ-Theta LLC, MZ-Iota Revocable Trust and MZ-Kappa Revocable Trust. Mr. Zhu shares voting and dispositive power with Brian Zhu with respect to the shares held by The Shanmiao Trust. Mr. Zhu shares voting and dispositive power with Sharron Shanmiao Ma and Alec Zhu with respect to the shares held by The Zhijian 2020 Trust. Mr. Zhu has sole voting and dispositive power with respect to the shares held by MZ-Omega1 Trust, MZ-Omega2 Trust and shares underlying options. |
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(7) |
Consists of (i) 17,464,772 shares of common stock and (ii) 4,431,422 shares of common stock underlying options exercisable within 60 days of June 30, 2024. The 17,464,772 shares include (i) 175,138 shares held by Mr. Gong, (ii) 4,668,306 shares held by Mr. Gong’s affiliate Giocoso Holdings LLC, (iii) 804,757 shares held by Mr. Gong’s affiliate Cadenza Holdings LLC, (iv) 239,431 shares held by Mr. Gong’s affiliate Vivace Holdings LLC, each of which Mr. Gong may be deemed to beneficially own, (v) 2,011,112 shares held by The Purple Harbor Trust, for which Mr. Gong is the trustee, (vi) 2,011,112 shares held by The Purple Cove Trust, for which Mr. Gong is the trustee, and (vii) 7,554,916 shares held by G Sonata Trust, for which Mr. Gong is the trustee. Mr. Gong holds sole voting and dispositive power with respect to the shares held of record by each trust. |
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(8) |
Consists of (i) 15,765,216 shares of common stock and (ii) 5,220,256 shares of common stock issuable pursuant to options exercisable within 60 days of June 30, 2024. The 15,765,216 shares include (i) 114,003 shares held by Mr. Jiang, (ii) 3,902,404 shares held by Mr. Jiang’s affiliate River Valley Ltd., (iii) 2,633,766 shares held by Red Kite LLC, each of which Mr. Jiang may be deemed to beneficially own, (iv) 3,289,396 shares held by Capella 2022 GRAT, (v) 1,187,786 shares held by Capella 2022 GRAT II, for each of which Mr. Jiang is the trustee, (vi) 4,465,861 shares held by the Capella 2023 GRAT and (vii) 172,000 shares held by Mr. Jiang’s spouse. |
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(9) |
Consists of (i) 77,466 shares of common stock held by Mr. Ho and (ii) 4,215,890 shares of common stock held by Mr. Ho’s affiliate, Balmoral Blue Limited. Mr. Ho and his wife, Anita Hong, may be deemed to beneficially own the shares held by Balmoral Blue Limited. |
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(10) |
Consists of (i) 956,105 shares of common stock and (ii) 2,034,403 shares of common stock issuable pursuant to options exercisable within 60 days of June 30, 2024. |
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(11) |
Consists of 1,121,058 shares of common stock. |
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(12) |
Consists of (i) 281,371 shares of common stock and (ii) 264,260 shares of common stock issuable pursuant to options exercisable within 60 days of June 30, 2024. |
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(13) |
Consists of (i) 204,879 shares of common stock and (ii) 90,622 shares of common stock issuable pursuant to options exercisable within 60 days of June 30, 2024. |
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(14) |
Consists of 60,868 shares of common stock. |
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(15) |
The shares of common stock shown as beneficially owned by all directors and executive officers as a group include a total of 12,040,963 RSUs and stock options they have the right to exercise as of or within 60 days after the June 30, 2024 and exclude 3,430,245 RSUs and stock options that are not scheduled to vest as of or within 60 days after June 30, 2024. |
6. MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a discussion of the material U.S. federal income tax consequences to “U.S. Holders” and “Non-U.S. Holders” (each as defined below and collectively, for purposes of this tax discussion, “Holders”) of (i) the exchange of Warrants for cash pursuant to the Offer, and (ii) the adoption of the Warrant Amendment if it is approved. This discussion is not a complete description of all the potential tax considerations relating to the Offer or the adoption of the Warrant Amendment and is not a substitute for tax advice. This discussion addresses only those Holders that hold their Warrants as a capital asset within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”) (generally, property held for investment), and does not address the alternative minimum tax, the Medicare surtax on net investment income or special tax accounting rules under Section 451(b) of the Code, or all of the U.S. federal income tax consequences that may be relevant to particular Holders in light of their individual circumstances or that are subject to special rules, such as: insurance companies, real estate investment trusts or regulated investment companies, persons who acquired the Warrants as compensation or in connection with the performance of services, Holders owning directly, indirectly or constructively 5% or more of the Company’s common stock by vote or value, individual retirement and other tax-deferred accounts, persons whose functional currency is not the U.S. dollar, certain financial institutions, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein), tax-exempt organizations, dealers in securities, traders in securities that elect to use a mark-to-market method of accounting, persons holding our Warrants as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment, “controlled foreign corporations,” “passive foreign investment companies” or corporations that accumulate earnings to avoid U.S. federal income taxes, and U.S. expatriates or former long-term residents of the United States.
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our Warrants that is, for U.S. federal income tax purposes: (i) an individual who is a citizen or resident of the United States, (ii) a corporation (including an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of such trust or (2) it has a valid election in place to be treated as a U.S. person.
For purposes of this discussion, a “Non-U.S. Holder” is a beneficial owner of Warrants that is, for U.S. federal income tax purposes:
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a nonresident alien individual; |
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a foreign corporation; or |
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a foreign estate or trust. |
This discussion does not describe the U.S. federal income tax consequences to Non-U.S. Holders who are individuals present in the United States for 183 days or more in the taxable year of disposition of the Warrants, who generally will be subject to special rules. Such Non-U.S. Holders are urged to consult their tax advisers regarding the U.S. federal income tax consequences applicable to them.
If a partnership (or any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds Warrants, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding Warrants and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them of the exchange of Warrants for cash pursuant to the Offer and/or adoption of the Warrant Amendment.
This discussion is based on the Code, applicable U.S. Treasury regulations, published rulings and court decisions, all as currently in effect as of the date hereof, and all of which are subject to change or differing interpretation, possibly with retroactive effect. This discussion does not address U.S. federal taxes other than those pertaining to U.S. federal income taxation (such as estate or gift taxes), and does not address the effects of any U.S. state or local or non-U.S. tax laws.
We have not sought, and do not intend to seek, a ruling from the IRS as to any U.S. federal income tax consequence described herein. The IRS may disagree with this discussion, and its determination may be upheld by a court. Moreover, there can be no assurance that future legislation, regulations, administrative rulings or court decisions will not adversely affect the accuracy of the statements in this discussion.
THIS DISCUSSION IS ONLY A SUMMARY OF THE MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE ADOPTION OF THE WARRANT AMENDMENT TO HOLDERS OF WARRANTS. EACH HOLDER OF WARRANTS IS URGED TO CONSULT HIS, HER OR ITS OWN TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO SUCH HOLDER OF THE OFFER AND THE ADOPTION OF THE WARRANT AMENDMENT, INCLUDING THE APPLICABILITY AND EFFECT OF U.S. FEDERAL ESTATE, GIFT OR OTHER NON-INCOME TAX LAWS AND ANY STATE, LOCAL, AND NON-U.S. TAX LAWS, AS WELL AS U.S. FEDERAL INCOME TAX LAWS AND ANY APPLICABLE TAX TREATIES.
U.S. Holders
Exchange of Warrants for Cash Pursuant to the Offer
The exchange of Warrants for cash pursuant to the Offer will be a taxable sale of the Warrants for U.S. federal income tax purposes. Subject to the discussion below of possible alternative treatments, a U.S. Holder will recognize capital gain or loss in an amount equal to the difference between the amount of cash received and the U.S. Holder’s adjusted tax basis in the Warrants. Any such capital gain or loss will be long-term capital gain or loss if the U.S. Holder’s holding period for the Warrants exceeds one year. A U.S. Holder must calculate gain or loss separately for each block of Warrants exchanged pursuant to the Offer (generally, Warrants acquired at the same cost in a single transaction). Long-term capital gain recognized by a non-corporate U.S. Holder generally will be eligible for reduced rates of tax. The deduction of capital losses is subject to limitations.
U.S. Holders are urged to consult their tax advisors regarding the U.S. federal income tax treatment of the exchange of Warrants for cash pursuant to the Offer.
Warrant Amendment
Although the issue is not free from doubt, if the Warrant Amendment is approved, the Company intends to treat all Warrants that are not exchanged for cash pursuant to the Offer as having been exchanged for “new” Warrants pursuant to the Warrant Amendment. The Company intends to treat this deemed exchange as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code. If this treatment is respected, (i) a U.S. Holder will generally not recognize any gain or loss on the deemed exchange of Warrants for “new” Warrants, (ii) the U.S. Holder’s aggregate tax basis in the “new” Warrants deemed to be received will generally equal its aggregate tax basis in the existing Warrants deemed surrendered, and (iii) the U.S. Holder’s holding period for the “new” Warrants deemed to be received will generally include its holding period for the Warrants deemed surrendered. Special tax basis and holding period rules apply to U.S. Holders that acquired different blocks of Warrants at different prices or at different times.
Because there is a lack of direct legal authority regarding the U.S. federal income tax consequences of the deemed exchange of Warrants for “new” Warrants pursuant to the Warrant Amendment, there can be no assurance that the IRS or a court will agree with the foregoing treatment and alternative characterizations by the IRS or a court are possible, including ones that would require U.S. Holders to recognize taxable income. If our treatment of the deemed exchange of Warrants for “new” Warrants pursuant to the Warrant Amendment were successfully challenged by the IRS and such exchange were not treated as a recapitalization for U.S. federal income tax purposes, a U.S. Holder generally would recognize a gain or loss on the deemed exchange of Warrants in an amount equal to the difference between the fair market value of the “new” Warrants on the day the Warrant Amendment became effective and its tax basis in the Warrants, with consequences generally similar to those discussed above under “U.S. Holders—Exchange of Warrants for Cash Pursuant to the Offer.”
Alternatively, because the Company intends to redeem any Warrants which remain outstanding after the Offer, the approval of the Warrant Amendment may be treated as an exchange of Warrants for an amount of cash equal to the Redemption Price, with consequences generally similar to those discussed above in the manner described above under “U.S Holders––Exchange of Warrants for Cash Pursuant to the Offer.”
If the Warrant Amendment is not approved, U.S. Holders who do not tender any of their Warrants pursuant to the Offer will generally not recognize any gain or loss for U.S. federal income tax purposes solely as a result of the consummation of the Offer.
Non-U.S. Holders
Exchange of Warrants for Cash Pursuant to the Offer
Subject to the discussion of backup withholding and FATCA below, a Non-U.S. Holder generally will not be subject to U.S. federal income tax on any gain or loss realized on the exchange of Warrants for cash pursuant to the Offer unless (i) such gain or loss is effectively connected with such Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base that such Non-U.S. Holder maintains in the United States), or (ii) the Company is or has been a “United States real property holding corporation,” or USRPHC, for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of exchange or the period that the Non-U.S. Holder held the Warrants and certain other conditions are met.
Gains that are effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, are attributable to a permanent establishment or fixed base in the United States) generally will be taxed in the same manner as gains for a U.S. Holder (see “U.S. Holders—Exchange of Warrants for Cash Pursuant to the Offer” above). A Non-U.S. Holder that is a corporation for U.S. federal income tax purposes may also be subject to an additional branch profits tax at a 30% rate or a lower applicable tax treaty rate on its effectively connected earnings and profits (as adjusted for certain items), which will include such effectively connected gain. We do not believe the Company currently is or will become a USRPHC in the foreseeable future, however there can be no assurance in this regard.
Non-U.S. Holders are urged to consult their tax advisors regarding the U.S. federal income tax treatment of the exchange of Warrants for cash pursuant to the Offer.
Warrant Amendment
As described in “U.S. Holders—Warrant Amendment” above, the U.S. federal income tax treatment of the Warrant Amendment is not free from doubt. The Company intends to treat this deemed exchange as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code. If this treatment is respected, a Non-U.S. Holder generally will not be subject to U.S. tax on the deemed exchange of Warrants for “new” Warrants.
If the deemed exchange of Warrants for “new” Warrants pursuant to the Warrant Amendment is not treated as a recapitalization for purposes of Section 368(a)(1)(E) of the Code and is instead treated as a taxable exchange, the consequences to Non-U.S. Holders will be generally similar to those discussed above under “Non-U.S. Holders—Exchange of Warrants for Cash Pursuant to the Offer.”
If the Warrant Amendment is not approved, Non-U.S. Holders who do not tender any of their Warrants pursuant to the Offer will generally not be subject to U.S. tax as a result of the consummation of the Offer.
Backup Withholding and Information Reporting
An exchanging U.S. Holder generally will be subject to information reporting and backup withholding with respect to the proceeds from the taxable exchange of Warrants unless (i) the U.S. Holder is an exempt recipient and, when required, establishes its exemption from information reporting and backup withholding or (ii) in the case of backup withholding, the U.S. Holder provides its taxpayer identification number (“TIN”), certifies that such TIN is correct and that it is not currently subject to backup withholding, and otherwise complies with applicable requirements of the backup withholding rules.
An exchanging Non-U.S. Holder generally will not be subject to backup withholding with respect to the proceeds from the taxable exchange of Warrants; provided (i) the Non-U.S. Holder certifies that it is a foreign person for U.S. federal income tax purposes (generally, by providing an IRS Form W-8BEN or W-8BEN-E or other applicable IRS Form W-8) or (ii) the Non-U.S. Holder otherwise establishes an exemption. Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides, is established or organized.
If a Holder does not provide the applicable certification described above, or if the applicable withholding agent has actual knowledge or reason to know that a Non-U.S. Holder is a United States person, payments of gross proceeds from the taxable exchange of Warrants generally will be subject to backup withholding at a rate currently equal to 24% of such gross proceeds. Backup withholding is not an additional U.S. federal income tax. Rather, the U.S. federal income tax liability of persons subject to backup withholding will be offset by the amount of tax withheld. If backup withholding results in an overpayment of U.S. federal income taxes, a refund or credit may be obtained, provided the required information is timely furnished with the IRS.
Additional Withholding Requirements Under the Foreign Account Tax Compliance Act
Sections 1471 through 1474 of the Code and the Treasury regulations thereunder (“FATCA”) generally impose a 30% withholding tax on certain types of payments made to “foreign financial institutions,” and “non-financial foreign entities,” each as specially defined under FATCA. For this purpose, FATCA applies to certain payments of U.S.-source interest and gross proceeds paid to a foreign financial institution or non-financial foreign entity unless certain requirements are met. The U.S. Treasury Department has released proposed regulations that, if finalized in their present form, would eliminate the application of this regime with respect to payments of gross proceeds. In its preamble to such proposed regulations, the U.S. Treasury Department stated that taxpayers generally may rely on the proposed regulations until final regulations are issued. All Holders should consult their own tax advisors regarding the possible implications of FATCA on their investment in shares of Class A Common Stock. Foreign financial institutions and non-financial foreign entities located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.
We will not pay any additional amounts with respect to any amounts withheld, including pursuant to FATCA. Under certain circumstances, a Non-U.S. Holder might be eligible for refunds or credits of such taxes. Each Non-U.S. Holder should consult its own tax advisors regarding the application of FATCA to the disposition of Warrants pursuant to the Offer.
The preceding summary of material U.S. federal income tax consequences is for general information only and is not legal or tax advice. Accordingly, each Holder should consult its own tax advisors regarding the U.S. federal, state, and local and non-U.S. tax consequences to them of the Offer and the adoption of the Warrant Amendment.
