8-K
FuboTV Inc. (FUBO)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Dateof report (Date of earliest event reported): October 29, 2025
fuboTV Inc. /FL
FuboTVInc.
(Exactname of registrant as specified in its charter)
| Delaware | 001-39590 | 26-4330545 |
|---|---|---|
| (State or other jurisdiction<br><br> <br>of incorporation) | (Commission<br><br> <br>File Number) | (IRS Employer<br><br> <br>Identification Number) |
1290Avenue of the Americas
NewYork, NY 10104
(Addressof principal executive offices) (Zip Code)
(212)672-0055
(Registrant’stelephone number, including area code)
fuboTVInc.
(FormerName 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 of the registrant under any of the following provisions:
| ☐ | Written<br> communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting<br> material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement<br> 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 each exchange on which registered |
|---|---|---|
| Class<br>A Common Stock, par value $0.0001 per share | FUBO | New<br> York Stock Exchange |
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
On October 29, 2025, FuboTV Inc. (the “Company” or “Fubo”), The Walt Disney Company (“Disney”) and Hulu, LLC (“Hulu”) consummated the transactions contemplated by the Business Combination Agreement, dated as of January 6, 2025 (the “Business Combination Agreement”), by and among Fubo, Disney and Hulu, pursuant to which the parties combined Fubo’s business with Disney’s Hulu + Live TV business, as set forth below.
In anticipation of the closing (the “Closing”) of the transactions contemplated by the Business Combination Agreement, each of Fubo and Hulu completed certain reorganization transactions as prescribed by the Business Combination Agreement (individually, the “Fubo Reorganization” and the “Hulu Reorganization”, and collectively, the “Pre-Closing Reorganization”). These transactions, among other things, included the following:
| ● | Hulu<br> (i) formed Hulu Live LLC, a Delaware limited liability company, as a direct wholly owned subsidiary of Hulu (such subsidiary, “HL”),<br> (ii) contributed certain assets (the “HL Business Assets”) related to the business of negotiating and administering<br> carriage agreements and similar contracts relating to and for the purpose of the retransmission, distribution, carriage, display<br> or broadcast of any programming service, channel or network on the linear multi-channel subscription video programming<br> distribution service component of the offering known as “Hulu + Live TV” as of the date of the Business Combination Agreement<br> and operated by Hulu (the “HL DMVPD Service”) (the “HL Business”) to HL, (iii) caused HL to<br> assume only the HL Business Liabilities (as defined in the Business Combination Agreement), (iv) formed Fubo Operations LLC (“Newco”)<br> as a Delaware limited liability company and a direct wholly owned subsidiary of Hulu, and (v) effected and completed the HL Subscriber<br> Contract Terms Update (as defined in the Business Combination Agreement); and |
|---|---|
| ● | the<br> Company (i) formed Fubo Services LLC, a Delaware limited liability company, as a direct wholly owned subsidiary of the Company (such<br> subsidiary, “Fubo OpCo”), and (ii) contributed the Company’s business (the “Fubo Business”)<br> to Fubo OpCo in accordance with the terms and conditions set forth in the Business Combination Agreement. |
On October 29, 2025 (the “Closing Date”), pursuant to the Business Combination Agreement, each of the Company, Disney and Hulu took the following steps (together with the Pre-Closing Reorganization, the “Transactions”):
| ● | immediately<br> prior to the Closing, (i) the Company effected a conversion from a Florida corporation to a Delaware corporation (the “Fubo<br> Conversion”), pursuant to a plan of conversion, by filing a certificate of conversion (the “Certificate of Conversion”)<br> with the Secretary of State of the State of Delaware and articles of conversion with the Florida Department of State, Division of<br> Corporations, (ii) in connection with the Fubo Conversion, the Company authorized and adopted a new certificate of incorporation<br> (the “Delaware Certificate of Incorporation”) and adopted new bylaws (the “Delaware Bylaws”),<br> (iii) all of the issued and outstanding shares of common stock of Fubo, par value $0.0001 per share (the “Prior Fubo Common<br> Stock”), were automatically converted into issued and outstanding shares of Class A common stock of the Company, par value<br> $0.0001 per share (the “Class A Common Stock”), (iv) the Company created a new class of shares of Class B common<br> stock of Fubo, par value $0.0001 per share (the “Class B Common Stock”), and shares of Class B Common Stock were<br> issued to Hulu as described below and (v) the Company changed its name from fuboTV Inc. to FuboTV Inc., in each case, as previously<br> described in the definitive proxy statement of the Company, dated as of August 7, 2025 (the “Definitive Proxy Statement”); |
|---|---|
| ● | at<br> the Closing, Hulu contributed the HL Business and the HL Business Assets to Newco by transferring all of its right, title and interest<br> in, to and under 100% of the equity interests of HL to Newco (the “HL Contribution”); |
| --- | --- |
| ● | immediately<br> following the HL Contribution, (i) the Company contributed 100% of the equity interests of Fubo OpCo to Newco in exchange for a number<br> of units in Newco (the “Newco Units”) (such contribution, the “Fubo Contribution”) such that,<br> after giving effect to the Fubo Contribution, (A) Hulu held 947,910,220 Newco Units representing, in the aggregate, a 70% economic<br> interest (calculated on a fully-diluted basis) in Newco and (B) the Company held 406,247,237 Newco Units representing, in the aggregate,<br> a 30% economic interest (calculated on a fully-diluted basis) in Newco, and (ii) Hulu and the Company, as the members of Newco, adopted,<br> and Newco was thereafter governed by, an amended and restated limited liability company agreement of Newco (the “Newco Operating<br> Agreement”), which provides, among other things, that the Company will be the sole managing member of Newco; and |
| ● | Fubo<br> issued to Hulu 947,910,220 shares of Class B Common Stock representing, in the aggregate, 70% of the voting power of the outstanding<br> shares of capital stock of Fubo (calculated on a fully-diluted basis) after giving effect to such issuance in exchange for a cash<br> payment by Hulu to Fubo in an amount equal to the aggregate par value of such Class B Common Stock (the “Fubo Issuance”). |
Following the consummation of the Transactions, Newco is structured as an umbrella partnership C corporation and is governed by the Newco Operating Agreement (as described in further detail below).
The Business Combination Agreement and the transactions contemplated thereby, including the Transactions, were previously described in the Definitive Proxy Statement and were approved by the Company’s shareholders at a special meeting of the Company’s shareholders held on September 30, 2025 (the “Fubo Special Meeting”).
The foregoing description of the Transactions does not purport to be complete and is qualified in its entirety by the full text of the Business Combination Agreement, which is attached hereto as Exhibit 2.1 to this Current Report on Form 8-K, and the full text of the Newco Operating Agreement, which is attached hereto as Exhibit 10.3 to this Current Report, each of which is incorporated herein by reference.
| Item 1.01. | Entry into a Material Definitive Agreement. |
|---|
The information set forth in the Explanatory Note of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.
RegistrationRights Agreement
At the Closing, the Company and Hulu entered into a registration rights agreement (the “New Registration Rights Agreement”) in respect of the Registrable Securities (as defined in the New Registration Rights Agreement) received by Hulu in exchange for the Class B Common Stock that Hulu received in connection with the Transactions. Pursuant to the New Registration Rights Agreement, Fubo is required, on the terms set forth therein, to file with the Securities and Exchange Commission (the “SEC”), a registration statement (the “Resale Shelf”) registering for resale the shares of Class A Common Stock, including any shares thereof issuable upon or issued upon the exercise, conversion or exchange of other securities of Fubo or any of its subsidiaries (including Class B Common Stock and Newco Units owned by Hulu). Fubo is required to (i) file the Resale Shelf with the SEC as soon as reasonably practicable after the Closing Date, but in any event no later than the date on which Fubo files with the SEC the financial statements and pro forma financial information required by Item 9.01 of Form 8-K in connection with the consummation of the Transactions (or such later date as may be determined by Hulu, subject to the consent of Fubo, which consent shall not be unreasonably withheld, conditioned or delayed) and (ii) use its commercially reasonable efforts to cause the Resale Shelf to become and remain effective, and to be supplemented and amended to the extent necessary, so long as any Registrable Securities remain outstanding. Furthermore, under the New Registration Rights Agreement, Hulu has certain customary underwritten offering demand rights and piggyback registration rights. The New Registration Rights Agreement contains customary indemnification and contribution obligations of Fubo for the benefit of Hulu and vice versa, in each case, subject to certain qualifications and exceptions.
TaxReceivables Agreement
At the Closing, the Company, Newco and Hulu entered into a tax receivables agreement (the “Tax Receivables Agreement”), which sets forth the agreement among the parties regarding the sharing of certain tax benefits realized (or, in connection with an acceleration upon the Company’s election to terminate the Tax Receivables Agreement, deemed realized) by the Company. The Company is generally obligated to pay Hulu a percentage of the benefit realized by the Company from the use of certain historic net operating loss carryforwards (“NOLs”) of the Company in an amount equal to the lesser of (i) 70% and (ii) Hulu’s ownership percentage of Newco as of the date the NOL is utilized. The Company is also generally obligated to pay Hulu 70% of (a) the total tax benefit that the Company realizes as a result of increases in tax basis in Newco’s assets resulting from the exchange of Newco Units for Class A Common Stock (or cash) pursuant to the Newco Operating Agreement and (b) other tax benefits attributable to payments under the Tax Receivables Agreement.
The term of the Tax Receivables Agreement will continue until all such tax benefits have been utilized or expired unless the Company elects to terminate the Tax Receivables Agreement early. Upon such an early termination, the Company is required to make a payment equal to the present value of the anticipated future payments to be made by it under the Tax Receivables Agreement, based upon certain assumptions and deemed events.
NewcoOperating Agreement
At the Closing, Hulu, Fubo and Newco entered into, and Newco is governed by, the Newco Operating Agreement.
RedemptionRight
The Newco Operating Agreement provides, among other things, Hulu with a redemption right pursuant to which Hulu may cause Newco to redeem all or a portion of its Newco Units, together with an equivalent number of shares of Class B Common Stock, in exchange for an equivalent number of shares of Class A Common Stock or, at Fubo’s option, cash, subject to Fubo’s right to elect to effect, in lieu of such a redemption, a direct exchange between Fubo and Hulu of cash or an equivalent number of shares of Class A Common Stock for such Newco Units and Class B Common Stock (provided that, in each case, Hulu may retract the exercise of its redemption or exchange right upon notice that Fubo intends to settle such redemption or exchange in cash). Initially, Hulu and Fubo hold a single class of Newco Units (the “Common Units”).
ManagingMember
Fubo is the initial sole managing member of Newco (the “Manager”). Fubo may not be removed as Manager except by Fubo’s own election and will not, subject to certain exceptions, receive any compensation for its role as Manager.
RequiredRatio
The Newco Operating Agreement requires that the ratio of Common Units to Class A Common Stock always be maintained.
Distributions
Newco may make distributions to its members from time to time at the discretion of the Manager generally on a pro rata basis in accordance with each member’s respective ownership interest in Newco. Newco is also required to make distributions to members generally on a pro rata basis in accordance with each member’s respective ownership interest in Newco held by each member to enable Fubo to meet its tax obligations and obligations under the Tax Receivables Agreement.
Amendments;Termination
The holders of a majority of voting Common Units must provide their consent in order to amend the Newco Operating Agreement and amendments must be made in accordance with the Delaware Certificate of Incorporation; provided that certain amendments may be made by the Manager. The voluntary dissolution of Newco will require the decision of the Manager, together with the approval of the holders of a majority of voting Common Units.
StockholdersAgreement
At the Closing, the Company and Hulu entered into a stockholders agreement (the “Stockholders Agreement”) governing Hulu’s ownership of Class B Common Stock (or, as thereafter exchanged, Class A Common Stock).
HuluAgreement to Vote
The Stockholders Agreement provides, among other things, that until the first date on which Hulu and its affiliates cease to collectively own at least 50% of the then-outstanding shares of Class A Common Stock and Class B Common Stock, Hulu has agreed to vote its shares of Class A Common Stock and Class B Common Stock (i) in favor of directors that are nominated by the board of directors of Fubo (the “Fubo Board”) (whether at an annual or special meeting) in accordance with the Delaware Certificate of Incorporation, including, until the second anniversary of the Closing, the independent directors designated by Fubo prior to the Closing (the “Unaffiliated Independent Designees”) and (ii) in accordance with the Fubo Board’s recommendation with respect to any proposal presented at an annual or special meeting, subject to certain exceptions.
Hulu has further agreed, until the second anniversary of the Closing, to take all actions necessary and within its control to cause each initial Unaffiliated Independent Designee (or a replacement of any such initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Fubo Board) to continue to serve on the Fubo Board until the second anniversary of the Closing.
Lockup
For 24 months following the completion of the Transactions, Hulu and its affiliates are prohibited from transferring the shares of Class B Common Stock (or, as thereafter exchanged, Class A Common Stock) that it receives in connection with the Transactions other than to its affiliates or pursuant to certain other exceptions. Following such 24-month lock-up period, Hulu and its affiliates are permitted to transfer shares of Class B Common Stock (or, as thereafter exchanged, Class A Common Stock) to any Person.
ReportingObligations
The Company is subject to certain financial and other reporting obligations to Hulu and its affiliates.
Termination
The Stockholders Agreement automatically terminates in the event that Hulu and its affiliates (i) no longer consolidate the results of operations and financial position of Fubo or (ii) collectively own 100% of the outstanding shares of Class A Common Stock and Class B Common Stock, subject to certain survival provisions.
The foregoing descriptions of the Registration Rights Agreement, the Tax Receivables Agreement, the Newco Operating Agreement and the Stockholders Agreement do not purport to be complete and are subject to, and qualified in each case in their entirety by, the full text of such agreements, copies of which are attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4 are incorporated herein by reference.
SupplementalIndentures
In connection with the Closing, the Company and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “2026 Notes Trustee”), entered into the First Supplemental Indenture, dated as of the Closing Date (the “2026 Notes First Supplemental Indenture”), to the Indenture, dated as of February 2, 2021, between the Company and the 2026 Notes Trustee (the “Original 2026 Notes Indenture” and, together with the 2026 Notes First Supplemental Indenture, the “2026 Notes Indenture”), relating to the Company’s 3.25% Convertible Senior Notes due 2026 (the “2026 Notes”). As of the Closing Date, $145 million aggregate principal amount of the 2026 Notes were outstanding. Prior to the Closing Date, the 2026 Notes were convertible in certain circumstances into consideration that consisted, at the Company’s election, of shares of Prior Fubo Common Stock, cash or a combination of cash and shares of Prior Fubo Common Stock. As permitted by the 2026 Notes Indenture, on the Closing Date the Company irrevocably elected that all conversions of the 2026 Notes on and after November 15, 2025 will be settled pursuant to cash settlement (the “Cash Settlement Election”). Under this settlement method, the conversion value will be settled fully in cash.
At the Closing, the Company, U.S. Bank Trust Company, National Association, a national banking association, as trustee and collateral agent (the “2029 Notes Trustee and Collateral Agent”), and the guarantors named therein entered into the First Supplemental Indenture, dated as of the Closing Date (the “2029 Notes First Supplemental Indenture”), to the Indenture, dated as of January 2, 2024, among Fubo, the 2029 Notes Trustee and Collateral Agent and the guarantors named therein (the “Original 2029 Notes Indenture” and, together with the 2029 Notes First Supplemental Indenture, the “2029 Notes Indenture”), relating to the Company’s Convertible Senior Secured Notes due 2029 (the “2029 Notes” and together with the 2026 Notes, the “Notes”). As of the Closing Date, $177.5 million aggregate principal amount of the 2029 Notes were outstanding.
The consummation of the Transactions constitutes a Merger Event under each of the 2026 Notes Indenture and the 2029 Notes Indenture (as such term is defined in each of the 2026 Notes Indenture and 2029 Notes Indenture). As a result of the consummation of the Transactions and the 2029 Notes Indenture, following the Closing Date, the right of holders of 2029 Notes to convert each $1,000 principal amount of 2029 Notes to a specified number of shares of the Prior Fubo Common Stock was changed into a right to convert such principal amount of 2029 Notes to a specified number of shares of Class A Common Stock. As a result of the Cash Settlement Election, on and after November 15, 2025, holders of 2026 Notes will no longer have the right to convert any principal amount of 2026 Notes into shares of Prior Fubo Common Stock or Class A Common Stock.
The consummation of the Transactions is expected to constitute a Fundamental Change and Make-Whole Fundamental Change (each as defined in the 2026 Notes Indenture and 2029 Notes Indenture). The effective date of this Fundamental Change and Make-Whole Fundamental Change in respect of the 2026 Notes and the 2029 Notes is October 29, 2025, which is the Closing Date. As a result of the Fundamental Change, each holder of 2026 Notes and 2029 Notes will have the right to require the Company to repurchase its Notes, as applicable, pursuant to the terms and procedures set forth in the applicable indenture for a cash repurchase price equal to the applicable Fundamental Change Repurchase Price (as defined in each of the 2026 Notes Indenture and 2029 Notes Indenture) on dates in respect of each of the 2026 Notes and 2029 Notes to be determined.
The foregoing description of the 2026 Notes Indenture, the 2029 Notes Indenture and the transactions contemplated thereby does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the 2026 Notes Indenture and 2029 Notes Indenture. A copy of the Original 2026 Notes Indenture was filed as Exhibit 4.1 to the Current Report on Form 8-K filed by the Company with the SEC on February 2, 2021. A copy of the 2026 Notes First Supplemental Indenture is filed as Exhibit 4.1 hereto. The Original 2026 Notes Indenture and the 2026 Notes First Supplemental Indenture are incorporated herein by reference. A copy of the Original 2029 Notes Indenture was filed as Exhibit 4.1 to the Current Report on Form 8-K filed by the Company with the SEC on January 2, 2024. A copy of the 2029 Notes First Supplemental Indenture is filed as Exhibit 4.2 hereto. The Original 2029 Notes Indenture and the 2029 Notes First Supplemental Indenture are incorporated herein by reference. This Current Report on Form 8-K does not constitute an offer to tender for, or purchase, or a solicitation of an offer to tender for, or purchase, any of the 2026 Notes or 2029 Notes or any other security.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
|---|
Effective as of the Closing, as a result of the Transactions, the Company will operate its business through Newco, which holds the Fubo Business and the HL Business, and is governed by the Newco Operating Agreement. Newco is managed by and under the direction of Fubo, as the manager of Newco.
Following the consummation of the Transactions, Disney and its subsidiaries, including Hulu, own approximately 70% of the fully-diluted voting power of the Company and approximately 70% of the fully-diluted economic ownership in Newco, with the former shareholders of Fubo effectively owning approximately 30% of the fully-diluted economic ownership in Newco and approximately 30% of the fully-diluted voting power of the Company.
| Item 3.02. | Unregistered Sales of Equity Securities. |
|---|
The information set forth in the Explanatory Note and Item 1.01 regarding the issuance of Class B Common Stock to Hulu and the issuance of Newco Units to Fubo is incorporated herein by reference. The Class B Common Stock and Newco Units were issued in reliance upon the exemption from registration provided by Section (4)(a)(2) of the Securities Act of 1933, as amended.
| Item 3.03. | Material Modification to Rights of Security Holders. |
|---|
The information set forth in the Explanatory Note and Items 1.01, 2.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
| Item 5.01. | Changes in Control of Registrant. |
|---|
The information set forth in the Explanatory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
|---|
The information set forth in the Explanatory Note and Items 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.
Appointmentof Directors
On October 29, 2025, the Fubo Board approved an increase in the size of the Fubo Board from seven to nine effective as of the Closing. Effective as of the Closing, the following individuals were appointed to serve on the Fubo Board:
| ● | Andy<br> Bird |
|---|---|
| ● | David<br> Gandler |
| ● | Daniel<br> Leff |
| ● | Ignacio<br> Figueras |
| ● | Jonathan<br> Headley |
| ● | Jim<br> Lygopoulos |
| ● | Debra<br> OConnell |
| ● | Cathleen<br> Taff |
| ● | Justin<br> Warbrooke |
Each of the foregoing directors was appointed to the Fubo Board in accordance with the Delaware Certificate of Incorporation and the Delaware Bylaws and supersede the incumbent Fubo Board. Each of Edgar Bronfman Jr., Neil Glat, Julie Haddon and Laura Onopchenko tendered their resignation from the Fubo Board on and effective as of the Closing.
Biographical information for each of the Fubo directors is set forth below:
| Name | Age | Biographical Information |
|---|---|---|
| Andy<br> Bird | 61 | Andy<br> Bird is a member of the board of directors of Phoenix Education Partners, the parent company of The University of Phoenix, where<br> he serves as chair of the Nominating and Corporate Governance Committee. Mr. Bird served as the Chief Executive Officer of Pearson<br> plc from 2020 to 2024, where he led the transformation of the business into the digital and AI age. Prior to his appointment as chief<br> executive officer, Mr. Bird was a member of Pearson’s board of directors. Before joining Pearson, Mr. Bird served as President,<br> and later Chairman, of Walt Disney International (a former division of The Walt Disney Company, the parent company of FuboTV Inc.)<br> from 2004 to 2018. Prior to Disney, Mr. Bird worked at Time Warner for nearly a decade as Senior Vice President and General Manager<br> of Turner Entertainment Networks, and later as President of TBS International, where he oversaw the launch and growth of Turner’s<br> entertainment brands, including Cartoon Network, TNT and TCM, as well as the distribution and sales for CNN International. He spent<br> the early part of his career in a variety of roles at Piccadilly Radio, Virgin Broadcasting Company, BSB Music Channel, Big &<br> Good Productions and Unique Broadcasting. Mr. Bird has also served as an advisor to the United Kingdom’s Government Department<br> of Business & Trade. In recognition of his services to media and entertainment in the United Kingdom, Mr. Bird was appointed<br> Commander of the Most Excellent Order of the British Empire in the 2012 Queen’s Birthday Honours. Mr. Bird has been a director<br> of the Company since 2025. |
| David<br> Gandler | 50 | David<br> Gandler has served as the Company’s Chief Executive Officer since April 2020. He previously served as President and Chief Executive<br> Officer of FuboTV Sub, defined below, prior to the merger of fuboTV Acquisition Corp. with and into fuboTV Media Inc. (“FuboTV<br> Sub”) (the “Merger”) and as a member of FuboTV Sub’s board of directors from March 2014 to April<br> 2020. Prior to co-founding FuboTV Sub, Mr. Gandler served as Vice President, Ad Sales at DramaFever, a video streaming service acquired<br> in 2016 by Warner Bros. Entertainment Inc., from 2013 to 2014. Prior to 2013, Mr. Gandler held positions at Scripps Networks Interactive,<br> Inc., Time Warner Cable and Telemundo, a division of NBCUniversal Media, LLC. Mr. Gandler is currently a co-owner and member of the<br> board of directors of GSG-LOFC Limited, parent company of the Leyton Orient Football Club. He previously served on the board of directors<br> of Paris Football Club from 2022 to 2024. Mr. Gandler has served on the board of Newsmax Inc. since August 2025, and from March 2021<br> to September 2023, Mr. Gandler served on the board of directors of Waverley Capital Acquisition Corp. 1, a special purpose acquisition<br> company. Mr. Gandler also currently serves on the board of directors of Bare Knuckle Fighting Championship, Inc. Mr. Gandler has<br> been a director of the Company since 2020. |
| Daniel Leff | 57 | Dr.<br> Leff is Co-Founder and Managing Partner of Waverley Capital, a media-focused venture capital fund. Dr. Leff also serves as a Managing<br> Partner of Luminari Capital, a media-focused venture capital fund that he founded in 2013. Prior to co-founding Waverley Capital<br> and founding Luminari Capital, Dr. Leff was a Partner with Globespan Capital Partners. Earlier in his career, Dr. Leff worked for<br> Sevin Rosen Funds and Redpoint Ventures and held engineering, marketing and strategic investment positions with Intel Corporation.<br> From March 2021 to September 2023, Dr. Leff served as Chief Executive Officer and director of Waverley Capital Acquisition Corp.<br> 1, a special purpose acquisition company. Dr. Leff served on the board of directors of FuboTV Sub, from May 2015 to April 2020, and<br> Roku, Inc., a publicly-traded media streaming company, from August 2011 to May 2018. In addition, Dr. Leff currently serves on the<br> board of directors of multiple private media companies, including the Professional Fighters League (PFL). Previously, Dr. Leff served<br> on the board of directors of Wondery (sold to Amazon), a podcast network, from June 2019 to February 2021. Dr. Leff has also been<br> an investor and/or director in various other media companies, including 1Mainstream (sold to Cisco), Art19 (sold to Amazon), Elemental<br> Technologies (sold to Amazon), Endel, Headspace, Matterport (sold to CoStar), MikMak, MOVL (sold to Samsung), PlutoTV (sold to ViacomCBS),<br> TheAthletic (sold to the NY Times) and Volley. Dr. Leff also serves on the Board of Advisors for the UCLA Anderson Graduate School<br> of Management and on the Board of Directors of the UCLA Center for Media, Entertainment, and Sports. Dr. Leff has been a director<br> of the Company since 2020. |
| --- | --- | --- |
| Ignacio<br> Figueras | 48 | Mr.<br> Figueras is an award-winning Argentinian polo player, an entrepreneur, television personality, spokesperson, investor and philanthropist.<br> Since 2004, Mr. Figueras has been the captain and co-owner of the Black Watch polo team and, since 2004, has been the owner of Cria<br> Yatay, a successful global horse breeding operation based in Argentina. In addition to his polo career, in collaboration with Flavors<br> & Fragrances, Mr. Figueras has developed a luxury fragrance line, The Ignacio Figueras Collection. Further, in 2013, Mr. Figueras<br> and Estudio Ramos co-founded the Figueras Design Group, a global design consultancy headquartered in Buenos Aires with offices in<br> New York and Chicago. Mr. Figueras is also an investor and a member of the Advisory board at Flow Water, a fast-growing premium wellness<br> water brand in North America. From 2000 to 2019, Mr. Figueras served as a spokesperson for Ralph Lauren and Ralph Lauren fragrances.<br> Mr. Figueras has been a director of the Company since 2020. |
| Jonathan<br> Headley | 58 | Jon<br> Headley was Senior Vice President, Treasurer, and later Corporate Real Estate, of The Walt Disney Company (the parent company of<br> FuboTV Inc.) from 2015 to 2020. Mr. Headley previously served from 2004 to 2015 as Senior Vice President of Corporate Finance and<br> Assistant Treasurer of Disney. Earlier in his Disney tenure, he served as Treasurer of Hong Kong Disneyland during the park’s<br> development and in various roles in Disney’s corporate finance group. Mr. Headley served on the board of Chandler School, a<br> K-8 Pasadena private school, from 2011 to 2019. Prior to joining Disney, Mr. Headley was an analyst at Goldman Sachs & Co. and<br> a research associate at Harvard University. Mr. Headley has been a director of the Company since 2025. |
| Jim<br> Lygopoulos | 50 | Jim<br> Lygopoulos is Executive Vice President, People & Culture, Corporate, Direct-to-Consumer and International at The Walt Disney<br> Company (the parent company of FuboTV Inc.). In this role, Mr. Lygopoulos oversees people and culture strategy, talent acquisition,<br> employee relations, rewards, leadership development, opportunity and inclusion, organization and talent solutions, and HR operations<br> for Corporate, Direct-to-Consumer and International for Disney. Mr. Lygopoulos has held various senior HR positions for Disney Entertainment<br> and Disney’s Asia Pacific region, including as Senior Vice President of Corporate Human Resources for Disney and General Manager<br> of its Taiwan division, where he oversaw strategy and expansion of existing business divisions in Taiwan. Prior to that, Mr. Lygopoulos<br> served as Vice President of Human Resources for Disney’s Asia Pacific region, where he led the development of human resources<br> strategies for all HR teams in Asia Pacific. Mr. Lygopoulos has served on the board of Westridge School since 2022. Mr. Lygopoulos<br> has been a director of the Company since 2025. |
| Debra<br> OConnell | 52 | Debra<br> OConnell is President of ABC News Group and Disney Entertainment Networks (a division of The Walt Disney Company, the parent company<br> of FuboTV Inc.). Ms. OConnell oversees ABC News and the ABC Owned Television Stations, aligning the nation’s No. 1 news network<br> with the No. 1 station group in the country. Ms. OConnell also has operational leadership, including P&L oversight of Disney’s<br> multi-platform linear entertainment networks in the US, Europe, the Middle East, and Africa. Ms. OConnell has served in numerous<br> roles over the course of 28 years at The Walt Disney Company, including President of Networks for Disney Media & Entertainment<br> Distribution, President and General Manager of WABC in New York City and Executive Vice President of Sales & Marketing for the<br> Disney-ABC Television Group. Ms. OConnell sits on the boards of A&E Networks, National Geographic Partners, the Alliance for<br> Women in Media, an organization that connects women across the media industry, and formerly sat on the board of Hulu, LLC. She is<br> also an ex-officio member of the board and former chair of the International Radio & Television Society, a charitable organization<br> designed to build future leaders in the media industry and of TVB, a not-for-profit trade association representing the U.S. local<br> broadcast television industry. Ms. OConnell has been a director of the Company since 2025. |
| --- | --- | --- |
| Cathleen<br> Taff | 56 | Cathleen<br> Taff is President of Production Services, Franchise Management & Theatrical Distribution for Walt Disney Studios (a division<br> of The Walt Disney Company, the parent company of FuboTV Inc.). Ms. Taff leads global theatrical distribution, production services,<br> and franchise management for The Walt Disney Studios, which is home to a collection of world-renowned entertainment studios, including<br> Disney, Walt Disney Animation Studios, Pixar Animation Studios, Marvel Studios, Lucasfilm, 20th Century Studios and Searchlight Pictures.<br> She also oversees Disney Theatrical Group, a producer of popular stage shows on Broadway and around the world, and Disney Music Group,<br> which comprises Disney’s recorded music, music publishing and live concert businesses. Ms. Taff has held many senior executive<br> roles during her 31-year tenure at Disney, including President of Distribution, Franchise Management and Business & Audience<br> Insights, Executive Vice President of Theatrical Distribution and Head of Integrated Planning and Franchise Management for Walt Disney<br> Studios. She spent the early part of her Disney career as Disney Music Group’s Senior Vice President and General Manager and<br> as Senior Vice President and Controller of Walt Disney Studios. Prior to her career at Disney, Ms. Taff worked in public accounting<br> for Deloitte & Touche. Ms. Taff serves on the board of the Motion Picture Association and previously served on the UCSB Economics<br> Advisory Board. Ms. Taff is a Certified Public Accountant in California. Ms. Taff has been a director of the Company since 2025. |
| Justin<br> Warbrooke | 48 | Justin<br> Warbrooke is Executive Vice President and Head of Corporate Development at The Walt Disney Company (the parent company of FuboTV<br> Inc.). In this role, Mr. Warbrooke is responsible for leading M&A strategy and execution including acquisitions, divestitures,<br> and joint ventures while also monitoring and optimizing Disney’s portfolio of equity interests and planning and executing new<br> business ventures, including through the Disney Accelerator. Prior to this role, Mr. Warbrooke served as Executive Vice President<br> and Head of DTC Strategy for Disney’s Direct-to-Consumer division, where he was responsible for developing strategies to drive<br> growth for Disney’s streaming services globally, and as Executive Vice President and Chief Financial Officer of DTC and International,<br> where he was part of the team that launched and grew Disney+ and ESPN+ and integrated and managed Hulu. His other roles at Disney<br> have included Head of Business Operations for Media and Entertainment Distribution and Senior Vice President of Corporate Strategy<br> and Business Development. Prior to joining Disney, Mr. Warbrooke was an Associate, and later an Engagement Manager, in the Global<br> Media and Entertainment practice at L.E.K. Consulting. Mr. Warbrooke has been a director of the Company since 2025. |
In accordance with the Delaware Certificate of Incorporation, (i) Andy Bird, Jonathan Headley, Jim Lygopoulos, Debra OConnell, Cathleen Taff and Justin Warbrooke were appointed as Hulu Designees (as defined in the Delaware Certificate of Incorporation) and (ii) Ignacio Figueras and Daniel Leff were appointed as Unaffiliated Independent Designees (as defined in the Delaware Certificate of Incorporation).
Effective as of the Closing and in accordance with the Delaware Certificate of Incorporation, Andy Bird was elected as the Chairman of the Fubo Board.
Effective as of the Closing and in accordance with the Delaware Certificate of Incorporation, Daniel Leff was designated as the lead independent director of the Fubo Board.
The Fubo Board has affirmatively determined that four of the nine current directors (Andy Bird, Ignacio Figueras, Jonathan Headley and Daniel Leff) are independent within the meaning of NYSE independence standards and applicable SEC rules for the Committees on which they serve.
In connection with their appointment, the directors are expected to enter into a standard form of indemnification agreement, and eligible directors will receive compensation for their service in accordance with the Company's Outside Director Compensation Policy. The current Outside Director Compensation Policy is described under the caption “Director Compensation” in the Company's definitive proxy statement filed with the SEC on April 29, 2025.
CommitteeAppointments
Effective as of the Closing, the following members of the Fubo Board were designated and appointed to the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, respectively, of the Board:
AuditCommittee
Jonathan Headley (Chairman)
Andy Bird
Daniel Leff
CompensationCommittee
Jim Lygopoulos (Chairman)
Daniel Leff
Cathleen Taff
Nominatingand Corporate Governance Committee
Justin Warbrooke (Chairman)
Ignacio Figueras
Debra OConnell
Departureof Executive Chairman
In connection with his resignation from the Board, Edgar Bronfman Jr., the Company’s Executive Chairman, ceased employment with the Company effective as of the Closing Date.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
|---|
The information set forth in the Explanatory Note of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
Upon the effectiveness of the Fubo Conversion, and pursuant to the Business Combination Agreement, immediately prior to the Closing, the Company adopted the Delaware Certificate of Incorporation and the Delaware Bylaws to reflect the changes contemplated by the Business Combination Agreement, as described in the Definitive Proxy Statement.
A copy of each of the Certificate of Conversion, the Delaware Certificate of Incorporation, and the Delaware Bylaws is filed as Exhibit 3.1, Exhibit 3.2 and Exhibit 3.3, respectively, to this Current Report and is incorporated by reference into this Item 5.03.
In connection with the Transactions, on the Closing Date, the Company changed its fiscal year to end on September 30, with the Company’s first full year following Closing to end on September 30, 2026. Accordingly, the Company will file the reports required under applicable law based on its new September 30 fiscal year-end.
| Item 8.01. | Other Events. |
|---|
CommercialArrangements
As contemplated by the Business Combination Agreement, Hulu, HL, Fubo OpCo and Newco, as applicable, entered into certain commercial agreements, effective as of the Closing, including (i) the HL Commercial Services Agreement and (ii) the Hulu Brand License Agreement (collectively, the “Commercial Agreements”), pursuant to which, among other things:
| ● | HL<br> granted to Hulu the right, license and obligation to distribute the HL DMVPD Service via the Hulu platform that is currently branded<br> as “Hulu” (and any Disney-branded successor or replacement platform) on a wholesale basis, and HL will not otherwise<br> distribute the HL DMVPD Service, nor any programming outside of the HL DMVPD Service, in each case, during the term specified below; |
|---|---|
| ● | HL<br> agreed to bear the cost of marketing expenses for the HL DMVPD Service in accordance with an agreed budget, and Hulu is responsible<br> for all marketing execution for the HL DMVPD Service in consultation with HL; |
| --- | --- |
| ● | Hulu<br> agreed to continue to own and operate the Disney and Hulu platforms on which the HL DMVPD Service is distributed and will exclusively<br> sell and administer subscriptions to the HL DMVPD Service, as well as each add-on thereto, and retain subscription revenue, in consideration<br> for which it will pay a wholesale fee to HL; |
| ● | Certain<br> affiliates of Disney agreed to sell ads on behalf of HL and Fubo in exchange for a portion of ad sale revenue; and |
| ● | Hulu<br> agreed to license the HL DMVPD Service-specific brands to HL for use in the HL Business. |
The HL Commercial Services Agreement provides for an initial term of five years, renewable for an additional five-year term by mutual agreement. The Hulu Brand License Agreement will have the same term as the HL Commercial Services Agreement and may be terminated only upon certain events, including the termination of the HL Commercial Services Agreement.
| Item 9.01. | Financial Statements and Exhibits. |
|---|
(a) Financial Statements of business acquired.
The financial statements of the acquired business will be filed by an amendment to this Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K must be filed.
(b) Pro forma financial information.
Pro forma financial information giving effect to the Transactions will be filed by an amendment to the Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K must be filed.
(d) Exhibits
* Certain schedules and other attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
Forward-LookingStatements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements generally include statements regarding Fubo’s and counterparties’ ongoing obligations under the agreements discussed herein. All statements other than statements of historical facts contained in this communication may be forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “outlook”, “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar expressions. The forward-looking statements in this communication are only predictions. Fubo’s management has based these forward-looking statements largely on their current expectations and projections about future events and financial trends that management believes may affect its business, financial condition and results of operations. These statements are neither promises nor guarantees and involve known and unknown risks, uncertainties and other important factors that may cause actual results, performance or achievements to be materially different from what is expressed or implied by the forward-looking statements, including, but not limited to: our ability to achieve or maintain profitability; risks related to our access to capital and fundraising prospects to fund our financial operations and support our planned business growth; risks related to the integration of the Hulu + Live TV business; risks related to our organizational structure following completion of the Transactions; our revenue and gross profit are subject to seasonality; our operating results may fluctuate; our ability to effectively manage our growth; risks related to the Transactions; the long-term nature of our content commitments; our ability to renew our long-term content contracts on sufficiently favorable terms; our ability to attract and retain subscribers; risks related to our commercial arrangements with Hulu; obligations imposed on us through our agreements with certain distribution partners; our ability to license streaming content or other rights on acceptable terms; the restrictions imposed by content providers on our distribution and marketing of our products and services; our reliance on third party platforms to operate certain aspects of our business; risks related to the difficulty in measuring key metrics related to our business; risks related to preparing and forecasting our financial results; risks related to the highly competitive nature of our industry; risks related to our technology, as well as cybersecurity and data privacy-related risks; risks related to our conversion to a Delaware corporation and our status as a “controlled company”; risks related to ongoing or future legal proceedings; and other risks, including the effects of industry, market, economic, political or regulatory conditions, future exchange and interest rates, and changes in tax and other laws, regulations, rates and policies. In addition, a number of important factors could cause Fubo’s actual future results and other future circumstances to differ materially from those expressed in any forward-looking statements, including but not limited to those important factors discussed in Part II, Item 1A “Risk Factors” in Fubo’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2025, as any such factors may be updated from time to time in its other filings with the SEC, accessible on the SEC’s website at www.sec.gov and on Fubo’s investor relations site at https://ir.fubo.tv. Forward-looking statements speak only as of the date they are made and, except as may be required under applicable law, neither the Company nor Disney undertakes any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| FUBOTV<br> INC. | ||
|---|---|---|
| Date:<br> October 30, 2025 | By: | /s/David Gandler |
| David<br> Gandler | ||
| Chief<br> Executive Officer |
Exhibit 3.1
PLAN OF CONVERSION
OF
FUBOTVINC.
This PLAN OF CONVERSION (this “Plan” or “Plan of Conversion”) is adopted and approved by FUBOTV INC., a Florida corporation (the “Constituent Entity”), on October 29, 2025.
RECITALS
WHEREAS, the Constituent Entity is duly incorporated and existing under the laws of the State of Florida, with its Articles of Incorporation, as amended, previously being filed with the Florida Department of State, Division of Corporations (the “Florida DOS”).
WHEREAS, the Constituent Entity desires to convert from a Florida corporation into a Delaware corporation pursuant to the provisions of the Florida Business Corporation Act (Chapter 607 of the Florida Statutes) and Section 265 of the Delaware General Corporation Law by filing Articles of Conversion with the Florida DOS and a Certificate of Conversion and a Certificate of Incorporation with the Delaware Secretary of State (the “Delaware SOS”).
WHEREAS, the board of directors of the Constituent Entity has determined that the conversion is advisable, fair to and in the best interests of the Constituent Entity and the shareholders of the Constituent Entity, has approved and adopted this Plan of Conversion by unanimous written consent in accordance with applicable law, and has submitted this Plan of Conversion to the shareholders of the Constituent Entity and recommended the shareholders of the Constituent Entity approve this Plan of Conversion in accordance with applicable law.
WHEREAS, the shareholders of the Constituent Entity approved this Plan of Conversion at a special meeting on September 30, 2025.
NOW,THEREFORE, in consideration of the several and mutual promises, agreements, covenants, understandings, undertakings, representations and warranties hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, intending to be legally bound, this Plan is adopted and approved as follows:
1. Name of Constituent Entity. The name of the Constituent Entity is:
FUBOTV INC.
2. Name of Resulting Entity. The name of the resulting entity (the “Resulting Entity”) is:
FUBOTV INC.
3. Jurisdiction and Form of Constituent Entity. The Constituent Entity was incorporated as a corporation under the laws of the State of Florida and is subject to the laws thereof.
4. Jurisdiction and Form of Resulting Entity. The Resulting Entity shall be incorporated as a corporation under the laws of the State of Delaware and will be subject to the laws thereof.
5. Conversion. At the Effective Time (as defined below), the Constituent Entity shall be converted into the Resulting Entity, the separate existence of the Constituent Entity shall cease, and the Resulting Entity shall continue its existence in the form of a Delaware corporation (the “Conversion”).
6. Effect of Conversion. The Conversion will become effective on the effective date and time set forth in the Articles of Conversion filed with the Florida DOS, in the form attached hereto as Exhibit A, and the Certificate of Conversion filed with the Delaware SOS, in the form attached hereto as Exhibit B (the “Effective Time”). Upon effectiveness:
(a) the Constituent Entity shall be converted into the Resulting Entity and the Resulting Entity shall be subject to the jurisdiction of the State of Delaware and be governed by the laws thereof;
(b) the Resulting Entity shall be a continuation of the existence of the Constituent Entity and the Resulting Entity, for purposes of the laws of the State of Delaware, shall be deemed to be the same entity as the Constituent Entity;
(c) the title to all property owned by the Constituent Entity shall be vested in the Resulting Entity without reversion or impairment;
(d) the Resulting Entity shall have all of the liabilities of the Constituent Entity;
(e) all proceedings pending against the Constituent Entity may be continued as if the Conversion had not occurred or the Resulting Entity may be substituted in the proceeding for the Constituent Entity;
(f) the Articles of Incorporation of the Constituent Entity in effect as of immediately prior to the Conversion shall cease to exist and as of the Effective Time the Certificate of Incorporation filed with the Delaware SOS simultaneously with the Certificate of Conversion, in the form attached hereto as Exhibit C, shall be the Certificate of Incorporation of the Resulting Entity;
(g) the bylaws of the Constituent Entity in effect as of immediately prior to the Conversion shall cease to exist and as of the Effective Time the Bylaws, in the form attached hereto as Exhibit D, shall be the Bylaws of the Resulting Entity;
(h) the directors of the Resulting Entity from and after the Effective Time (each, a “Resulting Entity Director”) shall be as follows:
Directors
Andy Bird
David Gandler
Daniel Leff
Ignacio Figueras
Jonathan Headley
Jim Lygopoulos
Debra OConnell
Cathleen Taff
Justin Warbrooke
(i) each director of the Constituent Entity immediately prior to the Effective Time who is not a Resulting Entity Director shall resign or be removed, as determined by the Constituent Entity;
(j) the officers of the Constituent Entity immediately prior to the Effective Time shall continue in their respective offices as officers of the Resulting Entity from and after the Effective Time;
(k) as of the Effective Time, by virtue of the Conversion, each share of common stock of the Constituent Entity, issued and outstanding immediately prior thereto, shall be automatically converted into one share of Class A common stock of the Resulting Entity;
(l) as of the Effective Time, by virtue of the Conversion, (i) each employee benefit plan, stock option plan, and other equity-based plan of the Constituent Entity immediately prior to the Effective Time shall continue to be a plan of the Resulting Entity, and, to the extent any such plan provides for the issuance of common stock of the Constituent Entity, as of the Effective Date, such plan shall be deemed to provide for the issuance of Class A common stock of the Resulting Entity and (ii) all stock options to purchase shares of common stock of the Constituent Entity outstanding and unexercised as of the Effective Time (both time- and performance-based) and all restricted stock units (both time- and performance-based) covering common stock of the Constituent Entity outstanding as of the Effective Time, in each case awarded under any equity-based plan of the Constituent Entity, shall continue and remain in effect upon the same terms and conditions (including, without limitation, terms and conditions resulting from relevant policies of the Constituent Entity such as the fuboTV Inc. Policy for Recovery of Erroneously Awarded Compensation) as were in effect immediately prior to the Conversion, except that the shares of common stock issuable upon the exercise of such options shall become shares of Class A common stock of the Resulting Entity and the shares of common stock subject to such restricted stock units shall become shares of Class A common stock of the Resulting Entity, in accordance with clause (i) above. At the Effective Time, each employee benefit plan, stock option plan, and other equity-based plan of the Constituent Entity, each written agreement thereunder setting forth the terms of each award and each policy of the Constituent Entity related to each such plan or written agreement (including, without limitation, the fuboTV Inc. Policy for Recovery of Erroneously Awarded Compensation) be, and hereby is, amended as necessary to provide that references to the “Company” in such plan, written agreement or policy shall refer to the Resulting Entity, references to “Common Stock” or “Stock” in such plan, written agreement or policy thereunder shall refer to Class A common stock of the Resulting Entity and references to “Subsidiary” shall refer to the subsidiary entities of the Resulting Entity; and
(m) the Conversion shall not be deemed a dissolution of the Constituent Entity.
7. Termination or Abandonment. This Plan may be terminated or the Conversion abandoned at any time prior to the Effective Time in the filings with the Florida DOS and the Delaware SOS as prescribed by applicable law. In the event of termination of this Plan and/or abandonment of the Conversion, this Plan shall become void and of no further force and effect without liability on the part of the Constituent Entity or its shareholders, board of directors, officers and agents.
8. Counterparts. This Plan may be executed in one or more counterparts, such as facsimile copies, PDF signatures and photocopies, all of which together shall have the same effect as original signatures and the executed copies shall be inserted in the books of the Constituent Entity and Resulting Entity.
[SignaturePage Follows]
INWITNESS WHEREOF, the undersigned has caused this Plan to be executed as of the day and year first written above.
| fuboTV Inc. | |
|---|---|
| By: | /s/<br> David Gandler |
| Name: | David Gandler |
| Title: | Chief Executive Officer |
Exhibit 3.2
Articles of Conversion
For
FLORIDA PROFIT CORPORATION
IntoA
NON-FLORIDA BUSINESS ENTITY
The Articles of Conversion are submitted to convert the following Florida profit corporation into a business entity formed under the laws of another jurisdiction in accordance with s. 607.11933, Florida Statutes.
| 1. | The name of the Florida profit corporation<br> converting into the (converted) resulting business entity is fuboTV Inc. |
|---|---|
| 2. | The name of the resulting business entity is FuboTV<br> Inc. |
| 3. | The (converted) resulting entity is a corporation organized,<br> formed or incorporated under the laws of the State of Delaware. |
| 4. | The above referenced<br> Florida profit corporation has converted into another business entity in compliance with Chapter 607, F.S. |
| 5. | The Plan of Conversion<br> was approved by the converting Florida profit corporation in accordance with Chapter 607, F.S. |
| 6. | These<br> Articles of Conversion are effective on October 29, 2025 at 8:00 a.m. |
Signed this 29^th^ day of October, 2025.
| Signature: | /s/<br> David Gandler |
|---|---|
| Name: | David Gandler |
| Title: | Chief Executive Officer |
Exhibit 3.3
Exhibit3.4
CERTIFICATEOF INCORPORATION
OF
FUBOTVINC.
ARTICLEI
SECTION 1.01 Name. The name of the Corporation is FuboTV Inc. (the “Corporation”).
ARTICLEII
SECTION 2.01 Registered Office and Agent. The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, State of Delaware 19808. The name of its registered agent at that address is Corporation Service Company.
ARTICLEIII
SECTION 3.01 Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “DGCL”) as it now exists or may hereafter be amended and supplemented.
ARTICLEIV
SECTION 4.01 Authorized Shares. The total number of shares of stock which the Corporation shall have authority to issue is 7,050,000,000 shares of capital stock, consisting of three classes as follows:
(a) 5,000,000,000 shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”);
(b) 2,000,000,000 shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”); and
(c) 50,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).
SECTION 4.02 Powers and Rights of the Common Stock.
(a) General. Except as otherwise expressly provided in this Certificate of Incorporation (as amended or amended and restated from time to time, this “Certificate of Incorporation”), the powers (including voting powers), preferences and relative, participating, optional, special or other rights, if any, and the qualifications, limitations and restrictions, if any, of the holders of shares of Class A Common Stock and the holders of shares of Class B Common Stock shall be in all respects identical.
(b) Voting. Subject to applicable law, Section 4.02(d) and the rights, if any, of the holders of any class or series of Preferred Stock then outstanding, the holders of outstanding shares of Common Stock shall vote together as a single class on all matters with respect to which stockholders are entitled to vote under applicable law, this Certificate of Incorporation or the Bylaws of the Corporation (as amended or amended and restated from time to time, the “Bylaws”), or upon which a vote of stockholders generally entitled to vote is otherwise duly called for by the Corporation. At each annual or special meeting of stockholders, each holder of record of shares of Common Stock on the relevant record date shall be entitled to cast one vote in person or by proxy for each share of Common Stock outstanding in such holder’s name on the stock transfer records of the Corporation.
(c) No Cumulative Voting. The holders of shares of Common Stock shall not have cumulative voting rights.
(d) Amendments Affecting Stock.
(i) So long as any shares of Class A Common Stock are outstanding, the Corporation shall not, without the prior affirmative vote of the holders of a majority of the shares of Class A Common Stock then outstanding, voting separately as a single class, (A) alter or change the powers, preferences or special rights of the shares of Class A Common Stock so as to affect them adversely or (B) take any other action upon which class voting is required by applicable law. So long as any shares of Class B Common Stock are outstanding, the Corporation shall not, without the prior affirmative vote of the holders of a majority of the shares of Class B Common Stock then outstanding, voting separately as a single class, (I) alter or change the powers, preferences or special rights of the shares of Class B Common Stock so as to affect them adversely or (II) take any other action upon which class voting is required by applicable law.
