FortuneX Acquisition Corp 8-K/A, filed Oct 8, 2026
FortuneX Acquisition Corp (FXAC)
About this 8-K/A
FortuneX Acquisition Corp filed this 8-K/A on October 8, 2026, reporting on events of September 18, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported):
(Exact name of registrant as specified in its charter)
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Registrant’s telephone number, including area code:
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of exchange on which registered | ||
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The Stock Market LLC | |||
| The Stock Market LLC | ||||
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The Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Explanatory Note
| Item 1.01. | Entry into a Material Definitive Agreement. |
As previously reported, on September 18, 2026, FortuneX entered into a Business Combination Agreement (the “Business Combination Agreement”) with WT Realty Group Inc., a Delaware corporation (the “Company” or “WT Realty”) and FortuneX Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of FortuneX (“Merger Sub”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, (i) FortuneX will de-register under the Cayman Islands Companies Act (as revised) and domesticate as a corporation incorporated in the State of Delaware (the “Domestication”) and (ii) immediately following the Domestication, Merger Sub will merge with and into WT Realty (the “Merger” and, together with the Domestication and the other transactions contemplated by the Business Combination Agreement, the “Business Combination”), with WT Realty surviving the Merger as a wholly-owned subsidiary of FortuneX (renamed in connection with the Domestication, “PubCo”).
Capitalized terms used but not otherwise defined in this Amendment have the meanings ascribed to such terms in the Business Combination Agreement.
Governance
Item 1.01 of the Original Form 8-K is hereby supplemented with the following additional disclosure:
Each share of PubCo Class A Common Stock will be entitled to 1 vote per share and each share of PubCo Class B Common Stock will be entitled to 20 votes per share.
Termination
The following disclosure replaces the corresponding disclosure under the heading “Termination” in Item 1.01 of the Original Form 8-K:
The Business Combination Agreement may be terminated prior to the Closing under specified circumstances, including: (i) by mutual written consent of FortuneX and the Company; (ii) by either party if a final, non-appealable law or order permanently restrains, enjoins or otherwise prohibits the Transactions, subject to specified limitations; (iii) by either party if the requisite FortuneX shareholder approval is not obtained at the applicable shareholder meeting; (iv) by either party if the Closing has not occurred on or prior to May 26, 2027 (the “Outside Closing Date”), subject to specified limitations; (v) by FortuneX if the Company does not deliver the required PCAOB-audited financial statements by October 30, 2026; and (vi) by either FortuneX or the Company upon certain uncured breaches by the other party that would cause specified closing conditions not to be satisfied.
The Business Combination Agreement also provides for a $500,000 termination fee payable by a breaching party to the non-breaching party if the Business Combination Agreement is terminated for a material breach under the specified termination provisions. In addition, the termination fee may become payable following a termination for failure to close by the Outside Closing Date where a delay of more than six months is primarily attributable to a party’s failure to use commercially reasonable efforts to consummate the Transactions, subject to the exceptions set forth in the Business Combination Agreement, including delays primarily attributable to regulatory review, completion of the Company’s audit, SEC review, general market conditions or other circumstances outside the applicable party’s reasonable control.
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SPAC Transaction Expenses; Expense Cap
The following disclosure replaces the corresponding disclosure under the heading “SPAC Transaction Expenses; Expense Cap” in Item 1.01 of the Original Form 8-K:
If the Closing occurs on or prior to May 26, 2027, FortuneX transaction expenses payable by PubCo, WT Realty or from Available Closing Cash are capped at $1.5 million (the “SPAC Expense Cap”). The SPAC Expense Cap includes, without limitation, all premiums, fees and other costs associated with D&O tail insurance, all amounts payable pursuant to the Administrative Services Agreement, and all extension fees, contributions and other amounts funded or paid by or on behalf of FortuneX or Sponsor to extend the period of time available to FortuneX to consummate a Business Combination. Notwithstanding the foregoing, any deferred legal, advisory or other professional fees that are payable only upon, or otherwise contingent upon, the consummation of the Business Combination (collectively, the “Deferred Fees”) are not included in the calculation of the SPAC Expense Cap; provided, that Deferred Fees do not include D&O tail insurance premiums. The deferred underwriting commission payable pursuant to the Underwriting Agreement is governed exclusively by the applicable provisions of the Business Combination Agreement and is not payable by PubCo, the Company or from the proceeds of any Transaction Financing. Any FortuneX transaction expenses included in the calculation of the SPAC Expense Cap that exceed the SPAC Expense Cap will be borne solely by FortuneX or Sponsor.