THE OFFER AND CONSENT SOLICITATION
Risks of Participating in the Offer
Participation in the Offer involves a number of risks, including, but not limited to, the risks identified in Section 11 below. Holders of the Warrants should carefully consider these risks and are urged to speak with their financial, investment and/or tax advisors as necessary before deciding whether to participate in the Offer. In addition, we strongly encourage you to read this Offer Letter in its entirety.
1. GENERAL TERMS
The Offer is to permit holders of Warrants that were publicly issued in connection with the Apex IPO to tender any and all outstanding Warrants for a purchase price of $2.50 in cash, without interest, for each Warrant tendered. A holder may tender as few or as many Warrants as the holder elects. Holders may also exercise their Warrants during the Offer Period in accordance with the terms of the Warrants.
You may tender some or all of your Warrants on these terms. The Offer relates to the Warrants that were publicly issued in connection with the Apex IPO, which trade on Nasdaq under the symbol “AVPTW.” Any and all outstanding Warrants are eligible to be tendered pursuant to the Offer. As of August 26, 2024, there were 17,576,241 Warrants outstanding.
If you elect to tender Warrants in response to the Offer, please follow the instructions in this Offer Letter and the related documents, including the Letter of Transmittal and Consent.
If you tender Warrants, you may withdraw your tendered Warrants before the Expiration Date and retain them on their terms by following the instructions herein.
As part of the Offer, we are also soliciting from holders of the Warrants their consent to the Warrant Amendment. If approved, the Warrant Amendment would permit the Company to redeem each Warrant that is outstanding upon the closing of the Offer for $2.00 in cash, without interest, which is 20% less than the Offer Purchase Price. A copy of the Warrant Amendment is attached hereto as Annex A. We urge that you carefully read the Warrant Amendment in its entirety. Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. If the Warrant Amendment is adopted, we intend to issue a notice of redemption to redeem all remaining outstanding Warrants following the consummation of the Offer. The redemption would occur 15 days after issuing the notice of redemption.
A holder who tenders Warrants in the Offer will automatically be deemed, without any further action, to have given his, her or its consent to approval of the Warrant Amendment (effective upon our acceptance of the Warrants tendered). The consent to the Warrant Amendment is a part of the Letter of Transmittal and Consent relating to the Warrants.
You cannot tender any Warrants in the Offer without giving your consent to the Warrant Amendment. Thus, before deciding whether to tender any Warrants, you should be aware that a tender of Warrants may result in the approval of the Warrant Amendment.
A. Period of Offer
The Offer will only be open for a period beginning on August 27, 2024 and ending on the Expiration Date. We expressly reserve the right, in our sole discretion, at any time or from time to time, prior to the Expiration Date, to extend the period of time during which the Offer is open. There can be no assurance, however, that we will exercise our right to extend the Offer.
B. Partial Tender Permitted
If you choose to participate in the Offer, you may tender less than all of your Warrants pursuant to the terms of the Offer. The Offer is not conditioned on any minimum number of Warrants being tendered.
HOLDERS MAY ALSO EXERCISE THEIR WARRANTS DURING THE OFFER PERIOD IN ACCORDANCE WITH THE TERMS OF THE WARRANTS.
C. Board Approval of the Offer; No Recommendation; Holder’s Own Decision
THE COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER AND THE CONSENT SOLICITATION. HOWEVER, NONE OF THE COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES, NOR THE WARRANT AGENT, THE INFORMATION AGENT OR THE DEALER MANAGER, MAKES ANY RECOMMENDATION AS TO WHETHER A HOLDER SHOULD TENDER WARRANTS AND CONSENT TO THE WARRANT AMENDMENT. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS AND CONSENT TO THE WARRANT AMENDMENT.
D. Extensions of the Offer
We expressly reserve the right, in our sole discretion, and at any time or from time to time, prior to the Expiration Date, to extend the period of time during which the Offer is open. There can be no assurance, however, that we will exercise our right to extend the Offer. If we extend the Offer, we will give notice of such extension by press release or other public announcement no later than 9:00 a.m., Eastern Time, on the next business day after the previously scheduled Expiration Date of the Offer.
2. PROCEDURE FOR TENDERING WARRANTS
A. Proper Tender of Warrants
To validly tender Warrants pursuant to the Offer, either (i) a properly completed and duly executed Letter of Transmittal and Consent or photocopy thereof, together with any required signature guarantees, must be received by the Warrant Agent at its address set forth on the last page of this Offer Letter prior to the Expiration Date or (ii) the ATOP procedures for book-entry transfer described below must be complied with prior to the Expiration Date. The method of delivery of all required documents is at the option and risk of the tendering Warrant holders. If delivery is by mail, the Company recommends registered mail with return receipt requested (properly insured). In all cases, sufficient time should be allowed to assure timely delivery.
In the Letter of Transmittal and Consent, the tendering Warrant holder must set forth: (i) his, her or its name and address; (ii) the number of Warrants tendered; and (iii) the number of the Warrant certificate(s) representing such Warrants.
If the Warrants are registered in the name of a person other than the signer of the Letter of Transmittal and Consent, the Warrants must be endorsed or accompanied by appropriate instruments of assignment, in either case signed exactly as the name(s) of the registered owner(s) appear on the Warrants, with the signature(s) on the Warrants or instruments of assignment guaranteed.
A tender of Warrants pursuant to the procedures described below in this Section 2 will constitute a binding agreement between the tendering Warrant holder and the Company upon the terms and subject to the conditions of the Offer and Consent Solicitation.
ALL DELIVERIES IN CONNECTION WITH THE OFFER, INCLUDING A LETTER OF TRANSMITTAL AND CONSENT AND WARRANTS, MUST BE MADE TO THE WARRANT AGENT OR THE BOOK-ENTRY TRANSFER FACILITY.
NO DELIVERIES SHOULD BE MADE TO THE COMPANY, AND ANY DOCUMENTS DELIVERED TO THE COMPANY WILL NOT BE FORWARDED TO THE WARRANT AGENT OR THE BOOK-ENTRY TRANSFER FACILITY AND, THEREFORE, WILL NOT BE DEEMED TO BE PROPERLY TENDERED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY DELIVERY. The Warrant Agent will establish an account for the Warrants at DTC for purposes of the Offer, within two business days after the date of this Offer Letter. Any financial institution that is a participant in DTC’s system may make book-entry delivery of Warrants by causing DTC to transfer such Warrants into the Warrant Agent’s account in accordance with DTC’s procedure for such transfer. Delivery of the Letter of Transmittal and Consent or Agent’s Message (or other required documentation) to DTC does not constitute delivery to the Warrant Agent. The term “Agent’s Message” means a message, transmitted by DTC to, and received by, the Warrant Agent and forming a part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering the Warrants that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and Consent and that the Company may enforce such agreement against the participant. The term “Book-Entry Confirmation” means a timely confirmation of a book-entry transfer of Warrants into the Warrant Agent’s account at DTC.
WARRANTS HELD IN STREET NAME. If Warrants are held through a direct or indirect DTC participant, such as a broker, dealer, commercial bank, trust company or other financial intermediary, you must instruct that holder to tender your Warrants on your behalf. A letter of instructions is included as an exhibit to the Schedule TO. The letter may be used by you to instruct a custodian to tender and deliver Warrants on your behalf.
Unless the Warrants being tendered are delivered to the Warrant Agent by the Expiration Date accompanied by a properly completed and duly executed Letter of Transmittal and Consent or a properly transmitted Agent’s Message, the Company may, at its option, treat such tender as invalid. Payment of the Offer Purchase Price upon tender of Warrants will be made only against the valid tender of Warrants.
GUARANTEED DELIVERY. If you want to tender your Warrants pursuant to the Offer, but (i) your Warrants are not immediately available, (ii) the procedure for book-entry transfer cannot be completed on a timely basis, or (iii) time will not permit all required documents to reach the Warrant Agent prior to the Expiration Date, you can still tender your Warrants, if all of the following conditions are met:
(a) the tender is made by or through an Eligible Institution (as defined in the Letter of Transmittal and Consent);
(b) the Warrant Agent receives by hand, mail or overnight courier, prior to the Expiration Date, a properly completed and duly executed Notice of Guaranteed Delivery in the form the Company has provided with this Offer Letter (with signatures guaranteed by an Eligible Institution); and
(c) the Warrant Agent receives, within one (1) Nasdaq trading day after the date of its receipt of the Notice of Guaranteed Delivery:
(1) the certificates for all tendered Warrants, or confirmation of receipt of the Warrants pursuant to the procedure for book-entry transfer as described above; and
(2) a properly completed and duly executed Letter of Transmittal and Consent (or copy thereof), or any Agent’s Message in the case of a book-entry transfer, and any other documents required by the Letter of Transmittal and Consent.
In any event, the payment of the Offer Purchase Price for Warrants tendered and accepted pursuant to the Offer will be made only after timely receipt by the Warrant Agent of such Warrants, properly completed and duly executed Letters of Transmittal and Consent and any other required documents.
Warrants tendered by Notice of Guaranteed Delivery will be excluded from the determination of whether at least 50.1% of the Warrants (which is the minimum number required to amend the Warrant Agreement) have been tendered in the Offer and Consent Solicitation, unless such Warrants and other required documents are received by the Warrant Agent by the Expiration Date.
B. Conditions of the Offer
See “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
C. Determination of Validity
All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for purchase of any tenders of Warrants will be determined by the Company, in its sole discretion, and its determination will be final and binding, subject to the judgment of any court that might provide otherwise. The Company reserves the absolute right, subject to the judgment of any court that might provide otherwise, to reject any or all tenders of Warrants that it determines are not in proper form or reject tenders of Warrants that may, in the opinion of the Company’s counsel, be unlawful. The Company also reserves the absolute right, subject to the judgment of any court that might provide otherwise, to waive any defect or irregularity in any tender of Warrants, and such waiver shall not require the Company to make a similar waiver of a similar defect or irregularity in other tendered Warrants. Neither the Company nor any other person will be under any duty to give notice of any defect or irregularity in tenders, nor will any of them incur any liability for failure to give any such notice.
D. Tender Constitutes an Agreement
A tender of Warrants made pursuant to any method of delivery set forth herein will also constitute an acknowledgement by the tendering Warrant holder that:
|
● |
the Offer is discretionary and may be extended, modified, suspended or terminated by us as provided herein; |
|
● |
such Warrant holder is voluntarily participating in the Offer; |
|
● |
the future value of our Warrants is unknown and cannot be predicted with certainty; |
|
● |
such Warrant holder has read this Offer Letter; |
|
● |
such Warrant holder has consulted his, her or its tax and financial advisors with regard to how the Offer will impact the tendering Warrant holder’s specific situation; |
|
● |
any foreign exchange obligations triggered by such Warrant holder’s tender of Warrants or receipt of the Offer Purchase Price are solely his, her or its responsibility; and |
|
● |
regardless of any action that we take with respect to any or all income/capital gains tax, social security or insurance tax, transfer tax or other tax-related items (“Tax Items”) related to the Offer and the disposition of Warrants, such Warrant holder acknowledges that the ultimate liability for all Tax Items is and remains his, her or its sole responsibility. |
In that regard, a tender of Warrants authorizes us to withhold all applicable Tax Items potentially payable by a tendering Warrant holder. Our acceptance for payment of Warrants tendered pursuant to the Offer will constitute a binding agreement between the tendering holder and us upon the terms and subject to certain conditions of the Offer, including the consent to the Warrant Amendment.
E. Signature Guarantees
Except as otherwise provided below, all signatures on a Letter of Transmittal and Consent by a person residing in or tendering Warrants in the United States must be guaranteed by an Eligible Institution. Signatures on a Letter of Transmittal and Consent need not be guaranteed if (i) the Letter of Transmittal and Consent is signed by the registered holder of the Warrant(s) tendered therewith; or (ii) such Warrant(s) are tendered for the account of an Eligible Institution. See Instructions 1, 3 and 4 of the Letter of Transmittal and Consent.
3. WITHDRAWAL RIGHTS
Tenders of Warrants made pursuant to the Offer may be withdrawn at any time prior to the Expiration Date. Thereafter, such tenders are irrevocable. If the Company extends the period of time during which the Offer is open for any reason, then Warrants that were previously tendered and not validly withdrawn will remain subject to the Offer. Notwithstanding the foregoing, tendered Warrants may also be withdrawn if the Company has not accepted the tendered Warrants by the 40th business day after the initial commencement of the Offer.
To be effective, a written notice of withdrawal must be timely received by the Warrant Agent at its address identified in this Offer Letter. Any notice of withdrawal must specify the name of the holder who tendered the Warrants for which tenders are to be withdrawn and the number of Warrants to be withdrawn. If the Warrants to be withdrawn have been delivered to the Warrant Agent, a signed notice of withdrawal must be submitted to the Warrant Agent prior to release of such Warrants. In addition, such notice must specify the name of the registered holder (if different from that of the tendering holder). Withdrawal may not be cancelled, and Warrants for which tenders are withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. However, Warrants for which tenders are withdrawn may be tendered again by following one of the procedures described in Section 2 at any time prior to the Expiration Date.
A holder of Warrants desiring to withdraw tendered Warrants previously delivered through DTC should contact the DTC participant through which such holder holds his, her or its Warrants. In order to withdraw previously tendered Warrants, a DTC participant may, prior to the Expiration Date, withdraw its instruction previously transmitted through DTC’s ATOP procedures by (i) withdrawing its acceptance, or (ii) delivering to the Warrant Agent by mail or hand delivery, a notice of withdrawal of such instruction. Holders of Warrants submitting a tender via DTC’s ATOP procedures are deemed to consent to the Warrant Amendment. The valid revocation of a consent will constitute the concurrent valid withdrawal of the tendered Warrants as to which consent was delivered. The notices of withdrawal must contain the name and number of the DTC participant. A withdrawal of an instruction must be executed by a DTC participant as such DTC participant’s name appears on its transmission to which such withdrawal relates. A DTC participant may withdraw a tendered Warrant only if such withdrawal complies with the provisions described in this paragraph.
A holder who tendered his, her or its Warrants other than through DTC should send written notice of withdrawal to the Warrant Agent specifying the name of the holder who tendered the Warrants being withdrawn. All signatures on a notice of withdrawal must be guaranteed by a Medallion Signature Guarantor; provided, however, that signatures on the notice of withdrawal need not be guaranteed if the Warrants being withdrawn are held for the account of an Eligible Institution. Withdrawal of a prior Warrant tender will be effective upon receipt of the notice of withdrawal by the Warrant Agent. Selection of the method of notification is at the risk of the holder and notice of withdrawal must be timely received by the Warrant Agent.
All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by the Company, in its sole discretion, which determination will be final and binding, subject to the judgment of any court that might provide otherwise. Neither the Company nor any other person will be under any duty to give notification of any defect or irregularity in any notice of withdrawal or incur any liability for failure to give any such notification, subject to the judgment of any court that might provide otherwise.
4. ACCEPTANCE OF WARRANTS AND PAYMENT OF OFFER PURCHASE PRICE
Upon the terms and subject to the conditions of the Offer, we will purchase Warrants validly tendered as of the Expiration Date for a purchase price of $2.50 per Warrant. The Offer Purchase Price to be paid will be delivered promptly following the Expiration Date. In all cases, Warrants will only be accepted for purchase pursuant to the Offer after timely receipt by the Warrant Agent of a properly completed and duly executed Letter of Transmittal and Consent (or copy thereof), or any Agent’s Message in the case of a book-entry transfer, and any other documents required by the Letter of Transmittal and Consent.