(ii) Notwithstanding Section 4.02(d)(i) or anything to the contrary set forth in this Certificate of Incorporation, and irrespective of the provisions of Section 242(b)(2) and Section 242(d)(2) of the DGCL:
(A) the holders of shares of Common Stock shall vote as one class with respect to any proposed amendment to this Certificate of Incorporation that would increase or decrease (x) the number of authorized shares of Common Stock or any class or series thereof, (y) the number of authorized shares of Preferred Stock or any class or series thereof or (z) the number of authorized shares of any other class or series of capital stock of the Corporation hereafter established (but, in each case, with respect to any decrease, not below the number of shares of such class or series of capital stock then outstanding), and the affirmative vote of the holders of a majority of the shares of Common Stock then outstanding shall be required for the approval of any such matter; and
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| --- |
(B) subject to the rights, if any, of the holders of any class or series of Preferred Stock then outstanding, no separate class or series vote of the holders of shares of any class or series of capital stock of the Corporation shall be required for the approval of any matter contemplated by Section 4.02(d)(ii)(A).
(e) Dividends. Subject to applicable law and the rights, if any, of the holders of any class or series of Preferred Stock then outstanding, holders of shares of Class A Common Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board of Directors of the Corporation (the “Board of Directors”) from time to time out of assets or funds of the Corporation legally available therefor; provided, however, that without the prior affirmative vote of the holders of a majority of the shares of Class A Common Stock then outstanding and the holders of a majority of the shares of Class B Common Stock then outstanding, each voting separately as a single class, no dividend shall be declared or paid or set apart for payment on the Class A Common Stock in (a) shares of Class A Common Stock or rights, options or warrants to purchase shares of Class A Common Stock unless there shall also be or have been declared and set apart for payment on the Class B Common Stock, a dividend of an equal number of shares of Class B Common Stock or rights, options or warrants to purchase shares of Class B Common Stock or (b) shares of Class B Common Stock or rights, options or warrants to purchase shares of Class B Common Stock. Shares of Class B Common Stock shall be deemed to be a non-economic interest in the Corporation, and the holders of Class B Common Stock shall not be entitled to receive any dividends (including cash, stock or property) in respect of their shares of Class B Common Stock except as expressly provided in this Section 4.02(e).
(f) Stock Splits. Without the prior affirmative vote of the holders of a majority of the shares of Class A Common Stock then outstanding and the holders of a majority of the shares of Class B Common Stock then outstanding, each voting separately as a single class, no reclassification, subdivision or combination shall be effected on the Class A Common Stock or the Class B Common Stock unless the same reclassification, subdivision or combination, in the same proportion and manner, is made on the other class of Common Stock.
(g) Liquidation, Dissolution, etc. Subject to applicable law and the rights, if any, of the holders of any class or series of Preferred Stock then outstanding, in the event of any liquidation, dissolution or winding up (either voluntary or involuntary) of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and after making provisions for preferential and other amounts, if any, to which the holders of any class or series of Preferred Stock then outstanding shall be entitled, the holders of shares of Class A Common Stock shall be entitled to receive the remaining assets and funds of the Corporation available for distribution to stockholders of the Corporation. Without limiting the rights of holders of Paired Interests to have Paired Common Units, together with corresponding Paired Class B Shares, redeemed or exchanged for shares of Class A Common Stock in accordance with the Newco LLC Agreement, the holders of shares of Class B Common Stock shall not be entitled to receive, with respect to such shares, any assets or funds of the Corporation in the event of any dissolution, liquidation or winding up (either voluntary or involuntary) of the Corporation.
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(h) Merger or Consolidation. In the event of a merger or consolidation of the Corporation with or into another entity (whether or not the Corporation is the surviving entity), (i) the holders of shares of Class A Common Stock shall be entitled to receive, with respect to such shares, the same per share consideration on a per share basis and (ii) without limiting the rights of holders of Paired Interests to have Paired Common Units, together with corresponding Paired Class B Shares, redeemed or exchanged for shares of Class A Common Stock in accordance with the Newco LLC Agreement, the holders of shares of Class B Common Stock shall not be entitled to receive any consideration in respect of such shares of Class B Common Stock.
(i) No Preemptive Rights. No holder of shares of Common Stock shall be entitled to preemptive rights.
(j) Conversion. Class A Common Stock shall not be convertible into or exchangeable for any other class or series of capital stock of the Corporation.
(k) Restrictions on Issuance and Transfer of Class B Common Stock.
(i) No shares of Class B Common Stock may be issued except to a holder of common units of Newco (“Common Units”) (other than the Corporation) in an amount such that, after the issuance of such shares of Class B Common Stock, such holder holds an equal number of Common Units and shares of Class B Common Stock (as such number may be adjusted to reflect equitably any stock split, subdivision, combination or similar change with respect to the Class B Common Stock or the Common Units), unless otherwise provided in the Newco LLC Agreement.
(ii) No shares of Class B Common Stock may be transferred by the holder thereof except (A) pursuant to an exchange or redemption contemplated by Section 4.02(l) or (B) as part of the transfer of a Paired Interest and in accordance with the terms of the Newco LLC Agreement; provided that the restrictions contained in this Certificate of Incorporation shall continue to apply to such shares of Class B Common Stock after any such transfer. The transfer restrictions described in this Section 4.02(k)(ii) are referred to as the “Restrictions”.
(iii) Any purported transfer of shares of Class B Common Stock in violation of the Restrictions shall, to the fullest extent permitted by applicable law, be null and void. If, notwithstanding the Restrictions, an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or governmental or other entity, whether or not a legal entity (a “Person”), shall, voluntarily or involuntarily, purportedly become or attempt to become the purported transferee of shares of Class B Common Stock (the “Purported Owner”) in violation of the Restrictions, then the Purported Owner shall, to the fullest extent permitted by applicable law, not obtain any rights in and to such shares of Class B Common Stock (the “Restricted Shares”), and the purported transfer of the Restricted Shares to the Purported Owner shall, to the fullest extent permitted by applicable law, not be recognized by the Corporation or its transfer agent.
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(iv) Upon a determination by the Board of Directors that a Person has attempted or is attempting to transfer or to acquire shares of Class B Common Stock, or has purportedly transferred or acquired shares of Class B Common Stock, in violation of the Restrictions, the Board of Directors may take such lawful action as it deems advisable to refuse to give effect to such attempted or purported transfer or acquisition on the books and records of the Corporation, including, to the fullest extent permitted by applicable law, to cause the Corporation’s transfer agent to record the Purported Owner’s transferor as the record owner of the shares of Class B Common Stock, and to institute proceedings to enjoin any such attempted or purported transfer or acquisition, or reverse any entries or records reflecting such attempted or purported transfer or acquisition.
(v) Notwithstanding the Restrictions, in the event that any record or beneficial owner of shares of Class B Common Stock is no longer the record or beneficial owner of an equal number of shares of Class B Common Stock and Common Units (as such number may be adjusted to reflect equitably any stock split, subdivision, combination or similar change with respect to the Class B Common Stock or Common Units), the number of shares of Class B Common Stock registered in the name of such holder or beneficially owned by such holder that exceed the number of Common Units registered in the name of such holder or beneficially owned by such holder shall be automatically (and without further action on the part of the Corporation or such holder) cancelled for no consideration.
(vi) The Board of Directors may, to the fullest extent permitted by applicable law, from time to time establish, modify, amend or rescind, by bylaw or otherwise, regulations and procedures that are consistent with the provisions of this Section 4.02(k) and the Newco LLC Agreement for determining whether any transfer or acquisition of shares of Class B Common Stock would violate the Restrictions and for the orderly application, administration and implementation of the provisions of this Section 4.02(k). Any such procedures and regulations shall be kept on file with the Secretary of the Corporation and with the Corporation’s transfer agent and shall be made available for inspection by any prospective transferee of shares of Class B Common Stock and, upon written request, shall be mailed or otherwise delivered, as determined by the Corporation, to a holder of shares of Class B Common Stock.
(vii) The Board of Directors shall, to the fullest extent permitted by applicable law, have all powers necessary to implement the Restrictions, including the power to prohibit the transfer of any shares of Class B Common Stock in violation thereof.
(l) Exchange and Cancellation of Class B Common Stock. To the extent that either (i) any holder of shares of Class B Common Stock exercises its right pursuant to the Newco LLC Agreement to have its Paired Common Units redeemed by Newco in accordance with the Newco LLC Agreement or (ii) the Corporation exercises its option pursuant to the Newco LLC Agreement to effect a direct exchange with such holder in lieu of the redemption described in clause (i), then upon the surrender of the shares of Class B Common Stock to be redeemed or exchanged and simultaneous with the payment of, at the Corporation’s election, cash or shares of Class A Common Stock to the holder of such shares of Class B Common Stock by Newco (in the case of a redemption) or the Corporation (in the case of an exchange), the shares of Class B Common Stock so redeemed or exchanged shall be automatically (and without any further action on the part of the Corporation or the holder thereof) cancelled for no consideration.
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(m) Class B Common Stock Legend. All certificates or book-entries representing shares of Class B Common Stock shall bear a legend substantially in the following form (or in such other form as the Board of Directors may determine):
THE SECURITIES REPRESENTED BY THIS [CERTIFICATE] [BOOK-ENTRY] ARE SUBJECT TO THE RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER) SET FORTH IN THE CERTIFICATE OF INCORPORATION OF FUBOTV INC., AS AMENDED OR AMENDED AND RESTATED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF FUBOTV INC. AND SHALL BE PROVIDED FREE OF CHARGE TO ANY STOCKHOLDER MAKING A REQUEST THEREFOR).
(n) Status of Converted, Redeemed, Repurchased or Cancelled Shares*.* If any share of Class B Common Stock is converted, redeemed, repurchased or otherwise acquired by the Corporation, in any manner whatsoever, or is cancelled pursuant to this Certificate of Incorporation, the share of Class B Common Stock so acquired or cancelled shall, to the fullest extent permitted by applicable law, be retired and cancelled. Any share of Class B Common Stock so acquired or cancelled shall, upon its retirement and cancellation, and upon the taking of any action required by applicable law, become an authorized but unissued share of Class B Common Stock.
SECTION 4.03 Powers and Rights of the Preferred Stock. Shares of Preferred Stock of the Corporation may be issued from time to time in one or more classes or series, each of which class or series shall have such distinctive designation, number of shares or title as shall be fixed by the Board of Directors prior to the issuance of any shares thereof. Each such class or series of Preferred Stock shall consist of such number of shares, and have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, including the authority to fix or alter the dividend rights, dividend rates, conversion rights, exchange rights, voting rights, rights and terms of redemption (including sinking and purchase fund provisions), the redemption price or prices, restrictions on the issuance of shares of such class or series, the dissolution preferences and the rights in respect of any distribution of assets of any wholly unissued series of Preferred Stock and the number of shares constituting any such class or series, and the designation thereof, or any of them and to increase (but not above the total number of authorized shares of Preferred Stock) or decrease (but not below the number of shares of such class or series then outstanding) the number of shares of any class or series so created (except where otherwise provided in the applicable Certificate of Designation governing such class or series), subsequent to the issue of that class or series, as shall be stated in such resolution or resolutions providing for the issue of such class or series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in the Board of Directors, all in accordance with the laws of the State of Delaware.
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ARTICLEV
SECTION 5.01 Reserved Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of issuance upon redemption or exchange of the outstanding Common Units that are exchangeable for Class A Common Stock, the number of shares of Class A Common Stock that are issuable upon any such redemption or exchange pursuant to the Newco LLC Agreement; provided, that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of any such redemption or exchange of Common Units pursuant to the Newco LLC Agreement by delivering cash in lieu of shares of Class A Common Stock in accordance with the Newco LLC Agreement or shares of Class A Common Stock which are held in the treasury of the Corporation. All shares of Class A Common Stock issued pursuant to the Newco LLC Agreement shall, upon issuance, be validly issued, fully paid and non-assessable.
ARTICLEVI
SECTION 6.01 Required Ratio. Subject to applicable law, including any vote of the stockholders required by applicable law, the Corporation:
(a) shall undertake all lawful actions, including any reclassification, dividend, division, combination or recapitalization, necessary to maintain at all times a one-to-one ratio between the aggregate number of outstanding Common Units owned by the Corporation and the aggregate number of outstanding shares of Common Stock (the “Class A Ratio”), disregarding, for purposes of maintaining such ratio, (i) shares of restricted Class A Common Stock issued pursuant to a Corporation equity plan that are not vested pursuant to the terms thereof or any award or similar agreement relating thereto, (ii) treasury shares, (iii) any non-economic voting shares (including shares of Class B Common Stock) and (iv) Preferred Stock or other debt or equity securities (including warrants, options or rights) issued by the Corporation that are convertible into or exercisable or exchangeable for shares of Common Stock (but in each case solely prior to such conversion, exercise or exchange); provided that the net proceeds from such other securities, including any exercise or purchase price payable upon conversion, exercise or exchange thereof, shall be contributed by the Corporation to the equity capital of Newco pursuant to the Newco LLC Agreement (clauses (i), (ii), (iii) and (iv), collectively, the “Disregarded Shares”);
(b) shall, in order to maintain at all times the Class A Ratio, disregarding, for purposes of maintaining such ratio, the Disregarded Shares, undertake or authorize any subdivision (by any stock split, distribution, reclassification, recapitalization or similar event) or combination (by reverse stock split, reclassification, recapitalization or similar event) of outstanding shares of Common Stock if, and only if, Newco shall effect a substantially identical subdivision or combination of outstanding Common Units corresponding to such shares of Common Stock; and
(c) shall not consolidate, merge, combine or consummate one or more other transactions (other than an action or transaction for which an adjustment is otherwise provided in this Section 6.01) in which shares of Class A Common Stock are exchanged for or converted into other securities or the right to receive cash or any other property, unless in connection with any such consolidation, merger, combination or other transaction, the Common Units shall be entitled to be exchanged for or converted into (without duplication of any corresponding shares of Class A Common Stock which the Corporation may elect to issue upon a redemption or exchange of such Common Units by the holder thereof) the same kind and amount of securities, cash or any other property, as the case may be, into which or for which each share of Class A Common Stock that such Common Unit could then be redeemed or exchanged for under the Newco LLC Agreement, is exchanged or converted, in each case to maintain at all times a one-to-one ratio between (x) the securities or rights to receive cash or any other property issuable in such transaction in exchange for or conversion of one share of Class A Common Stock and (y) the securities or rights to receive cash or any other property issuable in such transaction in exchange for or conversion of one Common Unit.
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The foregoing provisions of this Section 6.01 may be waived in any instance (without the necessity of calling, noticing or holding any meeting of stockholders of the Corporation) by the consent or agreement of the holders of a majority in voting power of (i) the Class A Common Stock then outstanding, voting, consenting or agreeing separately as a single class, and (ii) the Class B Common Stock then outstanding, voting, consenting or agreeing separately as a single class.
ARTICLEVII
SECTION 7.01 Management. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
SECTION 7.02 Number and Election of Directors. The directors shall be elected by the stockholders generally entitled to vote at each annual meeting of the stockholders and shall hold office until the next annual meeting of stockholders and until each of their successors shall have been duly elected and qualified, subject to their earlier death, resignation, disqualification or removal. The election of directors need not be by written ballot unless the Bylaws so provide. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. The number of directors on the Board of Directors shall be fixed from time to time exclusively by resolution of the Board of Directors; provided that such number shall be consistent with the terms of Section 7.03.
SECTION 7.03 Director Designations. (a) The Corporation shall take all Necessary Action to cause the slate of nominees recommended by the Corporation for election as directors to be consistent with this Section 7.03.
(b) As of the Effective Date, the Board of Directors shall consist of nine members comprised of:
(i) five directors designated by Hulu (the “Hulu Affiliated Designees”);
(ii) one additional director designated by Hulu who (A) qualifies as an “independent director” under applicable law, the rules and regulations of the U.S. Securities and Exchange Commission, the rules and regulations of any securities exchange on which the securities of the Corporation are listed or quoted for trading and any corporate governance guidelines of the Corporation and (B) is not employed by Hulu or its Affiliates (the “Hulu Independent Designee” and, together with the Hulu Affiliated Designees, the “HuluDesignees”);
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(iii) two additional directors, each of whom (A) qualifies as an “independent director” under applicable law, the rules and regulations of the U.S. Securities and Exchange Commission, the rules and regulations of any securities exchange on which the securities of the Corporation are listed or quoted for trading and any corporate governance guidelines of the Corporation and (B) is not employed by Hulu or its Affiliates (the “Unaffiliated Independent Designees” and, together with the Hulu Independent Designee, the “IndependentDesignees”); and
(iv) the Chief Executive Officer of the Corporation.
(c) The initial Chairman of the Board of Directors has been determined by Hulu prior to, and effective as of, the Effective Date. Thereafter, the Board of Directors, in its discretion, may choose a Chairman of the Board of Directors. The Board of Directors shall also have a lead independent director (the “Lead Independent Director”). The initial Lead Independent Director has been determined by the Corporation prior to, and effective as of, the Effective Date. Thereafter, the Independent Designees shall determine which Independent Designee shall serve as the Lead Independent Director.
(d) The initial Unaffiliated Independent Designees have been determined by the Corporation prior to, and effective as of, the Effective Date.
(e) Hulu will be entitled to designate a majority of the members of the Board of Directors in accordance with Section 7.03(b) and Section 7.03(f) unless and until the earlier of (i) the date when Hulu Group Entities cease to collectively own at least 50% of the then-outstanding shares of Common Stock and (ii) the date that is 12 months after Hulu consummates any Competing DMVPD Transaction, if, as of such date, Hulu has not discontinued the operations of or divested (or entered into an agreement to discontinue the operations of or divest) the Competing DMVPD acquired in such Competing DMVPD Transaction (such earlier date, the “Majority Sunset Date”). After the Majority Sunset Date, Hulu’s designation rights under Section 7.03(b)(ii) shall terminate, and Hulu’s designation rights under Section 7.03(b)(i) shall be modified such that Hulu shall be entitled to designate (A) four Hulu Affiliated Designees when Hulu Group Entities collectively own at least 40% of the then-outstanding shares of Common Stock, (B) three Hulu Affiliated Designees when Hulu Group Entities collectively own less than 40% but at least 30% of the then-outstanding shares of Common Stock, (C) two Hulu Affiliated Designees when Hulu Group Entities collectively own less than 30% but at least 20% of the then-outstanding shares of Common Stock, (D) one Hulu Affiliated Designee when Hulu Group Entities collectively own less than 20% but at least 10% of the then-outstanding shares of Common Stock and (E) zero Hulu Affiliated Designees when Hulu Group Entities cease to collectively own at least 10% of the then-outstanding shares of Common Stock (the “Final Sunset Date”), in each case determined as of a record date set in accordance with the Bylaws in connection with a meeting of stockholders called for the purpose of electing directors.
(f) If the size of the Board of Directors shall, without the prior written approval of Hulu, be increased or decreased, Hulu shall have the right to designate one or more members of the Board of Directors such that the total number of directors on the Board of Directors is proportional (rounded up to the nearest whole number) to the number of Hulu Designees, based on the appointment rights set forth in this Section 7.03.
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SECTION 7.04 Vacancies and Newly Created Directorships. (a) Subject to the rights of the holders of any series of Preferred Stock then outstanding, the designation rights of the Unaffiliated Independent Designees pursuant to Section 7.04(b) and the designation rights of Hulu pursuant to Section 7.03(f) and Section 7.04(c), any newly created directorships resulting from an increase in the authorized number of directors or any vacancies on the Board of Directors resulting from the death, resignation, disqualification or removal of a director shall be filled solely and exclusively by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by the stockholders. Any director so appointed shall hold office until the expiration of the term of office of the director whom he or she has replaced and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal.
(b) To the extent a vacancy arises from the death, resignation, disqualification or removal of an Unaffiliated Independent Designee prior to the second anniversary of the Effective Date, the other Unaffiliated Independent Designee shall have the right to designate an individual to fill such vacancy, and such vacancy may not be filled by any other Person, and, unless the Majority Sunset Date has occurred, such replacement designee must be an individual who is reasonably acceptable to Hulu. The Corporation shall take all Necessary Action to facilitate the appointment of such replacement designee as promptly as practicable after such designation and, upon such appointment, such replacement designee shall be an Unaffiliated Independent Designee for all purposes hereunder. Notwithstanding the foregoing of this Section 7.04(b), if, prior to the second anniversary of the Effective Date, two vacancies exist at the same time due to the death, resignation, disqualification or removal of each Unaffiliated Independent Designee, such vacancies shall be filled by the Board of Directors solely and exclusively in accordance with Section 7.04(a). On or after the second anniversary of the Effective Date, any vacancies arising from the death, resignation, disqualification or removal of an Unaffiliated Independent Designee shall be filled by the Board of Directors solely and exclusively in accordance with Section 7.04(a).
(c) Hulu shall have the exclusive right to designate any individual to fill any vacancy in the event that such vacancy is created at any time by the death, resignation, disqualification or removal of any Hulu Designee, and such vacancy may not be filled by any other Person; provided that, for the avoidance of doubt, Hulu shall not have the right to designate a replacement director to fill any vacancy to the extent the election or appointment of such replacement director to the Board of Directors would result in the number of Hulu Designees serving on the Board of Directors exceeding the number of Hulu Designees that Hulu is then entitled to nominate for membership on the Board of Directors pursuant to Section 7.03. The Corporation shall take all Necessary Action to facilitate the appointment of such replacement designee as promptly as practicable after such designation and, upon such appointment, such replacement designee shall be a Hulu Designee for all purposes hereunder and, if such replacement designee has been appointed to replace the Hulu Independent Designee, such replacement designee shall also be a Hulu Independent Designee for all purposes hereunder.
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SECTION 7.05 Removals and Resignations of Directors. Subject to the rights of the holders of any class or series of Preferred Stock then outstanding and the remainder of this Section 7.05, and notwithstanding any other provision of this Certificate of Incorporation, any director may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation then generally entitled to vote in the election of directors, voting together as a single class. Notwithstanding the foregoing or anything to the contrary set forth in this Certificate of Incorporation, (a) any Hulu Designee may be removed from the Board of Directors, with or without cause, only if Hulu affirmatively votes its then outstanding shares of capital stock of the Corporation in favor of such removal, (b) for the avoidance of doubt, although Hulu’s shares must be voted in favor of the removal of any Hulu Designee for such removal to be effective, such removal shall not be effective unless the requisite vote of holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation then generally entitled to vote in the election of directors, voting together as a single class, is obtained in accordance with Section 141(k) of the DGCL and (c) the Corporation shall take all Necessary Action to facilitate the removal of any Hulu Designee from the Board of Directors upon satisfaction of the foregoing requirements. Any director may resign at any time upon written notice to the Corporation in accordance with the Bylaws.
SECTION 7.06 Additional Powers. In addition to the powers and authority otherwise conferred upon them by this Certificate of Incorporation or by applicable law, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.
SECTION 7.07 Committees. Pursuant to the Bylaws, the Board of Directors may establish one or more committees to which may be delegated any or all of the powers and duties of the Board of Directors to the fullest extent permitted by applicable law.
ARTICLEVIII
SECTION 8.01 Director and Officer Liability. No director or officer of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL, as the same exists or may hereafter be amended. If the DGCL is amended hereafter to authorize the further elimination or limitation of the liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent authorized by the DGCL, as so amended. Any amendment, repeal or modification of this Section 8.01, or the adoption of any provision of this Certificate of Incorporation inconsistent with this Section 8.01, shall not adversely affect any right or protection of a director of the Corporation existing at the time of such amendment, repeal or modification with respect to acts or omissions occurring prior to the time of such amendment, repeal or modification.
ARTICLEIX
SECTION 9.01 Indemnification. The Corporation shall indemnify any present or former officer or director, or Person exercising powers and duties of an officer or director, to the fullest extent now or hereafter permitted by applicable law.
SECTION 9.02 Non-Exclusivity. The rights to indemnification in this Article IX shall not be exclusive of any other right which any Person may have or hereafter acquire under this Certificate of Incorporation, the Bylaws, any statute, agreement, vote of stockholders or disinterested directors, or otherwise.
SECTION 9.03 No Adverse Effect. Any repeal or modification of this Article IX shall not adversely affect any rights to indemnification and to the advancement of expenses of an officer or director of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
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ARTICLEX
SECTION 10.01 Action by Written Consent. Prior to the Majority Sunset Date, any action which is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock of the Corporation having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of the Corporation’s stock entitled to vote thereon were present and voted. On or after the Majority Sunset Date, no action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders. Notwithstanding the foregoing, any action required or permitted to be taken by any holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such class or series of Preferred Stock, may be taken without a meeting, without prior notice and without a vote, unless expressly prohibited in the resolutions creating such class or series of Preferred Stock.
ARTICLEXI
SECTION 11.01 DGCL Section 203. The Corporation shall not be governed by Section 203 of the DGCL.
ARTICLEXII
SECTION 12.01 Forum. Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, the United States District Court for the District of Delaware) shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws or (iv) any action, suit or proceeding asserting a claim governed by the internal affairs doctrine of the State of Delaware (each, a “CoveredProceeding” and the applicable court referenced in connection therewith, a “Permitted Court”). Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause or causes of action under the Securities Act of 1933, as amended, including all causes of action asserted against any defendant to such complaint. This Article XII is intended to benefit and may be enforced, to the fullest extent permitted by applicable law, by the Corporation and its officers and directors. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall, to the fullest extent permitted by applicable law, be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. To the fullest extent permitted by applicable law, any Person purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII.
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SECTION 12.02 Personal Jurisdiction. If any action the subject matter of which is a Covered Proceeding is filed in a court other than a Permitted Court (each, a “Foreign Action”) in the name of any Person (a “Claiming Party”) without the prior approval of the Corporation in a manner described in Section 12.01, such Claiming Party shall be deemed to have consented to (a) the personal jurisdiction of the applicable Permitted Court, in connection with any action brought in any such courts to enforce Section 12.01 (an “Enforcement Action”), and (b) having service of process made upon such Claiming Party in any such Enforcement Action by service upon such Claiming Party’s counsel in the Foreign Action as agent for such Claiming Party.
ARTICLEXIII
SECTION 13.01 Corporate Opportunities.
(a) Certain Relationships and Transactions. In recognition of the fact that (i) the Corporation is not a wholly owned subsidiary of any Hulu Group Entity and that Hulu (or other Hulu Group Entities) may continue to be a significant stockholder of the Corporation and a member of Newco, (ii) directors, managers, officers or employees of Hulu Group Entities may serve as directors, managers, officers or employees of Corporation Group Entities, (iii) Hulu Group Entities, directly or indirectly, may engage in the same, similar or related lines of business as those in which Corporation Group Entities, directly or indirectly, may engage or in other business activities that overlap or compete with those in which Corporation Group Entities, directly or indirectly, may engage, (iv) Hulu Group Entities may have an interest in the same areas of corporate opportunity as Corporation Group Entities and (v) as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and obligations of the Corporation and of the Hulu Group Entities, and the duties of any directors, officers or employees of the Corporation who are also directors, managers, officers or employees of any Hulu Group Entity, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for, the Corporation or any other Corporation Group Entity, on the one hand, and any Hulu Group Entity, on the other hand, the provisions of this Section 13.01 shall, to the fullest extent permitted by applicable law, regulate and define the conduct of certain of the business and affairs of the Corporation in relation to the Hulu Group Entities and the conduct of certain affairs of the Corporation as they may involve Hulu Group Entities and directors, managers, officers or employees of Hulu Group Entities, and the powers, rights, duties and liabilities of the Corporation and its directors, officers, employees and stockholders in connection therewith.
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(b) Certain Agreements and Transactions Permitted. The Corporation may from time to time, in accordance with this Certificate of Incorporation, including Section 14.01(a), and the Bylaws, enter into and perform, or cause or permit any other Corporation Group Entity to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with Hulu Group Entities, pursuant to which the Corporation or any other Corporation Group Entity, on the one hand, and one or more Hulu Group Entities, on the other hand, agree to engage in transactions of any kind or nature with each other, including to allocate, and to cause their respective directors, managers, officers or employees (including any who are directors, managers, officers or employees of a Corporation Group Entity and a Hulu Group Entity) to allocate, opportunities between them or to refer opportunities to each other. To the fullest extent permitted by applicable law, no Hulu Group Entity, and no director, manager, officer or employee of the Corporation who is also a director, manager, officer or employee of any Hulu Group Entity, shall have or be under any fiduciary duty to the Corporation or any other Corporation Group Entity to refer any corporate opportunity to the Corporation or any other Corporation Group Entity or to refrain from acting on behalf of the Corporation or any other Corporation Group Entity, or on behalf of such Hulu Group Entity, in respect of any such agreement or transaction or performing any such agreement in accordance with its terms. No such agreement, or the performance thereof, by any Corporation Group Entity, on the one hand, or by any Hulu Group Entity, on the other hand, shall, to the fullest extent permitted by applicable law, be considered contrary to any fiduciary duty that (i) any Hulu Group Entity may be alleged to owe to any Corporation Group Entity or to any stockholder thereof or (ii) any director, manager, officer or employee of any Corporation Group Entity who is also a director, manager, officer or employee of a Hulu Group Entity may be alleged to owe to such Corporation Group Entity or any equityholder thereof.
(c) Authorized Business Activities. To the fullest extent permitted by applicable law, no Hulu Group Entity shall have any duty to communicate information regarding a corporate opportunity to any Corporation Group Entity or to refrain from (i) engaging in the same or similar activities or lines of business as any Corporation Group Entity, (ii) doing business with any client, customer or vendor of any Corporation Group Entity or (iii) employing or otherwise engaging any director, manager, officer or employee of any Corporation Group Entity.
(d) Corporate Opportunities. To the fullest extent permitted by applicable law, except as otherwise agreed in writing between the Corporation and the applicable Hulu Group Entity, in the event that a director, manager, officer or employee of a Corporation Group Entity who is also a director, manager, officer or employee of a Hulu Group Entity acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both a Corporation Group Entity, on the one hand, and such Hulu Group Entity, on the other hand, (i) such director, manager, officer or employee shall have no duty to communicate or present such opportunity to any Corporation Group Entity and shall, to the fullest extent permitted by applicable law, not be liable to any Corporation Group Entity or any equityholder thereof for breach of fiduciary duties as a director, manager, officer or employee of any Corporation Group Entity (or have been deemed to have failed to act in good faith or in the best interests of any Corporation Group Entity) by reason of the fact that (A) such director, manager, officer or employee directs such opportunity to a Hulu Group Entity or otherwise does not present such opportunity to a Corporation Group Entity or (B) a Hulu Group Entity pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not otherwise present such opportunity to a Corporation Group Entity and (ii) the Corporation, on behalf of itself and the other Corporation Group Entities, renounces any interest or expectancy in such opportunity and waives any claim that such opportunity constituted a corporate opportunity that should be presented to the Corporation or any other Corporation Group Entity.
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(e) Delineation of Indirect Interests. To the fullest extent permitted by applicable law, no director, manager, officer or employee of any Corporation Group Entity shall be deemed to have an indirect interest in any matter, transaction or corporate opportunity that may be received or exploited by, or allocated to, any Hulu Group Entity, solely by virtue of being a director, manager, officer or employee of any Hulu Group Entity.
(f) Notice and Consent. To the fullest extent permitted by applicable law, any Person, directly or indirectly, purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation (including shares of Common Stock) shall be deemed to have notice of and to have consented to the provisions of this Section 13.01.
(g) Termination. No amendment, repeal, modification, termination or expiration of this Section 13.01, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Section 13.01, shall eliminate or reduce the effect of this Section 13.01 in respect of any matter occurring prior to such amendment, repeal, modification, termination, expiration or adoption.
ARTICLEXIV
SECTION 14.01 Specified Reserved Matters. In addition to any other approval of the stockholders of the Corporation or the Board of Directors required by this Certificate of Incorporation, the Bylaws or applicable law, the audit committee of the Board of Directors (the “AuditCommittee”) shall be responsible for reviewing and approving each of the following matters (each, a “Reserved Matter”), each of which may not be authorized by the Board of Directors without the Audit Committee’s recommendation:
(a) any transaction between any Corporation Group Entity, on the one hand, and any Hulu Group Entity, or any director, officer, employee or “associate” (as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) of any Hulu Group Entity, on the other hand;
(b) the entry by any Corporation Group Entity into any carriage agreement with any programmer (other than any Hulu Group Entity, which transaction shall be governed by Section 14.01(a));
(c) solely until the second anniversary of the Effective Date:
(i) any amendment or other modification (including, in each case, by merger, consolidation, division, operation of law or otherwise) to this Certificate of Incorporation, the Bylaws or the Stockholders Agreement;
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(ii) the formation of any new committee of the Board of Directors, including any executive committee (or any similar delegation of authority by the Board of Directors); provided that any such action shall also require the approval of a majority of the Hulu Affiliated Designees; provided further that the formation of any new committee of the Board of Directors that is required by applicable law or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading shall not require the Audit Committee’s recommendation; and
(iii) any amendment or other modification (including, in each case, by merger, consolidation, division, operation of law or otherwise) to the charter of any existing committee of the Board of Directors; provided that any such action shall also require the approval of a majority of the Hulu Affiliated Designees; and
(d) solely until the Majority Sunset Date, (i) any amendment or other modification (including, in each case, by merger, consolidation, division, operation of law or otherwise) to this Certificate of Incorporation, the Bylaws or the Stockholders Agreement that would adversely affect the rights (economic or otherwise) of the holders of Common Stock hereunder or thereunder (other than any Hulu Group Entity), taken as a whole, in a manner that would be disproportionate as compared to the effect on the Hulu Group Entities which are stockholders of the Corporation, taken as a whole (disregarding, for this purpose, any tax impact specific to any individual holder of Common Stock), or (ii) any other amendment of or modification to (A) the Corporation’s jurisdiction of incorporation, (B) Section 7.02, Section 7.03, Section 7.04, Section 7.05, Section 11.01, Section 13.01, this Section 14.01, Section 15.01 or Section 16.01 of this Certificate of Incorporation, (C) Section 3.01, Section 3.10(a) or Section 9.01 of the Bylaws, (D) Section 2.01, Section 3.01 or Section 3.02 of the Stockholders Agreement or (E) any definitions directly or indirectly applicable to the provisions referenced in this Section 14.01(d).
SECTION 14.02 Other Specified Reserved Matters. In addition to any other approval of the stockholders of the Corporation or the Board of Directors required by this Certificate of Incorporation (including pursuant to Article XV or Article XVI), the Bylaws or applicable law, until the Final Sunset Date, the prior written approval of Hulu shall be required for the Corporation to implement any amendment or other modification (including, in each case, by merger, consolidation, division, operation of law or otherwise) to this Certificate of Incorporation or the Bylaws that would adversely affect the rights (economic or otherwise) of the Hulu Group Entities hereunder or thereunder in a manner that would be disproportionate as compared to the effect on the other holders of Common Stock (disregarding, for this purpose, any tax impact specific to any individual holder of Common Stock).
ARTICLEXV
SECTION 15.01 Amendments to Bylaws. Except as otherwise set forth in this Certificate of Incorporation, (a) the Board of Directors is expressly empowered to adopt, amend, alter, change or repeal the Bylaws and (b) the stockholders shall also have power to adopt, amend, alter, change or repeal the Bylaws upon the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation then generally entitled to vote thereon, voting together as a single class; provided that no Bylaws hereafter adopted shall invalidate any prior act of the Board of Directors that would have been valid if such Bylaws had not been adopted.
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ARTICLEXVI
SECTION 16.01 Amendments to Certificate of Incorporation. Subject to Section 14.01, the Board of Directors is expressly authorized, at any time and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed in this Certificate of Incorporation or applicable law, and all rights herein conferred upon stockholders, directors or any other Persons whomsoever by and pursuant to this Certificate of Incorporation are granted subject to such reservation.
ARTICLEXVII
SECTION 17.01 Certain Definitions. As used in this Certificate of Incorporation, the following terms shall have the following meanings.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including with its correlative meanings, “controlledby” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. Notwithstanding the foregoing, for purposes of this Certificate of Incorporation, the Corporation, Newco and their respective Subsidiaries, on the one hand, shall be deemed to not be Affiliates of Disney and its other Subsidiaries (including Hulu), on the other hand, and vice versa.
“CompetingDMVPD” means any digital streaming linear multichannel programming service that includes at least three broadcast networks and at least 20 cable networks; provided that the digital streaming service operated by ESPN shall not constitute a Competing DMVPD.
“CompetingDMVPD Transaction” means any merger, acquisition, business combination or other similar transaction with any Target that, as of the execution of one or more definitive agreements providing for such merger, acquisition, business combination or other similar transaction, (a) operated a Competing DMVPD at any time during the immediately preceding four-fiscal quarter period and (b) derived less than 50% of its LTM EBITDA from operating such Competing DMVPD.
“CorporationGroup Entities” means, collectively, the Corporation, Newco or any of their respective Subsidiaries. For the avoidance of doubt, no Hulu Group Entity shall be a Corporation Group Entity.
“Disney” means The Walt Disney Company, a Delaware corporation.
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“EBITDA” means, for any period, (a) net income or net loss, as the case may be, of a Target, for such period, as determined in accordance with GAAP, plus (b) the sum of all amounts which, in the determination of such net income or net loss, as the case may be, for such period, have been deducted for (i) interest expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization expense and (v) any material non-cash charges (including impairments and fair value adjustments, other non-cash restructuring activities, accounting changes or material infrequent and nonrecurring items), in the case of clauses (b)(i) through (b)(v), as determined in accordance with GAAP.
“EffectiveDate” means the date that this Certificate of Incorporation is accepted for filing by the Secretary of State of the State of Delaware.
“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.
“Hulu” means Hulu, LLC, a Delaware limited liability company.
“HuluGroup Entities” means, collectively, Hulu and its Affiliates. For the avoidance of doubt, no Corporation Group Entity shall be a Hulu Group Entity.
“LTMEBITDA” means, with respect to any Target and as of any measurement date, such Target’s EBITDA for the immediately preceding four-fiscal quarter period.
“NecessaryAction” means all actions (to the extent such actions are not prohibited by applicable law and are within the Corporation’s control, and in the case of any action that requires a vote or other action on the part of the Board of Directors to the extent such action is consistent with fiduciary duties that the Corporation’s directors may have) necessary to cause such result, including (i) calling meetings of stockholders or soliciting written consents of stockholders (as permitted by this Certificate of Incorporation), (ii) assisting in preparing or furnishing forms of ballots, proxies, consents or similar instruments, if applicable, in each case, with respect to shares of Common Stock, and facilitating the collection or processing of such ballots, proxies, consents or instruments, (iii) executing agreements and instruments, (iv) making, or causing to be made, with any government, governmental department or agency, or political subdivision thereof, all filings, registrations, or similar actions that are required to achieve such result and (v) nominating or appointing, or taking steps to cause the nomination or appointment of, certain persons (including to fill vacancies) and providing the highest level of support for the election or appointment of such persons to the Board of Directors or any committee thereof, including in connection with any annual or special meeting of stockholders of the Corporation.
“Newco” means Fubo Operations LLC, a Delaware limited liability company.
“NewcoLLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of Newco, dated as of the Effective Date, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
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“PairedClass B Shares” has the meaning ascribed to it in the Newco LLC Agreement.
“PairedCommon Units” has the meaning ascribed to it in the Newco LLC Agreement.
“PairedInterests” has the meaning ascribed to it in the Newco LLC Agreement.
“StockholdersAgreement” means that certain Stockholders Agreement, dated as of the Effective Date, by and between Hulu and the Corporation, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Subsidiary” means, with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient, together with any contractual rights, to elect a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which is owned directly or indirectly by such first Person). Notwithstanding the foregoing, for purposes of this Certificate of Incorporation, the Corporation, Newco and their respective Subsidiaries, on the one hand, shall be deemed to not be Subsidiaries of Hulu or any direct or indirect parent company thereof (including Disney) or any other Subsidiary of any such parent company, on the other hand.
“Target” means any Person, business or portion thereof.
ARTICLEXVIII
SECTION 18.01 Severability. If any provision of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Certificate of Incorporation (including each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by applicable law.
SECTION 18.02 Interpretation. When a reference is made in this Certificate of Incorporation to an Article or Section, such reference shall be to an Article or Section of this Certificate of Incorporation unless otherwise indicated. The words “includes” and “including” when used herein shall not be deemed to be terms of limitation, but rather shall be deemed in each case to be followed by the words “without limitation”. The word “will” shall be construed to have the same meaning as the word “shall”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “or” shall not be exclusive. The headings contained in this Certificate of Incorporation are for reference purposes only and shall not affect in any way the meaning or interpretation of this Certificate of Incorporation. References to “hereof”, “herein”, “hereunder” and words of similar import refer to this Certificate of Incorporation as a whole and not to any particular provision of this Certificate of Incorporation. The definitions contained in this Certificate of Incorporation are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. References to a Person are also to its permitted successors and assigns. References to “$” means U.S. dollars.
ARTICLEXIX
SECTION 19.01 The name and mailing address of the incorporator is: David Gandler, 1290 Avenue of the Americas, 9th Floor, New York, NY 10104.
[SignaturePage Follows]
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IN WITNESS WHEREOF, the undersigned has caused this Certificate of Incorporation to be executed on October 29, 2025.
| FUBOTV INC. | |
|---|---|
| By: | /s/ David Gandler |
| Name: | David<br> Gandler |
| Title: | Incorporator |
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Exhibit3.5
BYLAWS
OF
FUBOTV INC.
A Delaware Corporation
Effective October 29, 2025
TABLEOF CONTENTS
| Page | ||
|---|---|---|
| ARTICLE<br>I | ||
| Offices | ||
| SECTION<br> 1.01. | Registered<br> Office | 1 |
| SECTION<br>1.02. | Other<br> Offices | 1 |
| ARTICLE<br>II | ||
| Meetings<br>of Stockholders | ||
| SECTION<br> 2.01. | Place<br> of Meetings | 1 |
| SECTION<br>2.02. | Annual<br> Meetings | 1 |
| SECTION<br>2.03. | Special<br> Meetings | 2 |
| SECTION<br>2.04. | Notice | 5 |
| SECTION<br>2.05. | Adjournments<br> and Postponements | 6 |
| SECTION<br>2.06. | Quorum | 6 |
| SECTION<br>2.07. | Voting | 7 |
| SECTION<br>2.08. | Proxies | 7 |
| SECTION<br>2.09. | List<br> of Stockholders Entitled to Vote | 7 |
| SECTION<br>2.10. | Record<br> Date | 8 |
| SECTION<br>2.11. | Conduct<br> of Meetings | 8 |
| SECTION<br>2.12. | Inspectors<br> of Election | 9 |
| SECTION<br>2.13. | Nature<br> of Business at Meetings of Stockholders | 9 |
| SECTION<br>2.14. | Nomination<br> of Directors | 13 |
| SECTION<br>2.15. | Delivery<br> to the Corporation | 18 |
| ARTICLE<br>III | ||
| Directors | ||
| SECTION<br> 3.01. | Number,<br> Election and Qualification of Directors | 18 |
| SECTION 3.02. | Vacancies<br> and Newly Created Directorships | 19 |
| SECTION 3.03. | Duties<br> and Powers | 19 |
| SECTION 3.04. | Meetings | 19 |
| SECTION 3.05. | Organization | 19 |
| SECTION 3.06. | Removals<br> and Resignations of Directors | 20 |
| SECTION 3.07. | Quorum | 20 |
| SECTION 3.08. | Actions<br> of the Board of Directors by Written Consent | 20 |
| SECTION 3.09. | Meetings<br> by Means of Communications Equipment | 21 |
| SECTION 3.10. | Committees | 21 |
| SECTION 3.11. | Subcommittees | 22 |
| SECTION 3.12. | Compensation | 22 |
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| --- | | | ARTICLE<br>IV | | | --- | --- | --- | | | Officers | | | SECTION<br> 4.01. | General | 22 | | SECTION<br> 4.02. | Election | 22 | | SECTION<br> 4.03. | Voting<br> Securities Owned by the Corporation | 23 | | SECTION<br> 4.04. | Chairman<br> of the Board of Directors | 23 | | SECTION<br> 4.05. | Chief<br> Executive Officer | 23 | | SECTION<br> 4.06. | Vice<br> Presidents | 23 | | SECTION<br> 4.07. | Secretary<br> and Assistant Secretaries | 23 | | SECTION<br> 4.08. | Treasurer<br> and Assistant Treasurers | 24 | | SECTION<br> 4.09. | Other<br> Officers | 24 | | SECTION<br> 4.10. | Compensation | 24 | | | ARTICLE<br>V | | | | Stock | | | SECTION<br> 5.01. | Uncertificated<br> Shares; Form of Certificates | 24 | | SECTION<br> 5.02. | Partly<br> Paid Shares | 25 | | SECTION<br> 5.03. | Special<br> Designation of Certificates | 25 | | SECTION<br> 5.04. | Lost<br> Certificates | 25 | | SECTION<br> 5.05. | Transfers | 26 | | SECTION<br> 5.06. | Dividend<br> Record Date | 26 | | SECTION<br> 5.07. | Record<br> Owners | 26 | | SECTION<br> 5.08. | Transfer<br> and Registry Agents | 26 | | SECTION<br> 5.09. | Records | 26 | | | ARTICLE<br>VI | | | | Notices | | | SECTION<br> 6.01. | Notices | 27 | | SECTION<br> 6.02. | Waivers<br> of Notice | 27 | | | ARTICLE<br>VII | | | | General Provisions | | | SECTION<br> 7.01. | Dividends | 28 | | SECTION<br> 7.02. | Contracts;<br> Disbursements | 28 | | SECTION<br> 7.03. | Fiscal<br> Year | 28 | | SECTION<br> 7.04. | Corporate<br> Seal | 28 | | SECTION<br> 7.05. | Entire<br> Board of Directors | 28 | | SECTION<br> 7.06. | Electronic<br> Signatures | 28 | | SECTION<br> 7.07. | Section<br> Headings | 28 | | SECTION<br> 7.08. | Construction<br> and Definitions; Inconsistent Provisions | 29 | | SECTION<br> 7.09. | Severability | 29 |
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| --- | | | ARTICLE<br>VIII | | | --- | --- | --- | | | Indemnification | | | SECTION<br> 8.01. | Indemnification<br> of Directors and Officers | 29 | | SECTION<br> 8.02. | Indemnification<br> of Others | 29 | | SECTION<br> 8.03. | Prepayment<br> of Expenses | 30 | | SECTION 8.04. | Determination;<br> Claim | 30 | | SECTION 8.05. | Non-Exclusivity<br> of Rights | 30 | | SECTION 8.06. | Insurance | 30 | | SECTION 8.07. | Other<br> Indemnification | 30 | | SECTION 8.08. | Continuation<br> of Indemnification | 31 | | SECTION 8.09. | Amendment<br> or Repeal; Interpretation | 31 | | | ARTICLE<br>IX | | | | Amendments | | | SECTION 9.01. | Amendments | 31 |
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BYLAWS
OF
FUBOTV INC.
(hereinafter called the “Corporation”)
ARTICLE I
Offices
SECTION 1.01. Registered Office. The registered office of the Corporation shall be Corporation Service Company, 251 Little Falls Drive, Wilmington, County of New Castle, State of Delaware 19808, or at such other registered office within the State of Delaware as the Board of Directors of the Corporation (the “Board of Directors”) or an officer of the Corporation shall designate, which designation shall be effective upon the effectiveness of a certificate of amendment to the certificate of incorporation of the Corporation (as amended or amended and restated from time to time, the “Certificate of Incorporation”) designating such other registered office, and shall not require amendment to these Bylaws.
SECTION 1.02. Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Section 211 of the General Corporation Law of the State of Delaware (the “DGCL”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive offices.
SECTION 2.02. Annual Meetings. The annual meeting of stockholders for the election of directors (the “Annual Meeting of Stockholders”) shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting of Stockholders. The Board of Directors may postpone, reschedule or cancel any previously scheduled Annual Meeting of Stockholders without the need for approval thereof by stockholders to convene at the same or some other place. At the postponed or rescheduled meeting, the Corporation may transact any business which could have been transacted at the original meeting.
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SECTION 2.03. Special Meetings. (a) Subject to the rights of the holders of any series of preferred stock of the Corporation provided for or fixed pursuant to the Certificate of Incorporation (the “Preferred Stock”) then outstanding, a special meeting of stockholders (a “Special Meeting of Stockholders”), for any purpose or purposes, (i) may be called at any time, but only by (A) the Chairman of the Board of Directors, (B) the CEO (as defined below) or (C) the Board of Directors and (ii) shall be called by (A) the Chairman of the Board of Directors or (B) the Secretary, in the case of each of clauses (ii)(A) and (ii)(B), promptly upon the written request (in accordance with and subject to Section 2.03(b), as applicable) of the holders of a majority of the voting power of the then-outstanding shares of capital stock of the Corporation generally entitled to vote on the matter for which such Special Meeting of Stockholders is called (the “Requisite Percentage”). Such request shall state the purpose or purposes and the desired timing of the proposed Special Meeting of Stockholders. At a Special Meeting of Stockholders, only such business as shall be specified in the notice of the meeting (or any supplement thereto) shall be conducted.
(b) Without altering Section 2.03(a), the provisions of this Section 2.03(b) shall take effect as of the Majority Sunset Date (as defined in the Certificate of Incorporation).
(i) No stockholder may demand that the Secretary call a Special Meeting of Stockholders pursuant to Section 2.03(a)(ii) unless a stockholder of record has first submitted a request in writing that the Board of Directors fix a record date (a “Demand Record Date”) for the purpose of determining the stockholders entitled to demand that the Secretary call such special meeting, which request shall be in proper form and delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation.
