Fortress Capital Acquisition Corp.
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
September 9, 2020
Fortress Capital Acquisition Sponsor LLC
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
|RE: || |
Securities Subscription Agreement
This agreement (this Agreement) is entered into on September 9, 2020 by and between Fortress Capital Acquisition Sponsor LLC, a Delaware limited liability company (the Subscriber or you), and Fortress Capital Acquisition Corp., a Cayman Islands exempted company (the Company). Pursuant to the terms hereof, the Company hereby accepts the offer the Subscriber has made to purchase 8,625,000 Class B ordinary shares, $0.0001 par value per share (the Shares), up to 1,125,000 of which are subject to surrender and cancellation by you if the underwriters of the initial public offering (IPO) of units (Units) of the Company do not fully exercise their over-allotment option (the Over-allotment Option). The Company and the Subscribers agreements regarding such Shares are as follows:
|1. || |
Purchase of Securities.
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Purchase of Shares. For the sum of $25,000 (the Purchase Price), which the Company acknowledges has been remitted at the Companys direction for offering costs, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby subscribes for and purchases the Shares from the Company, 1,125,000 of which are subject to surrender and cancellation, on the terms and subject to the conditions set forth in this Agreement. All references in this Agreement to shares of the Company being surrendered and canceled shall take effect as surrenders and cancellations for no consideration of such shares as a matter of Cayman Islands law.
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Surrender of Subscriber Shares. On the issuance of the Shares, the Subscriber hereby surrenders for no consideration the one Class B ordinary share, $0.0001 par value that the Subscriber holds in the Company.
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Access to Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscribers own knowledge and understanding of the Company and its business based upon Subscribers own due diligence investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
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Regulation D Offering. Subscriber represents that it is an accredited investor as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the Securities Act) and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to accredited investors within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under federal and state law.
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Investment Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscribers own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D under the Securities Act.
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Restrictions on Transfer; Shell Company. Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act.
Subscriber understands the Shares will be restricted securities within the meaning of Rule 144(a)(3) under the Securities Act, and Subscriber understands that the certificates representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
|5. || |
Restrictions on Transfer.
| ||5.1. || |
Securities Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly known as an Insider Letter) to be dated as of the closing of the IPO by and between Subscriber and the Company, Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company has received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
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Restrictive Legends. Any certificates representing the Shares shall have endorsed thereon legends substantially as follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO LOCKUP PROVISIONS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.
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Additional Shares or Substituted Securities. In the event of the declaration of a share capitalization, the declaration of an extraordinary dividend payable in a form other than Shares, a spin-off, a share sub-division, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Companys outstanding Shares without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Shares subject to this Section 5 and Section 3.
If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this Agreement and return it to us.
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|Very truly yours,|
|Fortress Capital Acquisition Corp.|
|By: || || |
/s/ Daniel Bass
| || ||Name: Daniel Bass|
| || ||Title: Chief Financial Officer|
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|Accepted and agreed as of the date first written above.|
|Fortress Capital Acquisition Sponsor LLC|
|By: || || |
/s/ David N. Brooks
| || ||Name: David N. Brooks|
| || ||Title: Secretary|