Under no circumstances will we pay interest on the Offer Purchase Price, including, but not limited to, by reason of any delay in making payment. In addition, if certain events occur, we may not be obligated to purchase Warrants in the Offer. See “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
We urge holders of Warrants who hold Warrants through a broker, dealer, commercial bank, trust company or other nominee to consult their nominee to determine whether transaction costs are applicable if they tender Warrants through their nominee and not directly to the Warrant Agent. The Company will not bear the costs of such transaction costs.
5. PRICE RANGE OF WARRANTS
Our Warrants are listed on Nasdaq under the symbol “AVPTW.” On August 26, 2024, the last reported sale price for the Warrants was $1.87. The following table sets forth the high and low sales prices for the Warrants for the periods shown:
|
Warrants |
||||||||
|
High |
Low |
|||||||
|
$ |
$ |
|||||||
|
Fiscal 2019 |
||||||||
|
Fourth Quarter |
1.25 | 0.90 | ||||||
|
Fiscal 2020 |
||||||||
|
First Quarter |
1.75 | 0.50 | ||||||
|
Second Quarter |
1.99 | 0.82 | ||||||
|
Third Quarter |
2.76 | 1.15 | ||||||
|
Fourth Quarter |
5.47 | 1.28 | ||||||
|
Fiscal 2021 |
||||||||
|
First Quarter |
5.05 | 2.01 | ||||||
|
Second Quarter |
3.65 | 0.82 | ||||||
|
Third Quarter |
3.44 | 1.73 | ||||||
|
Fourth Quarter |
2.50 | 1.09 | ||||||
|
Fiscal 2022 |
||||||||
|
First Quarter |
1.23 | 0.74 | ||||||
|
Second Quarter |
1.14 | 0.51 | ||||||
|
Third Quarter |
1.03 | 0.58 | ||||||
|
Fourth Quarter |
0.90 | 0.42 | ||||||
|
Fiscal 2023 |
||||||||
|
First Quarter |
0.91 | 0.50 | ||||||
|
Second Quarter |
1.24 | 0.52 | ||||||
|
Third Quarter |
1.53 | 0.78 | ||||||
|
Fourth Quarter |
1.51 | 0.88 | ||||||
|
Fiscal 2024 |
||||||||
|
First Quarter |
1.30 | 0.85 | ||||||
|
Second Quarter |
1.74 | 0.82 | ||||||
|
Third Quarter (through August 26, 2024) |
2.00 | 1.20 | ||||||
The Company recommends that holders consider current market quotations for the Warrants, among other factors, before deciding whether or not to tender their Warrants.
6. SOURCE AND AMOUNT OF FUNDS; FEES AND EXPENSES
Assuming 100% participation in the Offer, we will need approximately $43.9 million to purchase all of the outstanding Warrants at the purchase price of $2.50 per Warrant. We estimate that the total amount of cash required to complete the Offer and Consent Solicitation, including the payment of any fees, expenses and other related amounts incurred in connection with the Offer and Consent Solicitation will be approximately $1,324,000 million, all of which will be funded by us from our existing and available cash reserves. No alternative plan exists to finance the purchase of the tendered Warrants.
The estimated costs and expenses to be paid by us in connection with the offer are as follows:
|
Legal fees |
$ | 300,000 | ||
|
Filing fees |
$ | 6,500 | ||
|
Tender/Information Agent/Printing and Mailing expense |
$ | 17,500 | ||
|
Dealer Manager fees |
$ | 1,000,000 | ||
|
Total |
$ | 1,324,000 |
7. INFORMATION CONCERNING AVEPOINT, INC.
On July 1, 2021, AvePoint, Inc. and Apex Technology Acquisition Corporation consummated a business combination pursuant to the Agreement and Plan of Reorganization, dated November 23, 2020, through a merger of subsidiaries under a newly formed holding company.
AvePoint provides a cloud-native data management software platform that organizations rely on to manage and protect critical data, optimize IT operations, achieve meaningful cost savings, and efficiently secure the digital workplace. Companies around the world have now fully adopted a hybrid work model, and they are now tasked with delivering a seamless and secure workplace experience for knowledge workers, centered around an extensive portfolio of Software-as-a-Service (“SaaS”) solutions and productivity applications.
The adoption of this portfolio of solutions is a substantial and ongoing challenge for most organizations, which for decades had used only a small number of multi-purpose on-premises applications to drive business outcomes. However, to deliver an efficient digital workplace today, companies must manage this range of applications – and the associated explosive growth and sprawl of critical data – with a platform offering that is well governed, fit for purpose, easy to use and built on automation.
In addition, many organizations are beginning to realize the potential of generative artificial intelligence (“AI”) to drive competitive advantage and value creation, including (1) extracting greater value from complex datasets, (2) making more informed business decisions, (3) reducing employee workloads, and (4) improving the overall customer experience. While these data-driven improvements are expected to lead to stronger revenue growth and operational efficiency, successfully leveraging this new technology is in turn dependent on first addressing data management challenges that all organizations face. Specifically, for AI-driven projects to succeed, companies must apply robust strategies across the data estate to manage the information lifecycle, properly govern and secure their data, and ensure its compliance. These are the core business problems that AvePoint has been solving for more than two decades, and why we believe AvePoint is well positioned to be a key enabler of generative AI adoption within enterprises in the coming years.
AvePoint’s Confidence Platform empowers organizations – of all sizes, in all regions, and across all industries – to optimize and secure the solutions that most commonly establish and underpin the digital workplace. As our customers seek to rapidly reduce costs, improve productivity and make more informed business decisions, they depend on our platform for data-driven insights, critical business intelligence and ongoing operational value through automation.
Our book value per share as of June 30, 2024 was $1.11 and as of December 31, 2023 was $1.18.
CONSOLIDATED STATEMENTS OF OPERATIONS
U.S. DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA
|
Three Months Ended |
Six Months Ended |
For the Year Ended |
||||||||||||||||
|
June 30, |
June 30, |
December 31, |
||||||||||||||||
|
2024 |
2023 |
2024 |
2023 |
2023 |
2022 |
|||||||||||||
|
Revenue: |
||||||||||||||||||
|
SaaS |
$ |
53,643 |
$ |
38,279 |
$ |
104,954 |
$ |
73,791 |
$ |
160,961 |
$ |
117,180 |
||||||
|
Term license and support |
10,983 |
13,277 |
20,988 |
24,181 |
52,744 |
57,214 |
||||||||||||
|
Services |
10,517 |
10,066 |
20,998 |
19,813 |
44,795 |
41,283 |
||||||||||||
|
Maintenance |
2,818 |
3,247 |
5,555 |
6,656 |
13,325 |
16,662 |
||||||||||||
|
Total revenue |
77,961 |
64,869 |
152,495 |
124,441 |
271,825 |
232,339 |
||||||||||||
|
Cost of revenue: |
||||||||||||||||||
|
SaaS |
9,745 |
9,130 |
19,515 |
17,025 |
35,924 |
27,313 |
||||||||||||
|
Term license and support |
413 |
496 |
829 |
957 |
1,946 |
2,006 |
||||||||||||
|
Services |
8,647 |
9,958 |
18,720 |
19,309 |
38,807 |
36,037 |
||||||||||||
|
Maintenance |
137 |
212 |
320 |
395 |
783 |
920 |
||||||||||||
|
Total cost of revenue |
18,942 |
19,796 |
39,384 |
37,686 |
77,460 |
66,276 |
||||||||||||
|
Gross profit |
59,019 |
45,073 |
113,111 |
86,755 |
194,365 |
166,063 |
||||||||||||
|
Operating expenses: |
||||||||||||||||||
|
Sales and marketing |
30,470 |
27,691 |
60,409 |
54,542 |
112,105 |
110,638 |
||||||||||||
|
General and administrative |
18,184 |
15,193 |
35,052 |
29,841 |
61,271 |
65,132 |
||||||||||||
|
Research and development |
12,503 |
9,273 |
22,989 |
18,288 |
36,340 |
31,359 |
||||||||||||
|
Total operating expenses |
61,157 |
52,157 |
118,450 |
102,671 |
209,716 |
207,129 |
||||||||||||
|
Loss from operations |
(2,138 |
) |
(7,084 |
) |
(5,339 |
) |
(15,916 |
) |
(15,351 |
) |
(41,066 |
) |
||||||
|
Other (expense) income, net |
(6,970 |
) |
(2,128 |
) |
(3,566 |
) |
(500 |
) |
(3,263 |
) |
7,416 |
|||||||
|
Loss before income taxes |
(9,108 |
) |
(9,212 |
) |
(8,905 |
) |
(16,416 |
) |
(18,614 |
) |
(33,650 |
) |
||||||
|
Income tax expense |
3,830 |
3,313 |
5,987 |
5,291 |
2,887 |
5,038 |
||||||||||||
|
Net loss |
$ |
(12,938 |
) |
$ |
(12,525 |
) |
$ |
(14,892 |
) |
$ |
(21,707 |
) |
$ |
(21,501 |
) |
$ |
(38,688 |
) |
|
Net (loss) income attributable to noncontrolling interest |
(129 |
) |
60 |
(367 |
) |
75 |
224 |
2,942 |
||||||||||
|
Net loss available to common shareholders |
$ |
(12,809 |
) |
$ |
(12,585 |
) |
$ |
(14,525 |
) |
$ |
(21,782 |
) |
$ |
(21,725 |
) |
$ |
(41,630 |
) |
|
Basic and diluted loss per share |
$ |
(0.07 |
) |
$ |
(0.07 |
) |
$ |
(0.08 |
) |
$ |
(0.12 |
) |
$ |
(0.12 |
) |
$ |
(0.23 |
) |
|
Basic and diluted shares used in computing loss per share |
182,804 |
183,315 |
182,150 |
183,068 |
182,257 |
181,957 |
||||||||||||
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME DATA
U.S. DOLLARS IN THOUSANDS
|
Three Months Ended |
Six Months Ended |
For the Year Ended |
||||||||||||||||
|
June 30, |
June 30, |
December 31, |
||||||||||||||||
|
2024 |
2023 |
2024 |
2023 |
2023 |
2022 |
|||||||||||||
|
Net loss |
$ |
(12,938 |
) |
$ |
(12,525 |
) |
$ |
(14,892 |
) |
$ |
(21,707 |
) |
$ |
(21,501 |
) |
$ |
(38,688 |
) |
|
Other comprehensive income (loss) net of taxes |
||||||||||||||||||
|
Unrealized (loss) gain on available-for-sale securities |
(41 |
) |
- |
(41 |
) |
- |
100 |
- |
||||||||||
|
Reclassification adjustment for net gains on available-for-sale securities included in net loss |
- |
- |
(100 |
) |
- |
- |
- |
|||||||||||
|
Foreign currency translation adjustments |
79 |
88 |
(399 |
) |
- |
1,104 |
(250 |
) |
||||||||||
|
Total other comprehensive income (loss) |
38 |
88 |
(540 |
) |
172 |
1,204 |
(250 |
) |
||||||||||
|
Total comprehensive loss |
(12,900 |
) |
(12,427 |
) |
(15,432 |
) |
(21,535 |
) |
(20,297 |
) |
(38,938 |
) |
||||||
|
Comprehensive (loss) income attributable to noncontrolling interest |
(130 |
) |
(48 |
) |
(441 |
) |
2 |
238 |
3,003 |
|||||||||
|
Total comprehensive loss attributable to AvePoint, Inc. |
(12,770 |
) |
(12,389 |
) |
(14,991 |
) |
(21,537 |
) |
(20,535 |
) |
(41,941 |
) |
||||||
SUMMARIZED CONSOLIDATED BALANCE SHEET DATA
U.S. DOLLARS IN THOUSANDS
|
June 30, 2024 |
December 31, 2023 |
December 31, 2022 |
|
|
Total current assets |
$316,892 |
$325,584 |
$306,295 |
|
Total non-current assets |
$110,373 |
$116,998 |
$109,238 |
|
Total assets |
$427,265 |
$442,582 |
$415,533 |
|
Total current liabilities |
$172,727 |
$176,665 |
$142,708 |
|
Total non-current liabilities |
$47,130 |
$41,073 |
$29,671 |
|
Total liabilities |
$219,857 |
$217,738 |
$172,379 |
|
Total mezzanine equity |
$0 |
$6,038 |
$14,007 |
|
Total shareholders' equity |
$207,408 |
$218,806 |
$229,147 |
We incorporate herein by reference:
|
● |
the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 29, 2024; |
|
● |
the information incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 from the Company’s proxy statement on Schedule 14A, filed with the SEC on March 19, 2024; |
|
● |
the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 9, 2024; |
|
● |
the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2024, filed with the SEC on August 8, 2024; and |
|
● |
the Company’s Current Report on Form 8-K filed with the SEC on May 9, 2024. |
Our principal executive office is located at 525 Washington Blvd., Suite 1400, Jersey City, New Jersey 07310, and our telephone number is (201) 793-1111.
8. PLANS, PROPOSALS OR NEGOTIATIONS
Except for (i) the Offer, Consent Solicitation and Redemption, (ii) as described in the information incorporated by reference herein, and (iii) other than the negotiations with Warrant holders described under “Special Factors — 2. Fairness of the Transaction (Offer, Warrant Amendment and Redemption”), there are no present plans, proposals or negotiations by the Company that relate to or would result in:
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● |
any extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; |
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● |
a purchase, sale or transfer of a material amount of assets of the Company or any of its subsidiaries; |
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any material change in the present dividend rate or policy, or indebtedness or capitalization of the Company; |
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any change in the present board of directors or management of the Company, including, but not limited to, any plans or proposals to change the number or the term of directors, to fill any existing vacancies on the board or to change any material term of the employment contract of any executive officer; |
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any other material change in the Company’s corporate structure or business; |
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any class of equity security of the Company being delisted from a national securities exchange; |
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any class of equity security of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; |
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the suspension of the Company’s obligation to file reports pursuant to Section 15(d) of the Exchange Act; |
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the acquisition by any person of additional securities of the subject company, or the disposition of securities of the subject company; or |
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changes in the Company’s Certificate of Incorporation or By-laws or other governing instruments or other actions that could impede the acquisition of control of the Company by any person. |
9. TRANSACTIONS AND AGREEMENTS CONCERNING THE COMPANY’S SECURITIES
Except as described herein (including the information incorporated herein by reference), none of the Company or, to our knowledge, any of our affiliates, directors or executive officers, is a party to any contract, arrangement, understanding or agreement with any other person relating, directly or indirectly, to the Offer or with respect to any of our securities, including any contract, arrangement, understanding or agreement concerning the transfer or the voting of the securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or the giving or withholding of proxies, consents or authorizations.
Warrant Agreement
In connection with the Apex IPO and the appointment of a warrant agent for the Warrants, Apex entered into the Warrant Agreement with Continental Stock Transfer & Trust Company on September 16, 2019. The Warrant Agreement provides for the various terms, restrictions and governing provisions that dictate all of the terms of the Warrants.
Other Agreements and Transactions
The Company has retained Continental Stock Transfer & Trust Company to act as the Warrant Agent, Sodali & Co. to act as the Information Agent and Evercore LLC to act as the Dealer Manager. Directors, officers and employees of the Company or its affiliates or the Information Agent may contact holders of Warrants by hand, mail, e-mail or telephone regarding the Offer and may request brokers, dealers and other nominees to forward the Offer Letter and related materials to beneficial owners of the Warrants. Such directors, officers and employees will not be specifically compensated for providing such services. The Dealer Manager, the Warrant Agent and the Information Agent will receive reasonable and customary compensation for their respective services in connection with the Offer, plus reimbursement for out-of-pocket expenses, and will be indemnified by the Company against certain liabilities and expenses in connection therewith.
We have no contract, arrangement or understanding relating to the payment of, and will not, directly or indirectly, pay, any commission or other remuneration to any broker, dealer, salesperson, agent or any other person, including the Dealer Manager, for soliciting tenders in the Offer.