(ii) To be in proper form for purposes of this Section 2.03(b), a request by a stockholder for the Board of Directors to fix a Demand Record Date shall set forth:
(A) as to each Requesting Person (as defined below), the Stockholder Information (as defined in Section 2.13(d), except that for purposes of this Section 2.03(b)(ii)(A) the term “Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in such definition);
(B) as to each Requesting Person, any Disclosable Interests (as defined in Section 2.13(d), except that for purposes of this Section 2.03(b)(ii)(B), (I) the term “Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in such definition and (II) the disclosure with respect to Disclosable Interests shall be made with respect to the business proposed to be conducted at the Special Meeting of Stockholders or the proposed election of directors at the Special Meeting of Stockholders, as the case may be);
(C) as to the purpose or purposes of the Special Meeting of Stockholders, (I) a reasonably brief description of the purpose or purposes of the Special Meeting of Stockholders and the business proposed to be conducted at the Special Meeting of Stockholders, the reasons for conducting such business at the Special Meeting of Stockholders and any material interest in such business of each Requesting Person and (II) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Requesting Persons or (y) between or among any Requesting Person and any other person or entity (including their names) in connection with the request for the Special Meeting of Stockholders or the business proposed to be conducted at the Special Meeting of Stockholders; and
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(D) if directors are proposed to be elected at the Special Meeting of Stockholders, the Nominee Information (as defined in Section 2.14(d)) for each person who a Requesting Person expects to nominate for election as a director at the Special Meeting of Stockholders.
(iii) The Board of Directors may require that any Requesting Person furnish such additional information as the Board of Directors may reasonably require. Such Requesting Person shall provide such additional information within 10 days after it has been requested by the Board of Directors.
(iv) Within 10 days after receipt of a request to fix a Demand Record Date in proper form and otherwise in compliance with this Section 2.03(b) from any stockholder of record, the Board of Directors may adopt a resolution fixing a Demand Record Date for the purpose of determining the stockholders entitled to demand that the Secretary call a special meeting, which date shall not precede the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors. If no resolution fixing a Demand Record Date has been adopted by the Board of Directors within the 10-day period after the date on which such a request to fix a Demand Record Date was received, the Demand Record Date in respect thereof shall be deemed to be the 20th day after the date on which such a request is received. Notwithstanding anything in this Section 2.03(b) to the contrary, no Demand Record Date shall be fixed if the Board of Directors determines that the demand or demands that would otherwise be submitted following such Demand Record Date could not comply with the requirements set forth in clauses (B), (D), (E) or (F) of Section 2.03(b)(vi).
(v) A Special Meeting of Stockholders shall not be called pursuant to Section 2.03(a)(ii) unless stockholders of record as of the Demand Record Date who hold, in the aggregate, the Requisite Percentage timely provide one or more demands to call such special meeting in writing and in proper form to the Secretary at the principal executive offices of the Corporation. Only stockholders of record on the Demand Record Date shall be entitled to demand that the Secretary call a Special Meeting of Stockholders pursuant to Section 2.03(a)(ii). To be timely, a stockholder’s demand to call a Special Meeting of Stockholders must be delivered to or mailed and received at the principal executive offices of the Corporation not later than the 60th day following the Demand Record Date. To be in proper form for purposes of this Section 2.03(b), a demand to call a Special Meeting of Stockholders shall set forth (A) the business proposed to be conducted at the Special Meeting of Stockholders or the proposed election of directors at the Special Meeting of Stockholders, as the case may be, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration), if applicable, and (C) with respect to any stockholder or stockholders submitting a demand to call a Special Meeting of Stockholders (except for any stockholder that has provided such demand in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) by way of a solicitation statement filed on Schedule 14A (a “Solicited Stockholder”)) the information required to be provided pursuant to this Section 2.03(b) by a Requesting Person. A stockholder may revoke a demand to call a Special Meeting of Stockholders by written revocation delivered to the Secretary at any time prior to the Special Meeting of Stockholders. If any such revocation(s) are received by the Secretary after the Secretary’s receipt of written demands from the holders of the Requisite Percentage of stockholders, and as a result of such revocation(s), there no longer are unrevoked demands from the Requisite Percentage of stockholders to call a Special Meeting of Stockholders, the Board of Directors shall have the discretion to determine whether or not to proceed with the Special Meeting of Stockholders.
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(vi) The Secretary shall not accept, and shall consider ineffective, a written demand from a stockholder to call a Special Meeting of Stockholders (A) that does not comply with this Section 2.03(b), (B) that relates to an item of business to be transacted at such meeting that is not a proper subject for stockholder action under applicable law, (C) that includes an item of business to be transacted at such meeting that did not appear on the written request that resulted in the determination of the Demand Record Date, (D) that relates to an item of business (other than the election of directors) that is identical or substantially similar to an item of business (a “SimilarItem”) for which a record date for notice of a stockholder meeting (other than the Demand Record Date) was previously fixed and such demand is delivered between the time beginning on the 61st day after such previous record date and ending on the one-year anniversary of such previous record date, (E) if a Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or before the 90th day after the Secretary receives such demand or (F) if a Similar Item has been presented at the most recent Annual Meeting of Stockholders or at any Special Meeting of Stockholders held within one year prior to receipt by the Secretary of such demand to call a Special Meeting of Stockholders.
(vii) After receipt of demands, in proper form and in accordance with this Section 2.03(b), from a stockholder or stockholders holding the Requisite Percentage, the Board of Directors shall duly call, and determine the place, if any, date and time of, the Special Meeting of Stockholders for the purpose or purposes specified in the demands received by the Corporation and to conduct the business specified therein. Notwithstanding anything in these Bylaws to the contrary, the Board of Directors may submit its own proposal or proposals for consideration at such a Special Meeting of Stockholders. The record date for notice and voting for such a Special Meeting of Stockholders shall be fixed in accordance with Section 2.10. The Board of Directors shall provide written notice of such Special Meeting of Stockholders to the stockholders in accordance with Section 2.04.
(viii) In connection with a Special Meeting of Stockholders called in accordance with this Section 2.03(b), the stockholder or stockholders (except for any Solicited Stockholder) who requested that the Board of Directors fix a Demand Record Date in accordance with this Section 2.03(b), or who delivered a demand to call a Special Meeting of Stockholders to the Secretary, shall further update and supplement the information previously provided to the Corporation in connection with such request or demand, if necessary, so that the information provided or required to be provided in such request or demand pursuant to this Section 2.03(b) shall be true and correct as of the record date for stockholders entitled to vote at the Special Meeting of Stockholders and as of the date that is 10 business days prior to the Special Meeting of Stockholders or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than 5 business days after the record date for stockholders entitled to vote at the Special Meeting of Stockholders (in the case of the update and supplement required to be made as of such record date), and not later than 8 business days prior to the date for the Special Meeting of Stockholders or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the Special Meeting of Stockholders has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the Special Meeting of Stockholders or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this Section 2.03(b)(viii) or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any request or demand provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted a request or demand hereunder to amend or update any such request or demand, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
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(ix) Notwithstanding anything in these Bylaws to the contrary, the Secretary shall not be required to call a Special Meeting of Stockholders pursuant to this Section 2.03(b) except in accordance with this Section 2.03(b). If the Board of Directors shall determine that any request to fix a Demand Record Date or demand to call and hold a Special Meeting of Stockholders was not properly made in accordance with this Section 2.03(b), or shall determine that the stockholder or stockholders requesting that the Board of Directors fix such record date or submitting a demand to call the Special Meeting of Stockholders have not otherwise complied with this Section 2.03(b), then the Board of Directors shall not be required to fix such record date or to call and hold the Special Meeting of Stockholders. In addition to the requirements of this Section 2.03(b), each Requesting Person shall comply with all requirements of applicable law, including all requirements of the Exchange Act, with respect to any request to fix a Demand Record Date or demand to call a Special Meeting of Stockholders.
(x) For purposes of this Section 2.03(b), “Requesting Person” shall mean (A) the stockholder making the request to fix a Demand Record Date for the purpose of determining the stockholders entitled to demand that the Secretary call a special meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf such request is made and (C) any affiliate of such stockholder or beneficial owner.
SECTION 2.04. Notice. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, in the form of a writing or electronic transmission (in either case, in accordance with the DGCL), shall be given which shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at such meeting, if such date is different from the record date for determining stockholders entitled to notice of such meeting, and, in the case of a Special Meeting of Stockholders, the purpose or purposes for which the meeting is called. Unless otherwise required by applicable law, the Certificate of Incorporation or these Bylaws, notice of any meeting of stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining stockholders entitled to notice of such meeting. For purposes of these Bylaws, an “electronic transmission” shall have the meaning provided in Section 232 of the DGCL or any successor provision thereto.
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SECTION 2.05. Adjournments and Postponements. Any meeting of the stockholders may be adjourned or postponed from time to time to any other date and time and to any other place at which a meeting of stockholders may be held under these Bylaws by (a) if directed to be voted on by the chairman of such meeting, a majority in voting power of the stockholders present in person (including by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion by which stockholders may be deemed to be present in person and vote at such meeting) or represented by proxy at the meeting and entitled to vote thereon, even if less than a quorum, or (b) except for any Special Meeting of Stockholders called pursuant to Section 2.03(a)(ii), the Board of Directors or the chairman of such meeting. When a meeting is adjourned or postponed to another date, time or place (including due to a technical failure to convene or continue the meeting by remote communication), notice need not be given of the adjourned or postponed meeting if the date, time and place thereof (and, to the extent applicable, the means of remote communication for the meeting) are announced at the meeting at which the adjournment is taken, displayed during the time scheduled for the meeting on the electronic network used for any virtual meeting, set forth in the notice of the meeting or provided in any other manner permitted by the DGCL. Notwithstanding the foregoing, if the adjournment or postponement is for more than 30 days, notice of the adjourned or postponed meeting in accordance with the requirements of Section 2.04 shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment or postponement, a new record date for stockholders entitled to vote is fixed for the adjourned or postponed meeting, the Board of Directors shall fix a new record date for notice of such adjourned or postponed meeting in accordance with Section 2.10, and shall give notice of the adjourned or postponed meeting to each stockholder of record entitled to vote at such adjourned or postponed meeting as of the record date fixed for notice of such adjourned or postponed meeting. At the adjourned or postponed meeting, the Corporation may transact any business which could have been transacted at the original meeting.
SECTION 2.06. Quorum. Unless otherwise required by the DGCL, other applicable law, the Certificate of Incorporation or these Bylaws, the holders of a majority in voting power of the outstanding capital stock of the Corporation entitled to vote thereat, present in person (including by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion by which stockholders may be deemed to be present in person and vote at such meeting) or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, a quorum is not present or represented at any meeting of the stockholders, the Board of Directors, the chairman of such meeting or, if directed to be voted on by the chairman of the meeting, a majority in voting power of the stockholders present in person (including by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion by which stockholders may be deemed to be present in person and vote at such meeting) or represented by proxy at the meeting and entitled to vote thereon, even if less than a quorum, shall have the power to recess or adjourn the meeting from time to time, in the manner provided in Section 2.05, until a quorum shall be present or represented.
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SECTION 2.07. Voting. Unless otherwise required by applicable law, the Certificate of Incorporation, these Bylaws (including, with respect to the election of directors, Section 3.01) or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, any question brought before any duly called or convened meeting of the stockholders at which a quorum is present shall be decided by the vote of the holders of a majority in voting power of the votes cast (excluding abstentions and broker non-votes) on such matter. Unless otherwise provided in the Certificate of Incorporation, and subject to Section 2.10 and the rights of the holders of any outstanding series of Preferred Stock, each stockholder entitled to vote at a meeting of the stockholders shall be entitled to cast one vote for each share of the capital stock held by such stockholder which has voting power upon the matter in question. Such votes may be cast in person or by proxy as provided in Section 2.08. The Board of Directors, in its discretion, or the chairman of a meeting of the stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot. In the event the Corporation receives proxies that direct votes in favor of disqualified or withdrawn nominees for the Board of Directors, such votes for such disqualified or withdrawn nominees in such proxies will be treated as abstentions.
SECTION 2.08. Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy through an instrument in writing or by a transmission permitted by law, including Rule 14a-19 promulgated under the Exchange Act, filed in accordance with the procedure established for the meeting. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. Any copy or other reliable reproduction of the document (including any electronic transmission) authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original document for purposes of this Section 2.08. No proxy shall be voted or acted upon after three years from the date of such proxy, unless the proxy provides for a longer period. Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board of Directors.
SECTION 2.09. List of Stockholders Entitled to Vote. The Corporation shall prepare, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date. Such list shall be arranged in alphabetical order, and show the address of each stockholder and the number of shares registered in the name of each stockholder; provided, that the Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days ending on the day before the meeting date (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. Except as otherwise provided by law, the stock ledger shall be the only evidence as to the stockholders who are entitled to examine the list of stockholders required by this Section 2.09 or to vote in person or by proxy at any meeting of stockholders.
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SECTION 2.10. Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of the stockholders or any adjournment or postponement thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting, unless otherwise required by law. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of the stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment or postponement of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned or postponed meeting, and in such case shall also fix, as the record date for stockholders entitled to notice of such adjourned or postponed meeting, the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned or postponed meeting in accordance with the foregoing provisions of this Section 2.10.
SECTION 2.11. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Meetings of stockholders shall be presided over by the Chairman of the Board of Directors, or, in the absence or at the direction of the Chairman of the Board of Directors, the CEO. The Board of Directors shall have the authority to appoint a temporary chairman to serve at any meeting of the stockholders if neither the Chairman of the Board of Directors nor the CEO is able to do so for any reason. Except to the extent inconsistent with any rules and regulations adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting and to prescribe such rules, regulations and procedures (which need not be in writing) and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (f) limitations on the time allotted to questions or comments by stockholders. The chairman of any meeting of the stockholders shall have the right and authority to make any other determinations that may be appropriate to the conduct of the meeting (including, without limitation, determinations with respect to the administration and/or interpretation of any of the rules, regulations or procedures of the meeting, whether adopted by the Board of Directors or prescribed by the person presiding over the meeting). The Board of Directors or the chairman of any meeting of the stockholders may determine that any nomination or business was not properly brought before such meeting and, if the Board of Directors or the chairman of such meeting makes such determination, the chairman of the meeting shall declare at such meeting that the nomination or business was not properly brought before such meeting, and any such nomination or business not properly brought before such meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
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SECTION 2.12. Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, or the chairman of the meeting of the stockholders pursuant to Section 2.11, shall appoint one or more inspectors of election to act at such meeting or any adjournment or postponement thereof and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is present, ready and willing to act at a meeting of the stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. The inspectors of election may appoint such persons to assist them in performing their duties as they determine. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before discharging its duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by applicable law and, when the vote is completed, shall certify to the Corporation the number of shares represented at a meeting of stockholders, the count of all votes and shares and such other facts as may be required by applicable law. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
SECTION 2.13. Nature of Business at Meetings of Stockholders. (a) Only such business (other than nominations for election to the Board of Directors, which must comply with the provisions of Section 2.14) may be transacted at an Annual Meeting of Stockholders as is (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the Annual Meeting of Stockholders by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the Annual Meeting of Stockholders by any stockholder of the Corporation present in person (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.13 and on the record date for the determination of stockholders entitled to vote at such Annual Meeting of Stockholders, (B) who is entitled to vote at such Annual Meeting of Stockholders and (C) who complies with the notice procedures set forth in this Section 2.13. The immediately preceding sentence shall be the exclusive means for stockholders to bring business proposals other than nominations before an Annual Meeting of Stockholders (other than matters properly brought under Rule 14a-8 under the Exchange Act, and included in the Corporation’s notice of meeting). For purposes of this Section 2.13, “present in person” shall mean that the stockholder proposing that the business be brought before the Annual Meeting of Stockholders, or a qualified representative of such proposing stockholder, appears at such Annual Meeting of Stockholders, either in person or by means of remote communication. A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at or before the meeting of stockholders. Stockholders seeking to nominate persons for election to the Board of Directors must comply with Section 2.14 and this Section 2.13 shall not be applicable to nominations except as expressly provided in Section 2.14.
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(b) In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting of Stockholders by a stockholder, such stockholder must (i) provide Timely Notice (as defined below) thereof in proper written form to the Secretary and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.13.
(c) To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and received at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the one-year anniversary date of the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that the Annual Meeting of Stockholders is called for a date that is not within 30 days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the Annual Meeting of Stockholders was mailed or such public disclosure of the date of the Annual Meeting of Stockholders was made, whichever first occurs (such notice so received within such time periods, “Timely Notice”). In no event shall the adjournment or postponement of an Annual Meeting of Stockholders, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of Timely Notice as described above.
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(d) To be in proper written form for purposes of this Section 2.13, a stockholder’s notice to the Secretary shall set forth the following information: (i) as to each item of business that the stockholder proposes to bring before the meeting (other than nominations for election to the Board of Directors, which must comply with the provisions of Section 2.14), a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of each Proposing Person (as defined below); and (ii) as to each Proposing Person, (A) the name and address of such Proposing Person (including, if applicable, the name and address as they appear on the Corporation’s books), (B) (1) the class or series and number of shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially (within the meaning of Rule 13d-3 under the Exchange Act) or of record by such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future, (2) the date or dates such shares were acquired, (3) the investment intent of such acquisition, and (4) any pledge by such Proposing Person with respect to any of such shares (the disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as “Stockholder Information”), (C) a description of the material terms and conditions of any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) or a “put equivalent position” (as such term is defined in Rule 16a-1(h) under the Exchange Act) or other derivative or synthetic arrangement in respect of any class or series of shares of capital stock of the Corporation (“Synthetic Equity Position”) that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person, including, without limitation, (1) any option, warrant, convertible security, stock appreciation right, future or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of capital stock of the Corporation or with a value derived in whole or in part from the value of any shares of any class or series of shares of capital stock of the Corporation, (2) any derivative or synthetic arrangement having the characteristics of a long position or a short position in any class or series of shares of capital stock of the Corporation, including, without limitation, a stock loan transaction, a stock borrow transaction, or a share repurchase transaction or (3) any contract, derivative, swap or other transaction or series of transactions designed to (x) produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of capital stock of the Corporation, (y) mitigate any loss relating to, reduce the economic risk (of ownership or otherwise) of, or manage the risk of share price decrease in, any class or series of shares of capital stock of the Corporation, or (z) increase or decrease the voting power in respect of any class or series of shares of capital stock of the Corporation held or maintained by, held for the benefit of, or involving such Proposing Person, including, without limitation, due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of capital stock of the Corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of capital stock of the Corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the holder thereof may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the price or value of any shares of any class or series of shares of capital stock of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underly any Synthetic Equity Position that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer, (D) a description of any agreement, arrangement or understanding with respect to any rights to dividends on the shares of any class or series of shares of capital stock of the Corporation owned beneficially by such Proposing Person that are separated or separable pursuant to such agreement, arrangement or understanding from the underlying shares of capital stock of the Corporation, (E) any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (F) any other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand, (G) any direct or indirect material interest in any material contract or agreement of such Proposing Person with the Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (H) any proportionate interest in shares of capital stock of the Corporation or a Synthetic Equity Position held, directly or indirectly, by a general or limited partnership, limited liability company or similar entity in which any such Proposing Person (1) is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership or (2) is the manager, managing member or, directly or indirectly, beneficially owns an interest in the manager or managing member of such limited liability company or similar entity, (I) a reasonably detailed description of any agreement, arrangement or understanding (whether or not in writing) with respect to the proposal of business (1) between or among any of the Proposing Persons or (2) between or among any Proposing Person and any other person or entity (including the name of any such other person or entity), including any agreements, arrangements or understandings that would be required to be disclosed pursuant to Item 5 or Item 6 of Schedule 13D under the Exchange Act (regardless of whether a Schedule 13D is in fact required to be filed), (J) if such Proposing Person is a stockholder, a representation that the stockholder is a holder of record of shares of capital stock of the Corporation, entitled to vote at the meeting or by proxy at the meeting, and intends to be present in person at the meeting to propose such business and an acknowledgement that if such stockholder is not present in person to present such business at the meeting, the Corporation need not present such business for a vote at such meeting notwithstanding that proxies in respect of such vote may have been received by the Corporation, (K) a representation as to whether the Proposing Person intends or is part of a group which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal (the “Proxy Representation”) or (2) to otherwise solicit proxies or votes from stockholders in support of such proposal, and (L) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (the disclosures to be made pursuant to the foregoing clauses (C) through (L) are referred to as “DisclosableInterests”); provided, however, that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these Bylaws on behalf of a beneficial owner. The Board of Directors may require any Proposing Person to furnish such other information as the Board of Directors may reasonably require with respect to any item of business brought before such meeting. Such Proposing Person shall provide such additional information within 10 days after it has been requested by the Board of Directors.
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(e) A Proposing Person shall update and supplement its notice to the Corporation of its intent to propose business at an Annual Meeting of Stockholders, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.13 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than 5 business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than 8 business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(f) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an Annual Meeting of Stockholders that is not properly brought before the meeting in accordance with this Section 2.13. The Board of Directors or the chairman of any meeting of the stockholders may determine that the business was not properly brought before such meeting in accordance with this Section 2.13 and, if the Board of Directors or the chairman of such meeting makes such determination, the chairman of the meeting shall declare at such meeting that the nomination or business was not properly brought before such meeting, and any such nomination or business not properly brought before such meeting shall not be transacted or considered.
(g) For purposes of this Section 2.13, the term “Proposing Person” shall mean (i) the stockholder providing the notice of business proposed to be brought before an Annual Meeting of Stockholders, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the Annual Meeting of Stockholders is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(h) For purposes of these Bylaws, “public disclosure” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
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(i) This Section 2.13 is expressly intended to apply to any business proposed to be brought before an Annual Meeting of Stockholders other than any proposal made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s proxy statement. In addition to the requirements of this Section 2.13 with respect to any business proposed to be brought before an Annual Meeting of Stockholders, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing contained in this Section 2.13 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor provision).
SECTION 2.14. Nomination of Directors. (a) Notwithstanding anything to the contrary set forth herein, only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at any Annual Meeting of Stockholders, or at any Special Meeting of Stockholders called for the purpose of electing directors, (i) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation present in person (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.14 and on the record date for the determination of stockholders entitled to vote at such Annual Meeting of Stockholders or Special Meeting of Stockholders, (B) who is entitled to vote at the meeting and (C) who complies with the notice procedures set forth in this Section 2.14. For purposes of this Section 2.14, “present in person” shall mean that the stockholder nominating any person for election to the Board of Directors at the meeting of the Corporation, or a qualified representative of such proposing stockholder, appears at such meeting, either in person or by means of remote communication. A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at or before the meeting of stockholders. The foregoing clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board of Directors at an Annual Meeting of Stockholders or a Special Meeting of Stockholders.
(b) In addition to any other applicable requirements, for a nomination of a person for election to the Board of Directors to be made by a stockholder, such stockholder must (i) provide Timely Notice or Special Meeting Timely Notice (as defined below) thereof in proper written form to the Secretary, (ii) provide the information, agreements and questionnaires with respect to each Nominating Person (as defined below) and its candidate for nomination as required to be set forth by this Section 2.14 and (iii) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.14.
(c) To be timely, a stockholder’s notice to the Secretary for nominations to be made at a Special Meeting of Stockholders called for the purpose of electing directors must be delivered to or be mailed and received at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which notice of the date of the Special Meeting of Stockholders was mailed or public disclosure of the date of the Special Meeting of Stockholders was made, whichever first occurs (such notice within such time periods, “Special Meeting Timely Notice”). In no event shall the adjournment or postponement of an Annual Meeting of Stockholders or a Special Meeting of Stockholders called for the purpose of electing directors, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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(d) To be in proper written form for purposes of this Section 2.14, a stockholder’s notice to the Secretary shall set forth and include the following information or documents, as applicable: (i) as to each person who a Nominating Person proposes to nominate for election as a director, (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by the person, (D) a statement as to the person’s citizenship, (E) any other information relating to such person that is required to be disclosed in connection with solicitations of proxies for election of directors in an election contest pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (and such person’s written consent to being named in any proxy statement and other proxy materials for the applicable meeting as a nominee and to serving as a director for a full term if elected) and (F) a description of any direct or indirect material interest in any material contract or agreement between or among any Nominating Person, on the one hand, and each candidate for nomination or his or her respective associates (as defined in Rule 14a-1(a) promulgated under the Exchange Act) or any other participants (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) in such solicitation, on the other hand, including without limitation all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the candidate for nomination were a director or executive officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (A) through (F) are referred to as “Nominee Information”); (ii) as to each Nominating Person, (A) the Stockholder Information (as defined in Section 2.13(d), except that for purposes of this Section 2.14 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.13(d)) and (B) any Disclosable Interests (as defined in Section 2.13(d), except that for purposes of this Section 2.14 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.13(d) and the disclosure with respect to the business to be brought before the meeting in Section 2.13(d) shall be made with respect to the nomination proposed to be made at the meeting); and provided that, in lieu of including the Proxy Representation, the Nominating Person’s notice for purposes of this Section 2.14 shall include a representation as to whether the Nominating Person intends or is part of a group that intends to (1) deliver a proxy statement and solicit the holders of shares of the Corporation’s outstanding capital stock representing at least 67% of the voting power of shares of capital stock entitled to vote on the election of directors in support of director nominees other than the Corporation’s nominees in accordance with Rule 14a-19 promulgated under the Exchange Act, (2) include a statement as to that effect in its proxy statement or form of proxy, (3) otherwise comply with Rule 14a-19 promulgated under the Exchange Act, including meeting the requirements of Rule 14a-19(a)(3), and (4) provide the Secretary, not less than 5 business days prior to the meeting or any adjournment or postponement thereof, with reasonable documentary evidence (as determined by the Secretary in good faith) that such Nominating Person complied with the requirements of Rule 14a-19 promulgated under the Exchange Act; and (iii) (A) a completed and signed questionnaire, in the form provided by the Corporation, with respect to the background, qualifications, stock ownership and independence of such person (a “Director Questionnaire”) from each person whom the stockholder proposes to nominate for election as a director (which questionnaire shall be provided to the person the Nominating Person proposes to nominate within 5 business days of receipt of a request therefor) and (B) a signed Nominee Representation and Agreement (as defined below) (which shall be provided to the person the Nominating Person proposes to nominate within 5 business days of receipt of a request therefor). If a Nominating Person that intends to solicit proxies in support of director nominees other than the Corporation’s nominees no longer intends to solicit proxies in accordance with its representation pursuant to clause (iii)(B) of this Section 2.14(d), such stockholder or beneficial owner shall inform the Corporation of this change by delivering a writing to the Secretary no later than 2 business days after the occurrence of such change and such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.
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(e) The Board of Directors may require that any Nominating Person furnish such additional information as the Board of Directors may reasonably require. Such Nominating Person shall provide such additional information within 10 days after it has been requested by the Board of Directors.
(f) For purposes of this Section 2.14, the term “Nominating Person” shall mean (i) the stockholder providing the notice of the nomination proposed to be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(g) A stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice or the materials delivered pursuant to this Section 2.14, as applicable, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.14 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than 5 business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than 8 business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any nomination, including by changing or adding nominees, or to submit any new nomination, or submit any new proposal, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
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(h) In addition to the requirements of this Section 2.14 with respect to any nomination proposed to be made at a meeting, each Nominating Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations. Notwithstanding the foregoing provisions of this Section 2.14, unless otherwise required by law, (i) no Nominating Person shall solicit proxies in support of director nominees other than the Corporation’s nominees unless such Nominating Person has, or is part of a group that has, complied with Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including the provision to the Corporation of notices required thereunder, in accordance with the time frames required in this Section 2.14 or by Rule 14a-19 promulgated under the Exchange Act, as applicable, and (ii) if (A) any Nominating Person provides notice in accordance with Rule 14a-19(b) promulgated under the Exchange Act and (B) (1) such notice in accordance with Rule 14a-19(b) is not provided within the time period for Timely Notice or Special Meeting Timely Notice, as applicable, (2) such Nominating Person subsequently fails to comply with the requirements of Rule 14a-19 promulgated under the Exchange Act or (3) such Nominating Person fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such Nominating Person has met the requirements of Rule 14a-19 promulgated under the Exchange Act pursuant to the representations described in this Section 2.14, then the nomination of such Nominating Person’s proposed nominees shall be disregarded, notwithstanding that each such nominee is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any meeting of stockholders (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded).
(i) To be eligible to be a nominee for election or reelection as a director of the Corporation, any prospective nominee (whether nominated by or at the direction of the Board of Directors or by a stockholder), or someone acting on such prospective nominee’s behalf, must deliver (in accordance with any applicable time periods prescribed in this Section 2.14) to the Secretary at the principal executive offices of the Corporation a completed and signed Director Questionnaire and a signed, written representation and agreement (the “Nominee Representation and Agreement”), in the form provided by the Corporation, that such prospective nominee: (i) is not and, if elected as a director during his or her term of office, will not become a party to (A) any agreement, arrangement or understanding (whether written or oral) with, and has not given and will not give any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law; (ii) is not, and will not become, a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed in such written representation and agreement or otherwise to the Corporation and agrees to promptly disclose to the Board of Directors any such agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that such person becomes a party to at any time after the delivery of such written representation and agreement; (iii) in such person’s individual capacity, would be in compliance with, if elected as a director of the Corporation, and will comply with, applicable law, all applicable rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading and publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation and will comply with all other policies and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary shall provide to such candidate for nomination all such policies and guidelines then in effect); and (iv) if elected as a director of the Corporation, intends to serve the entire term until the next meeting at which such candidate would face re-election. In addition to the material required pursuant to this Section 2.14 or any other provision of these Bylaws, the Board of Directors may require any proposed nominee to furnish such other information as may reasonably be required by the Board of Directors, in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon, to determine the eligibility of such proposed nominee to serve as director of the Corporation, including but not limited to information (A) that may reasonably be required by the Board of Directors to determine whether the proposed nominee would be independent under applicable law, the rules and regulations of the U.S. Securities and Exchange Commission, the rules and regulations of any securities exchange on which the securities of the Corporation are listed or quoted for trading, any corporate governance guidelines of the Corporation and any other publicly disclosed standards used by the Board of Directors in determining and disclosing independence of the Corporation’s directors, (B) that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee or (C) that may be reasonably required by the Board of Directors to determine the eligibility of such nominee to serve as a director of the Corporation. Such additional information shall be delivered within 10 days after it has been requested by the Board of Directors.
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(j) The number of nominees a stockholder may nominate for election at any meeting of stockholders (or in the case of a stockholder giving notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such meeting. If the Corporation shall, subsequent to such notice, increase the number of directors subject to election at the meeting, such notice as to any additional nominees shall be due on the later of (i) the conclusion of the time period for Timely Notice or Special Meeting Timely Notice, as applicable, or (ii) the tenth day following the date of public disclosure (as defined in Section 2.13(h)) of such increase. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.14.
(k) A candidate for nomination as a director shall further update and supplement the materials delivered pursuant to this Section 2.14, if necessary, so that the information provided or required to be provided pursuant to this Section 2.14 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than 5 business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than 8 business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any nomination or to submit any new proposal, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
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(l) No candidate nominated by a Nominating Person pursuant to this Section 2.14 shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place such candidate’s name in nomination has complied with this Section 2.14, as applicable. The chairman of the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 2.14, and if he or she should so determine, he or she shall so declare such determination to the meeting, the defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect.
(m) Notwithstanding anything in these Bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Corporation unless nominated in accordance with this Section 2.14 and elected as a director.
SECTION 2.15. Delivery to the Corporation. Whenever this Article II requires one or more persons (including a record or beneficial owner of stock) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested, and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered. For the avoidance of doubt, the Corporation expressly opts out of Section 116 of the DGCL with respect to the delivery of information and documents to the Corporation required by this Article II.
ARTICLE III
Directors
SECTION 3.01. Number, Election and Qualification of Directors. The number of directors constituting the Board of Directors shall be determined in the manner set forth in the Certificate of Incorporation. Directors shall hold office in the manner set forth in the Certificate of Incorporation. The directors shall be elected by the stockholders generally entitled to vote at each Annual Meeting of Stockholders and shall hold office until the next Annual Meeting of Stockholders and until each of their successors shall have been duly elected and qualified, subject to their earlier death, resignation, disqualification or removal. The vote required for the election of directors by stockholders shall be a plurality of the votes cast with respect to a director nominee. Abstentions and broker non-votes shall not count as votes either “for” or “against” a director nominee (but shall, for the avoidance of doubt, be considered for purposes of establishing a quorum). Directors need not be stockholders. Each director shall be a natural person.
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SECTION 3.02. Vacancies and Newly Created Directorships. Except as otherwise provided in the Certificate of Incorporation, any newly created directorships resulting from an increase in the authorized number of directors or any vacancies on the Board of Directors resulting from the death, resignation, disqualification or removal of a director shall be filled solely and exclusively by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director. Any director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal.
SECTION 3.03. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation except as may be otherwise provided in the DGCL or the Certificate of Incorporation.
SECTION 3.04. Meetings. The Board of Directors and any committee thereof may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors or such committee, respectively. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the Lead Independent Director (as defined in the Certificate of Incorporation), the CEO or a majority of the directors then in office. Special meetings of any committee of the Board of Directors may be called by the chairman of such committee, the Chairman of the Board of Directors, the CEO or a majority of the directors serving on such committee. Notice of any special meeting of the Board of Directors or any committee thereof stating the place, date and time of such meeting shall be given to each director (or, in the case of a committee, to each member of such committee) by the Secretary, the CEO or one of the directors calling the meeting not less than 24 hours before such meeting or, if by U.S. mail, at least 4 days before such meeting. The notice need not specify the purpose of the meeting.
SECTION 3.05. Organization. At each meeting of the Board of Directors or any committee thereof, the Chairman of the Board of Directors, or the chairman of such committee, as the case may be, or, in his or her absence or if there shall be none the Lead Independent Director, shall act as chairman of such meeting. In the absence of the Chairman of the Board of Directors or the chairman of such committee and the Lead Independent Director, a majority of the directors present at the meeting, assuming a quorum, will designate a director to act as chairman of the meeting. Except as provided below, the Secretary shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or any committee thereof, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary may, but need not if such committee so elects, serve in such capacity.
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SECTION 3.06. Removals and Resignations of Directors. The directors of the Corporation may be removed in accordance with the Certificate of Incorporation and the DGCL. Any director of the Corporation may resign from the Board of Directors or any committee thereof at any time, by giving notice in writing or by electronic transmission to the Corporation, which shall be deemed to have been given to the Corporation if given to the Chairman of the Board of Directors, the CEO or the Secretary or, in the case of a committee, to the chairman of such committee, if there shall be one. Such resignation shall take effect when delivered or, if such resignation specifies a later effective time or an effective time determined upon the happening of an event or events, upon such effective time. Unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable.
SECTION 3.07. Quorum. Except as otherwise required by applicable law, or the Certificate of Incorporation or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, at all meetings of the Board of Directors or any committee thereof, (a) a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business; provided that, until the Final Sunset Date (or, in the case of the Audit Committee (as defined below), until the Majority Sunset Date), at least one Hulu Designee must be present at a meeting of the Board of Directors or any committee thereof, as the case may be, in order to constitute a quorum for the transaction of business and (b) the vote of a majority of the directors or committee members, as the case may be, present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without further notice other than announcement at the meeting of the date, time and place of the adjourned meeting, until a quorum shall be present. For purposes of this Section 3.07, “Final Sunset Date”, “Majority Sunset Date” and “Hulu Designee” shall have the meanings ascribed to such terms in the Certificate of Incorporation.
SECTION 3.08. Actions of the Board of Directors by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting, if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors or such committee thereof, as the case may be. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
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SECTION 3.09. Meetings by Means of Communications Equipment. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors, or of such committee, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.09 shall constitute presence in person at such meeting.
SECTION 3.10. Committees. (a) The Board of Directors may designate one or more committees, which (i) shall include an audit committee (the “Audit Committee”), a governance and nominating committee, a compensation committee and such other committees as may be required by applicable law or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading and (ii) may include such other committees as may be determined by the Board of Directors from time to time. Each committee shall consist of one or more of the directors of the Corporation and include at least one Independent Designee (as defined in the Certificate of Incorporation); provided that the Audit Committee shall consist entirely of Independent Designees. Each member of a committee must meet the requirements for membership, if any, imposed by the Board of Directors, applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading.
(b) Any director serving on a committee may be removed from such committee at any time by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of such absent or disqualified member. Any such committee, to the extent permitted by applicable law and provided in the resolution establishing such committee or in these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that, except as otherwise provided in the Certificate of Incorporation, no such committee shall have the power or authority to (i) approve, adopt or recommend to the stockholders any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopt, amend, or repeal any of these Bylaws. Each committee shall keep regular minutes and report to the Board of Directors when required. Subject to the authorization of the Board of Directors, any committee may make rules for the conduct of its business, but unless otherwise provided by the committee or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors.
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SECTION 3.11. Subcommittees. Except as otherwise provided in the Certificate of Incorporation, these Bylaws or the resolution of the Board of Directors designating a committee of the Board of Directors, such committee may create one or more subcommittees, each subcommittee to consist of one or more members of such committee, and delegate to a subcommittee any or all of the powers and authority of such committee. Except for references to committees and members of committees in Section 3.10, each reference in these Bylaws to a committee of the Board of Directors or a member of a committee shall be deemed to include a reference to a subcommittee or a member of a subcommittee.
SECTION 3.12. Compensation. The Board of Directors shall have the authority to fix the compensation, including fees, reimbursement of expenses and equity compensation, of directors for services to the Corporation in any capacity, including for attendance at meetings of the Board of Directors or participation on any committees thereof. No such payment shall preclude any director from serving the Corporation or any other person in any other capacity and receiving compensation for such service.
ARTICLE IV
Officers
SECTION 4.01. General. The officers of the Corporation shall be chosen by the Board of Directors and shall include a Chief Executive Officer (“CEO”) and a Secretary. The Board of Directors, in its discretion, also may choose one Chairman of the Board of Directors, a Chief Financial Officer, a Treasurer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers with such titles and such duties as the Board of Directors may from time to time determine. Any number of offices may be held by the same person, unless otherwise prohibited by applicable law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation.
SECTION 4.02. Election. The Board of Directors shall elect the officers of the Corporation, except as such officers may be appointed in accordance with Section 4.09, and such officers shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. Unless a different term is specified in the resolution electing or appointing such officer, each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors or, except in the case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors. Any officer of the Corporation may resign from such position at any time by giving notice in writing or by electronic transmission to the Corporation. Such resignation shall take effect when delivered or, if such resignation specifies a later effective time or an effective time determined upon the happening of an event or events, upon such effective time. Unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors or as provided in Section 4.09.
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SECTION 4.03. Voting Securities Owned by the Corporation. The Chairman of the Board of Directors, the CEO or any Vice President of the Corporation, or any other person authorized by the Board of Directors, the CEO or any Vice President, is authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares or voting securities of any other corporation or other person standing in the name of the Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
SECTION 4.04. Chairman of the Board of Directors. The Chairman of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors, in accordance with Section 2.11 and Section 3.04, respectively. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as may from time to time be assigned to the Chairman of the Board of Directors by these Bylaws or by the Board of Directors.
SECTION 4.05. Chief Executive Officer. The CEO shall, subject to the direction and control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The CEO shall perform all duties and have all powers that are delegated to the CEO by the Board of Directors or these Bylaws. In the absence or inability or refusal to act of the Chairman of the Board of Directors, the CEO shall preside at all meetings of the stockholders and, if the CEO is also a director, the Board of Directors in accordance with Section 2.11 and Section 3.04, respectively.
SECTION 4.06. Vice Presidents. Each Vice President shall perform such duties and may exercise such powers as may from time to time be assigned by these Bylaws, by the Board of Directors or by the CEO, or, to the extent not so assigned, as generally pertain to their respective offices, subject to the control of the Board of Directors. The CEO may assign to any Vice President the title of Executive Vice President, Senior Vice President or any similar title.
SECTION 4.07. Secretary and Assistant Secretaries. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board of Directors or the CEO, under whose supervision the Secretary shall be, or, to the extent not so assigned, as generally pertain the office of Secretary, subject to the control of the Board of Directors. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there shall be no Assistant Secretary, then either the Board of Directors or the CEO may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there shall be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by applicable law to be kept or filed are properly kept or filed, as the case may be. Assistant Secretaries, if there shall be any, shall perform such duties and may exercise such powers as from time to time may be assigned to them by the Board of Directors, the CEO or the Secretary, and in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, shall have and may exercise all of the power and authority and discharge all of the duties of the Secretary, and when so acting, shall be subject to all the restrictions upon the Secretary.
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SECTION 4.08. Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the CEO, or, to the extent not so assigned, as generally pertain to the office of Treasurer, subject to the control of the Board of Directors. In addition, the Treasurer shall retain custody of the Corporation’s funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the CEO taking proper vouchers for such disbursements, and shall render to the CEO and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation. Assistant Treasurers, if there shall be any, shall perform such duties and may exercise such powers as from time to time may be assigned to them by the Board of Directors, the CEO, any Vice President, if there shall be one, or the Treasurer, and in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, shall have and may exercise all of the power and authority and discharge all of the duties of the Treasurer, and when so acting, shall be subject to all the restrictions upon the Treasurer.
SECTION 4.09. Other Officers. Such other officers as the Board of Directors may choose shall have such titles as the Board of Directors may from time to time determine and shall perform such duties and may exercise such powers as from time to time may be assigned to them by the Board of Directors, or, to the extent not so assigned, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may delegate to any officer of the Corporation the power to choose such other officers as the business of the Corporation may require and to assign their respective duties and powers.
SECTION 4.10. Compensation. The compensation of the officers of the Corporation for their services as such shall be fixed from time to time by or at the direction of the Board of Directors.
ARTICLE V
Stock
SECTION 5.01. Uncertificated Shares; Form of Certificates. Unless otherwise provided by resolution of the Board of Directors, the shares of capital stock of the Corporation shall be issued in uncertificated form. If shares are represented by certificates, the certificates shall be in such form as is consistent with applicable law and the Certificate of Incorporation and as determined by the Board of Directors. Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two officers authorized to sign stock certificates representing the number of shares registered in certificate form. The Chairman of the Board of Directors, CEO, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Corporation shall be specifically authorized to sign stock certificates. Any or all signatures on any such certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar of the Corporation, whether because of death, resignation or otherwise, before such certificate is issued by the Corporation, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. All certificates for shares shall be consecutively numbered or otherwise identified.
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SECTION 5.02. Partly Paid Shares. The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the books and records of the Corporation or upon the face or back of each stock certificate issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
SECTION 5.03. Special Designation of Certificates. If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in a notice provided pursuant to Section 151 of the DGCL (or, in the case of certificated shares, shall be set forth in full or summarized on the face or on the back of the certificate that the Corporation shall issue to represent such class or series of stock); provided, however, that except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be included in the aforementioned notice (or, in the case of any certificated shares, set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock) a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 5.04. Lost Certificates. Except as provided in this Section 5.04, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed upon delivery of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Corporation may require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate or uncertificated shares.
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SECTION 5.05. Transfers. Shares of capital stock of the Corporation shall be transferable in the manner prescribed by applicable law, subject to any valid restrictions on transfer or registration of transfer, or on the amount of stock that may be owned by any person or group of persons, imposed by the Certificate of Incorporation, these Bylaws or an agreement among any number of security holders of the Corporation or among such holders and the Corporation or a subsidiary thereof. Each certificate for shares of capital stock that are subject to any such restriction on transfer shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. When shares are represented by certificates, shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate person or persons (or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. When shares are in uncertificated form, shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, with such evidence of the authenticity of such transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps.
SECTION 5.06. Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION 5.07. Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends or other distributions, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by applicable law.
SECTION 5.08. Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.
SECTION 5.09. Records. A stock ledger consisting of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder and all issuances and transfers of stock of the Corporation are recorded in accordance with Section 224 of the DGCL shall be administered by or on behalf of the Corporation. Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (a) can be used to prepare the list of stockholders specified in Sections 219 and 220 of the DGCL, (b) record the information specified in Sections 156, 159, 217(a) and 218 of the DGCL and (c) record transfers of stock as governed by Article 8 of the Uniform Commercial Code as adopted in the State of Delaware.
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ARTICLE VI
Notices
SECTION 6.01. Notices. Whenever written notice is required by the DGCL, the Certificate of Incorporation or these Bylaws to be given to any director, member of a committee or stockholder, such notice may be given in writing directed to such director’s, committee member’s or stockholder’s mailing address (or by electronic transmission directed to such director’s, committee member’s or stockholder’s electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given: (a) if mailed, when the notice is deposited in the United States mail, postage prepaid; (b) if delivered by courier service, the earlier of when the notice is received or left at such director’s, committee member’s or stockholder’s address; or (c) if given by electronic mail, when directed to such director’s, committee member’s or stockholder’s electronic mail address unless electronic transmission of such notice is prohibited under the DGCL, the Certificate of Incorporation or these Bylaws. A notice to a stockholder by electronic mail must include a prominent legend that the communication is an important notice regarding the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, but subject to Section 232(e) of the DGCL, any notice to stockholders given by the Corporation under the DGCL, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation. Notice given by electronic transmission, as described above, shall be deemed given: (a) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (i) such posting and (ii) the giving of such separate notice; and (b) if by any other form of electronic transmission, when directed to the stockholder. Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (a) the Corporation is unable to deliver by such electronic transmission two consecutive notices given by the Corporation and (b) such inability becomes known to the Secretary or an Assistant Secretary or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
SECTION 6.02. Waivers of Notice. Whenever any notice is required by the DGCL, the Certificate of Incorporation or these Bylaws to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before, at or after the time stated therein, shall be deemed equivalent to notice to such person or persons. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business nor the purpose of any meeting need to be specified in any such waiver.
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ARTICLE VII
General Provisions
SECTION 7.01. Dividends. Subject to the requirements of the DGCL, the provisions of the Certificate of Incorporation and any certificate of designation relating to any series of Preferred Stock, dividends upon the capital stock of the Corporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 3.08), and may be paid in cash, in property, or in shares of the Corporation’s capital stock. The Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
SECTION 7.02. Contracts; Disbursements. The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers of the Corporation or such other person or persons as the Board of Directors may from time to time designate.
SECTION 7.03. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.
SECTION 7.04. Corporate Seal. The Corporation may adopt a corporate seal in such a form as shall be approved by the Board of Directors. The Corporation may use the corporate seal by causing it or an electronic image thereof to be impressed or affixed or in any other manner reproduced.
SECTION 7.05. Entire Board of Directors. As used in these Bylaws generally, the term “entire Board of Directors” means the total number of directors that the Corporation would have if there were no vacancies or unfilled directorships.
SECTION 7.06. Electronic Signatures. Subject to applicable law, any form of electronic signature of any officer or officers of the Corporation may be used.
SECTION 7.07. Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
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SECTION 7.08. Construction and Definitions; Inconsistent Provisions. Unless the context requires otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these Bylaws. Without limiting the generality of this provision, the singular number includes the plural and the plural number includes the singular. In the event that any provision (or part thereof) of these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL or any other applicable law, the provision (or part thereof) of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
SECTION 7.09. Severability. If any provision of these Bylaws shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these Bylaws (including each portion of any paragraph of these Bylaws containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of these Bylaws (including each portion of any paragraph of these Bylaws containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by applicable law.
ARTICLE VIII
Indemnification
SECTION 8.01. Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL and any other applicable law, in each case, as it presently exists or may hereafter be amended, any director or officer of the Corporation (a “covered person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the Corporation’s request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 8.04, the Corporation shall be required to indemnify a covered person in connection with a Proceeding (or part thereof) initiated by such covered person only if the Proceeding (or part thereof) was authorized in the specific case by the Board of Directors.
SECTION 8.02. Indemnification of Others. The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by the DGCL and any other applicable law, in each case, as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
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SECTION 8.03. Prepayment of Expenses. The Corporation shall to the fullest extent not prohibited by the DGCL or any other applicable law, in each case, as it presently exists or may hereafter be amended, pay the expenses (including attorneys’ fees) incurred by any covered person, and may pay the expenses incurred by any employee or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however, that such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article VIII or otherwise.
SECTION 8.04. Determination; Claim. If a claim for indemnification (following the final disposition of such Proceeding) under this Article VIII is not paid in full within 60 days, or a claim for advancement of expenses under this Article VIII is not paid in full within 30 days, after a written claim therefor has been received by the Corporation, the claimant may thereafter (but not before) file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by applicable law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
SECTION 8.05. Non-Exclusivity of Rights. The rights conferred on any person by this Article VIII shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, the Certificate of Incorporation, these Bylaws, any agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 8.06. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the Corporation’s request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL or any other applicable law.
SECTION 8.07. Other Indemnification. The Corporation’s obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust or other enterprise or non-profit entity.
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SECTION 8.08. Continuation of Indemnification. The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article VIII shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
SECTION 8.09. Amendment or Repeal; Interpretation. The provisions of this Article VIII shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has served as a director or officer of the Corporation (whether before or after the adoption of these Bylaws), in consideration of such person’s performance of such services, and, pursuant to this Article VIII, the Corporation intends to be legally bound to each such current or former director or officer of the Corporation. With respect to current and former directors and officers of the Corporation, the rights conferred under this Article VIII are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of these Bylaws. With respect to any directors or officers of the Corporation who commence service following adoption of these Bylaws, the rights conferred under this provision shall be present contractual rights and such rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation. Any repeal or modification of the foregoing provisions of this Article VIII shall not adversely affect any right or protection (a) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (b) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.
Any reference to an officer of the Corporation in this Article VIII shall be deemed to refer exclusively to the CEO and Secretary, or other officer of the Corporation appointed by (x) the Board of Directors, prior to the adoption of these Bylaws or, thereafter, pursuant to Article IV or (y) an officer to whom the Board of Directors has delegated the power to appoint officers prior to the adoption of these Bylaws or pursuant to Article IV, and any reference to an officer of any other corporation or of a partnership, joint venture, trust, employee benefit plan or other enterprise or non-profit entity shall be deemed to refer exclusively to an officer appointed by the board of directors (or equivalent governing body) of such other entity pursuant to the certificate of incorporation and bylaws (or equivalent organizational documents) of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or non-profit entity. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation or of a partnership, joint venture, trust, employee benefit plan or other enterprise or non-profit entity has been given or has used the title of “Vice President” or any other title that could be construed to suggest or imply that such person is or may be an officer of the Corporation or of such other corporation, partnership, joint venture, trust or other enterprise shall not result in such person being constituted as, or being deemed to be, an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or non-profit entity for purposes of this Article VIII.