Additional Information Concerning the Business Combination Agreement
Except as described in this Amendment, all other disclosures in the Original Form 8-K remain unchanged. The foregoing descriptions are qualified in their entirety by reference to the full text of the Business Combination Agreement and the other documents filed as exhibits to the Original Form 8-K and this Amendment, which are incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit No. | Description | |
| 10.1 | Form of Amended and Restated Registration Rights Agreement. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| FortuneX Acquisition Corporation | ||
| Date: October 7, 2026 | By: | /s/ Daniel M. McCabe |
| Name: | Daniel M. McCabe | |
| Title: | Chief Executive Officer | |
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Exhibit 10.1
FORM OF
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of [●], 2026, by and among:
| (i) | FortuneX Acquisition Corporation, a Cayman Islands exempted company (prior to the Domestication Effective Time, “SPAC”, and at and after the Domestication Effective Time, “PubCo”); |
| (ii) | FortuneX Investment Partners Limited, a British Virgin Islands business company (the “Sponsor”); |
| (iii) | the Persons listed on Schedule I hereto (other than the Sponsor) that hold Registrable Securities immediately following the Closing as a result of their ownership of Registrable Securities under the Prior Registration Rights Agreement (each such Person, together with the Sponsor, a “SPAC Holder” and, collectively, the “SPAC Holders”); and |
| (iv) | the Company Securityholders required to execute this Agreement and listed on Schedule II hereto that are required to execute this Agreement pursuant to the Business Combination Agreement and that receive shares of PubCo Common Stock pursuant thereto (each, a “Company Holder” and, collectively, the “Company Holders”). |
Each SPAC Holder and Company Holder, together with any Person that hereafter becomes a party to this Agreement in accordance with Section 6.3, is referred to herein as a “Holder” and, collectively, as the “Holders.” Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement.
RECITALS
WHEREAS, SPAC, the Sponsor, and certain other investors entered into that certain Registration Rights Agreement, dated as of May 21, 2026 (as amended, supplemented or otherwise modified prior to the date hereof, the “Prior Registration Rights Agreement”);
WHEREAS, SPAC, WT Realty Group Inc., a Delaware corporation (the “Company”), and FortuneX Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of SPAC (“Merger Sub”), entered into that certain Business Combination Agreement, dated as of September 16, 2026 (as amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, prior to the Closing, SPAC will de-register as an exempted company incorporated under the laws of the Cayman Islands and transfer by way of continuation out of the Cayman Islands and into the State of Delaware, and domesticate as a Delaware corporation(the “Domestication”);
WHEREAS, pursuant to the Business Combination Agreement, at the Closing, Merger Sub will merge with and into the Company, with the Company surviving the Merger as a wholly owned subsidiary of PubCo;
WHEREAS, in connection with the consummation of the Transactions, the Company Holders will receive shares of PubCo Common Stock pursuant to the Business Combination Agreement;
WHEREAS, the Sponsor and the other SPAC Holders that are parties to the Prior Registration Rights Agreement hold a majority of the “Registrable Securities” thereunder and, together with PubCo, desire to amend and restate the Prior Registration Rights Agreement in its entirety and accept the rights created pursuant to this Agreement in lieu of the rights granted under the Prior Registration Rights Agreement; and
WHEREAS, PubCo and the Company Holders desire to enter into this Agreement, pursuant to which PubCo will grant the Company Holders the registration rights set forth herein with respect to their Registrable Securities.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized terms used in this Agreement have the following meanings:
“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Board, after consultation with counsel to PubCo, (a) would be required to be made in any Registration Statement or Prospectus in order for such Registration Statement or Prospectus not to contain a Misstatement, (b) would not be required to be made at such time if the Registration Statement were not being filed or used, and (c) PubCo has a bona fide business purpose for not making such information public.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with such Person; provided that no Holder shall be deemed an Affiliate of PubCo or any of its Subsidiaries solely by reason of such Holder’s ownership of Registrable Securities.
“Agreement” has the meaning set forth in the Preamble.
“Block Trade” means an offering and/or sale of Registrable Securities by one or more Holders on a block trade or underwritten basis, whether on a firm commitment or otherwise, without substantial marketing efforts prior to pricing, including a same-day trade, overnight trade or similar transaction.
“Board” means the board of directors of PubCo.
“Business Combination Agreement” has the meaning set forth in the Recitals.
“Business Day” has the meaning assigned to such term in the Business Combination Agreement.
“Closing” has the meaning assigned to such term in the Business Combination Agreement.
“Closing Date” has the meaning assigned to such term in the Business Combination Agreement.
“Commission” means the United States Securities and Exchange Commission or any successor federal agency then administering the Securities Act or the Exchange Act.
“Company Holder” or “Company Holders” has the meaning set forth in the Preamble.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of voting securities, by contract or otherwise. The terms “Controlled,” “Controlling” and “under common Control with” have correlative meanings.
“Demand Registration” has the meaning set forth in Section 2.2.1.
“Demand Takedown” has the meaning set forth in Section 2.1.6(a).
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“Demanding Holder” has the meaning set forth in Section 2.2.1.
“Domestication” has the meaning set forth in the Recitals.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Form S-1” means a registration statement on Form S-1 under the Securities Act or any successor form thereto.
“Form S-3” means a registration statement on Form S-3 under the Securities Act or any similar short-form registration statement that may be available to PubCo at the applicable time.
“Founder Shares” means the shares of PubCo Class A Common Stock issued upon the conversion in connection with the Domestication of the SPAC Ordinary Shares originally issued as Founder Shares and held by the Sponsor or any other SPAC Holder immediately prior to the Domestication.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, commission, department, board, bureau, instrumentality, court, tribunal, arbitrator or self-regulatory organization, including Nasdaq and the Commission.
“Holder” or “Holders” has the meaning set forth in the Preamble; provided that a Person shall cease to be a Holder at such time as such Person no longer holds any Registrable Securities.
“Law” means any statute, law, ordinance, rule, regulation, directive, code, order, judgment, injunction, decree, writ, determination or other requirement of any Governmental Authority.