Rule 13e-4 under the Exchange Act generally prohibits us and our affiliates from purchasing any Warrants, other than in the Offer, until at least ten business days after the Expiration Date, except pursuant to certain limited exceptions provided in Exchange Act Rule 14e-5. Following that time, we expressly reserve the absolute right, in our sole discretion from time to time in the future, to purchase or redeem Warrants, whether or not any Warrants are purchased pursuant to the Offer, through open market purchases, privately negotiated transactions, accelerated share repurchases, tender offers, exchange offers or otherwise, upon the same or different terms than the terms of the Offer. We cannot assure you as to which, if any, of these alternatives, or combinations thereof, we might pursue.
10. CONDITIONS; TERMINATION; WAIVERS; EXTENSIONS; AMENDMENTS
We will not accept for payment, purchase or pay for any Warrants tendered, and may terminate or amend the Offer or may postpone the acceptance for payment of, or the purchase of and the payment for the Warrants tendered, subject to the rules under the Exchange Act if:
(a) there has been instituted, threatened in writing or is pending any action, suit or proceeding by any government or governmental, regulatory or administrative agency or instrumentality, or by any other person, before any court, authority or other tribunal that, in our reasonable judgment, would or would be reasonably likely to prohibit, prevent, restrict or delay consummation of the Offer or materially impair the contemplated benefits to us of the Offer, or that is, or is reasonably likely to be, materially adverse to our business, operations, properties, condition, assets, liabilities or prospects;
(b) any order, statute, rule, regulation, executive order, stay, decree, judgment or injunction has been proposed, enacted, entered, issued, promulgated, enforced or deemed applicable by any court or governmental, regulatory or administrative agency or instrumentality that, in our reasonable judgment, would or would be reasonably likely to prohibit, prevent, restrict or delay consummation of the Offer or materially impair the contemplated benefits to us of the Offer, or that is, or is reasonably likely to be, materially adverse to our business, operations, properties, condition, assets, liabilities or prospects; or
(c) in our reasonable judgment, there shall have occurred or be reasonably likely to occur, any material adverse change to our business, operations, properties, condition, assets, liabilities, or prospects.
The foregoing conditions are solely for our benefit, and we may assert one or more of the conditions regardless of the circumstances giving rise to any such conditions. We may also, in our sole and absolute discretion, waive these conditions in whole or in part, subject to the potential requirement to disseminate additional information and extend the Offer. The determination by us as to whether any condition has occurred shall be conclusive and binding on all parties; provided, that any such determination may be challenged by a holder of Warrants in any court of competent jurisdiction. The failure by us at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed a continuing right which may be asserted at any time and from time to time prior to the Expiration Date. If any of the conditions described above occur prior to the Expiration Date, we will promptly disclose our decision whether or not to waive such condition and, if the condition is material, we may be required to extend the Offer. We will amend this Offer Letter to report material changes, such as if a material condition to the Offer is waived, as required by Rule 13e-4(c)(3) under the Exchange Act.
We may terminate the Offer if any of the conditions of the Offer occur prior to the Expiration Date. In the event that we terminate the Offer, all Warrants tendered by a holder in connection with the Offer will be returned to such holder and the Warrants will expire in accordance with their terms on July 1, 2026, and will otherwise remain subject to their original terms, including the redemption provisions.
Subject to applicable securities laws and the terms and conditions set forth in this Offer Letter, we expressly reserve the right (but will not be obligated), at any time or from time to time, prior to the Expiration Date, regardless of whether or not any of the events set forth above shall have occurred or shall have been determined by us to have occurred, to (a) waive any and all conditions of the Offer, (b) extend the Offer, or (c) otherwise amend the Offer in any respect. The rights reserved by us in this paragraph are in addition to our rights to terminate the Offer described above. Irrespective of any amendment to the Offer, all Warrants previously tendered pursuant to the Offer and not accepted for purchase or withdrawn will remain subject to the Offer and may be accepted thereafter for purchase by us.
If we materially change the terms of the Offer or the information concerning the Offer, or if we waive a material condition to the Offer, we will disseminate additional information and extend the Offer to the extent required by Exchange Act Rules 13e-4(d)(2) and 13e-4(e)(3). In addition, we may, if we deem appropriate, extend the Offer for any other reason. In addition, if the Offer Purchase Price is adjusted, the Offer will remain open at least ten (10) business days from the date we first give notice of such change to Warrant holders, by press release or otherwise.
Any extension, amendment or termination of the Offer by us will be followed promptly by a public announcement thereof. Without limiting the manner in which we may choose to make such announcement, we will not, unless otherwise required by law, have any obligation to advertise or otherwise communicate any such announcement other than by issuing a press release or by such other means of public announcement as we deem appropriate.
If for any reason the acceptance for tender (whether before or after any Warrants have been accepted for tender pursuant to the Offer), or the tender for Warrants subject to the Offer is delayed or if we are unable to accept for tender Warrants pursuant to the Offer, then, without prejudice to our rights under the Offer, tendered Warrants may be retained by the Warrant Agent on our behalf and may not be withdrawn (subject to Exchange Act Rule 14e-1(c), which requires that an offeror deliver the consideration offered or return the securities deposited by or on behalf of the investor promptly after the termination or withdrawal of a tender offer). In addition to being limited by Exchange Act Rule 14e-1(c), our reservation of the right to delay delivery of the Offer Purchase Price for Warrants which we have accepted for tender pursuant to the Offer is limited by Exchange Act Rule 13e- 4(f)(5), which requires that an offeror deliver the consideration offered or return the securities tendered pursuant to a tender offer promptly after termination or withdrawal of that tender offer. Notwithstanding the foregoing, tendered Warrants may also be withdrawn if the Company has not accepted the Warrants for tender by the 40th business day after the initial commencement of the Offer.
Pursuant to Exchange Act Rules 13e-3 and 13e-4, we have filed the Schedule TO with the SEC which contains additional information with respect to the Offer. The Schedule TO also serves as a Schedule 13E-3 with respect to the Offer. The Schedule TO, including the exhibits and any amendments thereto, may be examined, and copies may be obtained, at the same places and in the same manner as set forth under “Additional Information; Miscellaneous” in this Offer Letter.
11. FORWARD-LOOKING STATEMENTS; RISK FACTORS
This Offer Letter contains forward-looking statements. Forward-looking statements usually relate to future events, conditions and anticipated revenues, earnings, cash flows or other aspects of our operations or operating results. Forward- looking statements are often identified by the words “believes,” “expects,” “intends,” “estimates,” “projects,” “anticipates,” “will,” “plans,” “may,” “should,” or the negative thereof or similar terms. The absence of these words, however, does not mean that these statements are not forward-looking. Forward-looking statements are based on our current expectation, belief and assumptions concerning future developments and business conditions and their potential effect on us. While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that future development affecting us will be those that we anticipate.
All of our forward-looking statements involve risks and uncertainties (some of which are significant or beyond our control) and assumptions that could cause actual results to differ materially from our historical experience and our present expectations or projections. Known material factors that could cause actual results to differ materially from those contemplated in the forward-looking statements include those set forth in this “Section 11. Forward-Looking Statements; Risk Factors.” We caution you not to place undue reliance on any forward-looking statements, which speak only as of the date hereof.
The Warrant Amendment, if approved by the requisite holders of the Warrants, will allow us to redeem all outstanding Warrants at a price that is 20% lower than the Offer Purchase Price.
If we complete the Offer and Consent Solicitation and obtain the approval of the Warrant Amendment by holders of at least 50.1% of the Warrants, the Company will have the right to redeem each outstanding Warrant, including Warrants held by holders who do not wish to participate and did not participate in the Offer, for $2.00 in cash, which is 20% less than the Offer Purchase Price, without interest. If the Warrant Amendment is adopted, we intend to issue a notice of redemption to redeem all remaining outstanding Warrants following the consummation of the Offer. The redemption would occur 15 days after issuing the notice of redemption.
Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. Therefore, one of the conditions to the adoption of the Warrant Amendment is the receipt of the consent of holders of at least 50.1% of the outstanding Warrants. If the holders of more than 50.1% of our outstanding Warrants agree to consent to the Warrant Amendment in the Consent Solicitation, if the other conditions described herein do not occur or, if they occur, are waived, then the Warrant Amendment will be adopted.
If the Warrant Amendment is adopted, we intend to redeem the remaining outstanding Warrants as provided in the Warrant Agreement, which would result in the holders of any remaining outstanding Warrants receiving 20% less cash than if they had tendered their Warrants in the Offer.
There is no guarantee that your decision whether to tender your Warrants in the Offer will put you in a better future economic position.
We can give no assurance as to the price at which a Warrant holder may be able to sell his, her or its Warrants in the future following the completion of the Offer. Certain future events may cause an increase in the price of the Warrants, which could result in you realizing a lower value now than you might realize in the future had you not agreed to tender your Warrants. Similarly, if you do not tender your Warrants in the Offer, you will bear the risk of ownership of your Warrants after the closing of the Offer, and there can be no assurance that you can sell your Warrants (or exercise them for shares of Common Stock) in the future at a higher price than would have been obtained by participating in the Offer or at all. In addition, if you do not tender your Warrants and if we obtain the approval of the Warrant Amendment, we intend to implement the Warrant Amendment and subsequently redeem your Warrants for the Redemption Price, which is 20% lower than the Offer Purchase Price. You should carefully review the terms of the Warrants, including the Warrant Agreement governing the Warrants, and consult your own individual tax and/or financial advisor for assistance on how the tender of your Warrants may affect your individual situation.
The liquidity of the Warrants that are not tendered may be reduced.
If the Warrant Amendment is adopted, we intend to exercise our redemption rights thereunder and thus it is unlikely that any untendered Warrants will remain outstanding for a significant period of time following the completion of the Offer and Consent Solicitation. See “The Warrant Amendment, if approved by the requisite holders of the Warrants, will allow us to redeem all outstanding Warrants at a price that is 20% lower than the Offer Purchase Price.” However, if any untendered Warrants remain outstanding due to the Warrant Amendment not being approved, then the ability to sell such Warrants may become more limited due to the reduction in the number of Warrants outstanding upon completion of the Offer and Consent Solicitation. A more limited trading market might adversely affect the liquidity, market price and price volatility of untendered Warrants. If there continues to be a market for our untendered Warrants, these securities may trade at a discount to the price at which the securities would trade if the number outstanding were not reduced, depending on the market for similar securities and other factors.
There is no guarantee that the Warrants will ever be in the money, and they may expire worthless.
The exercise price for the Warrants is $11.50 per share. There is no guarantee that the Warrants will ever be in the money prior to their expiration, and as such, the Warrants may expire worthless.
There is no assurance that the Offer will be successful.
The Offer is not conditioned upon any minimum number of Warrants being tendered. The Offer is, however, subject to other conditions. See “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
Our Warrant Amendment will designate the courts of the State of New York or the United States District Court for the Southern District of New York as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by holders of our Warrants, which could limit the ability of Warrant holders to obtain a favorable judicial forum for disputes with the Company.
Our Warrant Amendment will provide that any action, proceeding or claim against us arising out of or relating in any way to the Warrant Amendment shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and the parties to the Warrant Amendment irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive. Each party to the Warrant Amendment waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
Notwithstanding the foregoing, these provisions of the Warrant Amendment will not apply to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Any person or entity purchasing or otherwise acquiring any interest in any of our Warrants shall be deemed to have notice of and to have consented to the forum provisions in our Warrant Amendment. If any action, the subject matter of which is within the scope the forum provisions of the Warrant Amendment, is filed in a court other than a court of the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any holder of our Warrants, such holder shall be deemed to have consented to: (i) the personal jurisdiction of the state and federal courts located in the State of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (ii) having service of process made upon such Warrant holder in any such enforcement action by service upon such Warrant holder’s counsel in the foreign action as agent for such Warrant holder.
This choice-of-forum provision may limit a Warrant holder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with our Company relating to the Warrant Amendment, which may discourage such lawsuits. Alternatively, if a court were to find this provision of our Warrant Amendment inapplicable or unenforceable with respect to one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions, which could materially and adversely affect our business, financial condition and results of operations and result in a diversion of the time and resources of our management and board of directors.
12. THE WARRANT AGENT, INFORMATION AGENT AND DEALER MANAGER
We have retained Continental Stock Transfer & Trust Company to act as the Warrant Agent and Sodali & Co. to act as the Information Agent, in connection with the Offer and Consent Solicitation. All deliveries, correspondence and questions sent or presented to the Warrant Agent or the Information Agent relating to the Offer and Consent Solicitation should be directed to the addresses or telephone numbers set forth on the back cover of this Offer Letter. The Information Agent and the Warrant Agent will receive reasonable and customary compensation for their respective services, will be reimbursed by us for reasonable out-of-pocket expenses and will be indemnified against certain liabilities in connection with the Offer and Consent Solicitation, including certain liabilities under the federal securities laws.
We also retained Evercore LLC to act as the Dealer Manager in connection with the Offer and Consent Solicitation. The Dealer Manager may communicate with, but may not solicit tenders of Warrants from, brokers, dealers, commercial banks and trust companies with respect to the Offer and Consent Solicitation. The Dealer Manager will receive a reasonable and customary fixed fee for these services that becomes payable upon the closing of the Offer, which is contingent upon the consummation of the Offer and Consent Solicitation. We have also agreed to indemnify the Dealer Manager against liabilities in connection with the Offer and Consent Solicitation, including liabilities under the federal securities laws.
The Dealer Manager and its affiliates provide, or may provide in the future, various investment banking, commercial banking and other services to us for which they have received, or we expect they will receive, customary compensation from us.
We will not pay any fees or commissions to brokers, dealers or other persons for soliciting tenders of Warrants pursuant to the Offer. Warrant holders holding Warrants through a broker, dealer, commercial bank, trust company or other nominee are urged to consult such nominees to determine whether transaction costs may apply if Warrant holders tender Warrants through such nominees and not directly to the Warrant Agent. We will, however, upon request, reimburse brokers, dealers, commercial banks, trust companies and other nominees for customary mailing and handling expenses incurred by them in forwarding the Offer and related materials to the beneficial owners of Warrants held by them as a nominee or in a fiduciary capacity. No broker, dealer, commercial bank, trust company or other nominee has been authorized to act as our agent or the agent of the Information Agent or the Warrant Agent for purposes of the Offer and Consent Solicitation.
13. ADDITIONAL INFORMATION; MISCELLANEOUS
Pursuant to Rule 13e-3 promulgated under the Exchange Act, we have filed a combined statement on Schedules TO and 13E-3 with the SEC under cover of Schedule TO, which contains additional information with respect to the Offer. This Offer Letter does not contain all of the information contained in the Schedule TO (of which this Offer Letter is a part) and the exhibits to the Schedule TO. The Company recommends that all holders of the Warrants review the Schedule TO, including the exhibits and the information incorporated by reference in the Schedule TO, and the Company’s other materials that have been filed with the SEC before making a decision on whether to accept the Offer, including the following documents hereby incorporated by reference into this Offer Letter:
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the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 29, 2024; |
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the information incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 from the Company’s proxy statement on Schedule 14A, filed with the SEC on March 19, 2024; |
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the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 9, 2024; |
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the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2024, filed with the SEC on August 8, 2024; and |
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the Company’s Current Report on Form 8-K filed with the SEC on May 9, 2024. |
Documents we file (but not documents or information deemed to have been furnished and not filed in accordance with the SEC’s rules) with the SEC under Section 13(e), 13(c), 14 or 15(d) of the Exchange Act after the date of this Offer Letter will be incorporated by reference in this Offer Letter only upon our filing of a subsequent amendment to the Schedule TO. Any statement contained in this Offer Letter or in a document (or part thereof) incorporated by reference in this Offer Letter shall be considered to be modified or superseded for purposes of this Offer Letter to the extent that a statement contained in any subsequent amendment to this Offer Letter or amendment to the Schedule TO to which this Offer Letter relates modifies or supersedes that statement.