ARTICLE IX
Amendments
SECTION 9.01. Amendments. Except as otherwise set forth in the Certificate of Incorporation, (a) the Board of Directors is expressly empowered to adopt, amend, alter, change or repeal these Bylaws and (b) the stockholders shall also have power to adopt, amend, alter, change or repeal these Bylaws upon the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation then generally entitled to vote thereon, voting together as a single class.
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Exhibit4.1
FIRSTSUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of October 29, 2025, is made by and between fuboTV Inc., a Delaware corporation, as issuer (the “Company”), and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), solely in its capacity as Trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company (formerly known as fuboTV Inc., a Florida corporation (the “Prior Company”)) and the Trustee are parties to that certain Indenture, dated as of February 2, 2021, by and between the Company and the Trustee (as may be further amended, restated, supplemented and otherwise modified from time to time, the “Indenture”);
WHEREAS, pursuant to the Indenture, the Company has issued $402,500,000 in initial aggregate principal amount of 3.25% Convertible Senior Notes due 2026 (the “Notes”);
WHEREAS, the Company is a party to that certain Business Combination Agreement (the “Business Combination Agreement”), dated as of January 6, 2025, among the Company, The Walt Disney Company, a Delaware corporation (“Parent”) and Hulu, LLC, a Delaware limited liability company (“Hulu”), pursuant to which, among other things and subject to the terms and conditions set forth in the Business Combination Agreement, (i) immediately prior to the effective time of the Merger Event (as defined below) (the “Effective Time”), the Company will effect a conversion from a Florida corporation to a Delaware corporation (the “Fubo Conversion”), on the terms and subject to the conditions set forth in the Business Combination Agreement and the Plan of Conversion (as defined in the Business Combination Agreement), in accordance with the Florida Business Corporation Act and the Delaware General Corporation Law; (ii) at the time of the Fubo Conversion, all of the issued and outstanding shares of the Company’s existing common stock will be automatically converted into issued and outstanding shares of Class A Common Stock (the “ClassA Common Stock”) (the “Reclassification”); and (iii) at the Effective Time, the Company will issue to Hulu a number of shares of a newly created vote-only class of Fubo’s common stock (the “Class B Common Stock”) representing, in the aggregate, 70% of the voting power of the outstanding shares of capital stock of the Company (calculated on a fully-diluted basis) after giving effect to such issuance, and also receive a cash payment from Hulu in an amount equal to the aggregate par value of such shares of Class B Common Stock (the “Share Issuance,” and together with the Fubo Conversion, the Reclassification and the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, the Transactions have been consummated on the date hereof in accordance with the Business Combination Agreement, substantially concurrently with the execution and delivery of this First Supplemental Indenture;
WHEREAS, as of the time immediately prior to the consummation of the Transactions, there had been no adjustments to the Conversion Rate set forth in Section 14.01(a) of the Indenture;
WHEREAS, pursuant to Section 14.07(a) of the Indenture, the Reclassification constitutes a “Merger Event” (as such term is defined in the Indenture and used herein, the “Merger Event”) with respect to the Notes, and the Indenture provides that the Company shall execute with the Trustee a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert the principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of Reference Property that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive upon such Merger Event;
| 1 |
| --- |
WHEREAS, pursuant to the terms of the Business Combination Agreement and Section 14.07(a) of the Indenture, each unit of Reference Property consists of one share of Class A Common Stock;
WHEREAS, pursuant to Section 10.01(i) of the Indenture, the Company and the Trustee have agreed to enter into this First Supplemental Indenture for the purposes stated herein;
WHEREAS, for the avoidance of doubt, the express intention of the parties hereto is that the effect of this First Supplemental Indenture on the Indenture is to amend and supplement the Indenture but not to rescind the Indenture; and
WHEREAS, all things necessary have been done to make this First Supplemental Indenture, when executed and delivered by the Company, the legal, valid and binding agreement of the Company in accordance with its terms.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree as follows:
ARTICLE I.
SUPPLEMENT; DEFINITIONS
Section1.01 Definitions.
| (a) | For<br> all purposes of this First Supplemental Indenture, except as otherwise expressly provided<br> for or unless the context otherwise requires, capitalized terms used but not defined herein<br> shall have the meanings given to them in the Indenture. |
|---|---|
| (b) | “Unit of Reference Property” means one (1) fully paid and nonassessable share of Class<br> A Common Stock, $0.0001 par value per share, of fuboTV Inc., a Delaware corporation. |
| --- | --- |
Section1.02 Amendment to Indenture.
| (a) | From<br> and after the date hereof, for all purposes of the Indenture: |
|---|
(i) The Reclassification constitutes a Merger Event;
(ii) Subsequent conversions of the Notes shall be made in the manner set forth in Section 14.02 of the Indenture;
(iii) Subsequent adjustments to the Conversion Rate shall be made in a manner consistent with the Indenture;
(iv) The “Company” means fuboTV Inc., a Delaware corporation, which shall be the Successor Company in accordance with Section 11.01 of the Indenture;
(v) The Successor Company expressly assumes all of the obligations of the Prior Company under the Note Documents;
(vi) Each “unit of Reference Property” means one (1) fully paid and nonassessable share of Class A Common Stock, $0.0001 par value per share, of the Company; and
(vii) The Reference Property with respect to the Merger Event shall be a number of units of Reference Property equal to the Conversion Rate.
| 2 |
| --- |
ARTICLE II.
EFFECTIVENESS
Section2.01 Upon (i) the execution and delivery of this First Supplemental Indenture by the Company and the Trustee, (ii) the payment by the Company of any and all accrued and unpaid fees, costs and expenses (including, without limitation, the reasonable fees and expenses of counsel) of the Trustee or any Holder of the Notes to the extent invoiced to the Company, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of, and shall be construed in connection with and as part of, the Indenture for any and all purposes, and every Holder holding Notes that have been heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
ARTICLE III.
ADDITIONAL MISCELLANEOUS PROVISIONS
Section3.01 Ratification of Indenture. Except as expressly amended, amended and restated, and/or supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. Reference to this First Supplemental Indenture need not be made in the Indenture or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to, or with respect to, the Indenture, any reference in any of such items to the Indenture being sufficient to refer to the Indenture as amended hereby.
Section3.02 Indenture Remains in Full Force and Effect. This First Supplemental Indenture is subject to all the terms and conditions set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Company and the Trustee with respect hereto.
Section3.03 GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS FIRST SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section3.04 Counterparts; Electronic Signatures. The First Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties agree that the electronic signature of a party to this First Supplemental Indenture shall be as valid as an original signature of such party and shall be effective to bind such party to this First Supplemental Indenture. The parties agree that any electronically signed document (including this First Supplemental Indenture) shall be deemed (a) to be “written” or “in writing,” (b) to have been signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts,” if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. For purposes hereof, “electronic signature” means a manually signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “pdf” (portable document format) or other replicating image attached to an e-mail message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
Section3.05 Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
Section3.06 The Trustee. The Trustee shall not be responsible or liable in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company. The Company hereby authorizes and directs the Trustee to execute and deliver this First Supplemental Indenture. The Company acknowledges and agrees that the Trustee (i) shall be entitled to all of the rights, privileges, benefits, protections, indemnities, limitations of liability, and immunities of the Trustee set forth in the Indenture, which are hereby deemed incorporated by reference; and (ii) has acted consistently with (and is not in breach or violation of) its standard of care under the Indenture. The Company agrees that the execution by the Trustee of this First Supplemental Indenture is consistent with, and permitted by, the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| FUBOTV INC., as the Company | |
|---|---|
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief Financial Officer |
[SignaturePage to 2026 Indenture First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| U.S.<br>BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Agent | |
|---|---|
| By: | /s/<br> David Jason |
| Name: | David Jason |
| Title: | Vice President |
[SignaturePage to 2026 Indenture First Supplemental Indenture]
Exhibit4.2
FIRSTSUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of October 29, 2025, is made by and among fuboTV Inc., a Delaware corporation, as issuer (the “Company”), Edisn LLC (f/k/a Edisn Inc.), a Delaware limited liability company, FuboTV Media LLC (f/k/a fuboTV Media Inc.), a Delaware limited liability company and Fubo Studios LLC (f/k/a Fubo Studios Inc.), a Delaware limited liability company, as guarantors (the “Guarantors”), Fubo Services LLC, a Delaware limited liability company (“Fubo OpCo”), Fubo Operations LLC, a Delaware limited liability company (“Fubo NewCo”) and Hulu Live LLC, a Delaware limited liability company, as additional guarantors (“HL” and, together with Fubo OpCo and Fubo NewCo, the “Additional Guarantors”), and U.S. Bank Trust Company, National Association, solely in its capacity as Trustee and Collateral Agent (respectively, the “Trustee” and the “Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Company (formerly known as fuboTV Inc., a Florida corporation (the “Prior Company”)), the Guarantors, the Trustee and Collateral Agent are parties to that certain Indenture, dated as of January 2, 2024, by and between the Company, the Guarantors the Trustee and the Collateral Agent (as may be further amended, restated, supplemented and otherwise modified from time to time, the “Indenture”);
WHEREAS, pursuant to the Indenture, the Company has issued $177,506,000 in initial aggregate principal amount of Convertible Senior Secured Notes due 2029 (the “Notes”);
WHEREAS, on the date hereof, each Guarantor has converted from a Delaware corporation to a Delaware limited liability company;
WHEREAS, the Additional Guarantors are subsidiaries of the Company;
WHEREAS, Section 13.07 of the Indenture permits the Additional Guarantors to execute and deliver to the Trustee and Collateral Agent a supplemental indenture pursuant to which the Additional Guarantors shall expressly assume all the obligations of a Guarantor under the Notes and the Indenture;
WHEREAS, the Company is a party to that certain Business Combination Agreement (the “Business Combination Agreement”), dated as of January 6, 2025, among the Company, The Walt Disney Company, a Delaware corporation (“Parent”) and Hulu, LLC, a Delaware limited liability company (“Hulu”), pursuant to which, among other things and subject to the terms and conditions set forth in the Business Combination Agreement, (i) immediately prior to the effective time of the Merger Event (as defined below) (the “Effective Time”), the Company will effect a conversion from a Florida corporation to a Delaware corporation (the “Fubo Conversion”), on the terms and subject to the conditions set forth in the Business Combination Agreement and the Plan of Conversion (as defined in the Business Combination Agreement), in accordance with the Florida Business Corporation Act and the Delaware General Corporation Law; (ii) at the time of the Fubo Conversion, all of the issued and outstanding shares of the Company’s existing common stock will be automatically converted into issued and outstanding shares of Class A Common Stock (the “ClassA Common Stock”) (the “Reclassification”); and (iii) at the Effective Time, the Company will issue to Hulu a number of shares of a newly created vote-only class of Fubo’s common stock (the “Class B Common Stock”) representing, in the aggregate, 70% of the voting power of the outstanding shares of capital stock of the Company (calculated on a fully-diluted basis) after giving effect to such issuance, and also receive a cash payment from Hulu in an amount equal to the aggregate par value of such shares of Class B Common Stock (the “Share Issuance,” and together with the Fubo Conversion, the Reclassification and the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
| 1 |
| --- |
WHEREAS, the Transactions have been consummated on the date hereof in accordance with the Business Combination Agreement, substantially concurrently with the execution and delivery of this First Supplemental Indenture;
WHEREAS, as of the time immediately prior to the consummation of the Transactions, there had been no adjustments to the Conversion Rate set forth in Section 14.01(a) of the Indenture;
WHEREAS, pursuant to Section 14.07(a) of the Indenture, the Reclassification constitutes a “Merger Event” (as such term is defined in the Indenture and used herein, the “Merger Event”) with respect to the Notes, and the Indenture provides that the Company shall execute with the Trustee a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert the principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of Reference Property that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive upon such Merger Event;
WHEREAS, pursuant to the terms of the Business Combination Agreement and Section 14.07(a) of the Indenture, each unit of Reference Property consists of one share of Class A Common Stock;
WHEREAS, pursuant to Section 10.01(h) of the Indenture, the Company, the Guarantors, the Additional Guarantors, the Trustee and the Collateral Agent have agreed to enter into this First Supplemental Indenture for the purposes stated herein;
WHEREAS, for the avoidance of doubt, the express intention of the parties hereto is that the effect of this First Supplemental Indenture on the Indenture is to amend and supplement the Indenture but not to rescind the Indenture; and
WHEREAS, all things necessary have been done to make this First Supplemental Indenture, when executed and delivered by the Company, the Guarantors and the Additional Guarantors, the legal, valid and binding agreement of the Company, the Guarantors and the Additional Guarantors in accordance with its terms.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors, the Additional Guarantors, the Trustee and the Collateral Agent mutually covenant and agree as follows:
ARTICLE I.
SUPPLEMENT; DEFINITIONS
Section1.01 Definitions.
| (a) | For<br> all purposes of this First Supplemental Indenture, except as otherwise expressly provided<br> for or unless the context otherwise requires, capitalized terms used but not defined herein<br> shall have the meanings given to them in the Indenture. |
|---|---|
| (b) | “Unit of Reference Property” means one (1) fully paid and nonassessable share of Class<br> A Common Stock, $0.0001 par value per share, of fuboTV Inc., a Delaware corporation. |
| --- | --- |
| 2 |
| --- |
Section1.02 Amendment to Indenture.
| (a) | From<br> and after the date hereof, for all purposes of the Indenture: |
|---|
(i) The Reclassification constitutes a Merger Event;
(ii) Subsequent conversions of the Notes shall be made in the manner set forth in Section 14.02 of the Indenture;
(iii) Subsequent adjustments to the Conversion Rate shall be made in a manner consistent with the Indenture;
(iv) The “Company” means fuboTV Inc., a Delaware corporation, which shall be the Successor Company in accordance with Section 11.01 of the Indenture;
(v) The Successor Company expressly assumes all of the obligations of the Prior Company under the Note Documents;
(vi) Each “unit of Reference Property” means one (1) fully paid and nonassessable share of Class A Common Stock, $0.0001 par value per share, of the Company; and
(vii) The Reference Property with respect to the Merger Event shall be a number of units of Reference Property equal to the Conversion Rate.
ARTICLE II.
EFFECTIVENESS
Section2.01 Upon (i) the execution and delivery of this First Supplemental Indenture by the Company, the Guarantors, the Additional Guarantors, the Trustee and the Collateral Agent, (ii) the payment by the Company of any and all accrued and unpaid fees, costs and expenses (including, without limitation, the reasonable fees and expenses of counsel) of the Trustee, the Collateral Agent or any Holder of the Notes to the extent invoiced to the Company, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of, and shall be construed in connection with and as part of, the Indenture for any and all purposes, and every Holder holding Notes that have been heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
ARTICLE III.
AGREEMENT TO BE BOUND; GUARANTEE
Section3.01 Agreement to be Bound. Each Additional Guarantor hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. Each Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
Section3.02 Guarantee. Each Additional Guarantor agrees, on a joint and several basis with all the Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Obligations pursuant to Article 13 of the Indenture.
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ARTICLE IV.
ADDITIONAL MISCELLANEOUS PROVISIONS
Section4.01 Ratification of Indenture. Except as expressly amended, amended and restated, and/or supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. Reference to this First Supplemental Indenture need not be made in the Indenture or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to, or with respect to, the Indenture, any reference in any of such items to the Indenture being sufficient to refer to the Indenture as amended hereby.
Section4.02 Indenture Remains in Full Force and Effect. This First Supplemental Indenture is subject to all the terms and conditions set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Company, the Trustee and the Collateral Agent with respect hereto.
Section4.03 GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS FIRST SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE GUARANTORS, THE NEW GUARANTORS, THE HOLDERS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section4.04 Counterparts; Electronic Signatures. The First Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties agree that the electronic signature of a party to this First Supplemental Indenture shall be as valid as an original signature of such party and shall be effective to bind such party to this First Supplemental Indenture. The parties agree that any electronically signed document (including this First Supplemental Indenture) shall be deemed (a) to be “written” or “in writing,” (b) to have been signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts,” if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. For purposes hereof, “electronic signature” means a manually signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “pdf” (portable document format) or other replicating image attached to an e-mail message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
Section4.05 Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
Section4.06 The Trustee and the Collateral Agent. The Trustee and the Collateral Agent shall not be responsible or liable in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company, the Guarantors and the Additional Guarantors. The Company, the Guarantors and the Additional Guarantors hereby authorize and direct the Trustee and the Collateral Agent to execute and deliver this First Supplemental Indenture. The Company, the Guarantors, and the Additional Guarantors acknowledge and agree that the Trustee and the Collateral Agent (i) shall be entitled to all of the rights, privileges, benefits, protections, indemnities, limitations of liability, and immunities of the Trustee and the Collateral Agent set forth in the Indenture, which are hereby deemed incorporated by reference; and (ii) has acted consistently with (and is not in breach or violation of) its standard of care under the Indenture. The Company agrees that the execution by the Trustee and the Collateral Agent of this First Supplemental Indenture is consistent with, and permitted by, the Indenture.
| 4 |
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| FUBOTV INC., as the Company | |
|---|---|
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief Financial Officer |
| EDISN LLC, as Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John<br> Janedis |
| Title: | Chief<br> Financial Officer |
| FUBOTV MEDIA LLC, as Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John<br> Janedis |
| Title: | Chief<br> Financial Officer |
| FUBO STUDIOS LLC, as Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief<br> Financial Officer |
| FUBO SERVICES LLC, as Additional Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief<br> Financial Officer |
| FUBO OPERATIONS LLC, as Additional Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief<br> Financial Officer |
| HULU LIVE LLC, as Additional Guarantor | |
| By: | /s/<br> John Janedis |
| Name: | John Janedis |
| Title: | Chief Financial<br> Officer |
[SignaturePage to 2029 Indenture First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| U.S.<br>BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Agent | |
|---|---|
| By: | /s/ David<br> Jason |
| Name: | David Jason |
| Title: | Vice President |
[SignaturePage to 2029 Indenture First Supplemental Indenture]
Exhibit10.1
REGISTRATION RIGHTS AGREEMENT
by and between
FuboTV Inc.
and
Hulu, LLC
Dated as of October 29, 2025
TABLE OF CONTENTS
| Section 1. | Certain<br> Definitions | 1 |
|---|---|---|
| Section 2. | Shelf<br> Registration | 5 |
| Section 3. | Piggyback<br> Registrations | 7 |
| Section 4. | Blackout<br> Periods | 8 |
| Section 5. | Holdback<br> Agreements | 9 |
| Section 6. | Registration<br> Procedures | 10 |
| Section 7. | Registration<br> Expenses | 14 |
| Section 8. | Opt-Out<br> Notices | 15 |
| Section 9. | Indemnification | 15 |
| Section 10. | Securities<br> Act Restrictions | 18 |
| Section 11. | Transfers<br> of Rights | 18 |
| Section 12. | Miscellaneous | 19 |
| i |
| --- |
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made and entered into as of October 29, 2025, by and between FuboTV Inc., a Delaware corporation (the “Company”), and Hulu, LLC, a Delaware limited liability company (“Hulu”).
WHEREAS, Hulu and the Company are parties to that certain Business Combination Agreement, dated as of January 6, 2025 (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among The Walt Disney Company, a Delaware corporation (“Disney”), Hulu and the Company;
WHEREAS, pursuant to the transactions contemplated by the Business Combination Agreement (the “Transactions”), Hulu acquired (i) newly issued units (the “Newco Units”) in Fubo Operations LLC, a Delaware limited liability company (“Newco”), and (ii) newly issued shares of Class B common stock, par value $0.0001 per share, of the Company (“Class B Common Stock”), which Class B Common Stock will be cancelled for no consideration in connection with an exchange of Newco Units for Class A Common Stock (as defined below) in accordance with the Newco LLC Agreement (as defined below); and
WHEREAS, in connection with the Transactions, the parties hereto desire to enter into this Agreement in order to create certain registration rights for the Holders (as defined below) as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section
- Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the Company and its Subsidiaries, on the one hand, shall be deemed to not be Affiliates of Disney and its other Subsidiaries (including Hulu), on the other hand, and vice versa.
“Agreement” has the meaning set forth in the introductory paragraph.
“Blackout Period” has the meaning set forth in Section 4(a).
“Business Combination Agreement” has the meaning set forth in the first recital hereto.
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“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by applicable Law to close.
“Class A Common Stock” means the Class A common stock, par value $0.0001 per share, of the Company, and any securities issued or issuable directly or indirectly with respect to, in exchange for, upon the conversion of or in replacement of the Class A Common Stock, whether by way of a dividend or distribution or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, exchange or other reorganization.
“Class B Common Stock” has the meaning set forth in the second recital hereto.
“Company” has the meaning set forth in the introductory paragraph.
“Disney” has the meaning set forth in the first recital hereto.
“Exchange Act” means the Securities Exchange Act of 1934.
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor organization.
“Form S-3” means a registration statement on Form S-3 under the Securities Act or such successor forms thereto permitting registration of securities under the Securities Act.
“Governmental Entity” means any U.S. federal, state or local, or foreign, international or supranational, government, court or tribunal, or administrative, executive, governmental or regulatory or self-regulatory body, agency or authority thereof.
“Holdback Agreement” has the meaning set forth in Section 5.
“Holdback Period” has the meaning set forth in Section 5.
“Holders” means (i) Hulu and (ii) any direct or indirect transferee of Hulu who shall become a party to this Agreement in accordance with Section 11 and has agreed in writing to be bound by the terms of this Agreement.
“Hulu” has the meaning set forth in the introductory paragraph.
“Law” means any foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, statute, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity.
“Majority Holders” means Holders holding at least a majority in interest of the then outstanding number of Registrable Securities.
“Newco” has the meaning set forth in the second recital hereto.
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“Newco LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of Newco, dated as of the date hereof, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Newco Units” has the meaning set forth in the second recital hereto.
“Opt-Out Notice” has the meaning set forth in Section 8.
“Person” means a natural person, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or governmental or other entity, whether or not a legal entity.
“Piggyback Underwritten Offering” has the meaning set forth in Section 3(a).
“Piggybacking Holder” has the meaning set forth in Section 3(a).
“Prospectus” means the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement and relating to Registrable Securities, as amended or supplemented and including all material incorporated by reference in such prospectus or prospectuses.
“Registrable Securities” means the Class A Common Stock, including any shares thereof issuable upon or issued upon exercise, conversion or exchange of other securities of the Company or any of its Subsidiaries (including Class B Common Stock and Newco Units) (and, for the avoidance of doubt, each Holder shall be deemed to hold the shares of Class A Common Stock so issuable in respect of such other securities held by such Holder), owned by the Holders. It is understood that securities shall cease to constitute Registrable Securities when such Holder has disposed of such securities pursuant to (i) a registered offering under the Securities Act or (ii) a sale pursuant to Rule 144 under the Securities Act.
“Registration Expenses” has the meaning set forth in Section 7(a).
“Registration Statement” means any registration statement of the Company which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all documents incorporated by reference in such Registration Statement.
“SEC” means the Securities and Exchange Commission or any successor agency.
“Securities Act” means the Securities Act of 1933.
“Shelf Registration” has the meaning set forth in Section 2(a).
“Shelf Registration Statement” has the meaning set forth in Section 2(a).
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“Stockholders Agreement” means that certain Stockholders Agreement, dated as of the date hereof, by and between Hulu and the Company, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Subsidiary” means, with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient, together with any contractual rights, to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which is owned directly or indirectly by such first Person). Notwithstanding the foregoing, for purposes of this Agreement, the Company and its Subsidiaries, on the one hand, shall be deemed to not be Subsidiaries of Hulu or any direct or indirect parent company thereof (including Disney) or any other Subsidiary of any such parent company, on the other hand.
“Termination Date” means the first date on which there are no Registrable Securities or there are no Holders.
“Transactions” has the meaning set forth in the second recital hereto.
“Underwritten Offering” means a registered offering in which securities of the Company are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.
“Underwritten Offering Filing” means (a) with respect to an Underwritten Shelf Takedown, a preliminary Prospectus supplement (or Prospectus supplement if no preliminary Prospectus supplement is used) to the Shelf Registration Statement relating to such Underwritten Shelf Takedown, and (b) with respect to a Piggyback Underwritten Offering, (i) a preliminary Prospectus supplement (or Prospectus supplement if no preliminary Prospectus supplement is used) to an effective shelf Registration Statement (other than the Shelf Registration Statement) in which Registrable Securities could be included and Holders could be named as selling security holders without the filing of a post-effective amendment thereto (other than a post-effective amendment that becomes effective upon filing) or (ii) a Registration Statement (other than the Shelf Registration Statement), in each case relating to such Piggyback Underwritten Offering.
“Underwritten Shelf Takedown” means an Underwritten Offering effected pursuant to a Shelf Registration.
“Underwritten Shelf Takedown Notice” has the meaning set forth in Section 2(b).
“Underwritten Shelf Takedown Request” has the meaning set forth in Section 2(b).
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Section 2. Shelf Registration.
(a) Registration. The Company shall, as soon as practicable after the date hereof, but in any event no later than the date on which the Company files with the SEC the financial statements and pro forma financial information required by Item 9.01 of Form 8-K in connection with the consummation of the Transactions (or such later date as may be determined by Hulu, upon at least five Business Days written notice to the Company and subject to the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed), file a Registration Statement (or an amendment or supplement to an existing registration statement) for the public offer and sale of the Registrable Securities pursuant to Rule 415 promulgated under the Securities Act or otherwise (a “Shelf Registration”); provided, however, that the Company shall not be obligated to file a Registration Statement pursuant to this Section 2(a) unless and until Hulu has provided to the Company a management’s discussion and analysis with respect to the financial statements of the Company for any period ended prior to the date hereof and required to be included or incorporated by reference in such Registration Statement pursuant to the Securities Act and the rules and regulations adopted by the SEC thereunder. The Registration Statement shall be on Form S-3 or, if Form S-3 is not then available to the Company, on Form S-1 or such other form of registration statement as is then available to effect a registration under the Securities Act for the offer and sale of the Registrable Securities (such Registration Statement, a “Shelf Registration Statement”). Subject to Section 4, the Company shall use commercially reasonable efforts to cause such Shelf Registration Statement to become effective as soon as practicable after the filing thereof. If permitted under the Securities Act, such Registration Statement shall be one that is automatically effective upon filing. Subject to the exceptions in Section 4 and the provision by each Holder of all information reasonably requested by the Company for such purposes, the Company shall use commercially reasonable efforts to cause the Shelf Registration Statement (or a replacement thereto) to remain effective so long as any Registrable Securities remain outstanding, and to be supplemented and amended to the extent necessary, including to reflect any changes in the Holders or the issuance of any additional Registrable Securities, to ensure that the Shelf Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities by the Holders until the Termination Date.
(b) Right to Effect Underwritten Shelf Takedowns. Subject to the provisions hereof, Holders shall be entitled, at any time and from time to time when a Shelf Registration Statement is effective and until the Termination Date, to sell or transfer such Registrable Securities as are then registered pursuant to such Registration Statement in an Underwritten Shelf Takedown upon not less than 10 Business Days’ prior written notice to the Company by the Majority Holders (such request, an “Underwritten Shelf Takedown Request”); provided that the Majority Holders shall not be entitled to request an Underwritten Shelf Takedown (i) more than six times in the aggregate during the term of this Agreement, (ii) more than three times in one calendar year or (iii) subject to the Company’s compliance with Section 3, at any time when the Company is diligently pursuing a primary or secondary underwritten offering of Class A Common Stock or securities convertible or exercisable into Class A Common Stock (including an offering pursuant to Rule 144A promulgated under the Securities Act). As soon as reasonably practicable within three Business Days after receipt by the Company of an Underwritten Shelf Takedown Request in accordance with this Section 2(b), the Company shall give written notice (an “Underwritten Shelf Takedown Notice”) of such Underwritten Shelf Takedown Request to all other Holders of Registrable Securities and shall, subject to the provisions of Section 2, use commercially reasonable efforts to include in such Underwritten Shelf Takedown all Registrable Securities with respect to which the Company has received written requests for inclusion therein within five Business Days after such Underwritten Shelf Takedown Notice is given by the Company to such Holders.
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(c) Priority on Underwritten Shelf Takedowns. The Company may include shares of Class A Common Stock other than Registrable Securities in an Underwritten Shelf Takedown on the terms provided below. If the managing underwriters of the Underwritten Shelf Takedown advise the Company and the Holders requesting such Underwritten Shelf Takedown that in their opinion the number of shares of Class A Common Stock proposed to be included in the Underwritten Shelf Takedown exceeds the number of shares of Class A Common Stock which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share of the Class A Common Stock proposed to be sold in such offering), the Company shall include in such Underwritten Shelf Takedown (i) first, the number of Registrable Securities that the Holders propose to sell, (ii) second, the number of shares of Class A Common Stock requested to be included therein by other holders of Class A Common Stock, pro rata among such other holders on the basis of the number of shares of Class A Common Stock requested to be included therein by such other holders or as such other holders and the Company may otherwise agree and (iii) third, the number of shares of Class A Common Stock that the Company proposes to sell. If the number of shares of Class A Common Stock which can be sold is less than the number of Registrable Securities proposed to be included in the Underwritten Shelf Takedown pursuant to clause (i) above by the Holders, the amount of shares of Class A Common Stock to be sold shall be allocated to the Holders, pro rata among all such Holders on the basis of the number of Registrable Securities requested to be included therein by all such Holders or as such Holders and the Company may otherwise agree.
(d) Selection of Underwriters. If any of the Registrable Securities are to be sold in an Underwritten Shelf Takedown initiated by the Holders, the Holders of more than 50% of the Registrable Securities to be so offered shall select the investment banking firm or firms to manage the underwritten offering in consultation with the Company and provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. The Holders of more than 50% of the Registrable Securities to be so offered shall determine the pricing of the Registrable Securities offered pursuant to any Underwritten Shelf Takedown, the applicable underwriting discounts and commissions, and the timing of any such Underwritten Shelf Takedown, subject to the terms of this Agreement.
(e) Basis of Participation. No Holder may sell Registrable Securities in any offering pursuant to an Underwritten Shelf Takedown unless it (i) agrees to sell such Registrable Securities on the same basis provided in the underwriting or other distribution arrangements approved by the Company and the Holders that initiated such Underwritten Shelf Takedown that apply to the Company or the Holders that initiated such Underwritten Shelf Takedown and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lockups and other documents required under the terms of such arrangements.
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Section 3. Piggyback Registrations.
(a) Right to Piggyback. If the Company at any time proposes to file an Underwritten Offering Filing for an Underwritten Offering of Class A Common Stock for its own account or for the account of any other Persons who have or have been granted registration rights (other than pursuant to the Company’s existing at-the-market program of its Class A Common Stock (the “Existing ATM Program”), including any registration statements filed to continue the Existing ATM Program and any replacements for the Existing ATM Program) (a “Piggyback Underwritten Offering”), it will give written notice of such Piggyback Underwritten Offering to each Holder, which notice shall be held in strict confidence by such Holders and shall include the anticipated filing date of the Underwritten Offering Filing and, if known, the number of shares of Class A Common Stock that are proposed to be included in such Piggyback Underwritten Offering, and of such Holders’ rights under this Section 3(a). Such notice shall be given promptly (and in any event not less than 10 days before the filing of the Underwritten Offering Filing). Each such Holder shall then have five days after the date on which the Holders received notice pursuant to this Section 3(a) to request inclusion of Registrable Securities in the Piggyback Underwritten Offering (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) (any such Holder making such request, a “Piggybacking Holder”). If no request for inclusion from a Holder is received within such period, such Holder shall have no further right to participate in such Piggyback Underwritten Offering. Subject to Sections 3(c) and 3(d), the Company shall use its commercially reasonable efforts to include in the Piggyback Underwritten Offering all Registrable Securities that the Company has been so requested to include by the Piggybacking Holders; provided, however, that if, at any time after giving written notice of a proposed Piggyback Underwritten Offering pursuant to this Section 3(a) and prior to the execution of an underwriting agreement with respect thereto, the Company or such other Persons who have or have been granted registration rights, as applicable, shall determine for any reason not to proceed with or to delay such Piggyback Underwritten Offering, the Company shall give written notice of such determination to the Piggybacking Holders (which such Holders will hold in strict confidence) and (i) in the case of a determination not to proceed, shall be relieved of its obligation to include any Registrable Securities in such Piggyback Underwritten Offering (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), and (ii) in the case of a determination to delay, shall be permitted to delay inclusion of any Registrable Securities for the same period as the delay in including the shares of Class A Common Stock to be sold for the Company’s account or for the account of such other Persons who have or have been granted registration rights, as applicable.
(b) Each Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any Piggyback Underwritten Offering at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company, following which such Holder shall no longer be entitled to participate in such Piggyback Underwritten Offering.
(c) Priority on Primary Piggyback Registrations. If a Piggyback Underwritten Offering is initiated as a primary Underwritten Offering on behalf of the Company and the managing underwriters advise the Company and the Holders (if any Holder has elected to include Registrable Securities in such Piggyback Underwritten Offering) that in their opinion the number of shares of Class A Common Stock proposed to be included in such offering exceeds the number of shares of Class A Common Stock which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share of the Class A Common Stock proposed to be sold in such offering), the Company shall include in such Piggyback Underwritten Offering (i) first, the number of shares of Class A Common Stock that the Company proposes to sell, and (ii) second, the number of shares of Class A Common Stock requested to be included therein by holders of Class A Common Stock, including any Holder (if any Holder has elected to include Registrable Securities in such Piggyback Underwritten Offering), pro rata among all such holders on the basis of the number of shares of Class A Common Stock requested to be included therein by all such holders or as such holders and the Company may otherwise agree.
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(d) Priority on Secondary Piggyback Registrations. If a Piggyback Underwritten Offering is initiated as an Underwritten Offering on behalf of a holder or holders of Class A Common Stock other than a Holder, and the managing underwriters advise the Company that in their opinion the number of shares of Class A Common Stock proposed to be included in such registration exceeds the number of shares of Class A Common Stock which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share of the Class A Common Stock to be sold in such offering), then the Company shall include in such Piggyback Underwritten Offering (i) first, the number of shares of Class A Common Stock requested to be included therein by the holder(s) requesting such registration, (ii) second, the number of shares of Class A Common Stock requested to be included therein by other holders of Class A Common Stock, including any Holder (if any Holder has elected to include Registrable Securities in such Piggyback Underwritten Offering), pro rata among such other holders on the basis of the number of shares of Class A Common Stock requested to be included therein by such other holders or as such other holders and the Company may otherwise agree and (iii) third, the number of shares of Class A Common Stock that the Company proposes to sell.
(e) Selection of Underwriters. If any Piggyback Underwritten Offering is a primary or secondary Underwritten Offering, the Company shall have the right to select the managing underwriter or underwriters to administer any such offering.
(f) Basis of Participations. No Holder may sell Registrable Securities in any Piggyback Underwritten Offering unless it (i) agrees to sell such Registrable Securities on the same basis provided in the underwriting or other distribution arrangements approved by the Company and, in the case of a Piggyback Underwritten Offering that is initiated as an Underwritten Offering on behalf of holder(s) other than a Holder, such other holder(s), and that apply to the Company or any other holders involved in such Piggyback Underwritten Offering and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lockups and other documents required under the terms of such arrangements.
Section 4. Blackout Periods.
(a) Blackout Periods. Notwithstanding any other provision of this Agreement, the Company may (i) delay the filing or effectiveness (but not the preparation) of a Registration Statement (or any supplement or amendment thereto) or execution of an Underwritten Offering or (ii) suspend the Holders’ use of any Prospectus that is a part of a Registration Statement upon written notice (which notice shall not, without the prior written consent of any Holder, disclose to such Holder any material non-public information) to each Holder whose Registrable Securities are included or to be included in such Registration Statement, but in each case described in clauses (i) and (ii) only if the Company determines in good faith that (x) proceeding with such an offering or failing to suspend the use of such Prospectus would require the Company to disclose material information that would not otherwise be required to be disclosed at that time and that the disclosure of such information at that time would not be in the Company’s best interests, or (y) the registration or offering to be delayed or suspended would, if not delayed or suspended, materially adversely interfere with, or jeopardize the success of, any pending or proposed material transaction, including any material debt or equity financing, any material acquisition or disposition, any material recapitalization or reorganization or any other material transaction, whether due to commercial reasons, a desire to avoid premature disclosure of information or any other reason. Any period during which the Company has delayed or suspended a filing, an effective date or an offering pursuant to this Section 4 is herein called a “Blackout Period”. If pursuant to this Section 4 the Company delays or withdraws a Underwritten Offering requested by the Majority Holders, the Majority Holders shall be entitled to withdraw such request and, if they do so, such request shall not count against the limitation on the number of such registrations set forth in Section 2. The Company shall provide prompt written notice to the Holders of the commencement and termination of any Blackout Period (and any withdrawal of a registration statement pursuant to this Section 4), but shall not be obligated under this Agreement to disclose the reasons therefor. The Holders shall keep the existence of each Blackout Period confidential and refrain from making offers and sales of Registrable Securities (and direct any other Persons making such offers and sales on behalf of such Holder to refrain from doing so) during each Blackout Period. In no event shall (i) the Company deliver notice of a Blackout Period to the Holders more than three times in any calendar year, (ii) any such Blackout Period be in effect for more than 45 consecutive days or (iii) such Blackout Periods be in effect for an aggregate of 90 days or more in any consecutive 12-month period.
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(b) Other Lockups. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to take any action hereunder that would violate any lockup or similar restriction binding on the Company in connection with a prior or pending registration or underwritten offering.
(c) Stockholders Agreement Restrictions. Nothing in this Agreement shall affect the restrictions on transfers of Class A Common Stock and other provisions of the Stockholders Agreement, which shall apply independently hereof in accordance with the terms thereof.
Section 5. Holdback Agreements.
The restrictions in this Section 5 shall apply for as long as any Holder is the beneficial owner of any Registrable Securities. If requested by the managing underwriters, each Holder who elects to participate in an offering pursuant to an Underwritten Shelf Takedown or a Piggyback Underwritten Offering shall agree, as contemplated in this Section 5, not to (and to cause its controlled Affiliates not to) sell, transfer, pledge, issue, grant or otherwise dispose of, directly or indirectly (including by means of any short sale), or request the registration of, any Registrable Securities for a period (each such period, a “Holdback Period”) beginning on the third day before the pricing date for the underwritten offering and extending through the earlier of (i) the 90th day after such pricing date and (ii) such earlier day (if any) as may be designated for this purpose by the managing underwriters for such offering (each such agreement of a Holder, a “Holdback Agreement”). Each Holdback Agreement shall be in writing in form and substance reasonably satisfactory to the managing underwriters. Notwithstanding the foregoing, no Holder shall be obligated to enter into a Holdback Agreement unless (i) the Company, the Company’s executive officers and directors and each selling securityholder in such offering also execute agreements substantially similar to such Holdback Agreement, (ii) the Holdback Period applicable to such Holder is not longer than that which is applicable to the Company, the Company’s executive officers and directors or any other selling securityholder, and (iii) such Holdback Agreement provides, with respect to the Holdback Period, that the underwriters may not waive the Holdback Period for any other holder of Class A Common Stock unless the Holdback Period is waived to the same extent for such Holder. A Holdback Agreement shall not apply to (i) the redemption of any Newco Units and Class B Common Stock in exchange for Class A Common Stock (provided that such restrictions shall apply with respect to the Class A Common Stock issuable upon such redemption and exchange) and (ii) any shares of Class A Common Stock included in the underwritten offering giving rise to the application of this Section 5.
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Section 6. Registration Procedures.
(a) In furtherance of its obligations under this Agreement and without limiting the rights of Hulu or its Affiliates pursuant to Article IV of the Stockholders Agreement, the Company shall, as soon as practicable as provided herein:
(i) subject to the other provisions of this Agreement, use commercially reasonable efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and cause such Registration Statement to become effective (unless it is automatically effective upon filing); provided that before filing a Registration Statement, the Company will furnish to the Holders with Registrable Securities covered by such Registration Statement and their counsel, and the underwriter or underwriters, if any, copies of or drafts of the Registration Statement proposed to be filed, and the Company shall give the Holders and their counsel a reasonable opportunity to comment on such Registration Statement and keep such Holders reasonably informed as to the registration process (and the Holders of the Registrable Securities covered by such Registration Statement shall have the right to request that the Company modify any information contained in such Registration Statement pertaining to the Holders and the Company will use its commercially reasonable efforts to address requests such Holders may reasonably propose);
(ii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Registrable Securities covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement; provided that before filing such amendments or supplements or such Prospectus, the Company will furnish to the Holders with Registrable Securities covered by such Registration Statement and their counsel, and the underwriter or underwriters, if any, copies of or drafts of such documents proposed to be filed, and the Company shall give the Holders and their counsel a reasonable opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process (and the Holders of the Registrable Securities covered by such Registration Statement shall have the right to request that the Company modify any information contained in such documents pertaining to the Holders and the Company will use its commercially reasonable efforts to address requests such Holders may reasonably propose);
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(iii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as any Holder with Registrable Securities covered by the applicable Registration Statement may reasonably request in order to facilitate the disposition of the Registrable Securities of the Holder(s) covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Holders with Registrable Securities covered by the applicable Registration Statement reasonably request and continue such registration or qualification in effect in such jurisdictions for as long as such Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to (I) qualify but for this subparagraph (v), (II) subject itself to taxation in any such jurisdiction or (III) consent to general service of process in any such jurisdiction);
(vi) notify the Holders and each distributor of such Registrable Securities identified by a Holder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of the Majority Holders, the Company shall use commercially reasonable efforts to prepare, as soon as practicable, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vii) in the case of an Underwritten Offering in which any Holder participates pursuant to this Agreement, enter into an underwriting agreement in substantially the form used by the Company or companies of comparable market capitalization for offerings of that kind, with appropriate modification, containing such provisions (including provisions for indemnification, opinions of counsel and comfort letters and lock-up arrangements), and take all such other customary and reasonable actions, as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Securities (including, making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriters determine are necessary to effect the offering);
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(viii) in the case of an Underwritten Offering in which a Holder participates pursuant to this Agreement, (A) make reasonably available, for inspection by the managing underwriters of such offering and counsel and accountants acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or counsel in connection with such offering, (C) make the Company’s independent accountants available for any underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and (D) cause the Company’s counsel to furnish customary legal opinions to underwriters in connection therewith; provided, however, that such records and other information shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Securities pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Securities to be sold or evidence of proposed book-entry registration;
(xi) make generally available to its shareholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) promptly notify the participating Holders and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any SEC comment letters or other communications with respect to the Registration Statement or the Prospectus, including any request by the SEC for amendments or supplements thereto, or for any additional information regarding the Holders;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction;
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(xiii) cooperate and assist in any filings required to be made with FINRA;
(xiv) if the Shelf Registration Statement covering Registrable Securities has been outstanding for at least three years and any Registrable Securities remain outstanding, at the end of the third year, file a new Shelf Registration Statement covering the Registrable Securities; and
(xv) take such other actions and deliver such other documents and instruments as may be reasonably requested and are necessary to facilitate the registration and disposition of Registrable Securities as contemplated hereby.
For the avoidance of doubt, the provisions of clauses (vii), (viii), (xi) and (xii) of this Section 6(a) shall apply only in respect of an Underwritten Offering.
(b) No Registration Statement (including any amendments thereto) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading, and no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to the Company by or on behalf of any Holder, any selling securityholder or any underwriter or other distributor specifically for use therein.
(c) At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of the Securities Act and until the Termination Date, the Company shall use commercially reasonable efforts to continuously maintain in effect the registration of Class A Common Stock under Section 12 of the Exchange Act and to use commercially reasonable efforts to file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, all to the extent required to enable the Holders to be eligible to sell Registrable Securities (if any) pursuant to Rule 144 under the Securities Act.
(d) The Company may require each Holder and each distributor of Registrable Securities as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in connection with such registration.
(e) Each Holder agrees by having its shares of Class A Common Stock treated as Registrable Securities hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 6(a)(vi), such Holder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Securities on its behalf to immediately discontinue) offers and sales of Registrable Securities pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 under the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 6(a)(vi), and, if so directed by the Company, such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice.
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(f) The Company may prepare and deliver a free writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such free writing prospectus. Neither the Holders nor any other seller of Registrable Securities may use a free writing prospectus to offer or sell any such shares without the Company’s prior written consent.
(g) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Sections 2 or 6 or otherwise in this Agreement, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and commercially reasonable efforts to resolve those comments, shall not be a breach of this Agreement.
(h) It is further understood and agreed that the Company shall not have any obligations under this Section 6 at any time on or after the Termination Date, unless an underwritten offering in which a Holder participates has been priced but not completed prior to the Termination Date, in which event the Company’s obligations under this Section 6 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(i) Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to file a Registration Statement or include Registrable Securities in a Registration Statement unless it has received from each Holder, at least three days prior to the anticipated filing date of the Registration Statement, requested information required to be provided by such Holders for inclusion therein.
Section 7. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, FINRA fees, listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of counsel for the Company and all independent certified public accountants and other Persons retained by the Company (all such expenses being herein called “Registration Expenses”) (but not including any underwriting discounts or commissions attributable to the sale of Registrable Securities or fees and expenses of counsel and any other advisor representing any underwriters or other distributors), shall be borne by the Company. The Company shall also bear the reasonable and documented fees and expenses of one firm of counsel to represent the Holders in connection with the registration and any registered sale or transfer of Registrable Securities, not to exceed (i) $30,000 in connection with the initial Registration Statement and (ii) $30,000 for any offering. The Holders shall bear the cost of all underwriting discounts and commissions associated with any sale of Registrable Securities and shall pay all of their own costs and expenses, including all fees and expenses of any counsel (and any other advisers) representing the Holders (except as provided for in the preceding sentence) and any stock transfer taxes.
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(b) The obligation of the Company to bear the expenses described in Section 7(a) shall apply irrespective of whether a registration, once properly demanded or requested, becomes effective or is withdrawn or suspended; provided, however, that Registration Expenses for any Underwritten Offering withdrawn solely at the request of the Holders (unless withdrawn following commencement of a Blackout Period pursuant to Section 4) shall be borne by such Holders.
Section 8. Opt-Out Notices.
Any Holder may deliver written notice (an “Opt-Out Notice”) to the Company requesting that such Holder not receive notice from the Company of the proposed filing of any Underwritten Shelf Takedown or Piggyback Underwritten Offering, the withdrawal of any Underwritten Shelf Takedown or Piggyback Underwritten Offering or any event that would lead to a Blackout Period as contemplated by Section 4; provided, however, that such Holder may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from a Holder (unless subsequently revoked), the Company shall not deliver any notice to such Holder pursuant to Sections 2, 3, 4 or 6, as applicable, and such Holder shall no longer be entitled to the rights associated with any such notice and each time prior to a Holder’s intended use of an effective Registration Statement, such Holder will notify the Company in writing at least two Business Days in advance of such intended use, and if a notice of a Blackout Period was previously delivered (or would have been delivered but for the provisions of this Section 8) and the Blackout Period remains in effect, the Company will so notify such Holder, within one Business Day, of such Holder’s notification to the Company, by delivering to such Holder a copy of such previous notice of such Blackout Period, and thereafter will provide such Holder with the related notice of the conclusion of such Blackout Period immediately upon its availability.
Section 9. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by applicable Law, each Holder and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, judgments, costs (including reasonable costs of investigation) and expenses (including reasonable attorneys’ fees) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus or any amendment thereof or supplement thereto, any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act), any written communication undertaken in reliance on either Section 5(d) of, or Rule 163B under, the Securities Act, and any road show, in an offering of Registrable Securities in which such Holder participates, or in any document incorporated by reference therein or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact in the information conveyed to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, or (iii) any violation by the Company of any Law applicable to the Company in connection with such registration, including the Securities Act, any securities or “blue sky” laws of any jurisdiction or any rule or regulation thereunder in connection with such registration, except insofar as the same are made in reliance and in conformity with information furnished in writing to the Company by any Holder expressly for use therein. In connection with an underwritten offering in which a Holder participates conducted pursuant to a registration effected hereunder, the Company shall indemnify each participating underwriter and each Person who controls such underwriter (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of such Holder.
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(b) In connection with any Registration Statement in which a Holder is participating, each such participating Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus, or amendment or supplement thereto, and shall indemnify, to the fullest extent permitted by applicable Law, (i) the Company, its officers and directors and each Person who controls the Company (within the meaning of the Securities Act) and (ii) each participating underwriter, if any, and each Person who controls such underwriter (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, judgments, costs (including reasonable costs of investigation) and expenses (including reasonable attorneys’ fees) arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement or Prospectus, or any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information furnished in writing to the Company by or on behalf of such Holder expressly for use therein; provided, that the obligation to indemnify shall be several, not joint and several, among such Holders and the liability of each such Holder shall be in proportion to and limited to the net amount (after deducting underwriters’ discounts and commissions) received by such Holder from the sale of Registrable Securities pursuant to a Registration Statement in accordance with the terms of this Agreement. The Company and the Holders hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by the applicable Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated therewith are statements specifically relating to (i) the beneficial ownership of Registrable Securities by such Holder and its Affiliates and (ii) the name and address of such Holder.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying Person of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying Person to assume the defense of such claim with counsel reasonably satisfactory to the indemnified Person. Failure to so notify the indemnifying Person shall not relieve it from any liability that it may have to an indemnified Person except to the extent that the indemnifying Person is materially and adversely prejudiced thereby. The indemnifying Person shall not be subject to any liability for any settlement made by the indemnified Person without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). An indemnifying Person who is entitled to, and elects to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to one local counsel) for all Persons indemnified (hereunder or otherwise) by such indemnifying Person with respect to such claim (and all other claims arising out of the same circumstances), unless in the reasonable judgment of any indemnified Person there may be one or more legal or equitable defenses available to such indemnified Person which are in addition to or may conflict with those available to another indemnified Person with respect to such claim, in which case such maximum number of counsel for all indemnified Persons shall be two rather than one. If an indemnifying Person is entitled to, and elects to, assume the defense of a claim, the indemnified Person shall continue to be entitled to participate in the defense thereof, with counsel of its own choice, but, except as set forth above, the indemnifying Person shall not be obligated to reimburse the indemnified Person for the costs thereof. The indemnifying Person shall not consent to the entry of any judgment or enter into or agree to any settlement relating to a claim or action for which any indemnified Person would be entitled to indemnification by any indemnified Person hereunder unless such judgment or settlement imposes no ongoing obligations on any such indemnified Person and includes as an unconditional term the giving, by all relevant claimants and plaintiffs to such indemnified Person, a release, satisfactory in form and substance to such indemnified Person, from all liabilities in respect of such claim or action for which such indemnified Person would be entitled to such indemnification. The indemnifying Person shall not be liable hereunder for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an indemnified Person unless the indemnifying Person has also consented to such judgment or settlement.