“Lock-Up Agreement” means any lock-up agreement entered into in connection with the Transactions, including each lock-up agreement entered into substantially in the form attached as Exhibit D to the Business Combination Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“Maximum Number of Securities” has the meaning set forth in Section 2.2.4.
“Merger” means the merger of Merger Sub with and into the Company pursuant to the Business Combination Agreement, with the Company surviving such merger as a wholly owned Subsidiary of PubCo.
“Merger Effective Time” has the meaning assigned to such term in the Business Combination Agreement.
“Merger Shares” means the shares of PubCo Common Stock issued to the Company Holders pursuant to the Business Combination Agreement.
“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
“Nasdaq” means The Nasdaq Stock Market LLC.
“Person” means any individual, corporation, company, partnership, limited liability company, association, trust, joint venture, unincorporated organization, Governmental Authority or other entity of any kind.
“Piggyback Registration” has the meaning set forth in Section 2.3.1.
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“Prior Registration Rights Agreement” has the meaning set forth in the Recitals.
“Private Placement Shares” means (a) the shares of PubCo Class A Common Stock issued upon the conversion in connection with the Domestication of the SPAC Ordinary Shares originally included in the Private Placement Units, (b) the shares of PubCo Class A Common Stock issued or issuable upon the exercise of the Warrants resulting from the SPAC Warrants originally included in the Private Placement Units, and (c) any other shares of PubCo Class A Common Stock issued or issuable upon the exercise, conversion or exchange of securities originally issued as part of the Private Placement Units.
“Prospectus” means the prospectus included in any Registration Statement, including any preliminary prospectus, free writing prospectus or prospectus supplement relating to the offering of Registrable Securities, and all amendments and supplements thereto and all material incorporated by reference or deemed incorporated by reference therein.
“PubCo” has the meaning set forth in the Preamble and includes any successor thereto.
“Register,” “Registered” and “Registration” mean a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act and the applicable rules and regulations thereunder, and such registration statement becoming effective.
“Registrable Securities” means (a) any Founder Shares held by a SPAC Holder immediately following the Closing, (b) any Private Placement Shares held by a SPAC Holder immediately following the Closing, (c) any Working Capital Loan Shares held by a SPAC Holder immediately following the Closing, (d) any other shares of PubCo Class A Common Stock or other equity securities of PubCo held by a SPAC Holder immediately following the Closing that are issued or issuable in respect of securities constituting Registrable Securities under the Prior Registration Rights Agreement immediately prior to the Domestication, (e) any Merger Shares held by a Company Holder immediately following the Closing and (f) any other equity securities of PubCo or any successor entity issued or issuable with respect to any security described in clauses (a) through (d) by way of stock dividend, stock split, subdivision, combination, recapitalization, merger, consolidation, reorganization or similar transaction; provided, however, that, as to any particular Registrable Security, such security shall cease to be a Registrable Security upon the earliest to occur of: (i) a Registration Statement covering the sale or other disposition of such security having become effective under the Securities Act and such security having been sold, transferred or otherwise disposed of pursuant to such Registration Statement; (ii) such security having been sold pursuant to Rule 144; (iii) such security having been otherwise transferred and a new certificate or book-entry position not bearing a legend restricting further transfer having been delivered or established by PubCo, and subsequent public distribution of such security not requiring registration under the Securities Act; (iv) such security having ceased to be outstanding; or (v) such security becoming eligible for sale by the applicable Holder pursuant to Rule 144 without volume or manner-of-sale restrictions and without the requirement that PubCo comply with the current public information requirements under Rule 144(c)(1).
“Registration Statement” means any registration statement filed by PubCo with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering or resale of equity securities, or securities exercisable or exchangeable for, or convertible into, equity securities, including the Prospectus, amendments and supplements thereto, all exhibits thereto and all material incorporated by reference or deemed incorporated by reference therein; provided that a Registration Statement shall not include a registration statement on Form S-4 or Form S-8, or any successor form thereto, or a registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity.
“Resale Shelf Registration Statement” has the meaning set forth in Section 2.1.1.
“Rule 144” means Rule 144 promulgated under the Securities Act, or any successor rule thereto, as amended from time to time.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shelf Registration” means a registration of securities pursuant to a Registration Statement filed with the Commission in accordance with Rule 415 under the Securities Act.
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“SPAC Holder” or “SPAC Holders” has the meaning set forth in the Preamble.
“Sponsor” has the meaning set forth in the Preamble.
“Subsidiary” means, with respect to any Person, any other Person of which a majority of the outstanding voting securities or other voting equity interests are owned or Controlled, directly or indirectly, by such first Person, or with respect to which such first Person or any of its Subsidiaries is a general partner or managing member.
“Transactions” has the meaning assigned to such term in the Business Combination Agreement.
“Underwriter” means a securities dealer that purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
“Underwritten Demand Registration” means an underwritten public offering of Registrable Securities pursuant to a Demand Registration, as amended or supplemented.
“Underwritten Takedown” means an underwritten public offering of Registrable Securities pursuant to a Resale Shelf Registration Statement, as amended or supplemented.
“Working Capital Loan Shares” means the shares of PubCo Class A Common Stock issued or issuable upon the conversion, exchange or exercise of any private units or other equity securities issued upon conversion of any working capital loans made to SPAC by the Sponsor, any officer or director of SPAC or any of their respective Affiliates, including up to $500,000 of such working capital loans convertible into private units at a price of $10.00 per unit.