You can obtain any of the documents incorporated by reference in this Offer Letter from the SEC’s website at www.sec.gov. You may also request a copy of these filings, at no cost, by writing or telephoning the Information Agent for the Offer at the telephone numbers and address set forth on the back cover of this Offer Letter.
Each person to whom a copy of this Offer Letter is delivered may obtain a copy of any or all of the referenced documents, other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into such documents, at no cost. Requests should be directed to our investor relations representative at:
AvePoint Inc.
Attention: Investor Relations
ir@avepoint.com
Sincerely,
AvePoint, Inc.
525 Washington Blvd., Suite 1400
Jersey City, New Jersey 07310
The Warrant Agent is Continental Stock Transfer & Trust Company. The Letter of Transmittal and Consent and certificates representing Warrants, and any other required documents should be sent or delivered by each holder of Warrants or such holder’s broker, dealer, commercial bank, trust company or other nominee to the Warrant Agent at one of its addresses set forth below.
THE WARRANT AGENT FOR THE OFFER IS:
Continental Stock Transfer & Trust Company
BY FIRST CLASS MAIL:
Continental Stock
Transfer & Trust Company
Attn: Corporate Actions (AvePoint)
1 State Street 30th Floor
New York, NY 10004 Telephone: 917-262-2378
Email: tenders+avepoint@continentalstock.com
BY OVERNIGHT OR HAND DELIVERY:
Continental Stock
Transfer & Trust Company
Attn: Corporate Actions (AvePoint)
1 State Street 30th Floor
New York, NY 10004
Telephone: 917-262-2378
Email: tenders+avepoint@continentalstock.com
BY SECURE ELECTRONIC UPLOAD:
https://cstt.citrixdata.com/r-rcae2848970a24e0eb30aad0c5775887e
THE INFORMATION AGENT FOR THE OFFER IS:
Sodali & Co.
333 Ludlow Street
5th Floor, South Tower
Stamford, CT 06902
Telephone: (800) 662-5200
Email: AVPT.info@investor.sodali.com
Any question or request for assistance may be directed to the Information Agent at the address, phone number and email address listed above.
Requests for additional copies of the Offer Letter, the Letter of Transmittal and Consent or other documents related to the offer may also be directed to the Information Agent.
The Dealer Manager for the Offer and Consent Solicitation is:
Evercore Group L.L.C.
55 East 52nd Street
New York, NY 10055
SCHEDULE I
1. Beneficial ownership of the Warrants
To our knowledge, none of our directors or executive officers beneficially own Warrants.
2. Directors and Senior Management
The following table sets forth our current directors and executive officers:
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Directors and Executive Officers |
Position/Title |
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Xunkai Gong |
Executive Chairman |
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Tianyi Jiang |
Chief Executive Officer and Director |
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James Caci |
Chief Financial Officer |
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Brian Michael Brown |
Chief Legal & Compliance Officer, Secretary and Director |
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Jeff Epstein |
Director |
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John Ho |
Director |
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Janet Schijns |
Director |
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Jeff Teper |
Director |
The business address of each of the following persons is: c/o AvePoint, Inc., 525 Washington Blvd., Suite 1400, Jersey City, NJ, 07310 and the telephone number for each of the following persons is (201) 793-1111.
None of the following persons has been convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors), and none of the following persons has during the past five years been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.
Biographical information concerning our directors and executive officers listed above is set forth below.
Xunkai Gong has served as our Executive Chairman and a director of our Board since July of 2021. Prior to that, Mr. Gong served as our predecessor company’s Chairman and Co-Chief Executive Officer alongside Dr. Jiang from 2008 to 2021, Chief Executive Officer since its incorporation in 2001 and director from 2001 to 2021. Mr. Gong holds a master’s degree in computer engineering from the University of Chinese Academy of Sciences, a master’s degree in computer science from Southern University and Agricultural and Mechanical College at Baton Rouge, and a bachelor’s degree in electrical and electronics engineering from Dalian University of Technology.
Tianyi Jiang has served as our Chief Executive Officer and a director of our Board since July of 2021. Prior to that, Dr. Jiang served as our predecessor company’s Co-Chief Executive Officer alongside Mr. Gong from 2008 to 2021 and as a director from 2005 to 2021. Dr. Jiang holds doctorate and master’s degrees in Data Mining from New York University in addition to a bachelor’s degree and master’s degree in Electrical and Computer Engineering from Cornell University.
James Caci has served as our Chief Financial Officer in August of 2021 and previously served as our predecessor company’s Chief Financial Officer from 2010 to 2013. From April 2020 to August of 2021, Mr. Caci held the position of Chief Financial Officer at Brand Value Accelerator, LLC, an industry leading digital commerce services firm. From March 2016 to April 2020, Mr. Caci served as the Chief Financial Officer of Nicopure Labs. Mr. Caci brings more than 25 years of experience leading the strategic finance operations at both public and privately held SaaS and IT service companies. Mr. Caci has a B.S. in Business Administration from Montclair State University.
Brian Michael Brown has served as our Chief Legal and Compliance Officer, Secretary and a director of our Board since July of 2021. Prior to that, Mr. Brown served as our predecessor company’s Chief Operating Officer and General Counsel from 2004 to 2021 and director from 2008 to 2021. Mr. Brown previously practiced law with the firm of McGuireWoods LLP for many years. Mr. Brown holds a bachelor’s degree from the University of Michigan and a Juris Doctor from Michigan State University.
Schedule I-1
Jeff Epstein has served as a director of our Board since July of 2021. Since 2011, Mr. Epstein has been an operating partner with Bessemer Venture Partners, a venture capital firm. From 2008 to 2011, Mr. Epstein was Executive Vice President and Chief Financial Officer of Oracle Corporation (NYSE: ORCL), a global technology company. Prior to joining Oracle, he served as Chief Financial Officer of several public and private companies, including DoubleClick (sold to Google), King World Productions (sold to CBS) and Nielsen’s Media Measurement and Information Group. Earlier in his career, he was an investment banker at The First Boston Corporation. Mr. Epstein is a lecturer at Stanford University. He serves on the boards of directors of Twilio, Okta and Couchbase, as well as the board of directors of Kaiser Permanente, a non-profit healthcare company. Within the last five years he previously served on the boards of directors of Booking Holdings (from 2003 to 2021), Shutterstock (from 2012 to 2021) and Poshmark (from 2018 to 2023). Mr. Epstein holds an M.B.A. from the Stanford University Graduate School of Business and a bachelor’s degree from Yale College.
John Ho has served as a director of our Board since July of 2021. Since 2009, Mr. Ho has served as founder and Chief Industrialist Investor of Janchor Partners. Since January 2018, Mr. Ho has served as a non-executive director for Vocus Group Limited, a telecommunications company listed on the ASX. From April 2017 to December 2019, he served as chairman of the board of directors of Bellamy’s Organic, an organic infant milk formula and baby food company listed on the ASX. From July 2014 to July 2019, he served as deputy chairman, listing committee for the Hong Kong Exchanges and Clearing Limited. He currently serves on the boards of directors of Incitec Pivot limited. Mr. Ho received a Bachelor of Science degree in mathematics and a bachelor of commerce degree in finance from The University of New South Wales in Sydney, Australia.
Janet Schijns has served as a director of our Board since 2022. She is the Chief Executive Officer and Co-Founder of JS Group, a go to market consultancy dedicated to achieving results in the technology channel. She is the founder of the #digitalnormal movement in the industry driving profitable change in the partner community. She was formerly Executive Vice President and Chief Merchant and Services Officer at Office Depot, where she led a major transformation to drive traction in services, generating recurring revenue from higher margin solutions. Prior to that, she was the Chief Channel Executive, Chief Marketing Technologist and led business products for Verizon Business. Additionally, Ms. Schijns led the channel organization for Motorola Enterprise and Government and is a noted and admired industry expert regularly appearing on the main stage at a variety of events. Additionally, Ms. Schijns currently serves on the board of directors for Ninjio, a security culture enablement provider which is helping to shut down business security breaches through employee empowerment.
Jeff Teper has served as a director of our Board since July of 2021 and, prior to that time, as a member of the Board of Directors of our predecessor company since December 2014. Mr. Teper currently serves as the Company’s Lead Independent Director, has worked at Microsoft Corporation since March 1992 and currently holds the title President, Microsoft 365 Collaborative Apps and Platforms. He holds an MBA from Harvard Business School and a bachelor’s degree from New York University.
Schedule I-2
Annex A
AMENDMENT NO. 1 TO WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO THE WARRANT AGREEMENT (this “Amendment”) is made as of September [•], 2024, by and between AvePoint, Inc., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), and constitutes an amendment to that certain Warrant Agreement, dated as of September 16, 2019, by and between Apex Technology Acquisition Corporation, a Delaware corporation (“Apex”), and the Warrant Agent (the “Warrant Agreement”). Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Warrant Agreement.
WHEREAS, Section 9.8 of the Warrant Agreement provides that the Company and the Warrant Agent may amend the Warrant Agreement with the vote or written consent of the Registered Holders of at least a majority of the then outstanding Warrants;
WHEREAS, the Company desires to amend the Warrant Agreement to provide the Company with the right to redeem the Warrants for cash on the terms and subject to the conditions set forth herein; and
WHEREAS, following a consent solicitation undertaken by the Company, the Registered Holders of more than 50.1% of the then outstanding Warrants have consented to and approved this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree to amend the Warrant Agreement as set forth herein.
1. Amendment of Warrant Agreement. The Warrant Agreement is hereby amended by adding the new Section 6A thereto:
“6A Redemption.
6A.1 Company Election to Redeem. Notwithstanding any other provision in this Agreement to the contrary, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6A.2 below, for $2.00 in cash for every Warrant held by the holder thereof (the “6A Redemption Price”) (subject to equitable adjustment by the Company in the event of any share splits, share dividends, recapitalizations or similar transaction with respect to the Company’s shares of Common Stock, par value $0.01 per share).
6A.2 Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, the Company shall fix a date for the redemption (the “6A Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than fifteen (15) days prior to the 6A Redemption Date to the Registered Holders of the Warrants at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice.
6A.3 Exercise After Notice of Redemption. The Warrants may be exercised, for cash at any time after notice of redemption shall have been given by the Company pursuant to Section 6A.2 hereof and prior to the 6A Redemption Date. On and after the 6A Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the 6A Redemption Price.”
2. Miscellaneous Provisions.
2.1 Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
2.2 Applicable Law. The validity, interpretation, and performance of this Amendment shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Amendment shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
2.3 Counterparts. This Amendment may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Amendment or in any other certificate, agreement or document related to this Amendment, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
2.4 Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
2.5 Entire Agreement. Except as expressly provided in this Amendment, all of the terms and provisions in the Warrant Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Warrant Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Warrant Agreement in the Warrant Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Warrant Agreement, as amended by this Amendment (or as the Warrant Agreement may be further amended or modified in accordance with the terms thereof). Except as expressly set forth in this Amendment, the terms of this Amendment shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of the Warrant Agreement.
[Signatures Appear on Following Page]
Annex-A-2
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be duly executed as of the date first above written.
AVEPOINT, INC.
By:
Name:
Title:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
Name:
Title:
Exhibit (a)(1)(B)
LETTER OF TRANSMITTAL AND CONSENT
Offer To Purchase
Warrants to Acquire Shares of Common Stock
of
AVEPOINT, INC.
and
Consent Solicitation
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THE OFFER AND CONSENT SOLICITATION (AS DEFINED BELOW) AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, AT THE END OF THE DAY ON SEPTEMBER 24, 2024, OR SUCH LATER TIME AND DATE TO WHICH WE MAY EXTEND. WARRANTS (AS DEFINED BELOW) TENDERED PURSUANT TO THE OFFER AND CONSENT SOLICITATION MAY BE WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW). CONSENTS MAY BE REVOKED ONLY BY WITHDRAWING THE TENDER OF THE RELATED WARRANTS, AND THE WITHDRAWAL OF ANY WARRANTS WILL AUTOMATICALLY CONSTITUTE A REVOCATION OF THE RELATED CONSENTS, AND VICE VERSA. |
The Warrant Agent for the Offer and Consent Solicitation is:
Continental Stock
Transfer & Trust Company
Attn: Corporate Actions (AvePoint)
1 State Street 30th Floor
New York, NY 10004
Secure Electronic Upload: https://cstt.citrixdata.com/r-rcae2848970a24e0eb30aad0c5775887e
Telephone: (917) 262-2378
Email: tenders+avepoint@continentalstock.com
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT, THE WARRANTS AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH BOOK-ENTRY TRANSFER, IS AT THE OPTION AND RISK OF THE TENDERING WARRANT HOLDER, AND EXCEPT AS OTHERWISE PROVIDED IN THE INSTRUCTIONS BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE WARRANT AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. THE WARRANT HOLDER HAS THE RESPONSIBILITY TO CAUSE THIS LETTER OF TRANSMITTAL AND CONSENT, THE TENDERED WARRANTS AND ANY OTHER DOCUMENTS TO BE TIMELY DELIVERED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. PLEASE CAREFULLY READ THIS ENTIRE LETTER OF TRANSMITTAL AND CONSENT, INCLUDING THE INSTRUCTIONS, BEFORE COMPLETING THIS LETTER OF TRANSMITTAL AND CONSENT.
AvePoint, Inc., a Delaware corporation (the “Company,” “we,” “our” and “us”), has delivered to the undersigned a copy of the Offer to Purchase and Consent Solicitation dated August 27, 2024 (as it may be supplemented and amended from time to time, the “Offer to Purchase”) of the Company and this letter of transmittal and consent (as it may be supplemented and amended from time to time, this “Letter of Transmittal and Consent”), which together set forth the offer of the Company to each holder of the Company’s public warrants to purchase shares of Common Stock of the Company, par value $0.0001 per share (the “Common Stock”), to receive $2.50 in cash, without interest, in exchange for each public warrant tendered by the holder pursuant to the offer (the “Offer”).
WARRANT HOLDERS SHOULD REVIEW THE OFFER TO PURCHASE, INCLUDING ANNEX A THERETO, IN ITS ENTIRETY, FOR A DESCRIPTION OF THE COMPLETE TERMS OF THE OFFER, INCLUDING THE WARRANT AMENDMENT (AS DEFINED BELOW) WHICH THE WARRANT HOLDERS WILL CONSENT TO IN CONNECTION WITH THE TENDER OF ANY WARRANTS.
Warrants eligible to be tendered pursuant to the Offer comprise the 17,576,241 publicly traded warrants to purchase our shares of Common Stock which were publicly issued and sold as part of the units in the initial public offering of Apex Technology Acquisition Corporation (“Apex”) consummated on September 19, 2019 (the “Apex IPO”), and were assumed by the Company on July 1, 2021 and which entitle such warrant holders to purchase one share of Common Stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”).
The Warrants are listed on The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “AVPTW.” As of August 26, 2024, 17,576,241 Warrants were outstanding. Pursuant to the Offer, the Company is offering to purchase each Warrant at a purchase price of $2.50 in cash, without interest (the “Offer Purchase Price”).