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(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling Person of such indemnified Person and shall survive the transfer of securities and the Termination Date but only with respect to offers and sales of Registrable Securities made before the Termination Date or during the period following the Termination Date referred to in Section 6(h).
(e) If the indemnification provided for in or pursuant to this Section 9 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein, then each applicable indemnifying Person, in lieu of indemnifying such indemnified Person, shall contribute to the amount paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying Person on the one hand and of the indemnified Person on the other in connection with the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of the indemnifying Person on the one hand and of the indemnified Person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying Person or by the indemnified Person, and by such Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of the indemnifying Person be greater in amount than the amount for which such indemnifying Person would have been obligated to pay by way of indemnification if the indemnification provided for under Section 9(a) or 9(b) had been available under the circumstances.
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Section 10. Securities Act Restrictions.
The Registrable Securities are restricted securities under the Securities Act and may not be offered or sold except pursuant to an effective registration statement or an available exemption from registration under the Securities Act. Accordingly, no Holder shall, directly or through others, offer or sell any Registrable Securities except pursuant to a Registration Statement as contemplated herein or pursuant to Rule 144 or another exemption from registration under the Securities Act, if available. So long as Registrable Securities are held in certificated form or book-entry with a restrictive legend, then prior to any transfer of those Registrable Securities other than pursuant to an effective registration statement, such Holder shall notify the Company of such transfer and the Company may require such Holder to provide, prior to such transfer, such evidence that the transfer will comply with the Securities Act as the Company may reasonably request. The Company may impose stop-transfer instructions with respect to any Registrable Securities that are to be transferred in contravention of this Agreement. Any certificates representing the Registrable Securities may bear a legend (and the Company’s share registry may bear a notation) referencing the restrictions on transfer contained in this Agreement (and the Stockholders Agreement). The legend on any Class A Common Stock covered by this Agreement shall be removed if (i) such Class A Common Stock is sold pursuant to an effective registration statement, (ii) a registration statement covering the resale of such Class A Common Stock is effective under the Securities Act and the applicable Holder of such Class A Common Stock delivers to the Company a representation letter in form and substance reasonably satisfactory to the Company agreeing that such Class A Common Stock will be sold only under such effective registration statement or in compliance with Rule 144 or another exemption from registration under the Securities Act, (iii) such Class A Common Stock may be sold by the holder thereof free of restrictions pursuant to Rule 144(b) under the Securities Act, or (iv) such Class A Common Stock is being sold, assigned or otherwise transferred pursuant to Rule 144 under the Securities Act; provided, that with respect to clause (iii) or (iv) above, the holder of such Class A Common Stock has provided all necessary documentation and evidence and agreed to such other procedures as may reasonably be required by the Company. The Company shall cooperate with the applicable Holder of Class A Common Stock covered by this Agreement to effect removal of the legend on such Class A Common Stock pursuant to this Section 10 as soon as reasonably practicable after delivery of notice from such Holder that the conditions to removal are satisfied (together with any documentation required to be delivered by such Holder pursuant to the immediately preceding sentence). The Company shall bear all direct costs and expenses associated with the removal of a legend pursuant to this Section 10.
Section 11. Transfers of Rights. Subject to the transfer restrictions contained in Article III of the Stockholders Agreement, the rights of each Holder under this Agreement may be assigned to any direct or indirect transferee of a Holder who agrees in writing to be subject to and bound by all the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement, no Person who acquires securities transferred in violation of this Agreement or the Stockholders Agreement, or who acquires securities that are not or upon acquisition cease to be Registrable Securities, shall have any rights under this Agreement with respect to such securities, and such securities shall not have the benefits afforded hereunder to Registrable Securities.
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Section 12. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and other communications hereunder to any party hereto shall be in writing and shall be deemed given if delivered personally, by email (to the extent that no “bounce back” or similar message indicating non-delivery is received with respect thereto) or if sent by overnight courier (providing proof of delivery) to the parties hereto at the following addresses, or such other address or email address as such party may hereafter specify by like notice to the other parties hereto.
(i) If to the Company:
FuboTV Inc.
1290 Avenue of the Americas, 9th Floor
New York, New York 10104
Attention: Chief Legal Officer
Email: * * *
(ii) If to Hulu:
c/o The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Justin Warbrooke
James Kapenstein
Email: * * *
* * *
(iii) Any notice delivered pursuant to subsection (i) or (ii) of this Section 12(a) shall include a further copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Two Manhattan West
375 Ninth Avenue
New York, New York 10001
Attention: Faiza Saeed
Daniel Cerqueira
Cole DuMond
Alexander Greenberg
E-mail: fsaeed@cravath.com
dcerqueira@cravath.com
cdumond@cravath.com
agreenberg@cravath.com
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(b) No Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
(c) Assignment. Neither this Agreement nor any right, remedy, obligation nor liability arising hereunder or by reason hereof shall be assignable by any party hereto without the prior written consent of the other parties, and any attempt to assign any right, remedy, obligation or liability hereunder without such consent shall be void, except (i) an assignment, in the case of a merger or consolidation where such party is not the surviving entity, or a sale of substantially all of its assets, to the entity which is the survivor of such merger or consolidation or the purchaser in such sale or (ii) an assignment by a Holder in accordance with Section 11.
(d) No Third-Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any Person other than the Company and the Holders, any benefits, rights, or remedies (except as specified in Section 9).
(e) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial, Etc. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. Each of the parties hereto agrees (a) to submit to the non-exclusive personal jurisdiction of the State or Federal courts in the Borough of Manhattan, The City of New York, (b) that non-exclusive jurisdiction and venue shall lie in the State or Federal courts in the State of New York, and (c) that notice may be served upon such party at the address and in the manner set forth for such party in Section 12(a). To the extent permitted by applicable Law, each of the parties hereto hereby unconditionally waives trial by jury in any legal action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(f) Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of electronic mail transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Section 12(f) shall apply mutatis mutandis to any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto.
(g) Entire Agreement. This Agreement and those documents expressly referred to herein constitute the entire agreement and supersede all other prior agreements and understandings (both written and oral) among the parties hereto with respect to the subject matter hereof and thereof.
(h) Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable Law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
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(i) Other Registration Rights. Except pursuant to the Registration Rights Agreement, dated January 2, 2024, between the Company and the investors party thereto and as otherwise provided in this Agreement, the Company agrees that it shall not grant any registration rights to any third party that, in any material respect, are prior in right, in conflict with, or inconsistent with the rights of the Holders as set forth in this Agreement, without the prior written consent of Hulu.
(j) Term. Subject to Section 6(h), this Agreement shall terminate on the Termination Date. The provisions of Section 9 and Section 12 shall survive any termination.
(k) Amendments. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of the Company and the Majority Holders.
(l) Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section to this Agreement unless otherwise indicated. The words “include” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”. The word “will” shall be construed to have the same meaning as the word “shall”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “or” shall not be exclusive. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement”, “hereof”, “herein”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and include any attachments to this Agreement. The symbol “$” means U.S. dollars. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. The parties hereto have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and other advisors and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise.
[SignaturePage Follows]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the parties hereto as of the date first written above.
| FUBOTV INC. | |
|---|---|
| By: | /s/ Gina DiGioia |
| Name: | Gina DiGioia |
| Title: | Chief Legal Officer and Corporate Secretary |
| HULU, LLC | |
| --- | --- |
| By: | /s/ James Kapenstein |
| Name: | James M. Kapenstein |
| Title: | Authorized Signatory |
[SignaturePage to Registration Rights Agreement]
Exhibit10.2
TAX RECEIVABLES AGREEMENT
by and among
FUBOTV INC.,
FUBO OPERATIONS LLC
and
HULU, LLC
Dated as of October 29, 2025
TABLEOF CONTENTS
| Page | ||
|---|---|---|
| ARTICLE<br> I Definitions | 2 | |
| SECTION 1.1. | Definitions | 2 |
| SECTION 1.2. | Other Defined Terms | 6 |
| SECTION 1.3. | Rules<br>of Construction | 7 |
| ARTICLE<br> II Determination of Tax Benefit | 8 | |
| SECTION 2.1. | Basis Adjustments; 754 Election | 8 |
| SECTION 2.2. | Schedules | 8 |
| SECTION<br> 2.3. | Procedures; Amendments | 9 |
| ARTICLE<br> III Tax Benefit Payments | 10 | |
| SECTION 3.1. | Timing<br>and Amount of Tax Benefit Payments | 10 |
| SECTION 3.2. | Applicable Principles | 11 |
| SECTION<br>3.3. | Treatment of Payments | 12 |
| ARTICLE<br> IV Termination | 12 | |
| SECTION 4.1. | Early<br>Termination | 12 |
| SECTION 4.2. | Payment<br>upon Early Termination | 13 |
| ARTICLE<br> V Tax Matters; Consistency; Cooperation | 15 | |
| SECTION 5.1. | Participation in Tax Matters | 15 |
| SECTION 5.2. | Consistency | 15 |
| SECTION 5.3. | Cooperation | 16 |
| ARTICLE<br> VI Subordination and Late Payments; Payments Generally | 16 | |
| SECTION 6.1. | Payments Generally | 16 |
| SECTION 6.2. | Subordination | 16 |
| SECTION 6.3. | Late Payments by Fubo | 17 |
| SECTION 6.4. | No Duplicative Payments | 17 |
| SECTION 6.5. | Withholding | 17 |
| ARTICLE<br> VII Miscellaneous | 17 | |
| SECTION 7.1. | Notices | 17 |
| SECTION 7.2. | Expenses | 18 |
| SECTION 7.3. | Counterparts; Delivery by Electronic Transmission | 19 |
| SECTION 7.4. | Entire Agreement; No Third-Party Beneficiaries | 19 |
| SECTION 7.5. | Severability | 19 |
| SECTION 7.6. | Assignment | 19 |
| SECTION 7.7. | Amendments; Waivers; Consents | 19 |
| SECTION 7.8. | Successors | 20 |
| SECTION<br> 7.9. | Titles and Subtitles | 20 |
| SECTION 7.10. | Governing Law; Jurisdiction; Specific Performance | 20 |
| SECTION 7.11. | Reconciliation Procedures | 21 |
| SECTION 7.12. | Admission of Fubo into a Consolidated Group;<br>Certain Tax Actions and Covenants. | 22 |
| SECTION 7.13. | Confidentiality | 23 |
| SECTION 7.14. | Interest<br>Rate Limitation | 24 |
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TAX RECEIVABLES AGREEMENT
This TAX RECEIVABLES AGREEMENT (this “Agreement”), dated as of October 29, 2025, is hereby entered into by and among FuboTV Inc., a Delaware corporation (“Fubo”), Fubo Operations LLC, a Delaware limited liability company (“Newco”), and Hulu, LLC, a Delaware limited liability company (“Hulu”).
RECITALS
WHEREAS, concurrently herewith, pursuant to the Business Combination Agreement, dated as of January 6, 2025 (the “BCA”), by and among The Walt Disney Company, a Delaware corporation (“Disney”), Hulu and Fubo, (i) Hulu will contribute the HL Business and the HL Business Assets to Newco by transferring 100% of the equity interests of Hulu Live LLC, a Delaware limited liability company, to Newco and (ii) Fubo will contribute Fubo’s business to Newco by transferring 100% of the equity interests of Fubo Services LLC, a Delaware limited liability company, to Newco (the contributions in clauses (i) and (ii), the “Contributions”);
WHEREAS, following the Contributions, Newco will be classified as a partnership for U.S. federal income tax purposes and Hulu will hold (i) membership interests in Newco in the form of Common Units (the “Units”) and (ii) stock of Fubo in the form of Class B Common Stock;
WHEREAS the Operating Agreement provides Hulu the right to cause Newco to redeem all or a portion of Hulu’s Units in exchange for the Share Settlement or the Cash Settlement (a “Redemption”), subject to Fubo’s right, in its sole discretion, to instead effect a direct exchange of such consideration for such Units (a “Direct Exchange”);
WHEREAS Newco will have in effect an election under Section 754 of the Code for the Taxable Year in which any Exchange occurs, which will cause any such Exchange to result in an adjustment to Fubo’s proportionate share of the tax basis of Newco’s assets;
WHEREAS, before the Closing, Fubo possessed certain Historical NOLs; and
WHEREAS the Parties desire to provide for certain payments and make certain arrangements with respect to any tax benefits to be derived by Fubo as the result of Exchanges, from the Historical NOLs and from the making of payments under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth herein, the Parties agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Agreement, the following terms shall have the following meanings and capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the BCA.
“Advisory Firm” means an accounting firm that is nationally recognized as being expert in Covered Tax matters, selected by mutual agreement of the Parties.
“Agreed Rate” means the ten-year Treasury Rate plus 60 basis points, compounded annually.
“Audit Committee” means the audit committee of the Board of Directors of Fubo.
“Basis Adjustment” means the increase or decrease to, and Fubo’s proportionate share of, the tax basis of the Reference Assets under Section 732, 734(b), 743(b), 754, 755 or 1012 of the Code (or any similar provisions of applicable state, local or foreign tax Law), Rev. Rul. 99-5, 1999-6 I.R.B. 8 and Rev. Rul. 99-6, 1999-6 I.R.B. 6 as a result of any Exchange and any payment made under this Agreement. Notwithstanding any other provision of this Agreement, the amount of any Basis Adjustment resulting from an Exchange is to be determined as if any Pre-Exchange Transfer of the Units so Exchanged had not occurred. For the avoidance of doubt, Basis Adjustments shall include adjustments under the foregoing provisions without regard to Newco’s entity classification for U.S. federal income tax purposes.
“Blended Rate” means, with respect to any Taxable Year, the sum of the effective Tax rates imposed on the aggregate net income of Fubo or Newco, as applicable, in each state or local jurisdiction in which Fubo or Newco, as applicable, files Tax Returns for such Taxable Year, with the effective rate in any state or local jurisdiction being equal to the product of (i) the apportionment factor on the income or franchise Tax Returns of Fubo or Newco, as applicable, in such jurisdiction for such Taxable Year and (ii) the maximum applicable corporate income Tax rate in effect in such jurisdiction in such Taxable Year. To avoid double-counting, the “Blended Rate” shall not take into account any U.S. federal benefit of state or local tax deductions.
“Book Taxes” means any Taxes that are based on or measured with respect to financial statement net income, including the corporate alternative minimum tax imposed by Section 55 of the Code and any provision of tax Law implementing the OECD’s Model Anti-Base Erosion Rules (Pillar Two).
“Business Day” means any day other than a Saturday or a Sunday or a day on which banks located in New York City, New York generally are authorized or required by Law to close.
“Cash Settlement” has the meaning ascribed to it in the Operating Agreement.
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“Class A Common Stock” means the shares of Class A Common Stock of Fubo.
“Class A Trading Price” has the meaning ascribed to it in the Operating Agreement.
“Class B Common Stock” means the shares of Class B Common Stock of Fubo.
“Code” means the U.S. Internal Revenue Code of 1986.
“Common Units” has the meaning ascribed to it in the Operating Agreement.
“Control” means the direct or indirect possession 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. “Controlled” has a meaning correlative to the foregoing.
“Covered Taxes” means any Taxes that are based on or measured with respect to net income or profits, including, for the avoidance of doubt, Book Taxes.
“Default Rate” means the Prime Rate plus 300 basis points, compounded annually.
“Determination” shall have the meaning ascribed to such term in Section 1313(a) of the Code or any similar provisions of applicable state, local or foreign tax Law, or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax.
“Early Termination Rate” means SOFR plus 150 basis points, compounded annually.
“Exchange” or “Exchanged” means any (i) Direct Exchange or (ii) Redemption.
“Exchange Date” means the date of any Exchange.
“Final Payment Date” means any date on which a Payment is required to be made pursuant to this Agreement. The Final Payment Date in respect of (i) a Tax Benefit Payment is determined pursuant to Section 3.1(a) and (ii) an Early Termination Payment is determined pursuant to Section 4.2(a).
“Historical NOLs” mean any carryovers of net operating losses, net capital losses, excess tax credits, disallowed interest expense (including under Section 163(j) of the Code) and any other similar tax attributes for U.S. federal, state, local and foreign tax purposes of Fubo that relate to taxable periods (or portions thereof) ending on or prior to the Closing Date; provided that Historical NOLs do not include any tax attributes that are used to reduce or offset any income or gain arising from (i) the Transactions, (ii) the Settlement or (iii) the repayment or other refinancing of Fubo’s Convertible Senior Secured Notes due 2029.
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“Historical NOLs Sharing Percentage” means the lesser of (i) 70% and (ii) Hulu’s Percentage Interest (as defined in the Operating Agreement) as of the beginning of the Taxable Year in respect of which a Net Tax Benefit is calculated.
“Imputed Interest” means any interest imputed under Section 483, 1272 or 1274 or any other provision of the Code, or any similar provisions of applicable state, local or foreign tax Law, with respect to Fubo’s payment obligations under this Agreement.
“IRS” means the U.S. Internal Revenue Service.
“Newco Group” means Newco and each of its direct or indirect Subsidiaries that is classified as a partnership or disregarded entity for applicable tax purposes (but excluding the portion of any such Subsidiary that is directly or indirectly held by a Subsidiary of Newco that is an entity classified as a corporation for applicable tax purposes).
“Non-Adjusted Tax Basis” means, with respect to any Reference Asset at any time, the tax basis that such asset would have had at such time if no Basis Adjustments had been made.
“Operating Agreement” means that certain Amended and Restated Limited Liability Company Agreement of Newco, dated as of the date hereof.
“Parties” means the parties named on the signature pages to this Agreement.
“Payment” means any Tax Benefit Payment or Early Termination Payment and in each case, unless otherwise specified, refers to the entire amount of such Payment or any portion thereof.
“Permitted Transferee” has the meaning ascribed to it in the Operating Agreement.
“Pre-Exchange Transfer” means any transfer of or distribution in respect of one or more Units, in each case (i) that occurs after the Closing but prior to an Exchange of such Units and (ii) to which Section 734(b), 743(b), 707, 737 or 704(c)(1)(B) of the Code applies. For the avoidance of doubt, payments made in connection with the Contributions are not intended to give rise to “Pre-Exchange Transfers”.
“Prime Rate” means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Wall StreetJournal as the “prime rate” at large U.S. money center banks.
“Reconciliation Dispute” means a disagreement with respect to a Schedule prepared in accordance with the procedures set forth in Section 2.3 or Section 4.1, as applicable, within the relevant time period designated in this Agreement.
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“Reference Asset” means, with respect to any Exchange or transfer subject to Section 7.12, any asset of any member of the Newco Group at the time of such Exchange or such transfer. A Reference Asset also includes any asset the tax basis of which is determined, in whole or in part, by reference to the tax basis of an asset that is described in the preceding sentence, including “substituted basis property” within the meaning of Section 7701(a)(42) of the Code. References to depreciable or amortizable Reference Assets shall include assets that would become depreciable or amortizable when placed in service.
“Schedule” means any of the following: (i) an Attribute Schedule, (ii) a Tax Benefit Schedule, (iii) an Early Termination Schedule and (iv) any Amended Schedule.
“Share Settlement” has the meaning ascribed to it in the Operating Agreement.
“SOFR” means, for the relevant period, the rate per annum equal to the forward-looking term rate based on the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) for deposits in dollars for a period of one month as published by Federal Reserve Bank of New York on its website 2 Business Days before the first day of such period. If as of 5:00 p.m. (New York time) on such determination date the applicable rate has not been published, then the rate used will be the rate published on the business day most recently preceding such determination date.
“Subsidiary” means, with respect to any Person and as of any determination date, any other Person as to which such first Person (i) owns, directly or indirectly, or otherwise controls, any of the value or voting power or other similar interests of such other Person or (ii) is the sole general partner interest, or managing member or similar interest, of such other Person. Notwithstanding the foregoing, for purposes of this Agreement, Fubo, Newco and their respective Subsidiaries, on the one hand, shall be deemed to not be Subsidiaries of Hulu or any direct or indirect parent company thereof (including Disney) or any other Subsidiary of any such parent company, on the other hand.
“Tax” means all taxes or similar duties, fees or charges or assessments thereof imposed by a Governmental Entity, in each case in the nature of a tax, including any interest, penalties and additions imposed with respect to such amount.
“Tax Action” means any audit or other examination or administrative, judicial or other proceeding of, or with respect to, any Tax Return or Taxes.
“Tax Return” means any return, declaration, report or similar statement filed or required to be filed with respect to Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.
“Taxable Year” means a taxable year of Fubo as defined in Section 441(b) of the Code or any similar provisions of applicable state, local or foreign tax Law (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is filed).
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“Taxing Authority” means any Governmental Entity exercising regulatory or other authority in relation to Tax matters.
“Treasury Rate” means, as of any Interest Determination Date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to the relevant Interest Determination Date) of the yield to maturity as of the relevant Interest Determination Date of United States Treasury securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable day during such week (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Interest Determination Date to the tenth anniversary of the determination date.
“Treasury Regulations” means the final, temporary and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time and as in effect for the relevant taxable period.
SECTION 1.2. Other Defined Terms. For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated.
| Term | Section |
|---|---|
| Actual<br> Tax Liability | Section<br> 3.1(b)(vi) |
| Agreement | Preamble |
| Amended<br> Schedule | Section<br> 2.3(b) |
| Attribute<br> Schedule | Section<br> 2.2(a) |
| BCA | Recitals |
| Chancery<br> Court | Section<br> 7.10(b) |
| Confidential<br> Information | Section<br> 7.13(a) |
| Contributions | Recitals |
| Cumulative<br> Net Realized Step-Up Benefit | Section<br> 3.1(b)(iii) |
| Default<br> Rate Interest | Section<br> 6.3 |
| Direct<br> Exchange | Recitals |
| Disney | Recitals |
| Early<br> Termination Effective Date | Section<br> 4.1(b) |
| Early<br> Termination Notice | Section<br> 4.1(b) |
| Early<br> Termination Payment | Section<br> 4.2(b) |
| Early<br> Termination Reference Date | Section<br> 4.1(c) |
| Early<br> Termination Schedule | Section<br> 4.1(c) |
| Expert | Section<br> 7.11(a) |
| Fubo | Preamble |
| Future<br> TRAs | Section<br> 6.2(a) |
| Historical<br> NOLs Benefit | Section<br> 3.1(b)(viii) |
| Hulu | Preamble |
| Hypothetical<br> Tax Liability | Section<br> 3.1(b)(vii) |
| Interest<br> Amount | Section<br> 3.1(b)(i) |
| Interest<br> Determination Date | Section<br> 3.1(b)(i) |
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| Maximum<br> Rate | Section<br> 7.14 |
| Net<br> Tax Benefit | Section<br> 3.1(b)(ii) |
| Newco | Preamble |
| Non-TRA<br> Portion | Section<br> 3.2(g) |
| Objection<br> Notice | Section<br> 2.3(a)(ii) |
| Realized<br> Step-Up Benefit | Section<br> 3.1(b)(iv) |
| Realized<br> Step-Up Detriment | Section<br> 3.1(b)(v) |
| Reconciliation<br> Procedures | Section<br> 7.11(a) |
| Redemption | Recitals |
| Senior<br> Obligations | Section<br> 6.2(a) |
| Tax<br> Benefit Payment | Section<br> 3.1(b) |
| Tax<br> Benefit Schedule | Section<br> 2.2(b) |
| TRA<br> Portion | Section<br> 3.2(g) |
| Units | Recitals |
| Valuation<br> Assumptions | Section<br> 4.2(b)(i) |
| Voluntary<br> Early Termination | Section<br> 4.1(b) |
SECTION 1.3. Rules of Construction. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section to this Agreement unless otherwise indicated. The words “include”, “includes” and “including” when used herein shall not be deemed to be terms of limitation, but rather shall be deemed in each case to be followed by the words “without limitation”. The word “will” shall be construed to have the same meaning as the word “shall”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “or” shall not be exclusive. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement”, “hereof”, “herein”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and include any attachments to this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. The Parties have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and other advisors and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise.
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ARTICLE II
Determination of Tax Benefit
SECTION 2.1. Basis Adjustments; 754 Election.
(a) Tax Treatment. Except as otherwise required pursuant to a Determination, each Party agrees that, for all tax purposes (including filing Tax Returns and defending any Tax Actions):
(i) (A) each Redemption shall be treated as a direct purchase of Newco Units by Fubo from Hulu pursuant to Section 707(a)(2)(B) of the Code (or any similar provisions of applicable state, local or foreign tax Law) (i.e., equivalent to a Direct Exchange) and (B) each Exchange may give rise to Basis Adjustments; and
(ii) except for the portion treated as Imputed Interest (which will be treated as a payment of interest), all payments made under this Agreement shall be treated as consideration paid in the relevant Exchange or in connection with the Contributions under Rev. Rul. 99-5, 1996 I.R.B 8, Situation 1, as applicable, that give rise to additional Basis Adjustments.
(b) Section 754 Election. Fubo shall cause Newco and each of its Controlled Subsidiaries that is classified as a partnership for U.S. federal income tax purposes to have in effect an election under Section 754 of the Code (or any similar provisions of applicable state, local or foreign tax Law) for each Taxable Year. Fubo shall take commercially reasonable efforts to cause each other Person in which Newco owns a direct or indirect equity interest that is so classified as a partnership to have in effect such an election for each Taxable Year.
SECTION 2.2. Schedules. Within 120 days after (x) the Closing (in the case of Sections 2.2(a)(i), (iii) and (v) only) and (y) the filing of the U.S. federal income Tax Return of Fubo for each relevant Taxable Year, Fubo shall deliver to Hulu a schedule showing, in reasonable detail:
(a) (i) the actual tax basis and Non-Adjusted Tax Basis of the Reference Assets as of, in the case of clause (x), the Closing and, in the case of clause (y), each applicable Exchange Date, (ii) the Basis Adjustments to the Reference Assets for such Taxable Year and prior Taxable Years, (iii) the periods over which the Reference Assets are amortizable or depreciable, (iv) the period over which each Basis Adjustment is amortizable or depreciable and (v) the amount of Historical NOLs available to Fubo and any limitations on the ability of Fubo to use the Historical NOLs (including under Sections 382 and 383 of the Code) (an “Attribute Schedule”); and
(b) the calculation of the Realized Step-Up Benefit or Realized Step-Up Detriment for such Taxable Year, Historical NOLs Benefit for such Taxable Year and any Tax Benefit Payment or other payment under this Agreement for such Taxable Year and prior Taxable Years (a “Tax Benefit Schedule”).
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An Attribute Schedule or Tax Benefit Schedule will become final and binding on the Parties pursuant to the procedures set forth in Section 2.3(a) and may be amended by the Parties pursuant to the procedures set forth in Section 2.3(b).
SECTION 2.3. Procedures; Amendments.
(a) Procedures.
(i) Each time Fubo delivers a Schedule to Hulu under this Agreement, Fubo shall, with respect to such Schedule, also deliver supporting schedules and work papers, as determined by Fubo or as reasonably requested by Hulu, that provide a reasonable level of detail regarding relevant data and calculations and allow Hulu and its Representatives to have reasonable access to the appropriate Representatives of Fubo or Newco, as determined by Fubo or as reasonably requested by Hulu, in connection with a review of relevant information. Without limiting the generality of the foregoing, Fubo shall ensure that each Tax Benefit Schedule or Amended Schedule (together with any supporting schedules and work papers) provides a reasonably detailed presentation of the required calculations and identifies any material assumptions, operating procedures or principles used for such calculations.
(ii) A Schedule shall become final and binding on the Parties 30 days from the date on which Hulu first received the applicable Schedule unless Hulu, within such period, provides Fubo with written notice that sets forth in reasonable detail Hulu’s objection to such Schedule (an “Objection Notice”); provided that any matters not objected to shall be deemed accepted and become final and binding. If the Parties are unable to resolve the issues raised in such Objection Notice within 30 days after receipt by Fubo thereof, Fubo and Hulu shall employ the Reconciliation Procedures described in Section 7.11 and the Schedule will be finalized in accordance therewith.
(b) Amended Schedule. A Schedule (other than an Early Termination Schedule) for any Taxable Year may only, and shall be, amended from time to time by Fubo (i) in connection with a Determination affecting such Schedule, (ii) to correct inaccuracies in such Schedule identified as a result of the receipt of additional factual information after the date such Schedule was originally provided to Hulu, (iii) to comply with an Expert’s determination under the Reconciliation Procedures or (iv) to reflect a change in the Realized Step-Up Benefit, Realized Step-Up Detriment or Historical NOLs Benefit for such Taxable Year attributable to a carryover or carryback of a loss or other tax item to such Taxable Year or to an amended Tax Return filed for such Taxable Year (any such Schedule in its amended form, an “Amended Schedule”). Fubo shall provide any Amended Schedule to Hulu within 60 days of the occurrence of an event referred to in any of clauses (i) through (iv) of the preceding sentence, and such Amended Schedule shall be subject to the procedures described in Section 2.3(a).
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ARTICLE III
Tax Benefit Payments
SECTION 3.1. Timing and Amount of Tax Benefit Payments.
(a) Timing of Payments. By the date that is 10 Business Days following the date on which each Tax Benefit Schedule or Amended Schedule becomes final in accordance with Section 2.3(a) (such first date, the “Final Payment Date” in respect of any Tax Benefit Payment), Fubo shall pay Hulu the Tax Benefit Payment as determined pursuant to Section 3.1(b). For the avoidance of doubt, no Tax Benefit Payment shall be calculated or made in respect of any estimated Tax payments, including any estimated U.S. federal income Tax payments.
(b) Amount of Payments. A “Tax Benefit Payment” for a Taxable Year means an amount, not less than zero, equal to the sum of the Net Tax Benefit plus the Interest Amount for such Taxable Year.
(i) The “Interest Amount” shall equal the interest on the Net Tax Benefit calculated at the Agreed Rate from the due date (without extensions) for filing the U.S. federal income Tax Return of Fubo with respect to the relevant Taxable Year (each such due date, an “Interest Determination Date”) until the Final Payment Date.
(ii) The “Net Tax Benefit” for a Taxable Year equals the sum of:
(A) the amount of the excess, if any, of (1) 70% multiplied by the Cumulative Net Realized Step-Up Benefit as of the end of such Taxable Year over (2) the aggregate amount of all Tax Benefit Payments previously made under this Section 3.1 (excluding any Interest Amount and any portion of such Tax Benefit Payments in respect of Section 3.1(b)(ii)(B)); plus
(B) the Historical NOLs Sharing Percentage multiplied by the Historical NOLs Benefit.
(iii) The “Cumulative Net Realized Step-Up Benefit” for a Taxable Year equals the cumulative amount of Realized Step-Up Benefits for all Taxable Years, up to and including such Taxable Year, net of the cumulative amount of Realized Step-Up Detriments for the same period.
(iv) The “Realized Step-Up Benefit” for a Taxable Year equals the excess, if any, of the Hypothetical Tax Liability over the Actual Tax Liability for such Taxable Year.
(v) The “Realized Step-Up Detriment” for a Taxable Year equals the excess, if any, of the Actual Tax Liability over the Hypothetical Tax Liability for such Taxable Year.
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(vi) The “Actual Tax Liability” means, with respect to any Taxable Year, the liability for Covered Taxes, which shall not be less than zero, (A) of Fubo and (B) without duplication, of Newco and its Subsidiaries, but only with respect to Covered Taxes imposed on Newco and its Subsidiaries and allocable to Fubo or to the other members of the consolidated group of which Fubo is the parent, in each case, (1) appearing on U.S. federal income Tax Returns (including IRS Forms 1120 and 1065) or foreign Tax Returns of the applicable Person for such Taxable Year and (2) if applicable, determined in accordance with a Determination. For the avoidance of doubt, the liability for U.S. state and local Covered Taxes shall be the product of the amount of taxable income appearing on such U.S. federal income Tax Returns and the Blended Rate.
(vii) The “Hypothetical Tax Liability” means, with respect to any Taxable Year, the hypothetical liability of Fubo that would arise in respect of Covered Taxes, which shall not be less than zero, using the same methods, elections, conventions and similar practices in calculating the Actual Tax Liability but (A) using Fubo’s proportionate share of the Non-Adjusted Tax Basis as reflected on the Attribute Schedule or Amended Schedule, as applicable, for such Taxable Year, (B) excluding any expense, deduction or loss attributable to Imputed Interest for such Taxable Year and (C) assuming that Fubo used the same amount of Historical NOLs that it actually used for such Taxable Year. For the avoidance of doubt, the Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any tax item (or portions thereof) that is attributable to any of the Basis Adjustments excluded pursuant to clause (A) or any of the items described in clause (B) of the previous sentence.
(viii) The “Historical NOLs Benefit” means, with respect to any Taxable Year, the excess, if any, of (A) the hypothetical liability of Fubo that would arise in respect of Covered Taxes using the same methods, elections, conventions and similar practices in calculating the Actual Tax Liability but (1) calculating depreciation, amortization or other similar deductions, and otherwise calculating any items of income, gain or loss, with the Basis Adjustments that Fubo actually used for such Taxable Year, (2) including any expense, deduction or loss attributable to Imputed Interest that Fubo actually used for such Taxable Year and (3) assuming Fubo had no Historical NOLs, over (B) the Actual Tax Liability for such Taxable Year.
SECTION 3.2. Applicable Principles.
(a) The Realized Step-Up Benefit or Realized Step-Up Detriment for each Taxable Year is intended to measure the decrease or increase in the Actual Tax Liability of Fubo for such Taxable Year attributable to the Basis Adjustments and Imputed Interest, determined using a “with and without” methodology, and will be construed accordingly.
(b) The Historical NOLs Benefit is intended to measure the decrease in the Actual Tax Liability of Fubo for such Taxable Year attributable to the Historical NOLs, determined using a “with and without” methodology, and will be construed accordingly.
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(c) The Actual Tax Liability, Hypothetical Tax Liability and Historical NOLs Benefit shall be calculated using (i) in the case of U.S. state and local Taxes, the Blended Rate and (ii) in the case of a Determination, the highest applicable Tax rate in effect for Fubo during the Taxable Year to which such Determination relates for purposes of calculating the Taxes applicable to such Determination.
(d) The Actual Tax Liability, Hypothetical Tax Liability and Historical NOLs Benefit shall be calculated including, without duplication, any liabilities of Fubo for Covered Taxes of a current or former consolidated group member pursuant to Treasury Regulations Section 1.1502-6 (or any similar provisions of state, local or foreign tax Law).
(e) The Realized Step-Up Benefit and Realized Step-Up Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination.
(f) If all or a portion of the Actual Tax Liability for such Taxable Year arises as a result of a Tax Action of any Taxable Year, such liability shall not be included in determining the Realized Step-Up Benefit or the Realized Step-Up Detriment unless and until there has been a Determination.
(g) Except as expressly set forth herein, carryovers or carrybacks of any tax item attributable to any Basis Adjustment, Imputed Interest or Historical NOLs shall be considered to be subject to the rules of the Code and the Treasury Regulations, and the appropriate provisions of state, local and foreign tax Law, governing the use, limitation or expiration of carryovers or carrybacks of the relevant type. If a carryover or carryback of any tax item includes a portion that is attributable to a Basis Adjustment, Imputed Interest or Historical NOLs (a “TRA Portion”) and a portion that is not so attributable (a “Non-TRA Portion”), such portions shall be considered to be used in accordance with the “with and without” methodology so that the amount of any Non-TRA Portion is deemed utilized first, to the extent available, followed by the amount of any TRA Portion.
SECTION 3.3. Treatment of Payments. The Parties shall use commercially reasonable efforts to cooperate in connection with any tax reporting of Tax Benefit Payments in connection with this Agreement, including that, if Hulu elects to use the installment method under Section 453 of the Code with respect to any Exchange and notifies Fubo of a stated maximum selling price (within the meaning of Treasury Regulations Section 15A.453-1(c)(2), as reasonably determined by Hulu) with respect to such Exchange, then the Parties agree that the amount of consideration received in connection with such Exchange shall not exceed such stated maximum selling price.
ARTICLE IV
Termination
SECTION 4.1. Early Termination.
(a) With the written approval of the Audit Committee, Fubo may terminate this Agreement, as and to the extent provided in this Article IV.
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(b) If Fubo chooses to exercise its termination right under Section 4.1(a) (“Voluntary Early Termination”), Fubo shall deliver to Hulu notice of such decision (an “Early Termination Notice” and the date such notice is delivered, the “Early Termination Effective Date”). Fubo may withdraw such Early Termination Notice and rescind its Voluntary Early Termination at any time prior to the Final Payment Date with respect to such Early Termination Payment.
(c) Simultaneously with the delivery of an Early Termination Notice, Fubo shall deliver a schedule showing in reasonable detail the calculation of the Early Termination Payment (an “Early Termination Schedule” and the date on which such Early Termination Schedule becomes final in accordance with Section 2.3(a), the “Early Termination Reference Date”).
(d) Upon Fubo’s payment in full of the Early Termination Payment (along with any applicable Default Rate Interest) to Hulu, Fubo shall have no further payment obligations under this Agreement other than with respect to any (i) Tax Benefit Payment (along with any applicable Default Rate Interest) due and payable that remains unpaid as of the Early Termination Effective Date and as of the date of payment of the Early Termination Payment and (ii) Tax Benefit Payment (along with any applicable Default Rate Interest) due for the Taxable Year ending immediately prior to, ending with or including the date of the Early Termination Notice (except to the extent that the amounts described in clause (i) or this clause (ii) are included in the Early Termination Payment).
SECTION 4.2. Payment upon Early Termination.
(a) Timing of Payment. By the date that is three Business Days after the Early Termination Reference Date (such date, the “Final Payment Date” in respect of the Early Termination Payment), Fubo shall pay an amount equal to the Early Termination Payment to Hulu. For the avoidance of doubt, Fubo shall not be required to make an Early Termination Payment in connection with a change of control of, or other similar transaction by, Fubo, a material breach of this Agreement by Fubo or a bankruptcy or other insolvency event of Fubo.
(b) Amount of Payment. The “Early Termination Payment” shall equal the present value, discounted at the Early Termination Rate and determined as of the Early Termination Reference Date, of all Tax Benefit Payments that would be required to be paid by Fubo to Hulu, beginning from the Early Termination Effective Date and using the Valuation Assumptions.
(i) The “Valuation Assumptions” are the assumptions that, as of an Early Termination Effective Date and for each Taxable Year ending on or after such Early Termination Effective Date:
(A) Fubo will have taxable income sufficient to fully use the deductions arising from the Basis Adjustments and the Imputed Interest during such Taxable Year that includes the Early Termination Effective Date and future Taxable Years in which such deductions would become available (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions);
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(B) the income Tax rates that will be in effect for each such Taxable Year will be (1) for U.S. state and local Taxes, the Blended Rate for the Taxable Year that includes the Early Termination Effective Date, (2) for U.S. federal Taxes, the highest U.S. federal Tax rate in effect for Fubo for the Taxable Year that includes the Early Termination Effective Date, and (3) for all other Taxes, those specified for the Taxable Year that includes the Early Termination Effective Date by applicable Law, in each case, except to the extent any increase to such Tax rates for such Taxable Year has already been enacted into Law as of the Early Termination Effective Date, in which case such increased rate shall apply from the date of the scheduled increase;
(C) Fubo will not be subject to any Book Taxes;
(D) (1) any loss carryovers or carrybacks generated by any Basis Adjustment or Imputed Interest and (2) any Historical NOLs (including any tax items attributable to any Historical NOLs), in each case, that are available (taking into account any applicable limitations (including, for the avoidance of doubt, any applicable limitations under Sections 382, 383 and 172(a)(2) of the Code), except as expressly provided in this Agreement) as of the date of the Early Termination Schedule will be used by Fubo ratably over the earlier of (x) the period ending with the scheduled expiration date of such item and (y) if there is no such scheduled expiration, 15 years following the Taxable Year that includes the date of the Early Termination Schedule;
(E) (1) any equity interests in any of Newco’s Subsidiaries classified as a corporation for U.S. federal income tax purposes will not be disposed of, (2) any short-term investments (as defined by GAAP) will be disposed of to an unrelated party 12 months following the Early Termination Effective Date and (3) any non-amortizable, non-depreciable Reference Assets (other than those described in clauses (1) and (2)) will be disposed of to an unrelated party 15 years after the Early Termination Effective Date;
(F) if, on the Early Termination Effective Date, any Newco Units have not been Exchanged, then such Newco Units shall be deemed to be Exchanged for the amount of cash that would be received by Hulu had such Newco Units actually been so Exchanged at the Class A Trading Price on such date in a fully taxable transaction governed by Sections 741 and 743 of the Code;
(G) any future payment obligations pursuant to this Agreement that are used to calculate the Early Termination Payment will be satisfied on the date that any Tax Return to which any such payment obligation relates is required to be filed excluding any extensions; and
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(H) with respect to Taxable Years ending prior to the Early Termination Effective Date, any unpaid Tax Benefit Payments and any applicable Default Rate Interest will be paid on the Early Termination Effective Date.
ARTICLE V
Tax Matters; Consistency; Cooperation
SECTION 5.1. Participation in Tax Matters. Except as otherwise provided herein or in the BCA or the Operating Agreement, Fubo shall have full responsibility for, and sole discretion over, all tax matters concerning Fubo or Newco, including preparing, filing or amending any Tax Return and defending, contesting or settling any issue pertaining to Taxes. Notwithstanding the foregoing, Fubo shall notify Hulu of, and keep it reasonably informed with respect to, the portion of any Tax Action of Fubo, Newco or any of Newco’s Controlled Subsidiaries, the outcome of which is reasonably expected to materially affect Hulu’s rights and obligations under this Agreement, and Hulu shall have the right to participate in and to monitor at its own expense (but not to control) any such portion of any such Tax Action; provided that none of Fubo, Newco or any of Newco’s Controlled Subsidiaries shall settle or fail to contest any issue that is reasonably expected to materially adversely affect Hulu’s rights or obligations under this Agreement (including the amount or timing of payment made hereunder) without the prior written consent of Hulu.
SECTION 5.2. Consistency. Except upon the written advice of the Advisory Firm and except for items that are explicitly described as “deemed” or treated in a similar manner by the terms of this Agreement, all calculations and determinations made hereunder, including any Basis Adjustments, the Schedules and the determination of any Realized Step-Up Benefits or Realized Step-Up Detriments, shall be made in accordance with the elections, methodologies and positions set forth in the BCA and the Operating Agreement, and otherwise taken by Fubo and Newco (and their respective Subsidiaries) on their respective Tax Returns. Hulu shall prepare its Tax Returns in a manner consistent with the terms of this Agreement and any related calculations or determinations made hereunder, including the terms of Section 2.1 and the Schedules provided to Hulu, except as otherwise required by Law. In the event that an Advisory Firm is replaced with another Advisory Firm, the Parties shall cause such replacement Advisory Firm to perform its services necessitated by this Agreement using procedures and methodologies consistent with those of the previous Advisory Firm, unless otherwise required by Law or unless Fubo obtains Hulu’s consent (not to be unreasonably withheld, conditioned or delayed) to the use of other procedures and methodologies. Fubo shall (and shall cause Newco and its other Controlled Subsidiaries to) use commercially reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of Hulu under this Agreement) to defend the tax treatment contemplated by this Agreement and any Schedule (or Amended Schedule, as applicable) in any Tax Action.
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SECTION 5.3. Cooperation.
(a) Hulu shall (i) furnish to Fubo in a timely manner such information, documents and other materials as Fubo may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return of Newco or any of its Subsidiaries or contesting or defending any related Tax Action, (ii) make itself available to Fubo and its Representatives to provide explanations of documents and materials and such other information as Fubo or its Representatives may reasonably request in connection with any of the matters described in clause (i) above and (iii) reasonably cooperate with Fubo or its Representatives in connection with any such matter. For the avoidance of doubt, no provision of this Agreement shall be construed to require Hulu to provide any other party any right to access or review (A) any Tax Return, tax work papers or other proprietary or confidential information of Hulu or its direct or indirect beneficial owners or (B) any other information, documents and other materials if the disclosure of such materials would give rise to a material risk of waiving the protection to Hulu or any of its Affiliates of any privilege, including privileges arising under or related to an attorney-client privilege, work product doctrine or any other legal privilege.
ARTICLE VI
Subordination and Late Payments; Payments Generally
SECTION 6.1. Payments Generally. Payments required to be made by Fubo to Hulu under this Agreement shall be made by wire transfer of immediately available funds to a bank account or accounts designated by Hulu. For the avoidance of doubt, Hulu shall not be required under any circumstances to return any portion of any Payment or any Default Rate Interest paid by Fubo to Hulu (including any portion of any Early Termination Payment).
SECTION 6.2. Subordination.
(a) Notwithstanding anything herein to the contrary, any payment required to be made by Fubo to Hulu under this Agreement shall rank subordinate and junior in right of payment to any principal, interest or other amounts due and payable in respect of any obligations owed in respect of secured indebtedness for borrowed money of Fubo (“Senior Obligations”) and shall rank pari passu in right of payment with all current or future obligations of Fubo that are not Senior Obligations; provided, however, that to the extent that Fubo or any of its controlled Affiliates enters into future tax receivable or other similar agreements (“Future TRAs”), Fubo shall ensure that the terms of any such Future TRA provide that any payment required to be made by Fubo to Hulu under this Agreement shall rank senior in priority to any payment required to be made by Fubo under such Future TRA. Further, the effect of any Future TRAs (or the benefits on which such Future TRAs are based) shall not be taken into account in respect of any calculations made hereunder. To the extent that any payment under this Agreement is not permitted to be made at the time payment is due as a result of this Section 6.2 and the terms of the agreements governing Senior Obligations, such payment obligation (together with Agreed Rate Interest thereon) nevertheless shall accrue for the benefit of Hulu, and Fubo shall make such payments at the first opportunity that such payments are permitted to be made in accordance with the terms of the Senior Obligations.
(b) Fubo shall use commercially reasonable efforts to cause the terms of the agreements governing Senior Obligations to allow payments to be made under this Agreement. To the extent Fubo or its Controlled Subsidiaries (including Newco and its Controlled Subsidiaries) incur, create or assume any Senior Obligations after the date hereof, Fubo shall not, and shall cause its Controlled Subsidiaries to not, agree to any provision that restricts in any material respect the amounts payable hereunder if the principal purpose of Fubo agreeing to such provision is to circumvent the payment of amounts payable hereunder.
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SECTION 6.3. Late Payments by Fubo. No Tax Benefit Payment shall be made in respect of any Taxable Year until all Tax Benefit Payments (and any applicable Default Rate Interest and interest payable as a result of Section 6.2) in respect of all prior Taxable Years have been made in full. The amount of any Payment not made to Hulu by the applicable Final Payment Date, whether as a result of this Section 6.3 or otherwise (but excluding as a result of Section 6.2), shall be payable together with “Default Rate Interest”, calculated at the Default Rate and accruing on the amount of the unpaid Payment from the applicable Final Payment Date until the date on which Fubo makes such Payment to Hulu.
SECTION 6.4. No Duplicative Payments. It is intended that the provisions hereunder will not result in the duplicative payment of any amount that may be required under this Agreement, and the provisions hereunder shall be consistently interpreted and applied in accordance with that intent.
SECTION 6.5. Withholding. Fubo and its Affiliates shall be entitled to deduct and withhold from any payment that is payable to Hulu or any other Person pursuant to this Agreement such amounts as Fubo is required to deduct and withhold with respect to the making of such payment by applicable Law. To the extent that amounts are so deducted and withheld and paid over to the appropriate Taxing Authority by Fubo, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid by Fubo to the Person in respect of whom the deduction and withholding was made. If Fubo becomes aware of any such requirement to so deduct and withhold from any payment that is payable to Hulu pursuant to this Agreement, Fubo shall use commercially reasonable efforts to provide Hulu with written notice of the amount of and applicable Law requiring such withholding at least 10 days prior to making such deduction and withholding. The Parties shall reasonably cooperate to reduce or eliminate any amounts that would otherwise be required to be deducted and withheld pursuant to this Section 6.5, including by providing any applicable tax forms and certifications reasonably requested by Fubo.