ARTICLE II
REGISTRATION RIGHTS
2.1 Resale Shelf Registration Rights.
2.1.1 Registration Statement Covering Resale of Registrable Securities.
Within thirty (30) calendar days following the Closing Date, PubCo shall prepare and file, or cause to be prepared and filed, with the Commission a Registration Statement for a Shelf Registration on Form S-1 or, if PubCo is then eligible to use Form S-3, on Form S-3 (the “Resale Shelf Registration Statement”), in each case for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act registering the resale from time to time by the Holders of all Registrable Securities. PubCo shall use commercially reasonable efforts to cause the Resale Shelf Registration Statement to be declared effective as promptly as practicable after filing and, once effective, to keep the Resale Shelf Registration Statement continuously effective and available for use until the date on which there are no longer any Registrable Securities outstanding. If PubCo files the Resale Shelf Registration Statement on Form S-1, PubCo shall use commercially reasonable efforts to convert it to Form S-3 as soon as practicable after PubCo becomes eligible to use Form S-3. PubCo’s obligations under this Section 2.1.1 shall be subject to Section 3.2. Notwithstanding the foregoing, with respect to Registrable Securities held by the SPAC Holders or their Affiliates, PubCo shall not be required to include such Registrable Securities in any Registration Statement, or to file or cause to become effective any Registration Statement covering such Registrable Securities, prior to the later of (i) the date that is thirty (30) days prior to the scheduled expiration of the lock-up period applicable to such Registrable Securities under the applicable Lock-Up Agreement (without giving effect to any early release thereunder) and (ii) the expiration of the Call Option Period (as defined in the Sponsor Support Agreement, dated as of September 16, 2026, by and among SPAC, the Company and the Sponsor (the “Sponsor Support Agreement”)).
2.1.2 Notification and Distribution of Materials.
PubCo shall notify the Holders in writing of the effectiveness of the Resale Shelf Registration Statement and shall furnish to each Holder, without charge, such number of copies of the Resale Shelf Registration Statement, the Prospectus contained therein and such other documents as such Holder may reasonably request to facilitate the disposition of its Registrable Securities in the manner described therein.
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2.1.3 Amendments; Subsequent Shelf.
PubCo shall promptly prepare and file such amendments and supplements to the Resale Shelf Registration Statement and Prospectus as may be necessary to keep the Resale Shelf Registration Statement effective and in compliance with the Securities Act. If the Resale Shelf Registration Statement ceases to be effective while Registrable Securities remain outstanding, PubCo shall use commercially reasonable efforts to cause it to become effective again or to file an additional shelf registration statement covering all then-outstanding Registrable Securities. Any such additional shelf registration statement shall be on Form S-3 to the extent PubCo is then eligible to use such form.
2.1.4 Rule 415 Cutback.
If the Commission informs PubCo that all Registrable Securities cannot be registered for resale as a secondary offering on a single Registration Statement, PubCo shall use commercially reasonable efforts to advocate with the Commission for registration of all Registrable Securities and, if nevertheless required, shall amend the Resale Shelf Registration Statement or file one or more additional Registration Statements covering the maximum number of Registrable Securities permitted by the Commission. Any reduction shall be allocated among the Holders on a pro rata basis based on the number of Registrable Securities requested to be included, unless otherwise required by the Commission. PubCo shall use commercially reasonable efforts to register any omitted Registrable Securities as promptly as permitted by the Commission.
2.1.5 Notice of Certain Events.
PubCo shall promptly notify the Holders in writing of (a) the filing and effectiveness of the Resale Shelf Registration Statement and any amendment thereto, (b) any request by the Commission for an amendment, supplement or additional information, (c) the issuance of any stop order or suspension of effectiveness and (d) the occurrence of any event requiring the amendment or supplementation of the Prospectus so that it will not contain a Misstatement.
2.1.6 Underwritten Takedowns and Block Trades.
| (a) | Subject to the limitations in this Section 2.1.6, one or more Holders holding Registrable Securities with an estimated aggregate market value of at least $[●] may request that PubCo effect an Underwritten Takedown of all or a portion of their Registrable Securities (a “Demand Takedown”). PubCo shall promptly notify the other Holders and shall use commercially reasonable efforts to include in such Underwritten Takedown the Registrable Securities requested by such other Holders within five (5) Business Days after receipt of such notice, subject to customary underwriter cutbacks. |
| (b) | PubCo shall not be required to effect more than three (3) Underwritten Takedowns and Underwritten Demand Registrations, in the aggregate, during any twelve (12)-month period under this Agreement. |
| (c) | A Holder may request a Block Trade with an estimated aggregate offering price of at least $[●]. PubCo shall use commercially reasonable efforts to facilitate such Block Trade as expeditiously as practicable; provided that the requesting Holder shall use commercially reasonable efforts to work with PubCo and the underwriters before making any public disclosure of the Block Trade. No notice to other Holders shall be required for a Block Trade unless the requesting Holder elects to provide such notice. In addition, the SPAC Holders, collectively, shall not request more than one (1) Underwritten Takedown, Underwritten Demand Registration or Block Trade in any twelve (12)-month period, and no such request may be made by any SPAC Holder during the Call Option Period. |
| (d) | The requesting Holder or Holders shall have the right to select the managing Underwriter or Underwriters for an Underwritten Takedown or Block Trade, subject to PubCo’s prior approval, which shall not be unreasonably withheld, conditioned or delayed. |
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2.2 Demand Registration Rights.