Concurrently with the Offer, we also are soliciting consents (the “Consent Solicitation”) from holders of the Warrants to amend the Warrant Agreement, dated as of September 16, 2019, by and between Apex and Continental Stock Transfer & Trust Company (“Continental”)(the “Warrant Agreement”), which governs all of the Warrants, to permit the Company to redeem each outstanding Warrant for $2.00 in cash, without interest (the “Redemption Price”), which Redemption Price is 20% less than the Offer Purchase Price (the “Warrant Amendment”). Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. We intend to send a notice of redemption to holders of all untendered Warrants immediately upon the consummation of the Offer, and the redemption would occur 15 days after issuing the notice of redemption.
Holders of Warrants may not consent to the Warrant Amendment without tendering Warrants in the Offer, and holders may not tender Warrants without consenting to the Warrant Amendment. The consent to the Warrant Amendment is a part of this Letter of Transmittal and Consent, and, therefore, by tendering Warrants in the Offer, holders will be delivering to us such consent. Holders of Warrants may revoke their consent at any time prior to the Expiration Date (as defined below) by withdrawing the Warrants tendered in the Offer by such holders.
Warrants not tendered for cash pursuant to the Offer will remain outstanding subject to their current terms or amended terms if the Warrant Amendment is approved. We reserve the right to redeem any of the Warrants, as applicable, pursuant to their current terms at any time, including prior to the completion of the Offer and Consent Solicitation.
The Offer and Consent Solicitation is made solely upon the terms and conditions in the Offer to Purchase and this Letter of Transmittal and Consent. The Offer and Consent Solicitation will be open until 12:00 midnight, Eastern Time, at the end of the day on September 24, 2024, or such later time and date to which we may extend (the period during which the Offer and Consent Solicitation is open, giving effect to any withdrawal or extension, is referred to as the “Offer Period,” and the date and time at which the Offer Period ends is referred to as the “Expiration Date”).
Each holder whose Warrants are tendered pursuant to the Offer and Consent Solicitation will receive $2.50 in cash, without interest, for each Warrant tendered by such holder. Any Warrant holder that participates in the Offer and Consent Solicitation may tender less than all of its Warrants but not fractional warrants.
We may withdraw the Offer and Consent Solicitation only if the conditions to the Offer and Consent Solicitation occur and are not waived prior to the Expiration Date.
Promptly upon any such withdrawal, we will return the tendered Warrants to the holders (and the consent to the Warrant Amendment will be revoked).
This Letter of Transmittal and Consent is to be used to accept the Offer and Consent Solicitation if the applicable Warrants are to be tendered by effecting a book-entry transfer into Continental’s account at the Depository Trust Company (“DTC”) and instructions are not being transmitted through DTC’s Automated Tender Offer Program (“ATOP”). Except in instances where a holder intends to tender Warrants through ATOP, the holder should complete, execute and deliver this Letter of Transmittal and Consent to indicate the action it desires to take with respect to the Offer and Consent Solicitation.
Holders tendering Warrants by book-entry transfer to Continental’s account at DTC may execute the tender through ATOP, and in that case need not complete, execute and deliver this Letter of Transmittal and Consent. DTC participants accepting the Offer and Consent Solicitation may transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to Continental’s account at DTC. DTC will then send an “Agent’s Message” to Continental for its acceptance. Delivery of the Agent’s Message by DTC will satisfy the terms of the Offer and Consent Solicitation as to execution and delivery of a Letter of Transmittal and Consent by the DTC participant identified in the Agent’s Message and will be deemed a consent to the Warrant Agreement.
As used in this Letter of Transmittal and Consent with respect to the tender procedures set forth herein, the term “registered holder” means any person in whose name Warrants are registered on the books of the Company or who is listed as a participant in a clearing agency’s security position listing with respect to the Warrants.
THE OFFER AND CONSENT SOLICITATION IS NOT MADE TO THOSE HOLDERS WHO RESIDE IN STATES OR OTHER JURISDICTIONS WHERE AN OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL.
PLEASE SEE THE INSTRUCTIONS TO THIS LETTER OF TRANSMITTAL AND CONSENT BEGINNING ON PAGE 9 FOR THE PROPER USE AND DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT.
DESCRIPTION OF WARRANTS TENDERED
List below the Warrants to which this Letter of Transmittal and Consent relates. If the space below is inadequate, list the registered Warrant certificate numbers on a separate signed schedule and affix the list to this Letter of Transmittal and Consent.
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Name(s) and Address(es) of Registered Holder(s) of Warrants |
Number of |
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Total: |
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☐ |
CHECK HERE IF THE WARRANTS LISTED ABOVE ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY CONTINENTAL WITH DTC AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY): |
Name of Tendering Institution:
Account Number:
Transaction Code Number:
By crediting the Warrants to Continental’s account at DTC using ATOP and by complying with applicable ATOP procedures with respect to the Offer and Consent Solicitation, including, if applicable, transmitting to Continental an Agent’s Message in which the holder of the Warrants acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal and Consent, the participant in DTC confirms on behalf of itself and the beneficial owner(s) of such Warrants all provisions of this Letter of Transmittal and Consent (including consent to the Warrant Amendment and all representations and warranties) applicable to it and such beneficial owner(s) as fully as if it had completed the required information and executed and transmitted this Letter of Transmittal and Consent to Continental.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
AvePoint, Inc.
c/o Continental Stock Transfer & Trust Company, as Warrant Agent
1 State Street, 30th Floor
New York, NY 10004
Upon and subject to the terms and conditions set forth in the Offer to Purchase and in this Letter of Transmittal and Consent, receipt of which is hereby acknowledged, the undersigned hereby:
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(i) |
tenders to the Company pursuant to the Offer and Consent Solicitation the number of Warrants indicated above in the table under the heading “Number of Warrants Tendered” under “Description of Warrants Tendered”; |
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(ii) |
accepts the amount payable upon the tender of Warrants pursuant to the Offer and Consent Solicitation, being $2.50 in cash, without interest, for each Warrant so tendered; and |
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(iii) |
consents to the Warrant Amendment. |
Except as stated in the Offer to Purchase, the tender made hereby is irrevocable. The undersigned understands that this tender will remain in full force and effect unless and until such tender is withdrawn and revoked in accordance with the procedures set forth in the Offer to Purchase and this Letter of Transmittal and Consent. The undersigned understands that this tender may not be withdrawn after the Expiration Date, and that a notice of withdrawal will be effective only if delivered to Continental in accordance with the specific withdrawal procedures set forth in the Offer to Purchase.
If the undersigned holds Warrants for beneficial owners, the undersigned represents that it has received from each beneficial owner thereof a duly completed and executed form of “Instructions Form” in the form attached to the “Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees” which was sent to the undersigned by the Company with this Letter of Transmittal and Consent, instructing the undersigned to take the action described in this Letter of Transmittal and Consent.
If the undersigned is not the registered holder of the Warrants indicated under “Description of Warrants Tendered” above or such holder’s legal representative or attorney-in-fact (or, in the case of Warrants held through DTC, the DTC participant for whose account such Warrants are held), then the undersigned has obtained a properly completed irrevocable proxy that authorizes the undersigned (or the undersigned’s legal representative or attorney-in fact) to deliver a consent in respect of such Warrants on behalf of the holder thereof, and such proxy is being delivered to Continental with this Letter of Transmittal and Consent.
The undersigned understands that, upon and subject to the terms and conditions set forth in the Offer to Purchase and this Letter of Transmittal and Consent, any Warrants properly tendered and not withdrawn which are accepted will be exchanged for a cash payment. The undersigned understands that, under certain circumstances, the Company may not be required to accept any of the Warrants tendered (including any Warrants tendered after the Expiration Date). If any Warrants are not accepted for tender for any reason or if tendered Warrants are withdrawn, such unexchanged or withdrawn Warrants will be returned without expense to the tendering holder and the related consent to the Warrant Amendment will be revoked.
The undersigned understands that, upon and subject to the terms and conditions set forth in the Offer to Purchase and this Letter of Transmittal and Consent, any Warrants properly tendered and not validly withdrawn which are accepted constitute the holder’s validly delivered consent to the Warrant Amendment. A holder of Warrants may not consent to the Warrant Amendment without tendering his, her or its Warrants in the Offer and a holder of Warrants may not tender his, her or its Warrants without consenting to the Warrant Amendment. A holder may revoke his, her or its consent to the Warrant Amendment at any time prior to the Expiration Date by withdrawing the Warrants tendered by such holder.
Subject to, and effective upon, the Company’s acceptance of the undersigned’s tender of Warrants pursuant to the Offer and Consent Solicitation as indicated above in the table under the heading “Number of Warrants Tendered” under “Description of Warrants Tendered”, the undersigned hereby:
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(i) |
assigns and transfers to, or upon the order of, the Company, all right, title and interest in and to, and any and all claims in respect of or arising or having arisen as a result of the undersigned’s status as a holder of, such Warrants; |
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(ii) |
waives any and all rights with respect to such Warrants; |
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(iii) |
releases and discharges the Company from any and all claims the undersigned may have now, or may have in the future, arising out of or related to such Warrants; |
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(iv) |
acknowledges that the Offer is discretionary and may be extended, modified, suspended or terminated by the Company as provided in the Offer to Purchase; and |
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(v) |
acknowledges the future value of the Warrants is unknown and cannot be predicted with certainty. |
The undersigned understands that tenders of Warrants pursuant to any of the procedures described in the Offer to Purchase and in the instructions in this Letter of Transmittal and Consent, if and when accepted by the Company, will constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Offer and Consent Solicitation.
Effective upon acceptance, the undersigned hereby irrevocably constitutes and appoints Continental, acting as agent for the Company, as the true and lawful agent and attorney-in-fact of the undersigned with respect to the Warrants tendered hereby, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to:
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(i) |
transfer ownership of such Warrants on the account books maintained by DTC together with all accompanying evidences of transfer and authenticity to or upon the order of the Company; |
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(ii) |
present such Warrants for transfer of ownership on the books of the Company; |
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(iii) |
cause ownership of such Warrants to be transferred to, or upon the order of, the Company on the books of the Company or its agent and deliver all accompanying evidences of transfer and authenticity to, or upon the order of, the Company; and |
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(iv) |
receive all benefits and otherwise exercise all rights of beneficial ownership of such Warrants; |
all in accordance with the terms of the Offer and Consent Solicitation, as described in the Offer to Purchase and this Letter of Transmittal and Consent.
The undersigned hereby represents, warrants and agrees that:
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(i) |
the undersigned has full power and authority to tender the Warrants tendered hereby and to sell, exchange, assign and transfer all right, title and interest in and to such Warrants; |
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(ii) |
the undersigned has good, marketable and unencumbered title to the Warrants tendered hereby, and upon acceptance of such Warrants by the Company pursuant to the Offer and Consent Solicitation the Company will acquire good, marketable and unencumbered title to such Warrants, in each case free and clear of any security interests, liens, restrictions, charges, encumbrances, conditional sales agreements or other obligations of any kind, and not subject to any adverse claim; |
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(iii) |
the undersigned has full power and authority to consent to the Warrant Amendment; |
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(iv) |
the undersigned will, upon request, execute and deliver any additional documents deemed by the Company or Continental to be necessary or desirable to complete and give effect to the transactions contemplated hereby; |
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(v) |
the undersigned has received and reviewed the Offer to Purchase, this Letter of Transmittal and Consent and the Warrant Amendment; |
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(vi) |
the undersigned acknowledges that none of the Company, Continental, the information agent, the dealer manager or any person acting on behalf of any of the foregoing has made any statement, representation or warranty, express or implied, to the undersigned with respect to the Company, the Offer and Consent Solicitation or the Warrants, other than the information included in the Offer to Purchase (as amended or supplemented prior to the Expiration Date); |
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(vii) |
the terms and conditions set forth in the Offer to Purchase shall be deemed to be incorporated in, and form a part of, this Letter of Transmittal and Consent, which shall be read and construed accordingly; |
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(viii) |
the undersigned understands that tenders of Warrants pursuant to the Offer and Consent Solicitation and in the instructions hereto constitute the undersigned’s acceptance of the terms and conditions of the Offer and Consent Solicitation; |
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(ix) |
the undersigned is voluntarily participating in the Offer; and |
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(x) |
the undersigned agrees to all of the terms of the Offer and Consent Solicitation. |
The acknowledgments, representations, warranties and agreements of the undersigned in this Letter of Transmittal and Consent will be deemed to be automatically repeated and reconfirmed on and as of each of the Expiration Date and completion of the Offer and Consent Solicitation. The authority conferred or agreed to be conferred in this Letter of Transmittal and Consent shall not be affected by, and shall survive, the death or incapacity of the undersigned, and every obligation of the undersigned under this Letter of Transmittal and Consent shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned.
The undersigned acknowledges that the undersigned has been advised to consult with its own legal counsel and other advisors (including tax advisors) as to the consequences of participating or not participating in the Offer and Consent Solicitation.
IMPORTANT: PLEASE SIGN HERE
(SEE INSTRUCTIONS AND ALSO COMPLETE ACCOMPANYING IRS FORM W-9 OR
APPROPRIATE IRS FORM W-8)
By completing, executing and delivering this Letter of Transmittal and Consent, the undersigned hereby tenders the Warrants indicated in the table above entitled “Description of Warrants Tendered.”
SIGNATURES REQUIRED
Signature(s) of Registered Holder(s) of Warrants
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Name: |
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Address: |
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Date: |
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Area Code and Telephone Number: |
(The above lines must be signed by the registered holder(s) of Warrants as the name(s) appear(s) on the Warrants or on a security position listing, or by person(s) authorized to become registered holder(s) by a properly completed assignment from the registered holder(s), a copy of which must be transmitted with this Letter of Transmittal and Consent. If Warrants to which this Letter of Transmittal and Consent relates are held of record by two or more joint holders, then all such holders must sign this Letter of Transmittal and Consent. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, then such person must set forth his or her full title below and, unless waived by the Company, submit evidence satisfactory to the Company of such person’s authority so to act. See Instruction 3 regarding the completion and execution of this Letter of Transmittal and Consent.)
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Name: |
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Address: |
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Date: |
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Area Code and Telephone Number: |
(PLEASE PRINT OR TYPE
(INCLUDE ZIP CODE)
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GUARANTEE OF SIGNATURE(S) (IF REQUIRED) (SEE INSTRUCTIONS, INCLUDING INSTRUCTION 4) |
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Certain signatures must be guaranteed by Eligible Institution. Signature(s) guaranteed by an Eligible Institution: |
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Authorized Signature: |
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Title: |
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Name of Firm: |
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Address, Including Zip Code: |
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Date: |
INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER AND CONSENT SOLICITATION
1. Delivery of Letter of Transmittal and Consent and Warrants. This Letter of Transmittal and Consent is to be used only if tenders of Warrants are to be made by book-entry transfer to Continental’s account at DTC and instructions are not being transmitted through ATOP with respect to such tenders.
Warrants may be validly tendered pursuant to the procedures for book-entry transfer as described in the Offer to Purchase. In order for Warrants to be validly tendered by book-entry transfer, Continental must receive the following prior to the Expiration Date, except as otherwise permitted by use of the procedures for guaranteed delivery as described below:
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(i) |
timely confirmation of the transfer of such Warrants to Continental’s account at DTC (a “Book-Entry Confirmation”); |
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(ii) |
either a properly completed and duly executed Letter of Transmittal and Consent, or a properly transmitted “Agent’s Message” if the tendering Warrant holder has not delivered a Letter of Transmittal and Consent; and |
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(iii) |
any other documents required by this Letter of Transmittal and Consent. |
The term “Agent’s Message” means a message, transmitted by DTC to, and received by, Continental and forming a part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the participant in DTC exchanging the Warrants that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and Consent and that the Company may enforce such agreement against the participant. If you are tendering by book-entry transfer, you must expressly acknowledge that you have received and agree to be bound by the Letter of Transmittal and Consent and that the Letter of Transmittal and Consent may be enforced against you.