ARTICLE VII
Miscellaneous
SECTION 7.1. Notices. All notices, requests, claims, demands and other communications hereunder to any Party shall be in writing and shall be deemed given if delivered personally, by email (to the extent that no “bounce back” or similar message indicating non-delivery is received with respect thereto) or if sent by overnight courier (providing proof of delivery) to the Parties at the following addresses, or such other address or email address as such Party may hereafter specify by like notice to the other Parties:
| (a) | if<br> to Newco: | |
|---|---|---|
| Fubo<br> Operations LLC | ||
| 1290<br> Avenue of the Americas, 9th Floor | ||
| New<br> York, New York 10104 | ||
| Attention: | Chief<br> Legal Officer | |
| Email: | * * * |
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| --- | | (b) | if<br> to Fubo: | | | --- | --- | --- | | | FuboTV<br> Inc. | | | | 1290<br> Avenue of the Americas, 9th Floor | | | | New<br> York, New York 10104 | | | | Attention: | Chief<br> Legal Officer | | | Email: | * * * | | (c) | if<br> to Hulu: | | | --- | --- | --- | | | c/o<br> The Walt Disney Company | | | | 500<br> South Buena Vista Street | | | | Burbank,<br> California 91521 | | | | Attention: | Justin<br> Warbrooke | | | | James<br> Kapenstein | | | Email: | * * * | | | | * * * |
Any notice delivered pursuant to subsections (a), (b) or (c) of this Section 7.1 shall include a further copy (which shall not constitute notice) to:
| Cravath,<br> Swaine & Moore LLP | |
|---|---|
| Two<br> Manhattan West | |
| 375<br> Ninth Avenue | |
| New<br> York, New York 10001 | |
| Attention: | Lauren<br> Angelilli |
| Andrew<br> T. Davis | |
| Email: | langelilli@cravath.com |
| adavis@cravath.com |
and
| Latham<br> & Watkins LLP | |
|---|---|
| 1271<br> Avenue of the Americas | |
| New<br> York, New York 10020 | |
| Attention: | Andrew<br> Elken |
| Owen<br> Alexander | |
| Email: | Andrew.Elken@lw.com |
| Owen.Alexander@lw.com |
SECTION 7.2. Expenses. Except as otherwise set forth herein, each Party shall pay its own expenses incurred following the date of this Agreement in connection with this Agreement.
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SECTION 7.3. Counterparts; Delivery by Electronic Transmission. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of electronic mail transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Section 7.3 shall apply mutatis mutandis to any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto.
SECTION 7.4. Entire Agreement; No Third-Party Beneficiaries. This Agreement and those documents expressly referred to herein constitute the entire agreement, and supersede all other prior agreements and understandings (both written and oral), among the Parties with respect to the subject matter hereof and thereof. This Agreement is not intended to and does not confer upon any Person other than the Parties (and their respective permitted transferees) any rights or remedies, except as expressly provided in this Agreement (it being understood and agreed that the Persons referred to in any Section of this Agreement as having such rights and who or which are not parties hereto shall be entitled to the benefits of, and to enforce the provisions of, such Section).
SECTION 7.5. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable Law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the Parties shall be construed and enforced accordingly.
SECTION 7.6. Assignment. Hulu may not assign or transfer its interest in this Agreement in whole or in part, including the right to receive any payments to be made pursuant to this Agreement, to any Person; provided, however, that Hulu may assign or transfer the right to receive any Tax Benefit Payments under this Agreement to (i) any Permitted Transferee to whom Units are transferred or (ii) any Person that directly or indirectly wholly owns, or is directly or indirectly wholly owned by, Disney or the then-current ultimate parent company of Hulu. For the avoidance of doubt, if Hulu transfers Newco Units in accordance with the terms of the Operating Agreement but does not assign to the transferee of such Units its rights under this Agreement with respect to such transferred Units, Hulu shall continue to be entitled to receive the Tax Benefit Payments arising in respect of a subsequent Exchange of such Units. Fubo may not assign any of its rights or obligations under this Agreement to any Person without Hulu’s consent. Any purported assignment not in compliance with this Section 7.6 shall be null and void.
SECTION 7.7. Amendments; Waivers; Consents. No provision of this Agreement may be amended unless such amendment is approved in writing and signed by each Party; provided that amendment of Article IV shall also require the written approval of the Audit Committee. No provision of this Agreement may be waived unless such waiver is in writing and signed by the Party against whom the waiver is to be effective. In the event that the Prime Rate, SOFR or the Treasury Rate ceases to be available, the Parties will negotiate in good faith to amend this Agreement to replace the Prime Rate, SOFR or the Treasury Rate with a mutually acceptable successor rate. The failure of any Party to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights nor will any single or partial exercise by any Party of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under this Agreement. The rights and remedies herein provided will be cumulative and not exclusive of any rights or remedies provided by Law or otherwise.
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SECTION 7.8. Successors. This Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns. Fubo shall require and cause any direct or indirect successor (whether by equity purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of Fubo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that Fubo would be required to perform if no such succession had taken place.
SECTION 7.9. Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
SECTION 7.10. Governing Law; Jurisdiction; Specific Performance.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(b) Each of the Parties (i) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware (the “Chancery Court”) or, if, but only if, the Chancery Court lacks subject matter jurisdiction, any federal court located in the State of Delaware with respect to any dispute arising out of, relating to or in connection with this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Action arising out of, relating to or in connection with this Agreement or any of the transactions contemplated by this Agreement in any court other than the courts of the State of Delaware, as described above, and (iv) waives any right to trial by jury with respect to any Action related to or arising out of this Agreement or any of the transactions contemplated hereby. Nothing in this Section 7.10 shall prevent any Party from bringing an Action in any jurisdiction to enforce any judgment of the Chancery Court or any federal court located in the State of Delaware, as applicable. Each of the Parties hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 7.1 shall be effective service of process for any Action in connection with this Agreement or any of the transactions contemplated hereby.
(c) The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by any other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it, including pursuant to this Agreement, whether in law or in equity) to (i) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation and (ii) an injunction restraining such breach or threatened breach, without proof of damages or otherwise. No Party shall oppose the granting of an injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement on the basis that the other Parties have an adequate remedy at law or that an award of equitable relief is unenforceable, invalid or not an appropriate remedy for any reason at law or equity. No Party seeking any injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement in accordance with this Section 7.10(c) shall be required to provide any bond or other security in connection with any such order or injunction.
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SECTION 7.11. Reconciliation Procedures.
(a) In the event that Fubo and Hulu are unable to resolve a Reconciliation Dispute within the relevant time period designated in this Agreement, the procedures described in this paragraph (the “Reconciliation Procedures”) will apply. The Parties shall, within 15 days of the commencement of a Reconciliation Dispute, mutually select a nationally recognized expert in the particular area of disagreement (the “Expert”) and submit the Reconciliation Dispute to such Expert for determination. The Expert shall be a partner or principal in a nationally recognized accounting firm, and, unless Fubo and Hulu agree otherwise, the Expert (and its employing firm) shall not have any material relationship with Fubo or Hulu or other actual or potential conflict of interest. If the applicable Parties are unable to agree on an Expert within such 15 calendar-day time period, each such Party shall select an Expert and those selected Experts shall pick an Expert from a nationally recognized accounting firm that does not have any material relationship with the applicable Parties. The Expert shall resolve any matter relating to (i) an Attribute Schedule, Early Termination Schedule or an amendment to either within 30 days and (ii) a Tax Benefit Schedule, an amendment thereto or any other matters subject to the Reconciliation Procedures within 15 days or as soon thereafter as is reasonably practicable, in each case, after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement is due, the undisputed amount shall be paid by the date prescribed by this Agreement and such Tax Return may be filed as prepared by Fubo, subject to adjustment or amendment upon resolution. The Expert shall finally determine any Reconciliation Dispute, and its determinations pursuant to this Section 7.11(a) shall be binding on the Parties and may be entered and enforced in any court having competent jurisdiction. For the avoidance of doubt, the Expert in making a determination in any Reconciliation Dispute in accordance with this Section 7.11(a) shall be acting in the capacity of an expert in the subject matter of the disagreement and not acting in the capacity as an arbitrator of such Reconciliation Dispute.
(b) The sum of (a) the costs and expenses relating to (i) the engagement of such Expert and (ii) if applicable, amending any Tax Return in connection with the decision of such Expert and (b) the reasonable and documented out-of-pocket costs and expenses of Fubo and Hulu incurred in the conduct of such resolution process shall be allocated between Fubo, on the one hand, and Hulu, on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Expert that is unsuccessfully disputed by each such Party (as finally determined by the Expert) bears to the total amount of such disputed items so submitted, and each such Party shall promptly reimburse the other Party for the excess that such other Party has paid in respect of such costs and expenses over the amount it has been so allocated. Fubo may withhold payments under this Agreement to collect amounts due under the preceding sentence.
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SECTION 7.12. Admission of Fubo into a Consolidated Group; Certain Tax Actions and Covenants.
(a) If Fubo is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income Tax Return pursuant to Section 1501 or other applicable sections of the Code governing affiliated or consolidated groups, or any similar provisions of state, local or foreign tax Law, then (i) the provisions hereunder shall be applied with respect to the group as a whole and (ii) Payments and other applicable items hereunder shall be computed with reference to the affiliated or consolidated taxable income of the group as a whole, as the case may be.
(b) If Fubo (or its consolidated group) or any member of the Newco Group transfers (or is deemed to transfer for U.S. federal income tax purposes) any Reference Asset to an entity the income of which is not included in the income of Fubo (or its consolidated group) in a transaction in which the transferee’s basis in the Reference Asset acquired is determined in whole or in part by reference to the transferor’s basis in the Reference Asset, for purposes of calculating the amount of any payment under this Agreement, Fubo (or its consolidated group) or the applicable member of the Newco Group will be treated as having disposed of the Reference Asset (on the date of the transfer) in a fully taxable transaction in which income, gain or loss is allocated to Fubo in accordance with the Operating Agreement. The consideration deemed to be received in any deemed transaction described in this Section 7.12(b) will be equal to the fair market value of the transferred Reference Asset as of the date of the transfer, plus (without duplication): (A) the amount of debt to which the Reference Asset is subject, in the case of a transfer of an encumbered Reference Asset or (B) the amount of debt allocated to the Reference Asset, in the case of a transfer of an equity interest in an entity classified as a partnership for applicable tax purposes. Any dispute as to fair market value in connection with this Section 7.12(b) will be resolved pursuant to the Reconciliation Procedures. For purposes of this Section 7.12, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership. Notwithstanding anything to the contrary set forth herein, if Fubo transfers its assets pursuant to a transaction that qualifies as a “reorganization” (within the meaning of Section 368(a) of the Code) in which it does not survive, pursuant to a contribution described in Section 351(a) of the Code or pursuant to any other transaction to which Section 381(a) of the Code applies, the transfer will not cause Fubo to be treated as having transferred any assets to an entity the income of which is not included in the income of Fubo (or its consolidated group) pursuant to this Section 7.12(b) so long as the relevant successor is bound by the provisions of this Agreement pursuant to Section 7.8.
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(c) If Fubo (or its consolidated group) transfers (or is deemed to transfer for U.S. federal income tax purposes) any Newco Units to an entity the income of which is not included in the income of Fubo (or its consolidated group) in a transaction that is wholly or partially taxable, Newco shall be treated as having disposed of the portion of any Reference Assets that are indirectly transferred in a wholly or partially taxable transaction in which income, gain or loss is allocated to Fubo in accordance with the Operating Agreement for consideration calculated in a manner consistent with Section 7.12(b).
(d) If any member of Fubo’s consolidated group that owns any Newco Units deconsolidates from such consolidated group for U.S. federal income tax purposes and the income of such member is no longer included in the income of Fubo (or its consolidated group), then such deconsolidated member (or Fubo, in the case where Fubo deconsolidates from the consolidated group and Fubo is no longer treated as a corporation for U.S. federal income tax purposes, unless a successor to Fubo is bound by the provisions of this Agreement pursuant to Section 7.8 and the income of Fubo is included in the income of such successor or such successor’s consolidated group) shall be treated immediately prior to deconsolidation as having disposed of its directly or indirectly held equity of Newco in a fully taxable transaction for consideration calculated in a manner consistent with Section 7.12(b).
(e) Any transaction described in this Section 7.12 will be taken into account in determining the Realized Step-Up Benefits, Realized Step-Up Detriments or Historical NOLs Benefit, as applicable, for the Taxable Year in which the transaction is deemed to occur, consistent with the principles of this Agreement; provided, however, that none of the transactions set forth in the BCA shall constitute a transaction described in this Section 7.12.
SECTION 7.13. Confidentiality.
(a) The Parties and their respective Affiliates shall, and shall direct their respective Representatives to, (i) hold confidential and not disclose, without the prior written approval of the other Parties, all confidential or proprietary written, recorded or oral information or data (including research, developmental, technical, marketing, sales, subscriber, financial, operating, performance, cost, business and process information or data, knowhow and computer programming and other software techniques) provided by or on behalf of any Party or its Subsidiaries to the other Parties, their respective Affiliates or Representatives, whether such confidentiality or proprietary status is indicated orally or in writing or if such Party should reasonably have understood that the information should be treated as confidential, whether or not the specific words “confidential” or “proprietary” are used (“Confidential Information”) and (ii) use such Confidential Information only for the purpose of performing its obligations hereunder, managing and monitoring such Party’s investment in Newco and its Subsidiaries and carrying on the business of Newco and its Subsidiaries; provided that the Parties and their respective Affiliates and Representatives may disclose or use such Confidential Information (A) in their capacity as directors, officers or employees of Hulu or its Affiliates, (B) to any other Party, in its capacity as such, to such Party’s Representatives that are attorneys, accountants, consultants and other professional advisors and to any Affiliate of such Party and their respective directors and employees, to the extent necessary to perform their services in connection with monitoring their investment in Newco and its Subsidiaries, in each case in the ordinary course of business (provided, however, that the recipients of such Confidential Information are subject to confidentiality and non-disclosure obligations at least as restrictive as those set forth in this Section 7.13), (C) as may be necessary in connection with such Party’s enforcement of its rights under this Agreement or (D) to the extent necessary for a Party to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any Tax Action with respect to such Tax Returns.
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(b) Notwithstanding the foregoing, the confidentiality and non-use obligations of Section 7.13(a) will not apply to Confidential Information:
(i) that any Party, its Affiliates or any of their Representatives is required to disclose by judicial or administrative process, or by other requirements of applicable Law or regulation or any governmental authority (including any applicable rule, regulation or order of a self-governing authority, including any securities exchange or national quotation system on which outstanding securities of Fubo or Disney are listed); provided that, if such Party is not Hulu or an Affiliate of Hulu, such Party shall, where and to the extent legally permitted and reasonably practicable, (A) give Hulu reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (B) reasonably cooperate with Hulu, at Hulu’s sole cost and expense, in attempting to obtain such protective measures; provided further that, if such Party is not Fubo or an Affiliate of Fubo, such Party shall, where and to the extent legally permitted and reasonably practicable, (1) give Fubo reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (2) reasonably cooperate with Fubo, at Fubo’s sole cost and expense, in attempting to obtain such protective measures;
(ii) that becomes available to the public other than as a result of a breach of this Section 7.13;
(iii) that can be demonstrated as having been independently developed by such Party without use of or reliance upon Confidential Information; or
(iv) that has been provided to any Party, its Affiliates or any of their respective Representatives by a Person (other than a Party or its Affiliates) who is not known, after reasonable inquiry, to be subject to the confidentiality obligations of this Section 7.13.
SECTION 7.14. Interest Rate Limitation. Notwithstanding anything to the contrary contained herein, the interest paid or agreed to be paid hereunder with respect to amounts due to Hulu hereunder shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Hulu shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the applicable payment (but in each case exclusive of any component thereof comprising interest) or, if it exceeds such unpaid non-interest amount, refunded to Fubo. In determining whether the interest contracted for, charged or received by Hulu exceeds the Maximum Rate, Hulu may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof or (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the payment obligations owed by Fubo to Hulu hereunder. Notwithstanding the foregoing, it is the intention of the Parties to conform strictly to any applicable usury Laws.
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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above.
| FUBO: | |
|---|---|
| FUBOTV INC. | |
| by | /s/ Gina DiGioia |
| Name: | Gina DiGioia |
| Title: | Chief<br> Legal Officer and Corporate Secretary |
| HULU: | |
| --- | --- |
| HULU, LLC | |
| by | /s/ James Kapenstein |
| Name: | James<br> M. Kapenstein |
| Title: | Authorized<br> Signatory |
| NEWCO: | |
| --- | --- |
| FUBO OPERATIONS LLC | |
| by | /s/ James Kapenstein |
| Name: | James<br> M. Kapenstein |
| Title: | Authorized Signatory |
[SignaturePage to Tax Receivables Agreement]
Exhibit10.3
EXECUTIONVERSION
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FUBO OPERATIONS LLC
a Delaware limited liability company
Dated as of October 29, 2025
THE SECURITIES REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
TABLE OF CONTENTS
| ARTICLE | I | |
|---|---|---|
| Definitions | 1 | |
| ARTICLE<br> II | ||
| Organizational<br> Matters | 14 | |
| SECTION<br> 2.01. | Formation<br> of Company | 14 |
| SECTION<br> 2.02. | Amended<br> and Restated Limited Liability Company Agreement | 14 |
| SECTION<br> 2.03. | Name | 15 |
| SECTION<br> 2.04. | Purpose | 15 |
| SECTION<br> 2.05. | Principal<br> Office; Registered Agent | 15 |
| SECTION<br> 2.06. | Term | 15 |
| SECTION<br> 2.07. | No<br> State-Law Partnership | 15 |
| ARTICLE<br> III | ||
| Members;<br> Units; Capitalization | 16 | |
| SECTION<br> 3.01. | Members | 16 |
| SECTION<br> 3.02. | Units | 17 |
| SECTION<br> 3.03. | Voting | 18 |
| SECTION<br> 3.04. | Parity<br> Protections | 18 |
| SECTION<br> 3.05. | Repurchase,<br> Redemption or Acquisition of Equity Securities | 20 |
| SECTION<br> 3.06. | Certificates<br> Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units | 21 |
| SECTION<br> 3.07. | Negative<br> Capital Accounts | 22 |
| SECTION<br> 3.08. | No<br> Withdrawal | 22 |
| SECTION<br> 3.09. | Loans<br> From Members | 22 |
| SECTION<br> 3.10. | Fubo<br> Stock Incentive Plans | 22 |
| SECTION<br> 3.11. | Dividend<br> Reinvestment Plan, Cash Option Purchase Plan, Equity Plan, Stock Incentive Plan or Other Plan | 22 |
| ARTICLE IV | ||
| Distributions | 23 | |
| SECTION 4.01. | Distributions | 23 |
| SECTION 4.02. | Restricted<br> Distributions | 24 |
| SECTION 4.03. | Distributions<br> with Respect to Unvested 2029 Convertible Units | 25 |
| i |
| --- | | ARTICLE<br> V | | | | --- | --- | --- | | Capital<br> Accounts; Allocations; Tax Matters | | 25 | | SECTION<br> 5.01. | Capital<br> Accounts | 25 | | SECTION<br> 5.02. | Allocations | 26 | | SECTION<br> 5.03. | Regulatory<br> Allocations | 27 | | SECTION<br> 5.04. | Tax<br> Allocations | 28 | | SECTION<br> 5.05. | Withholding,<br> Indemnification and Reimbursement for Payments on Behalf of a Member | 29 | | ARTICLE<br> VI | | | | Management | | 31 | | SECTION<br> 6.01. | Authority<br> of Manager | 31 | | SECTION<br> 6.02. | Actions<br> of the Manager | 32 | | SECTION<br> 6.03. | Resignation;<br> No Removal | 32 | | SECTION<br> 6.04. | Vacancies | 32 | | SECTION<br> 6.05. | Related<br> Party Transactions | 32 | | SECTION<br> 6.06. | Reimbursement<br> for Expenses | 32 | | SECTION<br> 6.07. | Delegation<br> of Authority | 33 | | SECTION<br> 6.08. | Duties;<br> Limitation of Liability | 33 | | SECTION<br> 6.09. | Indemnification | 34 | | SECTION<br> 6.10. | Investment<br> Company Act | 35 | | SECTION<br> 6.11. | Outside<br> Activities of Fubo | 35 | | ARTICLE<br> VII | | | | Rights<br> and Obligations of Members | | 36 | | SECTION<br> 7.01. | Limitation<br> of Liability and Duties of Members | 36 | | SECTION<br> 7.02. | Lack<br> of Authority | 36 | | SECTION<br> 7.03. | No<br> Right of Partition | 37 | | SECTION<br> 7.04. | Members<br> Right to Act | 37 | | SECTION<br> 7.05. | Inspection<br> Rights | 38 | | SECTION<br> 7.06. | Corporate<br> Opportunities | 38 | | ARTICLE<br> VIII | | | | Records and<br> Accounting, Fiscal Year and Reports | | 40 | | SECTION<br> 8.01. | Records<br> and Accounting | 40 | | SECTION<br> 8.02. | Fiscal<br> Year | 40 |
| ii |
| --- | | ARTICLE IX | | | | --- | --- | --- | | Tax Matters | | 40 | | SECTION<br> 9.01. | Preparation<br> of Tax Returns | 40 | | SECTION<br> 9.02. | Tax<br> Elections | 41 | | SECTION<br> 9.03. | Tax<br> Controversies | 41 | | SECTION<br> 9.04. | Cooperation<br> on Tax Matters | 42 | | SECTION<br> 9.05. | 2029<br> Convertible Units | 42 | | ARTICLE<br> X | | | | Restrictions<br> on Transfer of Units | | 42 | | SECTION<br> 10.01. | General | 42 | | SECTION<br> 10.02. | Permitted<br> Transfers | 43 | | SECTION<br> 10.03. | Registration<br> and Exemption from Registration; Restricted Units Legend | 43 | | SECTION<br> 10.04. | Transfer | 44 | | SECTION<br> 10.05. | Assignee’s<br> Rights | 44 | | SECTION<br> 10.06. | Assignor’s<br> Rights and Obligations | 44 | | SECTION<br> 10.07. | Overriding<br> Provisions | 45 | | ARTICLE<br> XI | | | | Redemption and<br> Exchange | | 46 | | SECTION<br> 11.01. | Redemption<br> Right of a Member | 46 | | --- | --- | --- | | SECTION<br> 11.02. | Contribution<br> of Fubo | 49 | | SECTION<br> 11.03. | Exchange<br> Right of Fubo | 49 | | SECTION<br> 11.04. | Reservation<br> of Shares of Class A Common Stock; Listing; Registration Rights Agreement | 50 | | SECTION<br> 11.05. | Surrender<br> of Class B Common Stock | 50 | | SECTION<br> 11.06. | Effect<br> of Exercise of Exchange Right | 50 | | SECTION<br> 11.07. | Exchange<br> Expenses | 51 | | ARTICLE<br> XII | | | | Admission of<br> Members | | 51 | | SECTION<br> 12.01. | Substituted<br> Members | 51 | | --- | --- | --- | | SECTION<br> 12.02. | Additional<br> Members | 51 | | ARTICLE<br> XIII | | | | Resignation | | 51 | | SECTION<br> 13.01. | Withdrawal<br> and Resignation of Members | 51 | | --- | --- | --- |
| iii |
| --- | | ARTICLE XIV | | | | --- | --- | --- | | Dissolution<br> and Liquidation | | 52 | | SECTION<br> 14.01. | Dissolution | 52 | | SECTION<br> 14.02. | Liquidation<br> and Termination | 52 | | SECTION<br> 14.03. | Deferment;<br> Distribution in Kind | 53 | | SECTION<br> 14.04. | Certificate<br> of Cancellation | 53 | | SECTION<br> 14.05. | Reasonable<br> Time for Winding Up | 54 | | SECTION<br> 14.06. | Return<br> of Capital | 54 | | ARTICLE<br> XV | | | | General Provisions | | 54 | | SECTION<br> 15.01. | Confidentiality | 54 | | SECTION<br> 15.02. | Amendments | 55 | | SECTION<br> 15.03. | Title<br> to Company Assets | 55 | | SECTION<br> 15.04. | Addresses<br> and Notices | 56 | | SECTION<br> 15.05. | Binding<br> Effect; Intended Beneficiaries | 57 | | SECTION<br> 15.06. | Creditors | 57 | | SECTION<br> 15.07. | Waiver | 57 | | SECTION<br> 15.08. | Counterparts;<br> Delivery by Electronic Transmission | 57 | | SECTION<br> 15.09. | Governing<br> Law; Specific Performance | 58 | | SECTION<br> 15.10. | Dispute<br> Resolution; Arbitration | 58 | | SECTION<br> 15.11. | Severability | 61 | | SECTION<br> 15.12. | Further<br> Action | 61 | | SECTION<br> 15.13. | Effectiveness | 61 | | SECTION<br> 15.14. | Entire<br> Agreement | 61 | | SECTION<br> 15.15. | Remedies | 61 | | SECTION<br> 15.16. | Interpretation | 61 |
Exhibits
| Exhibit<br> A | – | Form<br> of Joinder Agreement |
|---|
Schedules
| Schedule<br> 1 | – | Schedule<br> of Members |
|---|
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FUBO OPERATIONS LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (together with the Exhibits and Schedules attached hereto and as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, this “Agreement”) of Fubo Operations LLC, a Delaware limited liability company (the “Company”), is entered into effective as of the Effective Time (as defined herein), by and among the Company, Hulu, LLC, a Delaware limited liability company (“Hulu”), FuboTV Inc., a Delaware corporation (“Fubo”), and each other Member (as defined herein).
RECITALS
Capitalized terms used in these recitals without definition have the meanings set forth in Article I.
WHEREAS, Hulu and Fubo are parties to that certain Business Combination Agreement, dated as of January 6, 2025 (the “Business CombinationAgreement”), by and among The Walt Disney Company, a Delaware corporation (“Disney”), Hulu and Fubo;
WHEREAS, in connection with the transactions contemplated by the Business Combination Agreement, the Company was formed as a limited liability company pursuant to and in accordance with the Delaware Act by the filing of the initial Certificate with the Secretary of State of the State of Delaware on October 13, 2025 (the “Formation Date”) and the entering into of the Limited Liability Company Agreement of the Company by Hulu, as the sole member of the Company, effective as of the Formation Date (the “OriginalLLC Agreement”); and
WHEREAS, Hulu, as the sole member of the Company, desires to amend and restate the Original LLC Agreement as provided herein and continue the Company as a limited liability company under the Delaware Act.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Original LLC Agreement is hereby amended and restated in its entirety and the Company and the Members, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
The following definitions shall be applied to the terms used in this Agreement for all purposes, unless otherwise clearly indicated to the contrary.
“Action” means any suit, action, arbitration, charge, hearing, investigation, audit, petition or other legal, administrative or arbitral proceeding by or before any Governmental Entity.
“AdditionalMember” has the meaning set forth in Section 12.02.
“AdjustedCapital Account” means the Capital Account of any Member as of the end of any Allocation Period:
(a) reduced for any items described in Treasury Regulations Section 1.704- 1(b)(2)(ii)(d)(4), (5) and (6); and
(b) increased for any amount such Member is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704- 2(g)(1) and 1.704-2(i) (relating to minimum gain).
“AdjustedCapital Account Deficit” means, with respect to the Adjusted Capital Account of any Member as of the end of any Allocation Period, the amount by which the balance in such Adjusted Capital Account is less than zero.
“AdmissionDate” has the meaning set forth in Section 10.06.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including, with its correlative meanings, “controlledby” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, Fubo, the Company and their respective Subsidiaries, on the one hand, shall be deemed to not be Affiliates of Disney and its other Subsidiaries (including Hulu), on the other hand, and vice versa.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“AllocationPeriod” means, as applicable, the period (a) beginning the day following the end of a prior Allocation Period, and (b) ending (i) on the last day of each Taxable Year; (ii) the day preceding any day in which an adjustment to the Book Value of the Company’s properties pursuant to clauses (b)(i), (b)(ii), (b)(iii) or (b)(vi) of the definition of Book Value occurs; (iii) immediately after any day in which an adjustment to the Book Value of the Company’s properties pursuant to clauses (b)(iv) and (b)(v) of the definition of Book Value occurs; or (iv) on any other date determined by the Manager.
“AppealArbitrator” has the meaning set forth in Section 15.10(b).
“ArbitrationRules” has the meaning set forth in Section 15.10(a).
“Arbitrator” has the meaning set forth in Section 15.10(b).
“Assignee” means a Person to whom a Company Interest has been Transferred in accordance with this Agreement but who has not been admitted as a Member pursuant to Article XII.
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“BaseRate” means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.
“BBAAudit Rules” has the meaning set forth in Section 9.03.
“beneficialowner” or “beneficially own” or “beneficial ownership” or “beneficialinterest” and words of similar import have the meaning assigned to such terms in Rule 13d-3 and 13d-5 under the Exchange Act as in effect on the date of this Agreement and a Person’s beneficial ownership of Equity Securities shall be calculated in accordance with the provisions of such rule.
“Black-OutPeriod” means any “black-out” or similar period under Disney’s or Fubo’s policies covering trading in Fubo’s securities to which the applicable Redeeming Member is subject (or will be subject at such time as it owns Class A Common Stock), which period restricts the ability of such Redeeming Member to immediately resell shares of Class A Common Stock to be delivered to such Redeeming Member in connection with a Share Settlement Exchange. For purposes of this definition, a Redeeming Member shall include any Member whose Redeemed Units are acquired by Fubo in a Direct Exchange.
“BookValue” means, with respect to any property of the Company, such property’s adjusted basis for U.S. federal income tax purposes, except as follows:
(a) The initial Book Value of any property contributed by a Member to the Company shall be the Fair Market Value of such property as of the date of such contribution.
(b) The Book Values of all properties shall be adjusted to equal their respective Fair Market Values in connection with (i) the acquisition of an interest (or additional interest) in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution to the Company or in exchange for the performance of more than a de minimis amount of services to or for the benefit of the Company; (ii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an interest in the Company; (iii) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g)(1); (iv) the acquisition of an interest in the Company by any new or existing Member upon the exercise of a non-compensatory option in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s); (v) upon the conversion of any Unvested 2029 Convertible Units into Common Units in connection with a Share Vesting Event in accordance with principles similar to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s); or (vi) any other event to the extent determined by the Manager to be permitted and necessary to properly reflect Book Values in accordance with the standards set forth in Treasury Regulation Section 1.704-1(b)(2)(iv)(q); provided, however, that adjustments pursuant to clauses (b)(i), (b)(ii) and (b)(iv) above shall be made only if the Manager reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. If any non-compensatory options or Unvested 2029 Convertible Units are outstanding upon the occurrence of an event described in clauses (b)(i) through (b)(v) above, the Company shall adjust the Book Values of its properties in accordance with Treasury Regulation Sections 1.704-1(b)(2)(iv)(f)(1) and 1.704-1(b)(2)(iv)(h)(2).
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(c) The Book Value of property distributed to a Member shall be adjusted to equal the Fair Market Value of such property as of the date of such distribution.
(d) The Book Value of all property shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such property pursuant to Code Section 734(b) (including any such adjustments pursuant to Treasury Regulation Section 1.734-2(b)(1)), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m) and Section 5.01(b)(v) or Section 5.03(f); provided, however, that the Book Value of property shall not be adjusted pursuant to this clause (d) to the extent that the Manager reasonably determines an adjustment pursuant to clause (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (d).
(e) If the Book Value of property has been determined or adjusted pursuant to clauses (a), (b) or (d) of this definition, such Book Value shall thereafter be adjusted by the depreciation taken into account with respect to such property for purposes of computing Profits, Losses and other items allocated pursuant to Article V.
“BusinessCombination Agreement” has the meaning set forth in the recitals to this Agreement.
“BusinessDay” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by applicable Law to close.
“CapitalAccount” means the capital account maintained for a Member in accordance with Section 5.01.
“CapitalContribution” means, with respect to any Member, the amount of any cash, cash equivalents, promissory obligations or the Fair Market Value of other property that such Member contributes (or is deemed to contribute) to the Company pursuant to Article III (including Section 3.01(a)). For purposes of this definition, if the Company issues Units or if there is a Revaluation following the Effective Time, each Member’s Capital Contributions shall be adjusted in good faith by the Manager so as to equal such Member’s current claim on the Company’s equity, as calculated based on the Class A Trading Price and such Member’s right to distributions under Section 4.01.
“CashSettlement” means, with respect to any Exchange, immediately available funds in U.S. dollars in an amount equal to the product of (a) the Share Settlement and (b) the Class A Trading Price.
“CashVesting Event” means the conversion of all or any Existing Convertible Notes settled with cash.
“Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware in accordance with the Delaware Act, as such Certificate has been or may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the Delaware Act.
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“Changeof Control Transaction” means (a) any transaction in which a Person or Group acquires, directly or indirectly, (i) beneficial ownership of more than 50% of the outstanding Units, other than in connection with any Exchange or a transaction pursuant to which the beneficial owners of Units immediately prior to the transaction continue to beneficially own, directly or indirectly, more than 50% of the outstanding Units (or more than 50% of the outstanding equity interests of any successor, surviving entity or direct or indirect parent of the Company) immediately following the transaction or (ii) all or substantially all of the consolidated assets of the Company and its Subsidiaries or (b) any other transaction in which the Company issues Units representing more than 50% of the then outstanding Units, in either case, whether by merger, other business combination or otherwise; provided, however, that none of the following shall constitute a Change of Control Transaction: a transaction solely (A) between the Company or any of its Subsidiaries, on the one hand, and the Company or any of its Subsidiaries, on the other hand, (B) for the purpose of changing the jurisdiction of domicile of the Company or (C) for the purpose of changing the form of entity of the Company.
“ClassA Common Stock” means the shares of Class A Common Stock, par value $0.0001 per share, of Fubo.
“ClassA Ratio” has the meaning set forth in Section 3.04(a).
“ClassA Trading Price” means, as of any date of determination, the arithmetic average of the volume weighted average prices for a share of Class A Common Stock (or any class of stock into which it has been converted) on the principal securities exchange or automated or electronic quotation system on which the Class A Common Stock is traded or quoted, as reported by Bloomberg, L.P. or its successor, for each of the five consecutive full Trading Days ending on and including the last full Trading Day immediately prior to such date, subject to appropriate and equitable adjustment for any stock splits, reverse splits, stock dividends or similar events affecting the Class A Common Stock. If the Class A Common Stock no longer trades on a securities exchange or automated or electronic quotation system, then the Fubo Audit Committee shall determine in good faith the Class A Trading Price that would be obtained in an arms-length transaction between an informed and willing buyer and an informed and willing seller, with neither party having any compulsion to buy or sell, and without regard to the particular circumstances of the buyer or seller.
“ClassB Common Stock” means the shares of Class B Common Stock, par value $0.0001 per share, of Fubo.
“Code” means the U.S. Internal Revenue Code of 1986.
“CommonStock” means the Class A Common Stock and the Class B Common Stock, collectively.
“CommonUnits” means the Units designated as “Common Units” pursuant to this Agreement.
“Company” has the meaning set forth in the preamble to this Agreement.
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“CompanyEquity Securities” means (a) Units or other equity interests in the Company or any Subsidiary of the Company (including other classes or series thereof having such relative rights, powers and duties as may from time to time be established by the Manager pursuant to the provisions of this Agreement, including rights, powers and duties senior to existing classes and series of Units and other equity interests in the Company or any Subsidiary of the Company), (b) other securities or interests (including evidences of indebtedness) convertible or exchangeable into Units or other equity interests in the Company or any Subsidiary of the Company and (c) warrants, options or other rights to purchase or otherwise acquire Units or other equity interests in the Company or any Subsidiary of the Company.
“CompanyInterest” means, with respect to any Member or Assignee, such Member’s or Assignee’s, as applicable, entire limited liability company interest in the Company, including such Member’s or Assignee’s, as applicable, share of the Profits and Losses of the Company and such Member’s or Assignee’s right to receive distributions of the Company’s assets.
“ConfidentialInformation” has the meaning set forth in Section 15.01(a).
“DelawareAct” means the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq.
“DesignatedIndividual” has the meaning set forth in Section 9.03.
“DGCL” means the General Corporation Law of the State of Delaware.
“DirectExchange” has the meaning set forth in Section 11.03(a).
“DirectExchange Election Notice” has the meaning set forth in Section 11.03(b).
“Discount” has the meaning set forth in Section 11.02.
“Disney” has the meaning set forth in the recitals to this Agreement.
“Dispute” has the meaning set forth in Section 15.10.
“DisregardedShares” has the meaning set forth in Section 3.04(a).
“DistributableCash” means, as of any date, the cash and cash equivalents of the Company as of such date that the Manager determines are available to be distributed to the Members by the Company in accordance with applicable Law and any restrictions on distributions contained in any agreement to which the Company is bound, net of any reserves established by the Manager.
“Distribution” means each distribution made by the Company to a Member with respect to such Member’s Units, whether in cash, property or securities of the Company and whether by liquidating distribution or otherwise; provided, however, that none of the following shall be a Distribution: (a) any recapitalization that does not result in the distribution of cash or property to the Members or any exchange of securities of the Company, and any dividend or subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Units, (b) any other payment made by the Company to a Member that is not properly treated as a “distribution” for purposes of Section 731, Section 732 or Section 733 or other applicable provisions of the Code or (c) any amounts payable pursuant to Section 6.06. “Distributed” has a meaning correlative to the foregoing.
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“DownstairsWarrant” has the meaning set forth in Section 3.04(e).
“DownstairsWarrant Agreement” has the meaning set forth in Section 3.04(e).
“EffectiveTime” has the meaning set forth in Section 15.13.
“Encumbrance” means any security interest, pledge, charge, license, mortgage, lien or other encumbrance, except for restrictions arising under applicable securities Laws and under this Agreement.
“EquityAward” means any (i) Vested Fubo Shares, (ii) Unvested Fubo Shares or (iii) any option, stock unit, appreciation right, phantom equity or other equity-based award representing the right to acquire or receive, or that has a value that is otherwise linked to, shares of Class A Common Stock, and which is granted pursuant to an Equity Plan.
“EquityPlan” means any option, stock, unit, stock unit, appreciation right, phantom equity or other equity or equity-based compensation plan, program, agreement or arrangement, in each case now or hereafter adopted by Fubo, including the Fubo Stock Plans.
“EquitySecurities” means, collectively, the Company Equity Securities and the Fubo Equity Securities.
“Eventof Withdrawal” means the expulsion, bankruptcy (as set forth in Sections 18-101(1) and Section 18-304 of the Delaware Act) or dissolution of a Member or the occurrence of any other event that terminates the continued membership of a Member in the Company. “Event of Withdrawal” shall not include an event that (a) terminates the existence of a Member for income tax purposes (including (i) a change in entity classification of a Member under Treasury Regulations Section 301.7701-3, (ii) a sale of assets by, or liquidation of, a Member pursuant to an election under Section 336 or Section 338 of the Code or (iii) merger, severance, or allocation within a trust or among sub-trusts of a trust that is a Member) but that (b) does not terminate the existence of such Member under applicable state law (or, in the case of a trust that is a Member, does not terminate the trusteeship of the fiduciaries under such trust with respect to all the Company Interests of such trust that is a Member).
“Exchange” means any Redemption or Direct Exchange.
“ExchangeAct” means the U.S. Securities Exchange Act of 1934 and applicable rules and regulations thereunder.
“ExistingConvertible Notes” means Fubo’s Convertible Senior Secured Notes due 2029.
“FairMarket Value” means, with respect to any asset, the amount which the Company (or other applicable owner of such asset) would receive in an all-cash sale of such asset in an arms-length transaction with a willing, unaffiliated third party, with neither party having any compulsion to buy or sell, consummated on the day immediately preceding the date on which the event occurred which necessitated the determination of the Fair Market Value, as such amount is determined by the Manager (or, if pursuant to Section 14.02, the liquidating trustee) in its good faith judgment using all factors, information and data it deems to be pertinent.
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“FamilyMembers” means, with respect to any Person, such Person’s spouse, parents, siblings and descendants (whether natural or adopted).
“FINRA” means the Financial Industry Regulatory Authority.
“FiscalYear” means the Company’s annual accounting period established pursuant to Section 8.02.
“FormationDate” has the meaning set forth in the recitals to this Agreement.
“Fubo” has the meaning set forth in the preamble to this Agreement.
“FuboAudit Committee” means the audit committee of the Fubo Board.
“FuboBoard” means the Board of Directors of Fubo.
“FuboBylaws” means the Bylaws of Fubo, as in effect from time to time.
“FuboCharter” means the Certificate of Incorporation of Fubo, as in effect from time to time.
“FuboEquity Securities” means (a) Common Stock or any other equity interests in Fubo, (b) other securities or interests (including evidences of indebtedness) convertible or exchangeable into Common Stock or other equity interests in Fubo (including the Existing Convertible Notes) and (c) warrants, options or other rights to purchase or acquire Common Stock or other equity interests in Fubo.
“FuboGoverning Documents” means, collectively, the Fubo Charter, the Fubo Bylaws, the charters of any committee of Fubo’s board of directors and the Stockholders Agreement.
“FuboGroup Entities” means, collectively, Fubo, the Company and their respective Subsidiaries. For the avoidance of doubt, no Hulu Group Entity shall be a Fubo Group Entity.
“FuboStock Plans” means Fubo’s 2015 Equity Incentive Plan, 2020 Equity Incentive Plan, 2022 Employment Inducement Equity Incentive Plan, 2023 Employment Inducement Equity Incentive Plan, 2024 Employment Inducement Equity Incentive Plan and 2025 Employment Inducement Equity Incentive Plan, each as amended through the date of this Agreement and each as such plan may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“GovernmentalEntity” means any U.S. federal, state or local, or foreign, international or supranational, government, court or tribunal, or administrative, executive, governmental or regulatory or self-regulatory body, agency or authority thereof.
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“Group” means any group of Persons formed for the purpose of acquiring, holding, voting or disposing of Units, including groups of Persons that would be required, if the Company were subject to Section 13, 14 or 15(d) of the Exchange Act, under Section 13(d) of the Exchange Act to file a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act.
“Hulu” has the meaning set forth in the preamble to this Agreement.
“HuluGroup Entities” means, collectively, Hulu and its Affiliates. For the avoidance of doubt, no Fubo Group Entity shall be a Hulu Group Entity.
“IndemnifiedPerson” has the meaning set forth in Section 6.09(a).
“InitialArbitrator” has the meaning set forth in Section 15.10(a).
“InvestmentCompany Act” means the U.S. Investment Company Act of 1940, and applicable rules and regulations thereunder.
“JAMS” has the meaning set forth in Section 15.10(a).
“Joinder” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement.
“Law” means any foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, statute, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity.
“Losses” means items of Company loss or deduction determined according to Section 5.01(b).
“MajorityMembers” means, as of any particular time, the Member or Members holding a majority of the Voting Units outstanding as of such time (which, for the avoidance of doubt, may include the entity that is also the Manager in its capacity as a Member).
“Manager” means Fubo as the sole “manager” of the Company as of the Effective Time, and any successor thereto designated pursuant to Section 6.04, in its capacity as the manager of the Company.
“Member” means, as of any particular time, (a) each Person admitted as a member of the Company pursuant to Section 3.01 and (b) any Person admitted to the Company as a Substituted Member or Additional Member in accordance with Article XII, in each case, in such Person’s capacity as a member of the Company and only so long as such Person is shown on the Company’s books and records, including the Schedule of Members, as the owner of one or more Units.
“MinimumGain” means “partnership minimum gain” determined pursuant to Treasury Regulations Section 1.704-2(d).
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“NetLoss” means, with respect to an Allocation Period, the excess, if any, of Losses for such Allocation Period over Profits for such Allocation Period (excluding Profits and Losses specially allocated pursuant to Section 5.03).
“NetProfit” means, with respect to an Allocation Period, the excess, if any, of Profits for such Allocation Period over Losses for such Allocation Period (excluding Profits and Losses specially allocated pursuant to Section 5.03).
“NonrecourseLiability” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).
“Officer” has the meaning set forth in Section 6.01(b).
“Order” means any order, judgment, award, decision, decree, injunction, ruling, writ or assessment of, or agreement with, any governmental authority (whether temporary, preliminary or permanent) that is binding on any Person or its property under applicable Law.
“OriginalLLC Agreement” has the meaning set forth in the recitals to this Agreement.
“OtherAgreements” has the meaning set forth in Section 10.04.
“PairedClass B Share” means a share of Class B Common Stock that is part of a Paired Interest.
“PairedCommon Unit” means a Common Unit that is part of a Paired Interest.
“PairedInterest” means one Common Unit together with one share of Class B Common Stock, which are held in tandem by a Member.
“PartnershipRepresentative” has the meaning set forth in Section 9.03.
“PerUnit Capital Amount” means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any class of Units held by a Member.
“PercentageInterest” means, with respect to any Member as of any particular time, such Member’s ownership interest in the Company (expressed as a percentage), determined by dividing (a) the number of Common Units beneficially owned by such Member by (b) the total number of Common Units outstanding as of such time. The Percentage Interest of each Member shall be calculated to the fourth decimal place.
“PermittedTransfer” has the meaning set forth in Section 10.02(a).
“PermittedTransferee” means (a) with respect to any Member that is not a natural person, an Affiliate of such Member or any of its direct or indirect partners, limited liability company members, stockholders or other equity holders and (b) with respect to any Member who is a natural person, (i) in the event of such Member’s death, any of such Member’s heirs, executors, administrators, testamentary trustees, legatees or beneficiaries, (ii) a trust, the beneficiaries of which include only such Member or any of the Family Members of such Member, and (iii) any partnership or limited liability company of which the only partners or members are such Member, such Member’s Family Members or any trust described in clause (b)(ii) of this definition.
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“Person” means a natural person, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or governmental or other entity, whether or not a legal entity.
“Prorata”, “according to their interests”, “in proportion to” and other terms with similar meanings, when used in the context of a number of Units relative to other Units, means as amongst an individual class or series of Units, pro rata based upon the number of such Units within such class or series of Units.
“Proceeding” has the meaning set forth in Section 6.09(a).
“Profits” means items of Company income and gain determined according to Section 5.01(b).
“RedeemedUnits” has the meaning set forth in Section 11.01(a).
“RedeemingMember” has the meaning set forth in Section 11.01(a).
“Redemption” has the meaning set forth in Section 11.01(a).
“RedemptionDate” has the meaning set forth in Section 11.01(a).
“RedemptionNotice” has the meaning set forth in Section 11.01(a).
“RedemptionRight” has the meaning set forth in Section 11.01(a).
“RegistrationRights Agreement” means that certain Registration Rights Agreement, dated as of the date hereof, by and between Hulu and Fubo, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“RegulatoryAllocations” has the meaning set forth in Section 5.03(h).
“Representative” means, with respect to any Person, its Affiliates or any of its or its Affiliates’ respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors.
“RetractionNotice” has the meaning set forth in Section 11.01(c).
“Revaluation” means any adjustment to the value of property of the Company in accordance with Treasury Regulations Sections 1.704-1(b)(2)(iv)(f), (g) and (s).
“Scheduleof Members” has the meaning set forth in Section 3.01(b).
“SEC” means the U.S. Securities and Exchange Commission, including any governmental body or agency succeeding to the functions thereof.
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“SecuritiesAct” means the U.S. Securities Act of 1933.
“SettlementMethod Notice” has the meaning set forth in Section 11.01(b).
“ShareSettlement” means, with respect to any Exchange, a number of shares of Class A Common Stock equal to the number of Redeemed Units.
“ShareSettlement Exchange” means an Exchange in which the Redeeming Member receives a Share Settlement.
“ShareVesting Event” means the conversion of all or any Existing Convertible Notes settled with shares of Class A Common Stock.
“StockholdersAgreement” means that certain Stockholders Agreement, dated as of the date hereof, by and between Hulu and Fubo, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Subsidiary” means, with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient, together with any contractual rights, to elect a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which are owned directly or indirectly by such first Person). Notwithstanding the foregoing, for purposes of this Agreement, (a) the Company and its Subsidiaries shall be deemed to be Subsidiaries of Fubo and (b) Fubo, the Company and their respective Subsidiaries, on the one hand, shall be deemed to not be Subsidiaries of Hulu or any direct or indirect parent company thereof (including Disney) or any other Subsidiary of any such parent company, on the other hand. Unless otherwise indicated, the term “Subsidiary” for purposes of this Agreement refers to a Subsidiary of the Company.
“SubstitutedMember” has the meaning set forth in Section 12.01.
“TaxAction” means any audit or other examination or administrative, judicial or other proceeding of, or with respect to, any tax return or taxes.
“TaxDistribution” has the meaning set forth in Section 4.01(b).
“TaxReceivable Agreement” means that certain Tax Receivable Agreement, dated as of the date hereof, by and among Fubo, the Company and Hulu, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“TaxableYear” means the taxable year of the Company, which, for so long as the Hulu Group Entities collectively own a majority of all Company Interests as of the first day of any Taxable Year, shall begin and end each year on the same dates as the taxable year of Hulu for such year, in accordance with Section 706 of the Code.
“TRADistribution” has the meaning set forth in Section 4.01(b).
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“TradingDay” means a day on which the principal securities exchange on which the Class A Common Stock is listed or admitted to trading is open for the transaction of business (unless such trading shall have been suspended for the entire day).
“Transfer” means, with respect to any interest (legal or beneficial) in any Equity Securities of the Company (or any interest (legal or beneficial) in the Equity Securities of any equityholder of any Member if such equityholder owns no material assets other than Equity Securities of such Member), any sale, assignment, transfer, distribution or other disposition thereof (whether directly or indirectly, whether in whole or in part, whether with or without consideration and whether voluntarily or involuntarily or by operation of Law), or other conveyance, creation, incurrence or assumption of a legal or beneficial interest therein, or a participation or Encumbrance therein (whether with or without consideration and whether voluntarily or involuntarily or by operation of Law), or creation of any short position in any such security or any other action or position otherwise reducing risk related to ownership through hedging or other derivative instrument, whether in a single transaction or a series of related transactions and whether to a single Person or a Group; provided that in no event shall a Transfer be deemed to include (i) any Exchange, (ii) any transfer to a brokerage account where the Member is the beneficial owner of the brokerage account and of the securities contained therein or (iii) any transfer of Equity Securities in accordance with Section 3.04, Section 3.10 or Section 3.11. Notwithstanding the foregoing, “Transfer” shall not include a deemed termination of the existence of a Member for income tax purposes (including (x) a change in entity classification of a Member under Treasury Regulations Section 301.7701-3 or (y) a sale of assets by, or liquidation of, a Member pursuant to an election under Section 336 or 338 of the Code) if the existence of such Member does not terminate under applicable state Law; provided further that a transfer of the shares or other equity interests of Hulu or any direct or indirect parent company thereof shall not constitute a “Transfer” hereunder. The terms “Transferee”, “Transferor”, “Transferred” and “Transferring” have meanings correlative to the foregoing.
“TreasuryRegulations” means the final, temporary and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time and as in effect for the relevant taxable period.