2.2.1 Request for Registration.
At any time when there is no effective and usable Resale Shelf Registration Statement available for the resale of all Registrable Securities, (a) SPAC Holders holding at least [*]% of the Registrable Securities then held by all SPAC Holders or (b) Company Holders holding at least [*]% of the Registrable Securities then held by all Company Holders may make a written demand that PubCo register all or part of their Registrable Securities under the Securities Act (a “Demand Registration”). Each Holder initiating a Demand Registration is a “Demanding Holder.” A Demand Registration shall specify the number of Registrable Securities proposed to be sold and the intended method of disposition. PubCo shall, within five (5) Business Days after receipt of such demand, notify all other Holders, each of whom may request inclusion of its Registrable Securities by written notice delivered within five (5) Business Days after receipt of PubCo’s notice.
2.2.2 Effective Registration.
A registration shall not count as a Demand Registration until the applicable Registration Statement has been declared effective and PubCo has complied in all material respects with its obligations hereunder; provided that a registration shall not count if the offering is prevented by a stop order or injunction that is not promptly removed, unless the Demanding Holders elect to proceed after such stop order or injunction is removed.
2.2.3 Underwritten Offering.
If the Demanding Holders so elect, the offering pursuant to a Demand Registration shall be an Underwritten Demand Registration. Each participating Holder shall enter into a customary underwriting agreement and provide such representations, warranties and indemnities as are customary for selling stockholders; provided that no Holder shall be required to make representations or warranties concerning PubCo or its business.
2.2.4 Reduction of Underwritten Offering.
If the managing Underwriter advises that the number or dollar amount of securities requested to be included exceeds the largest number or dollar amount that can be sold without adversely affecting the offering (the “Maximum Number of Securities”), PubCo shall include: (a) first, the Registrable Securities requested by the Demanding Holders and other participating Holders, pro rata based on the number requested to be included; (b) second, securities PubCo proposes to sell for its own account; and (c) third, other securities requested to be included pursuant to contractual registration rights.
2.2.5 Withdrawal.
The Demanding Holders may withdraw a Demand Registration at any time prior to effectiveness by written notice to PubCo. A withdrawn Demand Registration shall not count against any limitation on Demand Registrations if the withdrawing Holders reimburse PubCo for all reasonable out-of-pocket expenses incurred in connection therewith, unless the withdrawal results from material adverse information concerning PubCo that became known after the demand was made.
2.2.6 Limitations.
PubCo shall not be obligated to effect more than three (3) Underwritten Takedowns and Underwritten Demand Registrations, in the aggregate, during any twelve (12)-month period under this Agreement, or any Demand Registration with an estimated aggregate offering price of less than $[●]. PubCo may defer a Demand Registration for up to sixty (60) consecutive days if the Board determines in good faith that the filing or use of the Registration Statement would require Adverse Disclosure; provided that PubCo may not exercise such deferral right more than twice in any twelve (12)-month period or for more than ninety (90) total days in any twelve (12)-month period.
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2.3 Piggyback Registration Rights.
2.3.1 Piggyback Rights.
If PubCo proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities for its own account or for the account of stockholders, other than a registration statement on Form S-4 or Form S-8, a shelf registration pursuant to Section 2.1, a Block Trade or an offering solely pursuant to a dividend reinvestment plan, PubCo shall give written notice to the Holders at least ten (10) days before the anticipated filing date and offer each Holder the opportunity to include such number of Registrable Securities as it requests in writing within five (5) days after receipt of such notice (a “Piggyback Registration”). PubCo shall use commercially reasonable efforts to cause such Registrable Securities to be included on the same terms as the securities otherwise included in the offering.
2.3.2 Reduction of Offering.
If the managing Underwriter advises that the number or dollar amount of securities requested to be included in a Piggyback Registration exceeds the Maximum Number of Securities, the securities shall be included in the following order: (a) if the offering is for PubCo’s account, first, securities offered by PubCo; second, Registrable Securities requested by the Holders, pro rata based on the number requested to be included; and third, securities requested by other stockholders; or (b) if the offering is for the account of other stockholders, first, securities of the initiating stockholders; second, Registrable Securities requested by the Holders, pro rata based on the number requested to be included; third, securities offered by PubCo; and fourth, securities requested by other stockholders.
2.3.3 Withdrawal and Termination.
Any Holder may withdraw its Registrable Securities from a Piggyback Registration at any time before execution of the underwriting agreement or, if no underwriting agreement is entered into, before effectiveness. PubCo may withdraw or abandon any registration initiated by it without liability to any Holder, subject to payment of Registration Expenses as provided herein.
2.4 Lock-Up Restrictions.
Notwithstanding anything to the contrary herein, no Registration or offering pursuant to this Agreement shall relieve any Holder from, or otherwise modify, any restriction on transfer applicable to such Holder under any Lock-Up Agreement. PubCo may include Registrable Securities subject to a Lock-Up Agreement in a Registration Statement before the applicable lock-up expires, provided that no sale may be made in violation of such Lock-Up Agreement.