Delivery of a Letter of Transmittal and Consent to the Company or DTC will not constitute valid delivery to Continental. No Letter of Transmittal and Consent should be sent to the Company or DTC.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT, TENDERED WARRANTS AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OR AGENT’S MESSAGE DELIVERED THROUGH ATOP, IS AT THE OPTION AND RISK OF THE TENDERING WARRANT HOLDER, AND EXCEPT AS OTHERWISE PROVIDED IN THESE INSTRUCTIONS, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY CONTINENTAL. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. THE WARRANT HOLDER HAS THE RESPONSIBILITY TO CAUSE THIS LETTER OF TRANSMITTAL AND CONSENT, THE TENDERED WARRANTS AND ANY OTHER DOCUMENTS TO BE TIMELY DELIVERED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Neither the Company nor Continental nor the Dealer-Manager nor the Information Agent is under any obligation to notify any tendering holder of the Company’s acceptance of tendered Warrants.
2. Guaranteed Delivery. Warrant holders desiring to tender Warrants pursuant to the Offer but whose Warrants cannot otherwise be delivered with all other required documents to Continental prior to the Expiration Date may nevertheless tender Warrants, as long as all of the following conditions are satisfied:
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(i) |
the tender must be made by or through an “Eligible Institution” (as defined in Instruction 4); |
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(ii) |
properly completed and duly executed Notice of Guaranteed Delivery in the form provided by the Company to the undersigned with this Letter of Transmittal and Consent (with any required signature guarantees) must be received by Continental, at its address set forth in this Letter of Transmittal and Consent, prior to the Expiration Date; and |
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(iii) |
a confirmation of a book-entry transfer into Continental’s account at DTC of all Warrants delivered electronically, in each case together with a properly completed and duly executed Letter of Transmittal and Consent with any required signature guarantees (or, in the case of a book-entry transfer without delivery of a Letter of Transmittal and Consent, an Agent’s Message), and any other documents required by this Letter of Transmittal and Consent, must be received by Continental within two days that the Nasdaq is open for trading after the date Continental receives such Notice of Guaranteed Delivery, all as provided in the Offer to Purchase. |
A holder of Warrants may deliver the Notice of Guaranteed Delivery by mail to Continental.
Except as specifically permitted by the Offer to Purchase, no alternative or contingent tenders will be accepted.
3. Signatures on Letter of Transmittal and Consent and other Documents. For purposes of the tender and consent procedures set forth in this Letter of Transmittal and Consent, the term “registered holder” means any person in whose name Warrants are registered on the books of the Company or who is listed as a participant in a clearing agency’s security position listing with respect to the Warrants.
If this Letter of Transmittal and Consent is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or others acting in a fiduciary or representative capacity, such person must so indicate when signing and, unless waived by the Company, must submit to Continental proper evidence satisfactory to the Company of the authority so to act.
4. Guarantee of Signatures. No signature guarantee is required if:
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(i) |
this Letter of Transmittal and Consent is signed by the registered holder of the Warrants; or |
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such Warrants are tendered for the account of an “Eligible Institution.” An “Eligible Institution” is a bank, broker dealer, credit union, savings association or other entity that is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended. |
IN ALL OTHER CASES, AN ELIGIBLE INSTITUTION MUST GUARANTEE ALL SIGNATURES ON THIS LETTER OF TRANSMITTAL AND CONSENT BY COMPLETING AND SIGNING THE TABLE ENTITLED “GUARANTEE OF SIGNATURE(S)” ABOVE.
5. Warrants Tendered. Any holder of Warrants who chooses to participate in the Offer and Consent Solicitation may tender some or all of such holder’s Warrants pursuant to the terms of the Offer and Consent Solicitation.
6. Inadequate Space. If the space provided under “Description of Warrants Tendered” is inadequate, the name(s) and address(es) of the registered holder(s), number of Warrants being delivered herewith, and number of such Warrants tendered hereby should be listed on a separate, signed schedule and attached to this Letter of Transmittal and Consent.
7. Transfer Taxes. The Company will pay all transfer taxes, if any, applicable to the transfer of Warrants by the person signing this Letter of Transmittal and Consent to the Company in the Offer and Consent Solicitation. If transfer taxes are imposed for any other reason, the amount of those transfer taxes, whether imposed on the registered holder or any other persons, will be payable by the tendering holder. Other reasons transfer taxes could be imposed include if tendered Warrants are registered in the name of any person other than the person signing this Letter of Transmittal and Consent.
If satisfactory evidence of payment of or exemption from those transfer taxes is not submitted with this Letter of Transmittal and Consent, the amount of those transfer taxes will be billed directly to the tendering holder and/or withheld from any payment due with respect to the Warrants tendered by such holder.
8. Validity of Tenders. All questions as to the number of Warrants to be accepted, and the validity, form, eligibility (including time of receipt) and acceptance of any tender of Warrants will be determined by the Company in its reasonable discretion, which determinations shall be final and binding on all parties. The Company reserves the absolute right to reject any or all tenders of Warrants it determines not to be in proper form or to reject those Warrants, the acceptance of which may, in the opinion of the Company’s counsel, be unlawful. The Company also reserves the absolute right to waive any defect or irregularity in the tender of any particular Warrants, whether or not similar defects or irregularities are waived in the case of other tendered Warrants. The Company’s interpretation of the terms and conditions of the Offer and Consent Solicitation (including this Letter of Transmittal and Consent and the instructions hereto) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Warrants must be cured within such time as the Company shall determine. None of the Company, Continental, the information agent, the dealer manager or any other person is or will be obligated to give notice of any defects or irregularities in tenders of Warrants, and none of them will incur any liability for failure to give any such notice. Tenders of Warrants will not be deemed to have been validly made until all defects and irregularities have been cured or waived. Any Warrants received by Continental that are not validly tendered and as to which the defects or irregularities have not been cured or waived will be returned by Continental to the holders, unless otherwise provided in this Letter of Transmittal and Consent, as soon as practicable following the Expiration Date. Warrant holders who have any questions about the procedure for tendering Warrants in the Offer and Consent Solicitation should contact the Information Agent at the address and telephone number indicated herein. Warrants properly tendered and not validly withdrawn that are accepted constitute the holder’s validly delivered consent to the Warrant Amendment.
9. Waiver of Conditions. The Company reserves the absolute right to waive any condition as described in the section of the Offer to Purchase titled “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
10. Withdrawal. Tenders of Warrants may be withdrawn only pursuant to the procedures and subject to the terms set forth in the section of the Offer to Purchase titled “The Offer and Consent Solicitation, Section 3. Withdrawal Rights.” Warrant holders can withdraw tendered Warrants at any time prior to the Expiration Date, and Warrants that the Company has not accepted by the Expiration Date may thereafter be withdrawn at any time after such date until such Warrants are accepted by the Company pursuant to the Offer and Consent Solicitation. Except as otherwise provided in the Offer to Purchase, in order for the withdrawal of Warrants to be effective, a written notice of withdrawal satisfying the applicable requirements for withdrawal set forth in the section of the Offer to Purchase titled “The Offer and Consent Solicitation, Section 3. Withdrawal Rights” must be timely received from the holder by Continental at its address stated herein, together with any other information required as described in such section of the Offer to Purchase. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by the Company, in its reasonable discretion, and its determination shall be final and binding. None of the Company, Continental, the information agent, the dealer manager or any other person is under any duty to give notification of any defect or irregularity in any notice of withdrawal or will incur any liability for failure to give any such notification. Any Warrants properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer and Consent Solicitation. However, at any time prior to the Expiration Date, a Warrant holder may re-tender withdrawn Warrants by following the applicable procedures discussed in the Offer to Purchase and this Letter of Transmittal and Consent. Consents may be revoked only by withdrawing the Warrants and the withdrawal of any Warrants will automatically constitute a revocation of the related consents.
11. Questions and Requests for Assistance and Additional Copies. Please direct questions or requests for assistance, or additional copies of the Offer to Purchase, Letter of Transmittal and Consent or other materials, in writing to the information agent for the Offer and Consent Solicitation at:
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The Information Agent for the Offer and Consent Solicitation is: Sodali & Co. LLC
Telephone number toll free: (800) 662-5200 |
IMPORTANT: THIS LETTER OF TRANSMITTAL AND CONSENT, OR THE “AGENT’S MESSAGE” (IF TENDERING PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER WITHOUT EXECUTION AND DELIVERY OF A LETTER OF TRANSMITTAL AND CONSENT), TOGETHER WITH THE TENDERED WARRANTS AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY CONTINENTAL ON OR PRIOR TO 12:00 MIDNIGHT, EASTERN TIME, AT THE END OF THE DAY ON THE EXPIRATION DATE, UNLESS A NOTICE OF GUARANTEED DELIVERY IS RECEIVED BY CONTINENTAL BY SUCH DATE.
Exhibit (a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
OF WARRANTS OF
AVEPOINT, INC.
PURSUANT TO THE OFFER DATED AUGUST 27, 2024
This Notice of Guaranteed Delivery, or one substantially in the form hereof, must be used to accept the Offer (as defined below) if:
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Warrants (as defined below) are not immediately available or Warrant holders cannot deliver Warrants to Continental Stock Transfer & Trust Company (the “Warrant Agent”) prior to the Expiration Date (as defined in the Offer to Purchase), or |
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The procedure for book-entry transfer cannot be completed on a timely basis, or |
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Time will not permit all required documents, including a properly completed and duly executed Letter of Transmittal and Consent and any other required documents, to reach the Warrant Agent prior to the Expiration Date. |
The Offer to Purchase and Consent Solicitation, dated August 27, 2024 (the “Offer to Purchase”) and the related Letter of Transmittal and Consent, as each may be amended or supplemented from time to time, together constitute the “Offer.”
The Offer relates to the Warrants that were publicly issued in connection with the Apex IPO (as defined in the Offer to Purchase), which trade on The Nasdaq Global Select Market under the symbol “AVPTW” (the “Warrants”). Any and all outstanding Warrants are eligible to be tendered pursuant to the Offer.
IF NECESSARY, MAIL THIS NOTICE OF GUARANTEED DELIVERY TO:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
IF DELIVERING BY FIRST CLASS MAIL, OVERNIGHT MAIL OR HAND: CONTINENTAL STOCK TRANSFER & TRUST COMPANY
ATTN: Corporate Actions (AvePoint)
1 State Street, 30th Floor
New York, New York 10004
Telephone: 917-262-2378
Email: tenders+avepoint@continentalstock.com
This Notice of Guaranteed Delivery, properly completed and duly executed, may be delivered by hand, mail, or overnight courier to the Warrant Agent. See the discussion in the Offer to Purchase under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants.”
For this notice to be validly delivered, it must be received by the Warrant Agent at the above address before the Offer expires. Delivery of this notice to another mailing address will not constitute a valid delivery. Delivery to the Company, the information agent or the book-entry transfer facility will not be forwarded to the Warrant Agent and will not constitute a valid delivery.
This form is not to be used to guarantee signatures. If a signature on a Letter of Transmittal and Consent is required to be guaranteed by an Eligible Institution (as defined in the Letter of Transmittal and Consent) under the instructions to the Letter of Transmittal and Consent, such signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal and Consent.
By signing this Notice of Guaranteed Delivery, you tender, upon the terms and subject to the conditions described in the Offer to Purchase and the related Letter of Transmittal and Consent, receipt of which you hereby acknowledge, the number of Warrants specified below pursuant to the guaranteed delivery procedure described in the Offer to Purchase under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants.”
NUMBER OF WARRANTS EXCHANGED:
SIGNATURES
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Signatures: |
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Name(s) of Warrant Holders(s): |
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(please type or print) |
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Certificate Nos.: |
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Address: |
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(Include Zip Code) |
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Daytime Area Code and Telephone Number: |
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Date: |
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If Warrants will be delivered by book-entry transfer, provide the Account Number. |
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Account Number(s): |
GUARANTEE OF DELIVERY
(Not to be Used for Signature Guarantee)
The undersigned, a bank, broker, dealer, credit union, savings association or other entity that is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended (each of the foregoing constituting an “Eligible Institution”), guarantees delivery to the Warrant Agent of the Warrants tendered, in proper form for transfer, or a confirmation that the Warrants tendered have been delivered pursuant to the procedure for book-entry transfer described in the Offer to Purchase into the Warrant Agent’s account at the book-entry transfer facility, in each case together with a properly completed and duly executed Letter(s) of Transmittal and Consent, or an Agent’s Message (as defined in the Offer to Purchase) in the case of a book-entry transfer, and any other required documents, all within one Nasdaq Stock Market trading day after the date of receipt by the Warrant Agent of this Notice of Guaranteed Delivery.
The Eligible Institution that completes this form must communicate the guarantee to the Warrant Agent and must deliver the Letter of Transmittal and Consent and certificates for Warrants to the Warrant Agent within the time set forth above.
Failure to do so could result in a financial loss to such Eligible Institution.
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Name of Firm: |
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Authorized Signature: |
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Name: |
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(Please Print) |
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Title: |
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Address: |
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Areas Code(s) and Telephone Number(s): |
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Dated: |
, 2024 |
NOTE: DO NOT SEND WARRANTS WITH THIS FORM. WARRANTS SHOULD BE SENT WITH THE LETTER OF TRANSMITTAL AND CONSENT.
Exhibit (a)(1)(D)
Offer to Purchase
Warrants to Acquire Shares of Common Stock
of
AvePoint, Inc.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, AT THE END OF THE DAY ON SEPTEMBER 24, 2024, UNLESS THE OFFER IS EXTENDED.
August 27, 2024
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
AvePoint, Inc., a Delaware corporation (“AvePoint” or the “Company”) is offering to holders of 17,576,241 outstanding publicly traded warrants to purchase shares of common stock which were publicly issued and sold as part of the units in the initial public offering of Apex Technology Acquisition Corporation (“Apex”) on September 19, 2019 (the “Apex IPO”), and assumed by the Company on July 1, 2021 and which entitle such warrant holders to purchase one share of the Company’s common stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”), the opportunity to receive, upon the terms and subject to the conditions of the Offer, $2.50 in cash, without interest (the “Offer Purchase Price”), in exchange for each Warrant tendered.
The offer is upon the terms and subject to certain conditions described in the Offer to Purchase and Consent Solicitation, dated August 27, 2024 (the “Offer to Purchase”) and in the related Letter of Transmittal and Consent (the “Letter of Transmittal and Consent,” which together with the Offer to Purchase, as they may be amended or supplemented from time to time, constitute the “Offer”).
As part of the Offer, the Company is also soliciting consents (the “Consent Solicitation”) from the holders of the Warrants to amend the Warrant Agreement, dated as of September 16, 2019, by and between Apex and Continental Stock Transfer & Trust Company (the “Warrant Agent”)(the “Warrant Agreement”), which governs all of the Warrants, to permit the Company to redeem each outstanding Warrant for $2.00 in cash, without interest (the “Redemption Price”), which Redemption Price is 20% less than the Offer Purchase Price (the “Warrant Amendment”). Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. Holders of the Warrants who desire to tender their Warrants pursuant to the Offer are required to consent to the Warrant Amendment. The foregoing is only a summary of the Warrant Amendment, and is qualified by reference to the full text of the Warrant Amendment, as set forth as Annex A to the Offer to Purchase.
If the holders of more than 50.1% of our outstanding Warrants have agreed to consent to the Warrant Amendment in the Consent Solicitation, if the other conditions described in the Offer do not occur or, if they occur, are waived, then the Warrant Amendment will be adopted.
All of the Warrants are eligible to be tendered pursuant to the Offer.