“Unit” means a unit of Company Interest as established pursuant to Section 3.02; provided, however, that any class or series of Units issued shall provide the Members holding such Units with the relative rights, powers and duties in respect of such Units set forth in this Agreement, and the Company Interest provided to the Members holding such class or series of Units, in respect of such Units, shall be determined in accordance with such relative rights, powers and duties. The Members holding Units in a particular class or series of Units shall be treated as a class or series of Members in respect of the relative rights, powers and duties associated with such Units.
“UnrealizedGain” attributable to any item of Company property means, as of any date of determination, the excess, if any, of (a) the Fair Market Value of such property as of such date (as determined under clause (c) of the definition of Book Value) over (b) the Book Value of such property as of such date (prior to any adjustment to be made pursuant to clause (b) of the definition Book Value as of such date).
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“UnrealizedLoss” attributable to any item of Company property means, as of any date of determination, the excess, if any, of (a) the Book Value of such property as of such date (prior to any adjustment to be made pursuant to clause (b) of the definition of Book Value as of such date) over (b) the Fair Market Value of such property as of such date (as determined under clause (c) of the definition of Book Value).
“Unvested2029 Convertible Units” means the Units designated as “Unvested 2029 Convertible Units” and having the rights and obligations specified with respect to the Unvested 2029 Convertible Units in this Agreement.
“UnvestedFubo Shares” means shares of restricted Class A Common Stock issued pursuant to an Equity Plan that are not vested pursuant to the terms thereof or any award or similar agreement relating thereto.
“UpstairsWarrant” has the meaning set forth in Section 3.04(e).
“VestedFubo Shares” means shares of Class A Common Stock issued pursuant to an Equity Plan that are vested pursuant to the terms thereof or any award or similar agreement relating thereto.
“VotingUnits” means (a) the Common Units and (b) any other class or series of Units designated as “Voting Units” pursuant to this Agreement.
“WithholdingTax” has the meaning set forth in Section 5.05(a).
ARTICLE II
Organizational Matters
SECTION 2.01. Formation of Company.
(a) The Company was formed on the Formation Date pursuant to the provisions of the Delaware Act. The Manager and each Officer is hereby designated as an “authorized person” within the meaning of the Delaware Act, and each shall continue as a designated “authorized person” within the meaning of the Delaware Act.
(b) The Company (and the Manager and any Officer, for, in the name of and on behalf of the Company) may perform under and consummate the transactions contemplated by the Business Combination Agreement, and all documents, agreements, certificates or instruments contemplated thereby or related thereto, all without any further act, vote, approval or consent of any Member or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or other applicable Law. The foregoing authorization shall not be deemed a restriction on the Manager or any Officer to enter into any agreements on behalf of the Company otherwise permitted by this Agreement.
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SECTION 2.02. Amended and Restated Limited Liability Company Agreement. The Members hereby execute this Agreement for the purpose of amending and restating the Original LLC Agreement in its entirety and otherwise establishing the affairs of the Company and the conduct of its business in accordance with the provisions of the Delaware Act. The Members hereby agree that, during the term of the Company set forth in Section 2.06, the rights and obligations of the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement, the Certificate and the Delaware Act. On any matter upon which this Agreement is silent, the Delaware Act shall control. No provision of this Agreement shall be in violation of the Delaware Act and to the extent any provision of this Agreement is in violation of the Delaware Act, such provision shall be void and of no effect to the extent of such violation without affecting the validity of the other provisions of this Agreement; provided, however, that where the Delaware Act provides that a provision of the Delaware Act shall apply “unless otherwise provided in the limited liability company agreement” or words of similar effect, the provisions of this Agreement shall in each instance control.
SECTION 2.03. Name. The name of the Company shall be “Fubo Operations LLC”. The Manager in its sole discretion may change the name of the Company at any time and from time to time, which name change shall be effective upon the filing of a Certificate of Amendment of the Certificate or an Amended and Restated Certificate with the Secretary of State of the State of Delaware and shall not require an amendment to this Agreement. Notification of any such change shall be given to all of the Members and, to the extent practicable, to all of the holders of any Company Equity Securities then outstanding. The Company’s business may be conducted under its name or any other name or names deemed advisable by the Manager.
SECTION 2.04. Purpose. The purpose of the Company shall be to engage in any lawful act or activity for which limited liability companies may be organized under the Delaware Act, and to engage in any and all activities necessary or incidental to the foregoing.
SECTION 2.05. Principal Office; Registered Agent. The principal office of the Company shall be at 1290 Avenue of the Americas, 9th Floor, New York, New York 10104, or such other place as the Manager may from time to time designate. The initial registered agent for service of process on the Company in the State of Delaware, and the address of such agent, shall be c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, County of New Castle, State of Delaware 19808. The Manager may from time to time change the Company’s registered agent, and the address of such agent, in the State of Delaware, which change in registered agent and address shall be effective upon the filing of a Certificate of Amendment of the Certificate or an Amended and Restated Certificate with the Secretary of State of the State of Delaware and shall not require an amendment to this Agreement.
SECTION 2.06. Term. The term of the Company commenced on the Formation Date and shall continue until the dissolution and termination of the Company in accordance with the provisions of Section 14.04 and the Delaware Act.
SECTION 2.07. No State-Law Partnership. The Members intend that the Company not be a partnership (including a limited partnership or a limited liability partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement, for any purposes other than as set forth in the final sentence of this Section 2.07, and neither this Agreement nor any other document entered into by the Company or any Member relating to the subject matter hereof shall be construed to suggest otherwise. Notwithstanding the foregoing, (i) the Members intend that the Company shall be treated as a partnership for U.S. federal and, if applicable, state or local income tax purposes, (ii) each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such tax treatment and (iii) the Manager shall not take any action that could reasonably be expected to cause the Company to be treated as a corporation for U.S. federal and, if applicable, state and local income tax purposes.
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ARTICLE III
Members; Units; Capitalization
SECTION 3.01. Members.
(a) Fubo has executed a counterpart signature page to this Agreement and has been admitted as a Member of the Company as of the Effective Time. As of the Effective Time, Fubo has made a Capital Contribution to the Company in consideration of the issuance of the number of Units set forth opposite Fubo’s name on the Schedule of Members as of the Effective Time.
(b) The Company shall maintain a schedule of Members setting forth the name and address of each Member and the aggregate number of outstanding Units and the number and class or series of outstanding Units held by each Member (such schedule, the “Schedule of Members”). The Schedule of Members as of the Effective Time is attached hereto as Schedule 1.
(c) To the fullest extent permitted by the Delaware Act or other applicable Law and subject to Section 3.04, Section 3.05, Section 3.10 and Section 3.11, (i) the Schedule of Members shall be the definitive record of the outstanding Units, the ownership of each outstanding Unit and all relevant information with respect to each Member, (ii) any reference in this Agreement to the Schedule of Members shall be deemed a reference to the Schedule of Members as amended, restated, amended and restated, supplemented or otherwise modified from time to time and (iii) subject to Section 3.01(d)(i), the Company shall be entitled to recognize the exclusive right of a Person registered on the Schedule of Members as the owner of the outstanding Units shown on the Schedule of Members for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Units on the part of any other Person, whether or not it shall have express or other notice thereof.
(d) Upon any change in the number or ownership of outstanding Units or a change in Members (whether upon an issuance of Units, a conversion of Units into a different number or class of Units, a reclassification, subdivision, combination, cancellation or other similar event with respect to Units, a Transfer of Units, an Exchange of Units, a resignation of a Member or otherwise), in each case, in accordance with this Agreement, (i) the Schedule of Members shall automatically be deemed (notwithstanding the failure of the Officers to take the action described in clause (ii) below) to be amended or updated to reflect such change and (ii) the Officers shall promptly amend, restate, amend and restate, supplement or otherwise modify the Schedule of Members to reflect such change, all without further act, vote, approval or consent of the Manager, the Members or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or any other applicable Law.
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(e) No Member shall be required or, except as approved by the Manager pursuant to Section 6.01 and in accordance with the other provisions of this Agreement, permitted to loan any money or property to the Company or borrow any money or property from the Company.
(f) No Member (i) (other than Fubo as and to the extent expressly required by Section 3.04, Section 3.10, Section 3.11 or Section 11.02) shall be required to make any additional Capital Contributions without such Member’s consent or (ii) except as approved by the Manager pursuant to Section 6.01 and in accordance with the other provisions of this Agreement, shall be permitted to make any additional Capital Contributions.
(g) Notwithstanding any provision of this Agreement to the contrary, no Member or any other Person shall be entitled to appraisal or dissenters’ rights with respect to the Units under any circumstances and no appraisal or dissenters’ rights with respect to the Units may be granted under Section 18-210 of the Delaware Act or otherwise.
SECTION 3.02. Units.
(a) Each Company Interest shall be represented by “Units”, which may be divided into one or more types, classes or series, or subseries of any type, class or series, with each type, class or series, or subseries thereof, having the rights and privileges set forth in this Agreement. As of the Effective Time, the Units are comprised of a single class of Common Units and a single class of Unvested 2029 Convertible Units. The total number of authorized Units consists of an unlimited number of authorized Common Units and an unlimited number of authorized Unvested 2029 Convertible Units.
(b) Subject to Section 15.02, the Manager shall have the right to cause the Company to issue, or to create and issue, at any time after the date hereof and for such amount and form of consideration as the Manager may determine in its sole discretion, additional Units (of Common Units or other types, classes or series of Units, or subseries thereof) or other Company Equity Securities (including creating types, classes or series, or subseries thereof, having such powers, designations, preferences and rights as may be determined by the Manager in its sole discretion). Subject to Section 15.02, the Manager shall have the power to make such amendments to this Agreement in order to provide for such powers, designations, preferences and rights as the Manager, in its sole discretion, deems necessary or appropriate to give effect to such additional authorization or issuance in accordance with this Section 3.02(b).
(c) The number of Unvested 2029 Convertible Units outstanding at any time shall equal, and be paired on a one-to-one basis with, the number of shares of Class A Common Stock that would be issuable if all of the then-outstanding Existing Convertible Notes were converted in full into Class A Common Stock in accordance with their terms. Subject to Section 3.04(d) and Section 4.03(b), each Unvested 2029 Convertible Unit shall be held in accordance with this Agreement unless and until an applicable Share Vesting Event occurs with respect to the portion of the Existing Convertible Notes corresponding to such Unvested 2029 Convertible Units. Upon the occurrence thereof, such Unvested 2029 Convertible Units shall be immediately converted into an equal number of Common Units, with all rights and privileges of a Common Unit under this Agreement thereafter such that (i) following such Share Vesting Event, Fubo shall hold a number of new Common Units equal to the number of new shares of Class A Common Stock issued in connection with such Share Vesting Event and (ii) the Class A Ratio shall be maintained, disregarding, for purposes of maintaining such ratio, the Disregarded Shares.
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SECTION 3.03. Voting. No Member (in its capacity as such) shall be entitled to vote on any matter so long as any Existing Convertible Notes are outstanding; provided that, for the avoidance of doubt, during such time, each Member’s Units that are “Voting Units” under this Agreement shall continue to constitute “Voting Units” for all purposes of this Agreement. From and after the date on which no Existing Convertible Notes are outstanding, the Members holding Common Units (and any other class of Units designated as Voting Units pursuant to this Agreement) shall be entitled to vote on those matters specifically reserved for a Member vote under the Delaware Act and those matters expressly requiring the approval of Members under this Agreement; provided that (i) no vote by the Members holding Voting Units shall have the power to override any action taken by the Manager (unless the prior approval of the Members holding such Voting Units is required for such action), or to remove or replace the Manager, (ii) the Members holding Voting Units, in such capacity, have no ability to take part in the conduct or control of the Company’s business and (iii) notwithstanding any vote by Members under this Agreement, the Manager shall retain exclusive management power over the business and affairs of the Company in accordance with Section 6.01(a). Except as otherwise required by the Delaware Act, each Voting Unit will entitle the holder thereof to one vote on all matters to be voted on by the Members. Except as otherwise expressly provided in this Agreement, the holders of Voting Units will vote together as a single class on all matters to be approved by the Members.
SECTION 3.04. Parity Protections.
(a) The Company, the Manager, Fubo, the other Members and any other Person that is a party to or is otherwise bound by this Agreement hereby acknowledges and agrees that it is the intention of this Agreement and such Persons to maintain at all times a one-to-one ratio between the aggregate number of outstanding Common Units owned by Fubo and the aggregate number of outstanding shares of Class A Common Stock (the “Class A Ratio”), disregarding, for purposes of maintaining such ratio, (A) Unvested Fubo Shares, (B) treasury shares, (C) any non-economic voting shares (including shares of Class B Common Stock) and (D) preferred stock or other debt or equity securities (including warrants, options or rights) issued by Fubo that are convertible into or exercisable or exchangeable for shares of Common Stock (but in each case solely prior to such conversion, exercise or exchange); provided that the net proceeds from such other securities, including any exercise or purchase price payable upon conversion, exercise or exchange thereof, shall be contributed by Fubo to the equity capital of the Company pursuant to this Agreement (clauses (A), (B), (C) and (D), collectively, the “Disregarded Shares”).
(b) In the event that Fubo issues additional shares of Common Stock, transfers or delivers from treasury shares of Common Stock, or repurchases or redeems shares of Common Stock, the Company and Fubo shall undertake all necessary actions consistent with this Article III, such that, after giving effect to all such issuances, transfers, deliveries, repurchases or redemptions, the Class A Ratio shall be maintained, disregarding, for purposes of maintaining such ratio, the Disregarded Shares.
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(c) Without limiting Section 3.04(b), in the event that Fubo issues additional shares of Common Stock or other Fubo Equity Securities, or transfers or delivers from treasury shares of Common Stock or other Fubo Equity Securities (including shares issued in respect of preferred stock or other debt or equity securities that are convertible into or exercisable or exchangeable for shares of Common Stock), in each case for cash or other consideration (which, for the avoidance of doubt, may include property other than cash) (other than pursuant to Article XI), Fubo shall contribute such consideration to the Company as a Capital Contribution immediately after receiving the same (including in connection with the receipt of any proceeds upon the issuance of an option or warrant or similar security and thereafter upon the receipt of any additional proceeds upon the exercise thereof) and the Company shall issue a number of Common Units (or other Company Equity Securities, as applicable) to Fubo that is consistent with Section 3.04(b), all without further act, vote, approval or consent of the Manager, the Members or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or any other applicable Law.
(d) Without limiting Section 3.04(b), in the event that Fubo issues, transfers, delivers from treasury, subdivides (by split, distribution, reclassification, recapitalization or similar event) or combines (by reverse split, reclassification, recapitalization or similar event) any Fubo Equity Securities (other than Common Stock), the Company and Fubo shall undertake all actions such that, after giving effect to all such issuances, transfers, deliveries, subdivisions or combinations, (i) Fubo holds (in the case of any issuance, transfer, delivery or subdivision) or ceases to hold (in the case of any combination) equivalent Units that, in the good faith determination of the Manager, are in the aggregate substantially equivalent in all respects to the outstanding Fubo Equity Securities (other than Common Stock) so issued, transferred, delivered, subdivided or combined (including with respect to Distributions (including Distributions upon liquidation) and other economic rights) and (ii) the Company concurrently receives (in the case of any issuance, transfer, delivery or subdivision) or pays (in the case of any combination) any corresponding net proceeds so received or paid.
(e) Without limiting Section 3.04(b), Section 3.04(c) or Section 3.04(d), in the event Fubo issues any warrant to purchase shares of Class A Common Stock (an “Upstairs Warrant”), then the Company and Fubo shall enter into a warrant agreement pursuant to which the Company will issue to Fubo a warrant to purchase Common Units with terms substantially similar to the corresponding Upstairs Warrant (a “Downstairs Warrant” and such warrant agreement, a “Downstairs Warrant Agreement”). In the event any holder of any Upstairs Warrant exercises an Upstairs Warrant, then Fubo shall cause a corresponding exercise (including by effecting such exercise in the same manner, i.e., by payment of a cash exercise price or on a cashless basis) of the applicable Downstairs Warrant held by Fubo, such that the number of shares of Class A Common Stock issued in connection with the exercise of such Upstairs Warrant(s) shall be matched with a corresponding number of Common Units issued by the Company to Fubo pursuant to the applicable Downstairs Warrant Agreement. Upon the valid exercise of a Downstairs Warrant by Fubo in accordance with a Downstairs Warrant Agreement pursuant to the immediately preceding sentence, the Company shall issue to Fubo the number of Common Units contemplated thereby, free and clear of all Encumbrances, other than those arising under applicable securities Laws and this Agreement. Fubo shall not exercise any Downstairs Warrants other than in connection with the corresponding exercise of an Upstairs Warrant.
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(f) In order to maintain at all times the Class A Ratio, disregarding, for purposes of maintaining such ratio, the Disregarded Shares, the Company shall undertake or authorize any subdivision (by any Common Unit split, Distribution, reclassification, recapitalization or similar event) or combination (by reverse Common Unit split, reclassification, recapitalization or similar event) of outstanding Common Units owned by any Member if, and only if, Fubo shall effect a substantively identical subdivision or combination of outstanding shares of Common Stock corresponding to such Common Units.
(g) Notwithstanding anything to the contrary contained in this Agreement, this Section 3.04 and Section 3.05 shall not apply to the issuance and distribution to holders of shares of Class A Common Stock of rights to purchase Fubo Equity Securities under a “poison pill” or similar shareholder rights plan (and, in connection with a Share Settlement Exchange, Class A Common Stock will be issued together with corresponding rights under such plan).
SECTION 3.05. Repurchase, Redemption or Acquisition of Equity Securities. If, at any time, (a) any outstanding shares of Class A Common Stock are repurchased, redeemed or otherwise acquired (whether by exercise of a put or call, automatically or by means of another arrangement) by Fubo for cash, then, immediately prior to such repurchase, redemption or other acquisition, a corresponding number of Common Units held by Fubo shall automatically be redeemed for cash at an aggregate redemption price equal to the aggregate purchase, redemption or acquisition price of the shares of Class A Common Stock being repurchased, redeemed or acquired by Fubo (plus any expenses related thereto) and upon such other terms as are the same for the shares of Class A Common Stock being repurchased, redeemed or otherwise acquired by Fubo or (b) any other Fubo Equity Securities are repurchased, redeemed or otherwise acquired (whether by exercise of a put or call, automatically or by means of another arrangement) by Fubo for cash, then, immediately prior to such repurchase, redemption or other acquisition, a corresponding number of Company Equity Securities with substantially equivalent rights in all respects (including with respect to Distributions (including Distributions upon liquidation) and other economic rights) held by Fubo shall automatically be redeemed for cash at an aggregate redemption price equal to the aggregate purchase, redemption or acquisition price of the Fubo Equity Securities being repurchased, redeemed or acquired by Fubo (plus any expenses related thereto) and upon such other terms as are the same for the Fubo Equity Securities being repurchased, redeemed or otherwise acquired by Fubo, in each case of clauses (a) and (b), all without further act, vote, approval or consent of the Members or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or other applicable Law. The Company may not redeem, repurchase or otherwise acquire (i) any outstanding Common Units from Fubo unless, substantially simultaneously, Fubo redeems, repurchases or otherwise acquires an equal number of shares of Class A Common Stock for the same price per security from holders thereof or (ii) any other Company Equity Securities from Fubo unless, substantially simultaneously, Fubo redeems, repurchases or otherwise acquires for the same price per security an equal number of Fubo Equity Securities of a corresponding class or series with substantially equivalent rights in all respects (including with respect to Distributions (including Distributions upon liquidation) and other economic rights). Notwithstanding the foregoing, to the extent that any consideration payable by Fubo in connection with the redemption, repurchase or acquisition of any shares of Class A Common Stock or other Fubo Equity Securities consists (in whole or in part) of shares of Class A Common Stock or such other Fubo Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Common Units or other Company Equity Securities shall be effectuated in an equivalent manner. In connection with the foregoing, Fubo shall surrender any certificates representing such Common Units or other Company Equity Securities so redeemed to the Company duly endorsed in blank. Notwithstanding any provision to the contrary in this Agreement, the Company shall not make any such redemption pursuant to this Section 3.05 if such redemption would violate any applicable Law or the Manager otherwise has notified Fubo that the Company does not have funds available for such redemption.
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SECTION 3.06. Certificates Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units.
(a) Units shall not be certificated unless otherwise determined by the Manager. If the Manager determines that one or more class or series of Units shall be certificated, each such certificate shall (i) be signed by or in the name of the Company by the Chief Executive Officer or any other officer designated by the Manager in writing and (ii) represent the number of the class or series of Units held by such holder. Except with respect to each Unit elected to be treated as a “security” as provided in Section 3.06(b), such certificate shall be in such form (and shall contain such legends) as the Manager may determine. Any or all such signatures on any certificate representing one or more Units may be electronic signatures. The Manager agrees that it shall not elect to treat any class or series of Units that is “certificated” pursuant to this Section 3.06(a) as a “security” within the meaning of Article 8 of the Uniform Commercial Code of any applicable jurisdiction unless (A) in accordance with Section 3.06(b) and (B) thereafter all Units of such class or series of Units then outstanding are represented by one or more certificates.
(b) If any class or series of Units are “certificated” pursuant to Section 3.06(a), the Manager may elect to treat each Unit as a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995, and the Company shall have “opted-in” to such provisions for the purposes of the Uniform Commercial Code. The Units shall not be considered a “security” for any other purpose unless otherwise expressly provided in this Agreement.
(c) If Units are certificated, the Manager shall direct that a new certificate representing one or more Units be issued in place of any certificate theretofore issued by the Company alleged to have been lost, stolen or destroyed upon delivery to the Manager of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Manager may require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Company a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
(d) To the extent Units are certificated, upon surrender to the Company (or the transfer agent of the Company, if any) of a certificate representing one or more Units, duly endorsed or accompanied by such evidence of the authenticity of such endorsement or evidence of succession, assignment or authority to transfer, in compliance with the provisions hereof, as the Company (or the transfer agent of the Company, if any) may reasonably require, the Company shall issue a new certificate representing one or more Units to the Person entitled thereto, cancel the old certificate and record the transaction upon its books.
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SECTION 3.07. Negative Capital Accounts. No Member shall be required to pay to any other Member or the Company any deficit or negative balance which may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).
SECTION 3.08. No Withdrawal. No Person shall be entitled to withdraw any part of such Person’s Capital Contribution or Capital Account or to receive any Distribution from the Company, except as expressly provided in this Agreement.
SECTION 3.09. Loans From Members. Loans by Members to the Company shall be subject to the provisions of Section 3.01(e) and shall not be considered Capital Contributions. Subject to the provisions of Section 3.01(e), the amount of any such loans shall be a debt of the Company to such Member and shall be payable or collectible in accordance with the terms and conditions upon which such loans are made.
SECTION 3.10. Fubo Stock Incentive Plans.
(a) Nothing in this Agreement shall be construed or applied to preclude or restrain Fubo from adopting, implementing, modifying or terminating any Equity Plan or from issuing or granting Equity Awards. Fubo may implement any Equity Plans or take any actions under an Equity Plan (including the grant or issuance of Equity Awards or the issuance of Class A Common Stock in connection with the exercise or settlement of Equity Awards), in a manner determined by Fubo, in accordance with this Section 3.10, subject to Section 3.04. The Company is expressly authorized to issue Common Units in an amount equal to the number of shares of Class A Common Stock issued pursuant to an Equity Plan, without further act, approval or vote of any Member or any other Persons; provided that, in all cases, the Class A Ratio shall be maintained, disregarding, for purposes of maintaining such ratio, the Disregarded Shares.
(b) For accounting and tax purposes, the Manager shall cause the Company to take the following actions in connection with any Equity Awards:
(i) in the event that Fubo incurs any cash compensation expense in connection with any such Equity Award granted to a Person employed by, or engaged to provide services to or for the benefit of, Fubo as consideration for such employment or services, then the Company shall, without duplication of any reimbursement made pursuant to Section 6.06, reimburse or be deemed to reimburse Fubo for a portion of the compensation expense equal to the amount includible in the taxable income of such natural person; and
(ii) at the time any Common Units are issued to Fubo in accordance with Section 3.04 or this Section 3.10 in connection with any such Equity Award granted to a Person who is employed by, or engaged to provide services to, the Company or a Subsidiary as consideration for such employment or services, then the Company or its applicable Subsidiary shall be deemed to (A) purchase a number of shares of Class A Common Stock equal to the number of Common Units issued to Fubo for their Fair Market Value and (B) transfer the shares of Class A Common Stock includible in such Person’s taxable income to such natural person as compensation.
SECTION 3.11. Dividend Reinvestment Plan, Cash Option Purchase Plan, Equity Plan, Stock Incentive Plan or Other Plan. Except as may otherwise be provided in this Article III, all amounts received or deemed received by Fubo in respect of any dividend reinvestment plan, cash option purchase plan, Equity Plan, stock incentive or other stock or subscription plan or agreement (other than any amounts received in order to satisfy any tax obligations), either (a) shall be utilized by Fubo to effect open market purchases of shares of Class A Common Stock or (b) if Fubo elects instead to issue new shares of Class A Common Stock with respect to such amounts, shall be contributed by Fubo to the Company as a Capital Contribution immediately after receiving the same in exchange for additional Common Units. Upon such contribution, the Company will issue to Fubo a number of Common Units equal to the number of new shares of Class A Common Stock so issued such that the Class A Ratio shall be maintained, disregarding, for purposes of maintaining such ratio, the Disregarded Shares.
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ARTICLE IV
Distributions
SECTION 4.01. Distributions.
(a) Distributions Generally. To the fullest extent permitted by applicable Law and this Agreement, Distributions to the Members may be declared by the Manager and paid by the Company out of Distributable Cash or other funds or property legally available therefor in such amounts and on such terms (including the payment dates of such Distributions) as the Manager shall determine using such record date as the Manager may designate. Such Distributions shall be made to the Members as of the close of business on such record date and shall be made to the Members in accordance with each Member’s Percentage Interest as of the close of business on such record date; provided, however, that the Manager shall have the obligation to make Distributions as set forth in Section 4.01(b), Section 4.03 and Section 14.02. Promptly following the designation of a record date and the declaration of a Distribution pursuant to this Section 4.01(a), the Manager shall give notice to each Member as of the record date setting forth the amount and the terms of the Distribution and the payment date thereof. In furtherance of the foregoing, it is intended that the Manager shall, to the extent permitted by applicable Law and hereunder, have the right in its sole discretion to make Distributions to the Members pursuant to this Section 4.01(a) in such amounts as shall enable Fubo to pay dividends or to meet its obligations (to the extent such obligations are not otherwise able to be satisfied as a result of tax distributions required to be made pursuant to Section 4.01(b) or reimbursements required to be made pursuant to Section 6.06).
(b) Tax Distributions and TRA Distributions.
(i) Subject to the limitations set forth in Section 4.01(a), no later than five Business Days prior to each date on which either federal quarterly estimated tax payments are due for Fubo (as determined without regard to extensions) or taxes with respect to a Tax Action are due, the Company shall be required to make a Distribution out of Distributable Cash (x) to Fubo in an amount that, in the good faith judgment of the Manager, is sufficient for Fubo to pay taxes owed on the estimated aggregate taxable income of the Company allocated to Fubo for such Taxable Year (or portion thereof) (in each case, taking into account the effect of any tax liability due with respect to a Tax Action in such Taxable Year and any allocations under Sections 704(c), 734 and 743(b) of the Code and other tax attributes of Fubo available to offset such taxes) taking into account the aggregate amount of Tax Distributions previously made to Fubo under this Section 4.01(b)(i) with respect to such Taxable Year and (y) to each other Member that holds Units at the time of the Distribution (or is entitled to Tax Distributions pursuant to Section 11.01(e) following a Redemption) in an amount necessary to ensure that each such Member receives a pro rata Distribution (determined based on the number of Units entitled to Tax Distributions) based on the amount Distributed to Fubo pursuant to clause (x) (the amounts in clauses (x) and (y) together, a “TaxDistribution”).
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(ii) In the event that there is insufficient Distributable Cash to make a Tax Distribution to each Member for an applicable quarter or with respect to a Tax Action, the Company shall, to the extent of Distributable Cash, make a Tax Distribution (x) first, to Fubo and (y) second, to each other Member pro rata (determined based on the number of Units held during the relevant Taxable Year (or portion thereof)). After giving effect to the preceding sentence, each Member other than Fubo shall be entitled to (1) waive its entitlement to any shortfall in the amount of a Tax Distribution owed to such Member in exchange for additional Common Units with an aggregate value (based on the Class A Trading Price) equal to such shortfall or (2) treat the shortfall as a loan (on terms and conditions not less favorable to the Company than those available from unaffiliated third parties for arm’s-length loans) from such Member to the Company and, in each case, such Tax Distribution shall be treated as distributed to such Member. In the case of a loan described in clause (2), such loan shall not be considered part of such Member’s Capital Contributions and shall not increase its Capital Account but shall instead be treated as a debt due from the Company to a creditor as to all parties and as for all purposes to the fullest extent permitted by applicable Law.
(iii) Subject to the limitations set forth in Section 4.01(a), no later than five Business Days prior to the date for any payment required to be made under the Tax Receivable Agreement, the Company shall make a Distribution out of Distributable Cash prorata (determined based on the number of Units held at the time of the relevant Distribution) to each Member sufficient for Fubo to receive a distribution in an amount equal to such payment due under the Tax Receivable Agreement (a “TRA Distribution”).
(iv) The Manager shall use commercially reasonable efforts to cause the terms of any agreements governing indebtedness of the Company or its Subsidiaries to allow Tax Distributions to be made pursuant to and in accordance with this Agreement.
SECTION 4.02. Restricted Distributions. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make any Distribution to any Member on account of any Company Interest if such Distribution would violate any applicable Law or would render the Company unable to meet its payment obligations when due.
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SECTION 4.03. Distributions with Respect to Unvested 2029 Convertible Units.
(a) Distributions Generally. Except as otherwise provided in Section 4.01(b), no holder of any Unvested 2029 Convertible Unit shall be entitled to receive any Distributions in respect thereof, unless and until such Unvested 2029 Convertible Unit is converted into a Common Unit in accordance with Section 3.02(c) (after which time, such holder shall be entitled to Distributions in respect of such Common Unit that are declared from and after the time of such conversion).
(b) Convertible Notes Distributions. No later than five Business Days prior to the date of any cash payment to be made under the Existing Convertible Notes (including a Cash Vesting Event), the Company shall (i) make a Distribution out of Distributable Cash to Fubo in an amount sufficient for Fubo to satisfy its obligations pursuant to the Existing Convertible Notes in cash (the “ConvertibleNotes Distribution”) and (ii) in the event of a Cash Vesting Event, automatically redeem the corresponding Unvested 2029 Convertible Units upon the completion of such distribution such that, following such Cash Vesting Event, the number of Unvested 2029 Convertible Units outstanding shall equal, and be paired on a one-to-one basis with, the number of shares of Class A Common Stock that would be issuable if all of the then-outstanding Existing Convertible Notes were converted in full into shares of Class A Common Stock in accordance with their terms.
ARTICLE V
Capital Accounts; Allocations; Tax Matters
SECTION 5.01. Capital Accounts.
(a) The Company shall maintain a separate Capital Account for each Member according to the rules of Treasury Regulations Section 1.704-1(b)(2)(iv) and subject to such other adjustments as are provided for in this Agreement. For this purpose, the Company shall, upon the occurrence of the events specified in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance with the rules of such Treasury Regulation and Treasury Regulations Section 1.704-1(b)(2)(iv)(g) to reflect a Revaluation of Company property; provided that the Company shall effect a Revaluation of the Company’s property upon the conversion of any Unvested 2029 Convertible Units into Common Units upon the occurrence of a Share Vesting Event in accordance with principles similar to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv) and any such other Revaluation and adjustment shall not be required if the Manager determines, in its reasonable good faith discretion, that such adjustment would be immaterial if made. The Members acknowledge and agree that Fubo’s initial Capital Account shall be credited with the principal amount of the Existing Convertible Notes.
(b) For purposes of computing the amount of any item of Company income, gain, loss or deduction to be allocated pursuant to this Article V and to be reflected in the Capital Accounts of the Members, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes (including any method of depreciation, cost recovery or amortization used for this purpose); provided, however, that:
(i) the computation of all items of income, gain, loss and deduction shall include those items described in Section 705(a)(l)(B) or 705(a)(2)(B) of the Code and Treasury Regulations Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are not includible in gross income or are not deductible for U.S. federal income tax purposes;
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(ii) if the Book Value of any Company property is adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property;
(iii) items of income, gain, loss or deduction attributable to the disposition of Company property having a Book Value that differs from its adjusted basis for tax purposes shall be computed by reference to the Book Value of such property;
(iv) items of depreciation, amortization and other cost recovery deductions with respect to Company property having a Book Value that differs from its adjusted basis for tax purposes shall be computed by reference to the property’s Book Value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g); and
(v) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 732(d), 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis).
SECTION 5.02. Allocations. After giving effect to the allocations in Section 5.03, Net Profits and Net Losses for any Allocation Period (or, in any Allocation Period in which the Company is liquidated pursuant to Section 14.02, individual items of gross income, deduction, gain or loss) shall be allocated to the Members in a manner that will, as nearly as possible, cause the Capital Account balance of each Member at the end of such Allocation Period to equal the excess (which may be negative) of:
(a) the amount of the hypothetical distribution (if any) that such Member would receive if, on the last day of the Allocation Period, (x) all Company assets, including cash, were sold for cash equal to their Book Values, taking into account any adjustments thereto for such Allocation Period, (y) all Company liabilities were satisfied in cash according to their terms (limited, with respect to each Nonrecourse Liability, to the Book Values of the assets securing such liability) and (z) the net proceeds thereof (after satisfaction of such liabilities) were distributed in full pursuant to Section 14.02(c), over
(b) the sum of (x) the amount, if any, without duplication, that such Member would be obligated to contribute to the capital of the Company, (y) such Member’s share of partnership minimum gain determined pursuant to Treasury Regulations Section 1.704-2(g), and (z) such Member’s share of partner non-recourse minimum gain (as defined in Treasury Regulations Section 1.704-2(i)(3)) determined pursuant to Treasury Regulations Section 1.704-2(i)(5), all computed as of immediately prior to the hypothetical sale described in Section 5.02(a).
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SECTION 5.03. Regulatory Allocations.
(a) Losses attributable to partner nonrecourse debt (as defined in Treasury Regulations Section 1.704-2(b)(4)) shall be allocated in the manner required by Treasury Regulations Section 1.704-2(i). If there is a net decrease during an Allocation Period in partner nonrecourse debt minimum gain (as defined in Treasury Regulations Section 1.704-2(i)(3)), Profits for such Allocation Period (and, if necessary, for subsequent Allocation Periods) shall be allocated to the Members in the amounts and of such character as determined according to Treasury Regulations Section 1.704-2(i)(4). This Section 5.03(a) is intended to be a minimum gain chargeback provision that complies with the requirements of Treasury Regulations Section 1.704-2(i) and shall be interpreted in a manner consistent therewith.
(b) Nonrecourse deductions (as determined according to Treasury Regulations Section 1.704-2(b)(1)) for any Allocation Period shall be allocated pro rata among the Members in accordance with their share of the Company’s Profits and Losses for the applicable Allocation Period. Except as otherwise provided in Section 5.03(a), if there is a net decrease in the Minimum Gain during any Allocation Period, each Member shall be allocated Profits for such Allocation Period (and, if necessary, for subsequent Allocation Periods) in the amounts and of such character as determined according to Treasury Regulations Section 1.704-2(f). This Section 5.03(b) is intended to be a minimum gain chargeback provision that complies with the requirements of Treasury Regulations Section 1.704-2(f) and shall be interpreted in a manner consistent therewith.
(c) If any Member that unexpectedly receives an adjustment, allocation or Distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as of the end of any Allocation Period, computed after the application of Section 5.03(a) and Section 5.03(b) but before the application of any other provision of this Article V, then Profits for such Allocation Period shall be allocated to such Member in proportion to, and to the extent of, such Adjusted Capital Account Deficit. This Section 5.03(c) is intended to be a qualified income offset provision as described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d) If the allocation of Net Losses to a Member as provided in Section 5.02 would create or increase an Adjusted Capital Account Deficit, there shall be allocated to such Member only that amount of Net Losses as will not create or increase an Adjusted Capital Account Deficit. All Net Losses in excess of the limitation set forth in this Section 5.03(d) shall be allocated to the Members who do not have an Adjusted Capital Account Deficit in proportion to their relative positive Adjusted Capital Accounts but only to the extent that such Net Losses do not cause any such Member to have an Adjusted Capital Account Deficit.
(e) In the event that any Member has an Adjusted Capital Account Deficit at the end of any Allocation Period, such Member shall be allocated Profits in the amount of such deficit as quickly as possible; provided, however, that an allocation pursuant to this Section 5.03(e) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article V have been tentatively made as if Section 5.03(c) and this Section 5.03(e) were not in this Agreement.
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(f) Profits and Losses described in Section 5.01(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital Accounts are required to be made pursuant to Treasury Regulations Sections 1.704-1(b)(2)(iv)(j) and (m).
(g) Notwithstanding anything to the contrary contained in this Agreement, (i) no allocations of Net Profits or Net Losses (or Profits and Losses) shall be made in respect of any Unvested 2029 Convertible Units in determining Capital Accounts unless and until such Unvested 2029 Convertible Units are converted into Common Units upon the occurrence of a Share Vesting Event; (ii) in the event the Book Value of any Company asset is adjusted pursuant to the definition of Book Value upon the conversion of any Unvested 2029 Convertible Units into Common Units, any Unrealized Gain or Unrealized Loss resulting from such adjustment shall, in the manner reasonably determined by the Manager and consistent with the definition of Book Value, be allocated first to the Common Units into which previously Unvested 2029 Convertible Units that vested pursuant to a Share Vesting Event were converted, then among the Members such that the Per Unit Capital Amount relating to each Common Unit (including the Common Units into which previously Unvested 2029 Convertible Units that vested pursuant to a Share Vesting Event were converted) is equal in amount immediately after making such allocation in accordance with principles similar to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s); provided that if the foregoing allocations pursuant to clause (ii) are insufficient to cause the Per Unit Capital Amount relating to each Common Unit to be so equal in amount, then the Manager, in its reasonable discretion, may cause a Capital Account reallocation in accordance with principles similar to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3) to cause the Per Unit Capital Amount relating to each Common Unit to be so equal in amount.
(h) The allocations set forth in Section 5.03(a) through and including Section 5.03(g) (the “RegulatoryAllocations”) are intended to comply with certain requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2. The Regulatory Allocations may not be consistent with the manner in which the Members intend to allocate Net Profits and Net Losses (or Profits and Losses) of the Company or for the Company to make Distributions. Accordingly, notwithstanding the other provisions of this Article V, but subject to the Regulatory Allocations, Profits and Losses shall be reallocated among the Members so as to eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of the Members to equal the amounts (or as close thereto as possible) they would have equaled if Profits and Losses had been allocated without reference to the Regulatory Allocations.
SECTION 5.04. Tax Allocations.
(a) Except as provided in this Section 5.04, the income, gains, losses, deductions and credits of the Company will be allocated, for U.S. federal and state and local income tax purposes, among the Members in accordance with the allocation of such income, gains, losses, deductions and credits pursuant to Section 5.02 and Section 5.03; provided that if any such allocation is not permitted by the Code or other applicable Law, the Company’s subsequent income, gains, losses, deductions and credits will be allocated among the Members so as to reflect as nearly as possible the allocation set forth in Section 5.02 and Section 5.03.
(b) Items of Company taxable income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall be allocated among the Members in accordance with Section 704(c) of the Code so as to take account of any variation between the adjusted basis of such property to the Company for U.S. federal income tax purposes and its Book Value using the “traditional method” described in Treasury Regulations Section 1.704-3(b).
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(c) If the Book Value of any Company asset is adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(f), subsequent allocations of items of taxable income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for U.S. federal income tax purposes and its Book Value in the same manner as under Section 704(c) of the Code using the “traditional method” described in Treasury Regulations Section 1.704-3(b).
(d) Allocations of tax credits, tax credit recapture and any items related thereto shall be allocated to the Members according to their interests in such items as determined by the Manager taking into account the principles of Treasury Regulations Section 1.704-1(b)(4)(ii).
(e) If, as a result of an exercise of a non-compensatory option to acquire an interest in the Company or the vesting of an Unvested 2029 Convertible Unit, a Capital Account reallocation is required under Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).
(f) The Company’s “excess nonrecourse liabilities” (as defined in Treasury Regulations Section 1.752-3(a)(3)) will be allocated to the Members in accordance with their share of the Company’s Net Profits and Net Losses for the applicable Taxable Year. This Section 5.04(f) is intended to comply with the requirements for allocating excess nonrecourse liabilities as described in Treasury Regulations Section 1.752-3 and shall be interpreted in a manner consistent therewith.
(g) Allocations pursuant to this Section 5.04 are solely for purposes of U.S. federal and state and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, Distributions (other than Tax Distributions) or other Company items pursuant to any provision of this Agreement.
SECTION 5.05. Withholding, Indemnification and Reimbursement for Payments on Behalf of a Member.
(a) The Company and Fubo shall be entitled to withhold from any payments, distributions and allocations to the Members and pay over to any Governmental Entity any amounts required to be so withheld pursuant to the Code or any provisions of any other U.S. federal, state, local or foreign Law, including with respect to any transaction pursuant to Article XI (a “Withholding Tax”). Each Member hereby agrees to furnish to the Company such information and forms as reasonably requested in order to comply with any Laws governing Withholding Taxes or in order to claim any reduced rate of, or exemption from, withholding to which the Member is legally entitled, and the parties hereto shall reasonably cooperate to reduce or eliminate any amounts that would otherwise be required to be deducted and withheld hereunder. Any amount of Withholding Tax that is withheld and appropriately paid to the applicable Governmental Entity with respect to any payment, distribution or allocation to the Company or the Members shall be treated as an amount distributed to the Members pursuant to Article IV or paid to the Member pursuant to Article XI, as applicable, for all purposes under this Agreement; provided that, if the amount required to be so withheld exceeds the amount that would have been distributed to a Member, the excess shall be treated as a loan (on arm’s-length terms) from the Company to such Member. To the extent that the Company makes a distribution to any Member without making any deduction for Withholding Tax that it was required to withhold under applicable tax Law, the Company shall remit such Withholding Tax to the applicable Governmental Entity and the applicable Member shall promptly reimburse the Company for the amount so remitted.
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(b) If the Company is required by applicable Law to make any other payment to a Governmental Entity that is specifically attributable to a Member or a Member’s status as such (including any Withholding Taxes and taxes attributable to an imputed underpayment under Section 6225 of the Code (solely to the extent relating to items that are specifically attributable to a Member as determined by the Manager in its reasonable discretion)), such Member shall indemnify the Company in full for the entire amount paid (including any interest, penalties and related expenses with respect thereto) by the Company on behalf of such Member; provided that, in the case of Fubo, Fubo shall not indemnify the Company and the Manager shall instead offset Distributions to Fubo in the manner described in Section 5.05(c).
(c) The Manager may offset Distributions to which a Member is otherwise entitled under this Agreement against such Member’s obligation to indemnify the Company under this Section 5.05. A Member’s obligation to indemnify the Company under this Section 5.05 shall survive the Transfer of any Company Interests and the termination, dissolution, liquidation and winding up of the Company, and, for purposes of this Section 5.05, the Company shall be treated as continuing in existence. The Company may pursue and enforce all rights and remedies it may have against each Member under this Section 5.05, including instituting a lawsuit to collect such indemnification with interest calculated at a rate per annum equal to the sum of the Base Rate plus 300 basis points (but not in excess of the highest rate per annum permitted by applicable Law).
(d) In the event any Member transfers or otherwise disposes of an interest in the Company in an Exchange pursuant to Section 11.01 or Section 11.03 and Fubo elects a Share Settlement Exchange with respect thereto, if such Exchange is subject to withholding taxes under applicable Law, Fubo shall notify, within three Business Days, or as promptly as possible, of receipt of a Redemption Notice, such Member of the required withholding and shall provide the Member an opportunity to provide forms or other evidence necessary to reduce or eliminate such withholding. In the event such withholding cannot be eliminated, such Member shall deliver to the Company (in the case of a Redemption) or Fubo (in the case of a Direct Exchange) cash constituting the amount that is required to be withheld, which cash shall be remitted by the Company or Fubo, as applicable, to the applicable Governmental Entity in accordance with applicable Law.
Any Exchange subject to this Section 5.05(d) shall not be completed, become effective or be recognized until the obligation to deliver cash to the Company or Fubo, as applicable, has been satisfied. Payments under this Section 5.05(d) shall not be duplicative of any other amounts paid or withheld under Section 5.05. The parties hereto shall reasonably cooperate to reduce or eliminate any amounts payable by a Member under this Section 5.05(d).
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ARTICLE VI
Management
SECTION 6.01. Authority of Manager.
(a) Except for situations in which the approval of any Member(s) is specifically required by the Delaware Act or this Agreement, (i) the business and affairs of the Company shall be managed exclusively by or under the direction of the Manager and (ii) the Manager shall conduct, direct and exercise full control over all activities of the Company. The Manager shall be, and hereby is, designated as a “manager” within the meaning of Section 18-101 of the Delaware Act. Except as otherwise expressly provided for herein and subject to the other provisions of this Agreement, the Members hereby consent to the exercise by the Manager of all such powers and rights conferred on a manager by the Delaware Act with respect to the management and control of the Company. The initial Manager shall be Fubo. Any vacancies in the position of Manager shall be filled in accordance with Section 6.04.
(b) Without limiting the authority of the Manager to act on behalf of the Company, the day-to-day business and operations of the Company shall be overseen and implemented, subject to the supervision and direction of the Manager, by officers of the Company having such titles as the Manager may deem advisable (each, an “Officer” and collectively, the “Officers”). Each Officer shall be appointed by the Manager and shall hold office until his or her successor shall be duly designated and qualified or until his or her death or until he or she shall resign or shall have been removed in the manner provided in this Agreement. Any one Person may hold more than one office. Subject to the other provisions in this Agreement, the salaries or other compensation, if any, of the Officers shall be fixed from time to time by the Manager. The authority and responsibility of the Officers shall include, but not be limited to, such duties as the Manager may from time to time delegate to them and the carrying out of the Company’s business and affairs on a day-to-day basis. All Officers shall be, and shall be deemed to be, officers and employees of the Company. An Officer may also fill and perform one or more roles as an officer of the Manager or any Member. Any delegation of authorities by the Manager to an Officer pursuant to this Section 6.01(b) may be revoked by the Manager in its sole discretion at any time.
(c) Subject to the provisions of Section 6.05, the Manager shall have the power and authority to effectuate the sale, lease, transfer, exchange or other disposition of any, all or substantially all of the assets of the Company (including the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company) or the merger, consolidation, reorganization or other combination of the Company with or into another entity, all without further act, vote, approval or consent of the Members or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or any other applicable Law; provided that, for the avoidance of doubt, nothing in this Section 6.01(c) shall alter in any respect any rights under Fubo’s organizational documents or applicable Law of any stockholder of Fubo to approve such sale, lease, transfer, exchange or other disposition, or such merger, consolidation, reorganization or other combination (including the rights of any Member, in its capacity as a stockholder of Fubo, to vote its shares of capital stock of Fubo in connection therewith).
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SECTION 6.02. Actions of the Manager. The Manager may act through any Officer or other Person or Persons to whom authority and duties have been delegated pursuant to Section 6.07, or authorize any Officer or other Person or Persons to act on behalf of the Company pursuant to Section 6.07.
SECTION 6.03. Resignation; No Removal. The Manager may resign at any time by giving written notice to the Members. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Members, and the acceptance of the resignation shall not be necessary to make it effective. For the avoidance of doubt, the Members, in their respective capacities as such, shall have no right under this Agreement to remove or replace the Manager.
SECTION 6.04. Vacancies. Vacancies in the position of Manager occurring for any reason shall be filled by the Manager immediately preceding such vacancy (or, if such Manager has ceased to exist without any successor or assign, then by the holders of a majority of the voting power of the shares of capital stock of such Manager immediately prior to such cessation). For the avoidance of doubt, the Members, in their respective capacities as such, shall have no right under this Agreement to fill vacancies in the position of Manager.
SECTION 6.05. Related Party Transactions. The Manager may cause the Company to contract and deal with the Manager or any Fubo Group Entity on such terms as the Manager and such Fubo Group Entity, as applicable, shall determine. The Manager may cause the Company or any Subsidiary of the Company to contract and deal with any Hulu Group Entity; provided that such contracts and dealings are approved in accordance with the Fubo Governing Documents, to the extent applicable.
SECTION 6.06. Reimbursement for Expenses. The Manager shall not be compensated for its services as Manager except as expressly provided in this Agreement. The Members acknowledge and agree that, as of the Effective Time, Fubo’s Class A Common Stock will be publicly traded and Fubo will have access to the public capital markets, and such status and the services performed by the Manager will inure to the benefit of the Company and all Members. Therefore, the Manager shall be reimbursed by the Company for any reasonable and documented expenses incurred by the Manager on behalf of Fubo or the Company, including (to the extent reasonable and documented) (a) all fees, expenses and costs of Fubo being a public company (including public reporting obligations, proxy statements, stockholder meetings, stock exchange fees, transfer agent fees, SEC and FINRA filing fees, offering expenses and excise taxes (including any excise taxes imposed by Section 4501 of the Code) incurred in connection with the redemption of Class A Common Stock) and maintaining Fubo’s corporate existence, (b) operating, administrative and other similar costs incurred by Fubo, (c) payments pursuant to any legal, tax, accounting and other professional fees and expenses and (d) any (i) judgments, settlements, penalties or fines levied against, and payable by, Fubo or (ii) other costs or expenses in respect of any claim, litigation or proceeding involving Fubo that are payable by Fubo. To the extent practicable, expenses incurred by the Manager on behalf of or for the benefit of the Company shall be billed directly to and paid by the Company and, if and to the extent any reimbursements to the Manager or any of its Affiliates by the Company pursuant to this Section 6.06 constitute gross income to such Person (as opposed to the repayment of advances made by such Person on behalf of the Company), such amounts shall be treated as “guaranteed payments” within the meaning of Section 707(c) of the Code and shall not be treated as Distributions for purposes of computing the Members’ Capital Accounts.