2.5 Priority.
Notwithstanding anything to the contrary in this Agreement (including Sections 2.1.4, 2.1.6, 2.2.4 and 2.3.2), in any Registration, offering or reduction of the number of securities to be included therein, Registrable Securities held by the SPAC Holders or their Affiliates shall not have priority over, or be registered or sold prior to, and shall be included only after, (i) any securities offered by PubCo for its own account in any offering or financing, and (ii) all Registrable Securities requested to be included by the Company Holders.
ARTICLE III
REGISTRATION PROCEDURES
3.1 Registration Procedures.
Whenever PubCo is required to effect the Registration of any Registrable Securities pursuant to this Agreement, PubCo shall use commercially reasonable efforts to effect the Registration and sale of such Registrable Securities in accordance with the intended method of disposition thereof as expeditiously as reasonably practicable and, in connection therewith, PubCo shall:
| 3.1.1 | prepare and file with the Commission the applicable Registration Statement and use commercially reasonable efforts to cause it to become effective and remain effective for the period required by this Agreement; |
| 3.1.2 | before filing a Registration Statement or Prospectus or any amendment or supplement thereto, furnish to the participating Holders and their counsel copies of the documents proposed to be filed sufficiently in advance to permit a reasonable review and consider in good faith any reasonable comments; |
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| 3.1.3 | prepare and file such amendments and supplements as may be necessary to keep the Registration Statement effective and the Prospectus current and in compliance with the Securities Act; |
| 3.1.4 | notify participating Holders promptly of effectiveness, stop orders, Commission requests, the occurrence of a Misstatement and any suspension of the use of a Prospectus; |
| 3.1.5 | register or qualify the Registrable Securities under such state securities or blue sky laws as the participating Holders reasonably request, except that PubCo shall not be required to qualify generally to do business, subject itself to taxation or consent to general service of process in any jurisdiction where it is not otherwise so subject; |
| 3.1.6 | enter into customary underwriting, placement agency, sales or other agreements and take such other actions as are reasonably required to expedite or facilitate the disposition of Registrable Securities; |
| 3.1.7 | make available for inspection, subject to customary confidentiality arrangements, such financial and other records and information as are reasonably necessary to permit customary due diligence by participating Holders, Underwriters and their counsel and accountants; |
| 3.1.8 | obtain customary legal opinions and negative assurance letters from counsel to PubCo and customary comfort letters from PubCo’s independent registered public accounting firm in connection with an underwritten offering, in each case only to the extent customarily delivered in an offering of the applicable type; |
| 3.1.9 | cause senior executives of PubCo to participate in customary marketing efforts and road shows for any underwritten offering, to the extent reasonably requested by the managing Underwriter; |
| 3.1.10 | cause all Registrable Securities included in a Registration Statement to be listed on each securities exchange on which the PubCo Common Stock is then listed; |
| 3.1.11 | provide a transfer agent and registrar for the Registrable Securities no later than the effective date of the applicable Registration Statement; |
| 3.1.12 | cooperate with the Holders and the managing Underwriter to facilitate the timely preparation and delivery of book-entry positions or certificates not bearing restrictive legends, subject to applicable Law; |
| 3.1.13 | otherwise comply with all applicable rules and regulations of the Commission and make generally available to securityholders an earnings statement satisfying Section 11(a) of the Securities Act and Rule 158 thereunder; and |
| 3.1.14 | in connection with an underwritten offering in which PubCo sells securities for its own account, agree not to effect any public sale or distribution of PubCo Common Stock for such period, not to exceed ninety (90) days, as may be reasonably requested by the managing Underwriter, subject to customary exceptions; provided that no such agreement shall be required in connection with any offering in which only SPAC Holders participate, and no such agreement shall restrict any issuance of securities by PubCo in any financing, strategic transaction or pursuant to any equity incentive plan. |
3.2 Suspension of Sales; Adverse Disclosure.
Upon receipt of written notice from PubCo that a Registration Statement or Prospectus contains a Misstatement or that the use of such Registration Statement or Prospectus would require Adverse Disclosure, each Holder shall immediately discontinue the disposition of Registrable Securities pursuant thereto until PubCo advises that use may be resumed and, if directed by PubCo, shall return or destroy all non-permanent file copies of the affected Prospectus. PubCo may suspend use of a Registration Statement for a period not to exceed sixty (60) consecutive days or ninety (90) total days in any twelve (12)-month period; provided that PubCo shall promptly amend or supplement the Registration Statement or Prospectus as necessary to permit the resumption of sales. Subject to the time limitations set forth above, PubCo may also delay, suspend or withdraw the filing, effectiveness or use of any Registration Statement during any bona fide blackout period or any other period in which the Board determines in good faith that such action is reasonably necessary to comply with applicable Law, protect material non-public information or avoid material detriment to PubCo. Any such delay, suspension or withdrawal effected in good faith and in compliance with applicable Law shall not constitute a breach of this Agreement, and no Holder shall be entitled to damages, specific performance or any other remedy arising solely therefrom.
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3.3 Registration Expenses.