Please furnish copies of the enclosed materials to your clients for whom you hold Warrants registered in your name or in the name of your nominee.
Enclosed with this letter are copies of the following documents:
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1. |
Offer to Purchase and Consent Solicitation, dated August 27, 2024; |
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2. |
Letter of Transmittal and Consent (including Form W-9), for your use in accepting the Offer and tendering Warrants of your clients; |
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3. |
Notice of Guaranteed Delivery with respect to Warrants, to be used to accept the Offer in the event (a) your Warrants are not immediately available, (b) the procedure for book-transfer cannot be completed on a timely basis, or (c) time will not permit all required documents to reach the Warrant Agent prior to the Expiration Date (as defined in the Letter of Transmittal and Consent); and |
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4. |
Letter to Clients, for you to send to your clients and for whose account you hold Warrants registered in your name or in the name of a nominee, with an Instruction Form provided for obtaining such client’s instructions with regard to the Offer. |
Warrant holders must make their own decision as to whether to tender their Warrants and, if so, how many Warrants to tender. Your clients should read carefully the information set forth or incorporated by reference in the Offer to Purchase and in the Letter of Transmittal and Consent, including the Company’s reasons for making the Offer.
It is the Company’s current intent not to conduct another tender offer to purchase the Warrants. However, the Company reserves the right to do so in the future, including by redemption of the Warrants if and when the Company is permitted to do so pursuant to the terms of the Warrants.
All tenders must be in proper form as described under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants” of the Offer to Purchase to be valid.
We urge you to contact your clients promptly. Please note that the Offer period and withdrawal rights will expire at 12:00 Midnight, Eastern Time, at the end of the day on September 24, 2024, unless the Offer period is extended.
Under no circumstances will interest be paid on the Offer Purchase Price regardless of any extension of, or amendment to, the Offer or any delay in paying for such warrants.
The Company will not pay any fees or commissions to any broker, dealer or other person in connection with the solicitation of tenders of Warrants pursuant to the Offer. However, the Company will, on request, reimburse you for customary mailing and handling expenses incurred by you in forwarding copies of the enclosed Offer materials to your clients subject to providing a duly issued invoice to the Company.
As withholding agent for your clients, you are instructed to backup withhold on the gross proceeds of the Offer to Purchase paid to your clients that do not submit the Form W-9, Form W-8BEN, W-8IMY or Form W-8ECI, as applicable, in accordance with appropriate, accepted procedures. This withholding is disclosed in the Offer to Purchase.
Questions and requests for assistance or for additional copies of the enclosed material may be directed to the Information Agent at the telephone numbers and address listed below.
Very truly yours,
AvePoint, Inc.
Nothing contained in this letter or in the enclosed documents shall render you or any other person the agent of the Company, the Dealer Manager, the Information Agent or the Warrant Agent or any affiliate of any of them or authorize you or any other person to give any information or use any document or make any statement on behalf of any of them with respect to the offer other than the enclosed documents and the statements contained therein.
The Information Agent for the Offer is:
Sodali & Co. LLC
333 Ludlow Street, 5th Floor, South Tower
Stamford, CT 06902
Telephone number toll-free: (800) 662-5200
Email: AVPT.info@investor.sodali.com
Exhibit (a)(1)(E)
Offer to Purchase
Warrants to Acquire Shares of Common Stock
of
AvePoint, Inc.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, AT THE END OF THE DAY ON SEPTEMBER 24, 2024,
UNLESS THE OFFER IS EXTENDED.
August 27, 2024
To Our Clients:
Enclosed for your consideration are the Offer to Purchase and Consent Solicitation, dated August 27, 2024 (the “Offer to Purchase”) and the related Letter of Transmittal and Consent (the “Letter of Transmittal and Consent” and, together with the Offer to Purchase and any amendments or supplements thereto, collectively, the “Offer”) in connection with the Offer by AvePoint, Inc., a Delaware corporation (“AvePoint” or the “Company”), to holders of 17,576,241 outstanding publicly traded warrants to purchase shares of common stock which were publicly issued and sold as part of the units in the initial public offering of Apex Technology Acquisition Corporation (“Apex”) consummated on September 19, 2019 (the “Apex IPO”), and assumed by the Company on July 1, 2021, and which entitle such warrant holders to purchase one share of the Company’s common stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”), the opportunity to receive, upon the terms and subject to the conditions of the Offer, $2.50 in cash, without interest (the “Offer Purchase Price”), in exchange for each Warrant tendered.
As part of the Offer, the Company is also soliciting consents (the “Consent Solicitation”) from the holders of the Warrants to amend the Warrant Agreement, dated as of September 16, 2019, by and between Apex and Continental Stock Transfer & Trust Company (the “Warrant Agent”)(the “Warrant Agreement”), which governs all of the Warrants, to permit the Company to redeem each outstanding Warrant for $2.00 in cash, without interest (the “Redemption Price”), which Redemption Price is 20% less than the Offer Purchase Price (the “Warrant Amendment”). Pursuant to the terms of the Warrant Agreement, the consent of holders of at least 50.1% of the outstanding Warrants is required to approve the Warrant Amendment. Holders of the Warrants who desire to tender their Warrants pursuant to the Offer are required to consent to the Warrant Amendment. The foregoing is only a summary of the Warrant Amendment, and is qualified by reference to the full text of the Warrant Amendment, as set forth as Annex A to the Offer to Purchase.
If the holders of more than 50.1% of our outstanding Warrants agree to consent to the Warrant Amendment in the Consent Solicitation, if the other conditions described in the Offer do not occur or, if they occur, are waived, then the Warrant Amendment will be adopted.
The Offer is open for all outstanding Warrants.
All tenders must be in proper form as described under “The Offer and Consent Solicitation, Section 2. Procedure for Tendering Warrants” of the Offer to Purchase to be valid.
We are the holder of record of Warrants held for your account. As such, we are the only ones who can tender your Warrants, and then only pursuant to your instructions. We are sending you the Letter of Transmittal and Consent for your information only; you cannot use it to tender Warrants we hold for your account.
Please instruct us as to whether you wish us to tender any or all of the Warrants we hold for your account upon the terms and subject to the conditions of the Offer.
Please note the following:
1. You may tender your Warrants for the Offer Purchase Price, as indicated in the attached Instruction Form.
2. The Offer is subject to certain conditions set forth in the Offer to Purchase under “The Offer and Consent Solicitation, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
3. The Offer and withdrawal rights will expire at 12:00 Midnight, Eastern Time, at the end of the day on September 24, 2024, unless AvePoint extends the Offer period.
4. The Offer is for up to 17,576,241 public Warrants, constituting 100% of the Company’s outstanding public Warrants as of August 26, 2024.
5. Tendering Warrant holders who are registered Warrant holders or who tender their Warrants directly to Continental Stock Transfer & Trust Company, as the Warrant Agent, will not be obligated to pay any brokerage commissions or fees, or solicitation fees, except as set forth in the Offer to Purchase and the Letter of Transmittal and Consent.
If you wish to have us tender any or all of your Warrants, please so instruct us by completing, executing, detaching and returning the attached Instruction Form.
Your prompt action is requested. Your instruction form should be forwarded to us in ample time to permit us to submit a tender on your behalf before the Expiration Date of the Offer. Please note that the Offer and withdrawal rights will expire at 12:00 Midnight, Eastern Time, at the end of the day on September 24, 2024, unless the Offer period is extended.
The Offer is being made solely pursuant to the Offer to Purchase and Consent Solicitation and the Letter of Transmittal and Consent and is being made to all record holders of the Warrants. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Warrants residing in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities laws of that jurisdiction.
The Company’s Board of Directors has approved the Offer. However, neither the Company, its Board of Directors, nor the Warrant Agent, the Information Agent or Dealer Manager or any other person makes any recommendation to Warrant holders as to whether to tender or refrain from tendering their Warrants. Warrant holders must make their own decision as to whether to tender their Warrants and, if so, how many Warrants to tender. In doing so, Warrant holders should read carefully the information set forth or incorporated by reference in the Offer to Purchase and in the Letter of Transmittal and Consent, including the purposes and effects of the Offer.
It is the Company’s current intent not to conduct another tender offer to purchase the Warrants. However, the Company reserves the right to do so in the future, including by redemption of the Warrants if and when the Company is permitted to do so pursuant to the terms of the Warrants.
INSTRUCTION FORM WITH RESPECT TO
Offer to Purchase
Outstanding Warrants to Acquire Shares of Common Stock
of
AvePoint, Inc.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase and Consent Solicitation, dated August 27, 2024 (the “Offer to Purchase”), and the related Letter of Transmittal and Consent (the “Letter of Transmittal and Consent” and, together with the Offer to Purchase and any amendments or supplements thereto, collectively, the “Offer”) in connection with the Offer by AvePoint, Inc., a Delaware corporation (“AvePoint” or the “Company”), to holders of 17,576,241 outstanding publicly traded warrants to purchase shares of common stock which were publicly issued and sold as part of the units in the initial public offering of Apex Technology Acquisition Corporation (“Apex”) on September 19, 2021 (the “Apex IPO”), and assumed by the Company on July 1, 2021, and which entitle such warrant holders to purchase one share of the Company’s common stock at an exercise price of $11.50, subject to certain adjustments (the “Warrants”), the opportunity to receive, upon the terms and subject to the conditions of the Offer, $2.50 in cash, without interest, in exchange for each Warrant tendered.
The undersigned hereby instruct(s) you to tender to the Company the number of Warrants indicated below for the account of the undersigned, on the terms and subject to the conditions of the Offer.
This Instruction Form will instruct you to tender to the Company the number of Warrants indicated below which are beneficially owned by (us) (me) and registered in your name, upon the terms and subject to the conditions set forth in the Offer.
NUMBER OF WARRANTS TO BE TENDERED HEREBY: ___________ WARRANTS
The method of delivery of this document is at the election and risk of the tendering Warrant holder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
SIGN HERE
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Account Number: |
Signature(s): |
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Print Name(s): |
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Address(es): |
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Area Code and Telephone Number: |
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Taxpayer Identification or Social Security Number: |
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Date: |
Exhibit (a)(5)
AvePoint Announces Commencement of an
Offer to Purchase and Consent Solicitation Relating to its Warrants
JERSEY CITY, NJ – AUGUST 27, 2024 — AvePoint (Nasdaq: AVPT, AVPTW), the global leader in robust data management and data governance, today announced that it has commenced an offer to purchase (the “Offer”) all of its outstanding public warrants (the “Warrants”) to purchase shares of its common stock, par value $0.0001 per share, at a purchase price of $2.50 in cash, without interest.
AvePoint is also soliciting consents (the “Consent Solicitation”) to amend the Warrant Agreement, dated September 16, 2019, by and between Apex Technology Acquisition Corporation (“Apex”) and Continental Stock Transfer & Trust Company (“Continental”) (the “Warrant Agreement”), which governs all of the Warrants, to permit AvePoint to redeem each outstanding Warrant for $2.00 in cash, without interest, which is 20% less than the price applicable to the Offer (such amendment, the “Warrant Amendment”). Pursuant to the terms of the Warrant Agreement, the adoption of the Warrant Amendment will require the consent of holders of at least 50.1% of the then outstanding Warrants. If the holders of more than 50.1% of the outstanding Warrants agree to consent to the Warrant Amendment in the Consent Solicitation, if the other conditions of the Offer do not occur or, if they occur, are waived, then the Warrant Amendment will be adopted.
The Offer will be open until 12:00 midnight, Eastern Time, at the end of the day on September 24, 2024 (the “Expiration Date”), unless extended or earlier terminated by AvePoint. Tendered Warrants may be withdrawn by holders at any time prior to the Expiration Date. The Offer is not conditioned upon any minimum number of Warrants being tendered in the Offer. The Offer is, however, subject to other conditions described in the Offer and Consent Solicitation.
The Offer and Consent Solicitation are being made pursuant to an Offer to Purchase, dated August 27, 2024, and joint Schedule TO/Schedule 13E-3 (the “Schedule TO”), dated August 27, 2024, each of which have been filed with the U.S. Securities and Exchange Commission (“SEC”) and more fully set forth in the terms and conditions of the Offer and Consent Solicitation.
The Company’s common stock and Warrants are listed on The Nasdaq Stock Market LLC under the symbols “AVPT” and “AVPTW,” respectively. As of August 26, 2024, a total of 17,576,241 Warrants were outstanding.
AvePoint has engaged Evercore Group L.L.C. (“Evercore”) as the Dealer Manager for the Offer and Consent Solicitation. Sodali & Co. has been appointed as the Information Agent for the Offer and Consent Solicitation, and Continental has been appointed as the Warrant Agent for the Offer and Consent Solicitation. All questions concerning tender procedures and requests for additional copies of the offer materials, including the letter of transmittal and consent should be directed to Sodali & Co. at (800) 662-5200 (toll free).
Important Additional Information Has Been Filed with the SEC
Copies of the Schedule TO and Offer to Purchase will be available free of charge at the website of the SEC at www.sec.gov. Requests for documents may also be directed to Sodali & Co. at (800) 662-5200 (toll free).
This announcement is for informational purposes only and shall not constitute an offer to purchase or a solicitation of an offer to sell the Warrants. The Offer and Consent Solicitation are being made only through the Schedule TO and Offer to Purchase, and the complete terms and conditions of the Offer and Consent Solicitation are set forth in the Schedule TO and Offer to Purchase.
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Holders of the Warrants are urged to read the Schedule TO and Offer to Purchase carefully before making any decision with respect to the Offer and Consent Solicitation because they contain important information, including the various terms of, and conditions to, the Offer and Consent Solicitation.
None of AvePoint, any of its management or its board of directors, or Evercore, Sodali & Co. or Continental or any other person makes any recommendation as to whether or not Warrant holders should tender Warrants for exchange in the Offer or consent to the Warrant Amendment in the Consent Solicitation. Warrant holders must make their own decision as to whether to tender their Warrants and, if so, how many Warrants to tender.
About AvePoint:
Securing the Future. AvePoint is a global leader in data management and data governance, and over 21,000 customers worldwide rely on our solutions to modernize the digital workplace across Microsoft, Google, Salesforce and other collaboration environments. AvePoint's global channel partner program includes over 3,500 managed service providers, value added resellers and systems integrators, with our solutions available in more than 100 cloud marketplaces. To learn more, visit www.avepoint.com.
Forward-Looking Statements:
This press release contains certain forward-looking statements that are subject to risks, uncertainties and other factors. All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including statements regarding the future performance of and market opportunities for AvePoint. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this press release, including but not limited to: changes in the competitive and regulated industries in which AvePoint operates, variations in operating performance across competitors, changes in laws and regulations affecting AvePoint’s business and changes in AvePoint’s ability to implement business plans, forecasts, and ability to identify and realize additional opportunities, and the risk of downturns in the market and the technology industry. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of AvePoint’s most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q. Copies of these and other documents filed by AvePoint from time to time are available on the SEC's website, www.sec.gov. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and AvePoint does not assume any obligation and does not intend to update or revise these forward-looking statements after the date of this release, whether as a result of new information, future events, or otherwise, except as required by law. AvePoint does not give any assurance that it will achieve its expectations. Unless the context otherwise indicates, references in this press release to the terms “AvePoint”, “the Company”, “we”, “our” and “us” refer to AvePoint, Inc. and its subsidiaries.
Disclosure Information:
AvePoint uses the https://ir.avepoint.com/ website as a means of disclosing material non-public information and for complying with its disclosure obligations under Regulation FD.
Investor Contact
AvePoint
Jamie Arestia
ir@avepoint.com
(551) 220-5654
Media Contact
AvePoint
Nicole Caci
pr@avepoint.com
(201) 201-8143
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Exhibit (c)