All fees and expenses incident to PubCo’s performance of or compliance with this Agreement (the “Registration Expenses”) shall be borne by PubCo, whether or not any Registration Statement becomes effective, including registration and filing fees, printing expenses, fees and expenses of compliance with securities or blue sky laws, FINRA fees, listing fees, fees and disbursements of counsel for PubCo, fees and expenses of PubCo’s independent registered public accounting firm, transfer agent and registrar fees and the reasonable fees and expenses of one counsel selected by the participating Holders holding a majority of the Registrable Securities included in the applicable offering. Underwriting discounts, selling commissions, transfer taxes and similar selling expenses attributable to the sale of a Holder’s Registrable Securities shall be borne by such Holder.
3.4 Holder Information.
Each Holder shall furnish to PubCo such information regarding itself, the Registrable Securities held by it and the intended method of disposition as PubCo may reasonably request and as is required to effect the Registration. PubCo may exclude a Holder’s Registrable Securities from a Registration Statement if such Holder fails to provide requested information after receiving at least five (5) Business Days’ written notice, until such information is provided.
3.5 Participation in Underwritten Offerings.
No Holder may participate in an underwritten offering unless such Holder agrees to sell its Registrable Securities on the basis provided in the underwriting arrangements approved in accordance with this Agreement and completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other documents reasonably required; provided that no Holder shall be required to agree to any indemnification or contribution obligation in excess of the net proceeds received by such Holder from the offering.
3.6 Rule 144 Cooperation.
PubCo shall cooperate with any Holder and the transfer agent to facilitate the removal of restrictive legends from Registrable Securities sold pursuant to an effective Registration Statement or Rule 144, including by causing counsel to PubCo to deliver customary legal opinions, provided that the applicable Holder supplies customary representations and supporting documentation reasonably requested by PubCo or its counsel.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification by PubCo.
PubCo shall indemnify and hold harmless each Holder, its officers, directors, managers, members, partners, stockholders and Affiliates, each Underwriter and each Person who Controls any such Person, against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses arising out of or based upon any Misstatement contained in any Registration Statement or Prospectus, or any violation by PubCo of the Securities Act, the Exchange Act or applicable state securities Laws in connection with the Registration; except to the extent that such loss arises from information furnished in writing by such Holder expressly for use in the Registration Statement or Prospectus or from such Holder’s use of an outdated or defective Prospectus after PubCo timely notified such Holder not to use it.
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4.2 Indemnification by Holders.
Each selling Holder shall, severally and not jointly, indemnify and hold harmless PubCo, its directors and officers, each other selling Holder, each Underwriter and each Person who Controls any of the foregoing, against losses, claims, damages, liabilities and reasonable out-of-pocket expenses arising out of or based upon any Misstatement contained in any Registration Statement or Prospectus, but only to the extent that such Misstatement was made in reliance upon and in conformity with information furnished in writing by such Holder expressly for use therein. The liability of a Holder under this Section 4.2 shall not exceed the net proceeds received by such Holder from the sale of Registrable Securities giving rise to the claim, except in the case of fraud or willful misconduct.
4.3 Conduct of Indemnification Proceedings.
An indemnified party shall promptly notify the indemnifying party in writing of any claim, but failure to give prompt notice shall not relieve the indemnifying party except to the extent materially prejudiced. The indemnifying party may assume the defense with counsel reasonably satisfactory to the indemnified party. The indemnified party may participate at its own expense, except that the indemnifying party shall pay the reasonable fees of one separate counsel if there is an actual conflict of interest. No settlement may be entered into without the indemnified party’s consent unless it includes an unconditional release and imposes no admission, injunctive relief or non-monetary obligation on the indemnified party.
4.4 Contribution.
If indemnification is unavailable or insufficient, each indemnifying party shall contribute to the amount paid or payable in such proportion as is appropriate to reflect the relative fault of PubCo and the applicable Holder, as well as any other relevant equitable considerations. No Holder shall be required to contribute an amount exceeding the net proceeds received by it from the sale giving rise to the claim, except in the case of fraud or willful misconduct. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from a Person not guilty of such fraudulent misrepresentation.
4.5 Survival.
The obligations of the parties under this Article IV shall survive the transfer of Registrable Securities, the termination of this Agreement and the completion of any offering.
ARTICLE V
RULE 144
5.1 Rule 144 Reporting.
With a view to making available to the Holders the benefits of Rule 144, PubCo shall use commercially reasonable efforts to (a) make and keep public information available as required by Rule 144, (b) file with the Commission in a timely manner all reports and other documents required of PubCo under the Securities Act and Exchange Act and (c) furnish to any Holder, upon reasonable request, a written statement as to PubCo’s compliance with the reporting requirements of Rule 144 and such other information as may reasonably be requested to permit the Holder to sell Registrable Securities without registration.
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ARTICLE VI
MISCELLANEOUS
6.1 Effectiveness; Amendment and Restatement.
This Agreement shall become effective upon the Closing. Upon such effectiveness, the Prior Registration Rights Agreement shall be amended and restated in its entirety and shall thereafter be of no further force or effect, and the rights and obligations of the parties thereto with respect to registration rights shall be governed exclusively by this Agreement. If the Business Combination Agreement is terminated before the Closing, this Agreement shall be void ab initio and the Prior Registration Rights Agreement shall remain in full force and effect.
6.2 Other Registration Rights.
PubCo represents and warrants that, as of the date hereof, no Person other than a Holder has any right to require PubCo to register any securities of PubCo for sale or to include any securities of PubCo in any Registration Statement filed by PubCo, other than pursuant to agreements disclosed in the Registration Statement. From and after the Closing, PubCo shall not enter into any agreement that is inconsistent with, or that would materially impair, the rights granted to the Holders under this Agreement. PubCo may grant additional registration rights that are pari passu with the rights granted hereunder, provided that such rights do not adversely affect any Holder or reduce the number of Registrable Securities that may be included in any Registration or offering pursuant to this Agreement.
6.3 Assignment; Joinder.
A Holder may assign its rights under this Agreement in connection with a transfer of Registrable Securities permitted under any appliable Lock-Up Agreement to a permitted transferee; provided that such transferee, if not already a party, executes and delivers to PubCo a joinder to this Agreement in form and substance reasonably satisfactory to PubCo. Upon delivery of such joinder, the transferee shall be deemed a Holder for all purposes of this Agreement. PubCo may not assign its obligations without the prior written consent of Holders holding a majority of the then-outstanding Registrable Securities, except to a successor in a merger, consolidation or sale of substantially all of its assets that expressly assumes such obligations. Notwithstanding the foregoing, any transfer of Registrable Securities by the Sponsor pursuant to the call option under the Sponsor Support Agreement shall be deemed a permitted transfer for purposes of this Section 6.3, and the transferee thereof may become a Holder hereunder upon delivery of a joinder.
6.4 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or transmitted by email (with confirmation of transmission), in each case to the addresses set forth below or to such other address as a party may designate by notice:
| (a) | if to PubCo, to: |
FortuneX Acquisition Corporation
[Address]
Attention:
Email:
with a copy (which shall not constitute notice) to:
Winston Taylor LLP
800 Capitol St., Suite 2400
Houston, TX 77002
Attention: Michael J. Blankenship
Email: mike.blankenship@winstontaylor.com
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| (b) | if to the Sponsor or a SPAC Holder, to the address set forth on Schedule I; |
with a copy (which shall not constitute notice) to:
Celine & Partners PLLC
1345 Avenue of the Americas, 2nd Floor
New York, NY 10105
Attention: Cassi Olson, Esq.
Email: colson@celinelaw.com
| (c) | if to a Company Holder, to the address set forth on Schedule II. |
6.5 Entire Agreement.
This Agreement, the Business Combination Agreement, the Lock-Up Agreements and the other agreements expressly referenced herein constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings relating thereto, including, upon the effectiveness of this Agreement, the Prior Registration Rights Agreement.
6.6 Amendments and Waivers.
No amendment, modification or waiver of this Agreement shall be effective unless in writing and signed by PubCo and Holders holding a majority of the then-outstanding Registrable Securities; provided that any amendment, modification or waiver that disproportionately and adversely affects the rights of one category of Holders, as compared with another category of Holders, shall also require the written consent of such adversely affected Holder. No waiver shall constitute a waiver of any subsequent breach or default.
6.7 Termination.
This Agreement shall terminate with respect to a Holder when such Holder no longer holds any Registrable Securities. This Agreement shall terminate in its entirety on the date on which no Registrable Securities remain outstanding; provided that Article IV, this Article VI and any accrued rights or obligations shall survive such termination.
6.8 No Third-Party Beneficiaries.
Except for the indemnified parties under Article IV, this Agreement is for the sole benefit of the parties and their permitted successors and assigns and is not intended to confer any rights or remedies upon any other Person.
6.9 Severability.
If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect, and the parties shall negotiate in good faith a valid provision that most closely reflects the original intent.
6.10 Remedies.
Each party acknowledges that monetary damages may be an inadequate remedy for a breach of this Agreement and that the other parties shall be entitled to specific performance, injunctive relief and other equitable remedies without the necessity of posting a bond, in addition to any other remedies available at law or in equity.
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6.11 Governing Law; Jurisdiction.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to choice-of-law principles that would require the application of another jurisdiction’s laws. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and waives any objection based on venue or forum non conveniens.
6.12 Waiver of Jury Trial.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.13 Counterparts; Electronic Signatures.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures delivered by electronic transmission, including PDF and electronic signature platforms, shall be effective as originals.
6.14 Headings; Construction.
Headings are for convenience only and shall not affect interpretation. Unless the context otherwise requires, words in the singular include the plural and vice versa, “including” means “including without limitation,” references to Articles, Sections, Exhibits and Schedules are to this Agreement, and references to laws include amendments and successor provisions.
6.15 Further Assurances.
Each party shall execute and deliver such additional documents and take such further actions as may be reasonably necessary to carry out the provisions and purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Registration Rights Agreement as of the date first written above.
| PUBCO: | ||
| FORTUNEX ACQUISITION CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
| SPONSOR: | ||
| FORTUNEX INVESTMENT PARTNERS LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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OTHER SPAC HOLDERS:
| [NAME OF SPAC HOLDER] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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COMPANY HOLDERS:
| [NAME OF COMPANY HOLDER] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Registration Rights Agreement]
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SPAC HOLDERS (INCLUDING THE SPONSOR)
SCHEDULE I
SPAC HOLDERS
| Name | Address / Email | Type of Registrable Securities |
Number of Registrable Securities |
| FortuneX Investment Partners Limited | Founder Shares; Private Placement Shares; Working Capital Loan Shares, if any | ||
Sch. I-1
SCHEDULE II
COMPANY HOLDERS
| Name | Address / Email | Type of Registrable Securities |
Number of Registrable Securities |
Sch. II-1