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SECTION 6.07. Delegation of Authority. The Manager may, from time to time, delegate to one or more Officers or other Persons such authority and duties as the Manager may deem advisable. The salaries or other compensation, if any, of agents of the Company shall be fixed from time to time by the Manager, subject to the other provisions in this Agreement.
SECTION 6.08. Duties; Limitation of Liability.
(a) Subject, as applicable, to Section 7.06 but otherwise notwithstanding any other provision of this Agreement to the contrary, the Manager and each Officer, in their capacities as such, and not in any other capacity, shall have the same fiduciary duties of loyalty and care as a director and an officer, respectively, of a corporation organized under the General Corporation Law of the State of Delaware, and shall be entitled to the benefit of the same presumptions in carrying out such duties as would be afforded to a director or an officer under applicable Law.
(b) Notwithstanding any other provision of this Agreement to the contrary, the Manager and each Officer shall be fully protected in relying in good faith upon the records of the Company and upon information, opinions, reports or statements presented by any Member, any liquidating trustee, any Officer or any employee of the Company or any committee of the Company or the Members, or by any other Persons, as to matters the Manager or such Officer reasonably believes are within such other Person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of the Company or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the existence and amount of assets from which distributions to Members or creditors might properly be paid.
(c) Notwithstanding any other provision of this Agreement to the contrary, the Manager and the Officers shall, to the fullest extent permitted by applicable Law, not be liable to the Company, the Members, the other Officers or any other Person that is a party to or is otherwise bound by this Agreement, for monetary liability for breach of fiduciary duty as a manager or Officer of the Company, except that the foregoing shall not eliminate or limit the liability of the Manager or Officers for any (i) breach of the Manager’s or the Officer’s duty of loyalty to the Company and its Members, (ii) act or omission that involves intentional misconduct or a knowing violation of Law or (iii) transaction from which the Manager or Officer derived an improper personal benefit.
(d) The provisions of this Section 6.08, to the extent that they eliminate or restrict the duties and liabilities of the Manager or any Officer otherwise existing at law or in equity, are agreed by the Company, the Members, the Manager and any other Person that is a party to or is otherwise bound by this Agreement to replace such other duties and liabilities of the Manager or such Officer, as applicable, to the fullest extent permitted by applicable Law.
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SECTION 6.09. Indemnification.
(a) The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable Law, any Member, the Manager and each Officer (each, an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a Member, the Manager or an Officer of the Company or, while serving as a Member, Manager or Officer of the Company, is or was serving at the Company’s request as a director, officer, employee or agent of another company or of a partnership, joint venture, trust or other enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with such Proceeding; provided, however, that no Indemnified Person shall be indemnified for any amounts attributable to such Indemnified Person’s or its Affiliates’ intentional misconduct or knowing violation of Law or for any breach of this Agreement or other agreements between such Indemnified Person and the Company or the Company’s Subsidiaries. Notwithstanding the preceding sentence, except as otherwise provided in this Section 6.09, the Company shall be required to indemnify an Indemnified Person who is an Officer in connection with an Action (or part thereof) commenced by such Indemnified Person only if the commencement of such Action (or part thereof) by such Indemnified Person was authorized in the specific case by the Manager.
(b) The Company shall, to the fullest extent permitted by applicable Law, pay the reasonable and documented out-of-pocket expenses (including reasonable and documented attorneys’ fees) incurred by an Indemnified Person in defending any Action indemnifiable under this Section 6.09 in advance of its final disposition; provided, however, that such payment in advance of the final disposition of any Action shall be made to such Indemnified Person that is an Officer only upon receipt of an undertaking by such Indemnified Person to repay all amounts advanced if it should be ultimately determined that such Indemnified Person is not entitled to be indemnified under this Section 6.09 or otherwise.
(c) The right to indemnification and the advancement of expenses conferred by this Section 6.09 shall, to the fullest extent permitted by applicable Law, not be exclusive of any other right which any Indemnified Person may have or hereafter acquire under any statute, agreement, bylaw, action by the Manager or otherwise.
(d) Any amendment or modification of this Section 6.09 shall not adversely affect any right or protection hereunder of any Indemnified Person in respect of any act or omission occurring prior to the time of such amendment or modification.
(e) The Company shall maintain directors’ and officers’ liability insurance, or make other financial arrangements, at its expense, to protect any Indemnified Person against any expense, liability or loss described in Section 6.09(a) and Section 6.09(b) whether or not the Company would have the power to indemnify or advance expenses to such Indemnified Person against such expense, liability or loss under the provisions of this Section 6.09; provided, that the Company’s inability to obtain, directly or indirectly, such insurance shall in no way limit or waive its obligations pursuant to this Section 6.09. The Company shall use its commercially reasonable efforts to purchase and maintain (i) directors’ and officers’ liability insurance with a carrier and in an amount determined necessary or desirable as determined in good faith by the Manager and (ii) property, casualty and liability insurance in types and at levels customary for companies of similar size engaged in similar lines of business, as determined in good faith by the Manager.
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(f) The indemnification and advancement of expenses provided for in this Section 6.09 shall be provided out of and to the extent of Company assets only. No Member (unless such Member otherwise agrees in writing or is found in a non-appealable decision by a Governmental Entity of competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or shall be required to make additional Capital Contributions to help satisfy such indemnity of the Company. The Company (i) shall be the primary indemnitor of first resort for such Indemnified Person pursuant to this Section 6.09 and (ii) shall be fully responsible for the advancement of all expenses and the payment of all damages or liabilities with respect to such Indemnified Person which are addressed by this Section 6.09.
(g) If this Section 6.09 or any portion hereof shall be invalidated on any ground by any Governmental Entity of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Indemnified Person pursuant to this Section 6.09 to the fullest extent permitted by any applicable portion of this Section 6.09 that shall not have been invalidated and to the fullest extent permitted by applicable Law.
SECTION 6.10. Investment Company Act. The Manager shall use its reasonable best efforts to ensure that the Company shall not be subject to registration as an investment company pursuant to the Investment Company Act.
SECTION 6.11. Outside Activities of Fubo. Fubo shall not, directly or indirectly, enter into or conduct any business or operations, other than in connection with (a) in its capacity as a Member, the ownership, acquisition and disposition of Units or other Company Equity Securities, (b) the management of the business and affairs of the Company and its Subsidiaries, (c) the operation of Fubo as a reporting company with a class (or classes) of securities registered under Section 12 of the Exchange Act and listed on a securities exchange, (d) the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, (e) financing or refinancing of any type related to Fubo, the Company, the Company’s Subsidiaries or their respective assets or activities, and (f) such activities as are incidental to the foregoing; provided, however, that, except as otherwise provided herein, the net proceeds of any financing or refinancing raised by Fubo pursuant to the preceding clause (d) or (e) shall be made available to the Company as Capital Contributions, loans or otherwise, as appropriate and substantially on the same terms; provided further, that Fubo may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Company and its Subsidiaries so long as Fubo takes commercially reasonable measures to ensure that the economic benefits and burdens of such assets are otherwise vested in the Company or its Subsidiaries, through assignment, mortgage, loan or otherwise (in each case without a mark-up or additional direct or indirect economics to Fubo) or, if it is not commercially reasonable to vest such economic interests in the Company or any of its Subsidiaries, the Members shall negotiate in good faith to amend this Agreement to reflect such activities and the direct ownership of assets by Fubo. Nothing contained herein shall be deemed to prohibit Fubo from executing any guarantee of indebtedness of the Company or its Subsidiaries or complying with it obligations under the Fubo Governing Documents.
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ARTICLE VII
Rights and Obligations of Members
SECTION 7.01. Limitation of Liability and Duties of Members.
(a) Except as expressly provided in this Agreement or in the Delaware Act, no Member (including any Member that is also the Manager) shall be personally liable, whether to the Company, to any of the other Members, to the creditors of the Company or to any third party, for any debt, obligation or liability of the Company, whether arising in contract, tort or otherwise, solely by reason of being a Member. Notwithstanding anything contained herein to the contrary, the failure of the Company or the Manager to observe any formalities or requirements relating to the exercise of the Company’s powers or management of the Company’s business and affairs under this Agreement or the Delaware Act shall, to the fullest extent permitted by applicable Law, not be grounds for imposing personal liability on the Members for any debts, obligations or liabilities of the Company.
(b) In accordance with the Delaware Act and the laws of the State of Delaware, a Member may, under certain circumstances, be required to return amounts previously distributed to such Member. It is the intent of the Members that no Distribution to any Member pursuant to Article IV shall be deemed a return of money or other property paid or distributed in violation of the Delaware Act. To the fullest extent permitted by applicable Law, any Member receiving any such money or property shall not be required to return any such money or property to the Company or any other Person, unless such Distribution was made by the Company to its Members in clerical error or in contravention of this Agreement. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, a Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any other Member.
(c) Notwithstanding any other provision of this Agreement to the contrary, no Member (in its capacity as a Member) shall, to the fullest extent permitted by applicable Law, owe any duties (including fiduciary duties) to the Company, any other Member or any other Person that is a party to or is otherwise bound by this Agreement, other than with respect to the implied covenant of good faith and fair dealing and the duties or standards expressly set forth in this Agreement. The provisions of this Section 7.01(c), to the extent that they eliminate or restrict the duties of a Member otherwise existing at law or in equity, are agreed by the Company, the Members, the Manager and any other Person that is a party to or is otherwise bound by this Agreement to replace such other duties of a Member to the fullest extent permitted by applicable Law; provided that, for the avoidance of doubt, this Section 7.01(c) shall not limit the duties (including fiduciary duties) of any Member, in its capacity as the Manager, to the Company, any other Member or any other Person that is a party to or is otherwise bound by this Agreement.
SECTION 7.02. Lack of Authority. No Member (in its capacity as a Member) has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure on behalf of the Company. The Members hereby consent to the exercise by the Manager, the Officers and any Persons to whom the Manager properly delegates authority and duties pursuant to this Agreement of the powers conferred on them by Law and this Agreement.
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SECTION 7.03. No Right of Partition. To the fullest extent permitted by applicable Law, no Member (in its capacity as a Member) shall have the right to seek or obtain partition by court decree or operation of Law of any Company property, or the right to own or use particular or individual assets of the Company, any such right or power that such Member (in its capacity as a Member) might have to cause the Company or any of its assets to be partitioned being hereby irrevocably waived.
SECTION 7.04. Members Right to Act. The approval or consent of the Members shall not be required for any act for or on behalf of the Company, to bind the Company or to make an expenditure by the Company except to the extent otherwise expressly required by the terms of this Agreement (including pursuant to Section 14.01(a) and Section 15.02(a)) or otherwise expressly required under applicable Law (including the Delaware Act). For matters that require the approval or consent of the Members under this Agreement or applicable Law (including the Delaware Act), the Members shall act through meetings or written consents in lieu of meetings as described in this Section 7.04:
(a) Except as otherwise expressly provided in Section 15.02(a), the approval or consent of the Majority Members, voting together as a single class, shall constitute the requisite approval or consent of the Members hereunder. Any Member entitled to vote at a meeting of Members or to act by written consent of the Members in lieu of a meeting may authorize another Person or Persons to act for such Member by proxy. Any copy or other reliable reproduction of the document (including any electronic transmission) authorizing another Person or Persons to act as proxy for a Member may be substituted or used in lieu of the original document for purposes of this Section 7.04(a). No proxy shall be voted or acted upon after three years from the date of such proxy, unless the proxy provides for a longer period. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and that the proxy is coupled with an interest. If a proxy designates two or more Persons to act as proxies, unless that instrument shall provide to the contrary, (i) a majority of such Persons present at any meeting at which, or acting by written consent in which, their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, (ii) if only one such Person is present at such meeting, or is able to act by written consent, then such powers may be exercised by that one Person and (iii) if an even number of such Persons are present at such meeting, or are able to act by written consent, and a majority of such Persons do not agree on any particular issue, the Company shall not be required to recognize such proxy with respect to such issue if such proxy does not specify how the votes that are the subject of such proxy are to be voted with respect to such issue under the circumstances contemplated by this clause (iii).
(b) Any action permitted to be taken hereunder by the Members may be taken at a meeting called by the Manager or by the Majority Members upon at least 48 hours’ prior written notice to the other Members entitled to vote, which notice shall state the purpose or purposes for which such meeting is being called. The actions taken by the Members entitled to vote or consent at any meeting (as opposed to by consent in lieu of a meeting), if improperly called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Members entitled to vote or consent as to whom it was improperly held signs a waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. The actions by the Members entitled to vote or consent may be taken by vote of the Members entitled to vote or consent at a meeting or by consent in lieu of a meeting, so long as such consent is in writing and is signed by Members holding not less than the minimum number of Units that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted. Prompt notice of the action so taken without a meeting, which shall state the purpose or purposes for which such consent in lieu of a meeting was required, shall be given to those Members entitled to vote or consent who did not sign such consent (for which such notice and consent may be delivered via electronic transmission); provided, however, that the failure to give any such notice shall not affect the validity of the action taken by such consent in lieu of a meeting. Any action taken pursuant to such consent in lieu of a meeting of the Members shall have the same force and effect as if taken by the Members at a meeting thereof.
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SECTION 7.05. Inspection Rights. The Company shall permit each Member and each of such Member’s designated Representatives, for any purpose reasonably related to such Member’s interest as a Member, to (i) visit and inspect any of the premises of the Company and its Subsidiaries, at reasonable times and upon reasonable notice, (ii) examine the corporate and financial records of the Company or any of its Subsidiaries and make copies thereof or extracts therefrom, during reasonable business hours and upon reasonable notice, or (iii) consult with the managers, officers, employees and independent accountants of the Company or any of its Subsidiaries concerning the affairs, finances and accounts of the Company or any of its Subsidiaries, during reasonable business hours and upon reasonable notice. The presentation of an executed copy of this Agreement by any Member to the Company’s independent accountants shall constitute the Company’s permission to its independent accountants to participate in discussions with such Persons and their respective designated Representatives. No Member (other than Hulu), unless permitted by the Manager, shall have any inspection rights under Section 18-305 of the Delaware Act.
SECTION 7.06. Corporate Opportunities.
(a) In furtherance of Section 7.01(c) and in recognition of the fact that (i) the Company is not a wholly owned subsidiary of any Hulu Group Entity and that Hulu (or other Hulu Group Entities) may continue to be a Member and a significant stockholder of Fubo, (ii) directors, managers, officers or employees of Hulu Group Entities may serve as directors, managers, officers or employees of Fubo Group Entities, (iii) Hulu Group Entities, directly or indirectly, may engage in the same, similar or related lines of business as those in which Fubo Group Entities, directly or indirectly, may engage or in other business activities that overlap or compete with those in which Fubo Group Entities, directly or indirectly, may engage, (iv) Hulu Group Entities may have an interest in the same areas of corporate opportunity as Fubo Group Entities and (v) as a consequence of the foregoing, it is in the best interests of the Company that the respective rights and obligations of the Company and of the Hulu Group Entities, and the duties of any managers, officers or employees of the Company who are also directors, managers, officers or employees of any Hulu Group Entity, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for, the Company or any other Fubo Group Entity, on the one hand, and any Hulu Group Entity, on the other hand, the provisions of this Section 7.06 shall, to the fullest extent permitted by applicable Law, regulate and define the conduct of certain of the business and affairs of the Company in relation to the Hulu Group Entities and the conduct of certain affairs of the Company as they may involve Hulu Group Entities and directors, managers, officers or employees of Hulu Group Entities, and the powers, rights, duties and liabilities of the Company and its officers, managers, employees, Members and Assignees in connection therewith.
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(b) The Company may from time to time, in accordance with the Fubo Governing Documents, enter into and perform, or cause or permit any other Fubo Group Entity to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with Hulu Group Entities, pursuant to which the Company or any other Fubo Group Entity, on the one hand, and one or more Hulu Group Entities, on the other hand, agree to engage in transactions of any kind or nature with each other, including to allocate, and to cause their respective directors, managers, officers or employees (including any who are directors, managers, officers or employees of a Fubo Group Entity and a Hulu Group Entity) to allocate, opportunities between them or to refer opportunities to each other. To the fullest extent permitted by applicable Law, no Hulu Group Entity, and no manager, officer or employee of the Company who is also a director, manager, officer or employee of any Hulu Group Entity, shall have or be under any fiduciary duty to the Company or any other Fubo Group Entity to refer any corporate opportunity to the Company or any other Fubo Group Entity or to refrain from acting on behalf of the Company or any other Fubo Group Entity, or on behalf of such Hulu Group Entity, in respect of any such agreement or transaction or performing any such agreement in accordance with its terms. No such agreement, or the performance thereof by any Fubo Group Entity, on the one hand, or by any Hulu Group Entity, on the other hand, shall, to the fullest extent permitted by applicable Law, be considered contrary to any fiduciary duty that (i) any Hulu Group Entity may be alleged to owe to any Fubo Group Entity or to any Member or Assignee by reason of such Hulu Group Entity being a Member of the Company or a significant stockholder of Fubo or (ii) any director, manager, officer or employee of any Fubo Group Entity who is also a director, manager, officer or employee of a Hulu Group Entity may be alleged to owe to such Fubo Group Entity or any equityholder thereof.
(c) To the fullest extent permitted by applicable Law, no Hulu Group Entity shall have any duty to communicate information regarding a corporate opportunity to any Fubo Group Entity or to refrain from (i) engaging in the same or similar activities or lines of business as any Fubo Group Entity, (ii) doing business with any client, customer or vendor of any Fubo Group Entity or (iii) employing or otherwise engaging any director, manager, officer or employee of any Fubo Group Entity.
(d) To the fullest extent permitted by applicable Law, except as otherwise agreed in writing between the Company and the applicable Hulu Group Entity, in the event that a director, manager, officer or employee of a Fubo Group Entity who is also a director, manager, officer or employee of a Hulu Group Entity acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both a Fubo Group Entity, on the one hand, and such Hulu Group Entity, on the other hand, (i) such director, manager, officer or employee shall have no duty to communicate or present such opportunity to any Fubo Group Entity and shall, to the fullest extent permitted by applicable Law, not be liable to any Fubo Group Entity or any equityholder thereof for breach of fiduciary duties as a director, manager, officer or employee of any Fubo Group Entity (or have been deemed to have failed to act in good faith or in the best interests of any Fubo Group Entity) by reason of the fact that (A) such director, manager, officer or employee directs such opportunity to a Hulu Group Entity or otherwise does not present such opportunity to a Fubo Group Entity or (B) a Hulu Group Entity pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not otherwise present such opportunity to a Fubo Group Entity and (ii) the Company, on behalf of itself and the other Fubo Group Entities, renounces any interest or expectancy in such opportunity and waives any claim that such opportunity constituted a corporate opportunity that should be presented to the Company or any other Fubo Group Entity.
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(e) To the fullest extent permitted by applicable Law, no director, manager, officer or employee of any Fubo Group Entity shall be deemed to have an indirect interest in any matter, transaction or corporate opportunity that may be received or exploited by, or allocated to, any Hulu Group Entity, solely by virtue of being a director, manager, officer or employee of any Hulu Group Entity.
(f) To the fullest extent permitted by applicable Law, any Person, directly or indirectly, purchasing or otherwise acquiring or holding any Company Interest shall be deemed to have notice of and to have consented to the provisions of this Section 7.06.
(g) No amendment, repeal, modification, termination or expiration of this Section 7.06, nor the adoption of any provision of this Agreement inconsistent with this Section 7.06, shall eliminate or reduce the effect of this Section 7.06 in respect of any matter occurring prior to such amendment, repeal, modification, termination, expiration or adoption.
ARTICLE VIII
Records and Accounting, Fiscal Year and Reports
SECTION 8.01. Records and Accounting. The Company shall keep, or cause to be kept, appropriate books and records with respect to the Company’s business, including all books and records necessary to provide any information, lists and copies of documents required to be provided pursuant to Section 9.01 or pursuant to applicable Law. All matters concerning (a) the determination of the relative amount of allocations and Distributions among the Members pursuant to Article III and Article IV and (b) accounting procedures and determinations, and other determinations not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Manager, whose determination shall be final and conclusive as to all of the Members absent manifest clerical error.
SECTION 8.02. Fiscal Year. The Fiscal Year of the Company shall begin and end each year on the same dates as the fiscal year of Fubo for such year.
ARTICLE IX
Tax Matters
SECTION 9.01. Preparation of Tax Returns. Subject to the terms and conditions of this Agreement, Fubo shall have the authority and obligation to prepare and timely file the tax returns of the Company at the expense of the Company using such permissible methods and elections as it determines in its reasonable discretion, including the use of any permissible method under Section 706 of the Code for purposes of determining the varying Company Interests of the Members. At least 15 days prior to the due date for filing of any income tax return of the Company, the Company shall send a draft of such tax return to Hulu for review and comment and consider in good faith all reasonable comments received prior to filing. The Company shall provide each Person who was a Member at any time during such Taxable Year with draft tax information that is reasonably requested or required by such Members for U.S. federal and state and income tax reporting purposes with respect to a Taxable Year (including an IRS Schedule K-l) within 180 days of the close of the Company’s Taxable Year, with a final version of such information to follow no later than 220 days of the close of the Company’s Taxable Year in relation to information required for federal income tax returns and 250 days of the close of the Company’s Taxable Year ends in relation to information required for state and local income and franchise tax returns. This period in which the final version of the tax information is to be provided shall be automatically extended by the period of any delay beyond the control of the Company, such as a delay resulting from the failure of a third party to provide required tax information to the Company in a timely manner. In addition, the Company shall provide other tax information (including state apportionment data and country-by-country data) reasonably requested by any Member from time to time for purposes of supporting financial statements, making tax payments and statutorily required filings on a mutually agreed timeline. Each Member shall notify the Company and the other Members upon receipt of any written notice of a tax examination with respect to the Company by any tax authorities. The Company shall also provide to each Member reasonable estimates of such Member’s allocation of taxable income to allow such Member to compute its quarterly estimated taxes.
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SECTION 9.02. Tax Elections.
(a) The Manager shall cause the Company and each of its Subsidiaries that is treated as a partnership for U.S. federal income tax purposes to have in effect an election under Section 754 of the Code (or any similar provisions of applicable state, local or foreign tax Law) for each Taxable Year. The Manager shall take commercially reasonable efforts to cause each Person in which the Company owns a direct or indirect equity interest (other than a Subsidiary) that is so treated as a partnership to have in effect any such election for each Taxable Year. Each Member will supply to the Company (upon request of the Manager) any information reasonably necessary to give proper effect to any such election.
(b) So long as the Hulu Group Entities collectively own at least 10 percent of all Company Interests, (i) the Manager will not cause or permit the Company (or any of its Subsidiaries that are currently treated as entities other than corporations for U.S. federal income tax purposes) to be treated as a corporation for U.S. federal income or other applicable state, local or foreign tax purposes and (ii) none of the parties hereto will take any action to cause Fubo to be treated as other than a corporation for U.S. federal income or other applicable state, local or foreign tax purposes, in each case, except with Hulu’s consent.
SECTION 9.03. Tax Controversies. Fubo shall be designated and may, on behalf of the Company, at any time, and without further notice to or consent from any Member, act as the “partnership representative” of the Company (within the meaning given to such term in Section 6223 of the Code) (the “Partnership Representative”) for purposes of the Code and shall appoint a “designated individual” in accordance with Treasury Regulations Section 301.6223-1(b)(3) (the “Designated Individual”), who will be the sole individual through whom the Partnership Representative will act for all purposes under Sections 6221 through 6241 of the Code and the Treasury Regulations and other guidance relating thereto (and any similar or corresponding provisions applicable to state, local or foreign income tax examinations) (the “BBA AuditRules”). The Designated Individual shall act solely at the direction of the Partnership Representative and shall have no authority to act independently of the Partnership Representative in connection with any matter under the BBA Audit Rules. The Partnership Representative (through the Designated Individual) shall have the right and obligation to take all actions authorized and required by the Code for the Partnership Representative to take, and the Partnership Representative (through the Designated Individual) is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and other items reasonably incurred in connection therewith. Each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of such proceedings. The Partnership Representative and the Designated Individual shall keep all Members reasonably and promptly informed of any material audit or administrative or judicial proceedings and any decisions or elections described in the previous sentence that are material in nature, and, for so long as the Hulu Group Entities collectively own at least 10 percent of all Company Interests, Hulu shall have the right to observe and participate through representatives of its own choosing (at its sole expense) in any material tax proceeding. Nothing herein shall diminish, limit or restrict the rights of any Member under the BBA Audit Rules. Notwithstanding the foregoing and unless otherwise agreed by Fubo and Hulu, to the maximum extent permitted under the BBA Audit Rules, the Company shall timely elect, and each Member shall cooperate in electing, under Section 6226(a) of the Code for Section 6225 of the Code not to apply and for each Member to take any adjustment into account as provided in Section 6226(a) of the Code.
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SECTION 9.04. Cooperation on Tax Matters. The parties hereto will cooperate in good faith to minimize any income or gain arising from the repayment or other refinancing of the Existing Convertible Notes.
SECTION 9.05. 2029 Convertible Units. The parties to this Agreement intend that, for U.S. federal income tax purposes, unless otherwise required by the Code or Treasury Regulations, (a) the receipt of Common Units on conversion of any Unvested 2029 Convertible Units upon a Share Vesting Event shall be treated in accordance with principles similar to those set forth in Treasury Regulations Section 1.721-2(a), and (b) Fubo shall not be treated as having taxable income or gain as a result of the receipt of such Unvested 2029 Convertible Units or the receipt of any Common Units as a result of any Share Vesting Event (other than as a result of corrective allocations made pursuant to Section 5.04(e)). The Company shall prepare and file all applicable tax returns consistent therewith unless otherwise required by a “determination” within the meaning of Section 1313 of the Code or a change in applicable Law.
ARTICLE X
Restrictions on Transfer of Units
SECTION 10.01. General. No Member or Assignee may Transfer any Units or any interest in any Units other than pursuant to and in accordance with this Article X. Notwithstanding the foregoing, this Article X does not govern the procedures for an Exchange, which shall be governed by Article XI, nor does this Article X modify any applicable transfer restrictions contained in the Stockholders Agreement, and in the event of a conflict or inconsistency between the transfer restrictions in this Agreement and any applicable transfer restrictions in the Stockholders Agreement, such transfer restrictions in the Stockholders Agreement shall govern with respect to Transfers of Units.
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SECTION 10.02. Permitted Transfers.
(a) Transfers of Units (i) pursuant to a Change of Control Transaction, (ii) by a Member to Fubo or the Company, (iii) made with the prior written approval of the Manager, (iv) by any Member to such Member’s Permitted Transferees or (v) by Fubo to the holders of Fubo Equity Securities in connection with the dissolution of Fubo shall be the only Transfers of Units or any interest in Units permitted under this Article X; provided that any such Transfer must comply with all other applicable requirements of this Article X (each such Transfer, a “Permitted Transfer”); provided further that the restrictions contained in this Agreement will continue to apply to Units after any Permitted Transfer of such Units pursuant to Section 10.02(a)(iii) or Section 10.02(a)(iv).
(b) Notwithstanding anything to the contrary in this Article X, (i) no Transfer of a Paired Common Unit shall be made by a Transferor unless such Transfer is accompanied by the transfer of a corresponding Paired Class B Share and (ii) Fubo shall not Transfer any Common Units that it holds except to the Company in accordance with this Agreement or to the holders of Fubo Equity Securities in connection with the dissolution of Fubo.
SECTION 10.03. Registration and Exemption from Registration; Restricted Units Legend. The Units have not been registered under the Securities Act and, therefore, in addition to the other restrictions on Transfer contained in this Agreement, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is then available. If, pursuant to Section 3.06(a), the Manager authorizes the Company to issue “certificates” with respect to a class or series of Units and elects to treat such class or series of Units as “securities”, then (i) the Company shall maintain books for the purpose of registering the transfer of such class or series of Units (which books and records may be the Schedule of Members) and, notwithstanding anything in this Agreement to the contrary, the transfer of any Unit of such class or series shall require the delivery of an endorsed certificate and any transfer of any Unit of such class or series shall not be deemed effective until the transfer is registered in the books and records of the Company (which books and records may be the Schedule of Members) and (ii) a Unit of the relevant class or series shall be represented by a certificate in the form provided by the Manager that contains substantially the following legend:
“THE TRANSFER OF THIS CERTIFICATE AND THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED HEREBY IS RESTRICTED AS PROVIDED IN THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF FUBO OPERATIONS LLC ENTERED INTO AND EFFECTIVE AS OF OCTOBER 29, 2025, AS THE SAME MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH ITS TERMS.”.
The Company shall imprint such legend on certificates (if any) evidencing Units. The legend set forth above shall be removed from the certificates (if any) evidencing any Units which cease to be outstanding.
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SECTION 10.04. Transfer. Prior to Transferring any Units pursuant to Section 10.02(a)(iii) or Section 10.02(a)(iv), the Transferor shall (a) cause the anticipated Transferee to agree in writing to be bound by this Agreement and any other agreements between the holders of Units, in their respective capacities as such, and the Company or Fubo, as applicable (collectively, the “Other Agreements”), and cause the anticipated Transferee to execute and deliver to the Company a Joinder and counterparts to any applicable Other Agreement and (b) deliver to the Manager, upon its request, evidence reasonably satisfactory to the Manager to the effect that such Transfer of Units (i) may be effected without registration of such Units under the Securities Act and (ii) is not subject to withholding that would be reasonably likely to affect the Company. Upon receipt of any executed Joinder pursuant to clause (a) of the preceding sentence, the Manager shall provide a written notice to each Member (other than the Transferor) that shall disclose the identity of the anticipated Transferee.
SECTION 10.05. Assignee’s Rights.
(a) The Transfer of Units or any interest in Units in accordance with this Agreement shall be effective as of the date of its valid assignment, and such Transfer shall be shown on the books and records of the Company as of such date in accordance with Section 3.01(d). Profits, Losses and other Company items shall be allocated between the Transferor and the Assignee according to Section 706 of the Code, using any permissible method as determined in the reasonable discretion of the Manager. Distributions made before the effective time of such Transfer shall be paid to the Transferor, and Distributions made after the effective time of such Transfer shall be paid to the Assignee.
(b) Unless and until an Assignee becomes a Member pursuant to Article XII, the Assignee shall not be entitled to any of the rights granted to a Member hereunder or under applicable Law, other than the rights granted specifically to Assignees pursuant to this Agreement; provided, however, that, without relieving the Transferor from any such limitations or obligations as more fully described in Section 10.06, such Assignee shall be bound by any limitations and obligations of a Member contained herein by which a Member would be bound on account of the Assignee’s Company Interest (including the obligation to make Capital Contributions on account of such Company Interest, to the extent applicable).
SECTION 10.06. Assignor’s Rights and Obligations. Any Member who Transfers any Units in accordance with this Agreement shall cease to be a Member with respect to such Units and shall no longer have any rights or privileges or, except as set forth in Section 5.05, Article IX or this Section 10.06, duties, liabilities or obligations, of a Member with respect to such Units (it being understood, however, that the applicable provisions of Section 6.08, Section 6.09, Section 7.01 and Section 7.06 shall continue to inure to such Person’s benefit), except that unless and until the Assignee (if not already a Member) is admitted as a Substituted Member in accordance with the provisions of Article XII (the “AdmissionDate”), (a) such assigning Member shall retain all of the duties, liabilities and obligations of a Member with respect to such Units and (b) the Manager may, in its sole discretion, reinstate all or any portion of the rights and privileges of such Member with respect to such Units for any period of time prior to the Admission Date. Nothing contained herein shall relieve any Member who Transfers any Units from any liability of such Member to the Company with respect to such Units that may exist on or prior to the Admission Date or that is otherwise specified in the Delaware Act and incorporated into this Agreement or for any liability of such Member to the Company or any other Person for any materially false statement made by such Member (in its capacity as such) or for any present or future breaches of any representations, warranties or covenants by such Member (in its capacity as such) contained herein or in any other agreement with the Company or any other Person.
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SECTION 10.07. Overriding Provisions.
(a) Any Transfer in violation of this Article X shall, to the fullest extent permitted by applicable Law, be null and void abinitio, and (i) the provisions of Section 10.05 and Section 10.06 shall not apply to any such Transfers, (ii) in the event of any such Transfer or attempted Transfer, the Company shall not record such Transfer on its books and records, including the Schedule of Members, or treat any purported Transferee of such Units as the owner of such securities for any purpose and (iii) any Person to whom a Transfer is made or attempted in violation of this Article X shall not be admitted as a Member, shall not be entitled to vote on any matters coming before the Members and shall not have any other rights in or with respect to any rights of a Member. The approval of any Transfer in any one or more instances with respect to a Member (A) shall not limit or waive the requirement for such approval in any other or future instance with respect to such Member or any other Member and (B) shall not necessarily apply to any other Member.
(b) Notwithstanding anything contained in this Agreement to the contrary (including, for the avoidance of doubt, the provisions of Article XI and Article XII and the other provisions of this Article X), in no event shall any Member Transfer any Units without the prior written consent of the Manager to the extent such Transfer could, in the reasonable determination of the Manager:
(i) result in a violation of the Securities Act, or any other applicable federal, state or foreign Laws;
(ii) subject the Company to regulation under the Employee Retirement Income Security Act of 1974;
(iii) subject the Company to registration as an investment company under the Investment Company Act or constitute an assignment under the Investment Company Act;
(iv) cause the Company to become a “publicly traded partnership”, as such term is defined in Sections 469(k)(2) or 7704(b) of the Code;
(v) cause the Company to (1) be classified as a “publicly traded partnership” as that term is defined in Section 7704 of the Code and Treasury Regulations promulgated thereunder or (2) fail to qualify for at least one of the safe harbors contained in Treasury Regulations Section 1.7704-1; or
(vi) be a Transfer to a Person who is not legally competent or who has not achieved his or her majority under applicable Law (excluding trusts for the benefit of minors).
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ARTICLE XI
Redemption and Exchange
SECTION 11.01. Redemption Right of a Member.
(a) Subject to the provisions set forth in this Section 11.01, each Member (other than Fubo) shall be entitled to cause the Company to redeem (a “Redemption”) its Paired Common Units for a Share Settlement (or, in accordance with Section 11.01(b), a Cash Settlement) (the “Redemption Right”) at any time and from time to time. A Member desiring to exercise its Redemption Right (the “Redeeming Member”) shall exercise such right by giving written notice (the “RedemptionNotice”) to the Company with a copy to Fubo. Each Redemption Notice shall specify the number of Paired Common Units (the “Redeemed Units”) that the Redeeming Member intends to have the Company redeem and a date, not less than seven Business Days nor more than ten Business Days after delivery of such Redemption Notice (unless and to the extent that the Manager, in its sole discretion, agrees in writing to waive such time periods), on which exercise of the Redemption Right shall be completed (the “Redemption Date”); provided that the Company, Fubo and the Redeeming Member may change the number of Redeemed Units or the Redemption Date specified in such Redemption Notice to another number or date by mutual agreement signed in writing by each of them; provided further that, at the election of the Redeeming Member, a Redemption Notice may be conditioned on (x) the Redeeming Member having entered into a valid and binding agreement with a third party for the sale of shares of Class A Common Stock that may be issued in connection with such proposed Redemption (whether in a tender or exchange offer, private sale or otherwise) and such agreement is subject to customary closing conditions for agreements of such kind and the delivery of the Class A Common Stock by the Redeeming Member to such third party, (y) the closing of an announced merger, consolidation or other transaction in which the shares of Class A Common Stock that may be issued in connection with such proposed Redemption would be exchanged or converted or become exchangeable for or convertible into cash or other securities or property or (z) the closing of an underwritten distribution of the shares of Class A Common Stock that may be issued in connection with such proposed Redemption. Unless (I) the Redeeming Member has timely delivered a Retraction Notice as provided in Section 11.01(c) or has retracted or delayed a Redemption as provided in Section 11.01(d), or (II) Fubo has elected to effect a Direct Exchange as provided in Section 11.03, on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date): (A) the Redeeming Member shall transfer and surrender the Redeemed Units and surrender any certificates representing the Redeemed Units duly endorsed in blank, free and clear of all Encumbrances, in each case, to the Company, and (B) the Company shall (x) cancel the Redeemed Units and any certificates representing the Redeemed Units, (y) transfer to the Redeeming Member the Share Settlement or the Cash Settlement to which the Redeeming Member is entitled under Section 11.01(b) and (z) if the Common Units are certificated, issue to the Redeeming Member a certificate representing a number of Common Units equal to the difference (if any) between the number of Common Units represented by the certificate surrendered by the Redeeming Member pursuant to clause (A) of this Section 11.01(a) and the Redeemed Units.
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(b) In exercising its Redemption Right, a Redeeming Member shall be entitled to receive the Share Settlement or, at Fubo’s election, the Cash Settlement. Such election shall be determined solely by the Fubo Audit Committee, and Fubo may only elect the Cash Settlement to the extent that Fubo or the Company has immediately available funds in U.S. dollars in an amount no less than the Cash Settlement. Within three Business Days of delivery of the Redemption Notice, Fubo shall give written notice (a “Settlement Method Notice”) to the Company (with a copy to the Redeeming Member) of its intended settlement method with respect to such Redeemed Units; providedthat if Fubo does not timely deliver a Settlement Method Notice, Fubo shall be deemed to have elected the Share Settlement as the form of redemption payment.
(c) If Fubo elects the Cash Settlement as the form of redemption payment with respect to any proposed Redemption, the Redeeming Member may retract its Redemption Notice by giving written notice (the “Retraction Notice”) to the Company (with a copy to Fubo) at any time prior to 5:00 p.m. New York City time on the second Business Day immediately preceding the relevant Redemption Date. The timely delivery of a Retraction Notice shall terminate all of the Redeeming Member’s, the Company’s and Fubo’s rights and obligations under this Section 11.01 arising from the relevant Redemption Notice (but shall not, for the avoidance of doubt, alter any rights to cause the Company to redeem such Paired Common Units pursuant to any subsequent Redemption Notice).
(d) In the event Fubo elects the Share Settlement as the form of redemption payment with respect to any proposed Redemption, a Redeeming Member shall be entitled to revoke its Redemption Notice or delay the consummation of a Redemption, in whole or in part, by giving notice to the Company (with a copy to Fubo) of such revocation or delay (i) for any reason at any time prior to 5:00 p.m. New York City time on the second Business Day immediately preceding the relevant Redemption Date or (ii) at any time prior to the consummation of the relevant Share Settlement Exchange if any of the following conditions exists: (A) to the extent that the shares of Class A Common Stock are required to be registered under the Securities Act, (I) any registration statement pursuant to which the resale of the shares of Class A Common Stock to be registered for such Redeeming Member at or immediately following the consummation of the Redemption shall have ceased to be effective pursuant to any action or inaction by the SEC or no such resale registration statement has yet become effective, (II) Fubo shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement necessary to effect such Redemption and subsequent sale of shares received by the Member pursuant to such Redemption, (III) Fubo shall have exercised its right to defer, delay or suspend the filing or effectiveness or use of a registration statement and such deferral, delay or suspension shall affect the ability of such Redeeming Member to have its shares of Class A Common Stock registered at or immediately following the consummation of the Redemption or to use any effective registration statement for the transfer thereof, (IV) any stop order relating to the registration statement pursuant to which the shares of Class A Common Stock were to be registered by such Redeeming Member at or immediately following the Redemption shall have been issued by the SEC or (V) Fubo shall have failed to comply in any material respect with its obligations under the Stockholders Agreement or the Registration Rights Agreement, and such failure shall have affected the ability of such Redeeming Member to consummate the resale of shares of Class A Common Stock to be received upon such Redemption pursuant to an effective registration statement; (B) Fubo shall have disclosed to such Redeeming Member any material non-public information concerning Fubo, the receipt of which could reasonably be determined to result in such Redeeming Member being prohibited or restricted from selling shares of Class A Common Stock at or immediately following the Redemption without disclosure of such information, and Fubo has not agreed to either disclose such information or permit such Redeeming Member to disclose such information at or immediately following the Redemption; (C) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which shares of Class A Common Stock are then traded; (D) there shall be in effect an applicable Law, an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Redemption; or (E) the Redemption Date would occur three Business Days or less prior to, or during, a Black-Out Period; provided, that in no event shall the Redeeming Member seeking to delay the consummation of such Redemption and relying on any of the matters contemplated in clauses (A) through (E) above have controlled or intentionally materially influenced any facts, circumstances or Persons in connection therewith in order to provide such Redeeming Member with a basis for such delay or revocation. If a Redeeming Member delays the consummation of a Redemption (x) pursuant to Section 11.01(d)(i), the Redemption Date shall occur on the date specified in the notice to the Company of such delay and (y) pursuant to Section 11.01(d)(ii), the Redemption Date shall occur on the fifth Business Day following the date on which the conditions giving rise to such delay cease to exist (or, in the case of clauses (x) or (y) of this sentence, such earlier day as Fubo, the Company and such Redeeming Member may agree in writing).
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(e) The Share Settlement or the Cash Settlement, as applicable, that a Redeeming Member is entitled to receive under Section 11.01(b) shall not be adjusted on account of any Distributions previously made with respect to the Redeemed Units or dividends previously paid with respect to such shares of Class A Common Stock; provided, however, that if a Redeeming Member causes the Company to redeem Redeemed Units and the Redemption Date occurs subsequent to the record date for any Distribution with respect to the Redeemed Units but prior to payment of such Distribution, the Redeeming Member shall be entitled to receive such Distribution with respect to the Redeemed Units on the date that it is made notwithstanding that the Redeeming Member transferred and surrendered the Redeemed Units to the Company prior to such date (and shall similarly be entitled to receive any Tax Distributions otherwise payable to such Redeeming Member in accordance with Section 4.01(b) notwithstanding that the Redeeming Member transferred and surrendered the Redeemed Units prior to the date such Tax Distributions are paid; provided, that such Redeeming Member’s entitlement to such Tax Distributions for the portion of the applicable calendar quarter shall be determined using a daily proration method).
(f) In the case of a Share Settlement, in the event that (i) a reclassification, reorganization, recapitalization, merger, exchange or other similar transaction as a result of which the shares of Class A Common Stock are converted into another security or property or (ii) the holders of shares of Class A Common Stock receive any rights (by distribution, dividend or otherwise) to acquire any other property (e.g., a rights or “poison pill” plan), then, in exercising its Redemption Right, a Redeeming Member shall be entitled, in the case of a Share Settlement Exchange, to receive the amount of such security, property or rights that the Redeeming Member would have received if such Redemption Right had been exercised and the Redemption Date had occurred immediately prior to the record date of such transaction or receipt of rights. Except as otherwise addressed through any adjustments made pursuant to Section 3.04 or this Section 11.01(f) (and, for the avoidance of doubt, without duplication thereof), the one-to-one ratio between the applicable Class A Common Stock and the applicable Redeemed Units set forth in the definition of “Share Settlement” shall be equitably adjusted in the event of any stock or Unit split, reverse stock or Unit split, stock or Unit dividend or distribution, combination, reclassification, reorganization, recapitalization, merger, exchange or other transaction by one of the Company or Fubo that is not accompanied by a substantively identical transaction by the other, in each case, to the extent necessary to maintain the economic equivalency (and, in the case of a Share Settlement, voting equivalency) of the value surrendered by a Redeeming Member in a Redemption and the value received by such Redeeming Member in return.
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(g) Notwithstanding anything to the contrary contained herein, neither the Company nor Fubo shall be obligated to effectuate a Redemption if such Redemption could (as reasonably determined by the Manager) cause the Company to be treated as a “publicly traded partnership” or to be taxed as a corporation pursuant to Section 7704 of the Code.
SECTION 11.02. Contribution of Fubo. Subject to Section 11.03, in connection with the exercise of a Redeeming Member’s Redemption Rights under Section 11.01(a), Fubo shall, consistent with its election pursuant to Section 11.01(b), make a Capital Contribution to the Company of either the Share Settlement or the Cash Settlement that the Redeeming Member is entitled to receive under Section 11.01(b). Unless the Redeeming Member has timely delivered a Retraction Notice as provided in Section 11.01(c), or has revoked or delayed a Redemption as provided in Section 11.01(d), on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date) (i) Fubo shall make its Capital Contribution to the Company (in the form of the Share Settlement or the Cash Settlement) required under this Section 11.02 and (ii) the Company shall automatically issue to Fubo a number of Common Units equal to the number of Redeemed Units surrendered by the Redeeming Member. Notwithstanding any other provision of this Agreement to the contrary, but subject to Section 11.03, in the event that Fubo elects a Cash Settlement, Fubo shall only be obligated to contribute to the Company an amount in respect of such Cash Settlement equal to the net proceeds (after deduction of any underwriters’ discounts or commissions and brokers’ fees or commissions (the “Discount”)) from the sale by Fubo of a number of shares of Class A Common Stock equal to the number of Redeemed Units to be redeemed with such Cash Settlement; provided that Fubo’s Capital Account shall be increased by an amount equal to any Discount relating to such sale of shares of Class A Common Stock in accordance with Section 6.06. The timely delivery of a Retraction Notice shall terminate all of the Company’s and Fubo’s rights and obligations under this Section 11.02 arising from the Redemption Notice (but shall not, for the avoidance of doubt, terminate any rights or obligations pursuant to any subsequent Redemption Notice).
SECTION 11.03. Exchange Right of Fubo.
(a) Notwithstanding anything to the contrary in this Article XI (but subject to Section 11.01(c) and Section 11.01(d) and in accordance with Section 11.03(b)), Fubo may, in its sole and absolute discretion (as determined solely by the Fubo Audit Committee), elect to effect on the Redemption Date the exchange of Redeemed Units for the Share Settlement or the Cash Settlement, as the case may be, through a direct exchange of such Redeemed Units and such consideration between the Redeeming Member and Fubo (a “Direct Exchange”); provided that such election does not prejudice the ability of the parties thereto to consummate the Exchange on the Redemption Date. Upon the consummation of a Direct Exchange pursuant to this Section 11.03, Fubo shall acquire the Redeemed Units, and Fubo shall be treated for all purposes of this Agreement as the owner of such Common Units.
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(b) If Fubo has elected to effect a Direct Exchange pursuant to Section 11.03(a), it shall, no later than one Business Day prior to the Redemption Date, deliver written notice (a “Direct Exchange Election Notice”) to the Company and the Redeeming Member setting forth its election to exercise its right to effect a Direct Exchange in lieu of a Redemption. A Direct Exchange Election Notice may be revoked by Fubo at any time in its sole discretion upon written notice to the Company and the Redeeming Member; provided that any such revocation does not prejudice the ability of the parties thereto to consummate an Exchange on the Redemption Date. With respect to any Redemption, the right to consummate a Direct Exchange pursuant to this Section 11.03 shall be exercisable for all (and not less than all) Redeemed Units that would have otherwise been subject to such Redemption. Except as otherwise provided in this Section 11.03, a Direct Exchange shall be consummated pursuant to the same timeframe and in the same manner as the relevant Redemption would have been consummated pursuant to this Article XI if Fubo had not delivered a Direct Exchange Election Notice.
SECTION 11.04. Reservation of Shares of Class A Common Stock; Listing; Registration Rights Agreement.
(a) At all times, Fubo shall reserve and keep available out of its authorized but unissued Class A Common Stock, solely for the purpose of issuance upon an Exchange, the maximum number of shares of Class A Common Stock as shall be issuable upon a Share Settlement Exchange of all outstanding Paired Common Units; provided that nothing contained herein shall be construed to preclude Fubo from satisfying its obligations in respect of any such Share Settlement Exchange by delivery of purchased shares of Class A Common Stock (which may or may not be held in the treasury of Fubo) or the delivery of cash pursuant to a Cash Settlement. In connection with the delivery of a Share Settlement to any Redeeming Member in a Share Settlement Exchange, Fubo shall (i) prior to such delivery, use its commercially reasonable efforts to list such shares of Class A Common Stock on each securities exchange or automated or electronic quotation system on which the Class A Common Stock is traded or quoted at the time of such Exchange and (ii) to the extent such shares of Class A Common Stock are required to be registered under the Securities Act and a registration statement is effective and available for such shares, deliver such shares of Class A Common Stock that have been registered under the Securities Act for purposes of resale by the Redeeming Member (it being understood that any such shares may be subject to transfer restrictions under applicable securities Laws). Fubo covenants that all shares of Class A Common Stock issued upon an Exchange will, upon issuance, be validly issued, fully paid and non-assessable.
(b) The provisions of this Article XI shall be interpreted and applied in a manner consistent with the corresponding provisions of the Fubo Charter and, to the extent applicable, the Registration Rights Agreement.
SECTION 11.05. Surrender of Class B Common Stock. Simultaneous with the consummation of any Exchange, the Redeeming Member shall transfer and surrender to Fubo, free and clear of all Encumbrances, and Fubo shall cancel for no consideration, the Paired Class B Shares registered in the name of such Redeeming Member and corresponding to the Redeemed Units delivered by such Redeeming Member in such Exchange.
SECTION 11.06. Effect of Exercise of Exchange Right. This Agreement shall continue in accordance with, and subject to, its terms notwithstanding the consummation of an Exchange, and all governance or other rights set forth in this Agreement shall be exercised by the remaining Members and the Redeeming Member (to the extent of such Redeeming Member’s remaining Units). No Exchange shall relieve such Redeeming Member of any prior breach of this Agreement.
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SECTION 11.07. Exchange Expenses. Each Redeeming Member shall bear, without a right to reimbursement from the Company, Fubo or any other Member, its costs and expenses incurred in connection with the exercise of its rights and obligations pursuant to this Article XI. The Company shall bear, without a right to reimbursement from any Member, the costs and expenses incurred by the Company and by Fubo in connection with the exercise of the rights and obligations of the Company and Fubo pursuant to this Article XI. Notwithstanding the foregoing, the Company shall pay (i) all transfer, stamp and other similar taxes due with respect to the issuance or delivery of shares of Common Stock or other securities or property in connection with any Exchange and (ii) all expenses that the Company is obligated to bear pursuant to the Registration Rights Agreement.
ARTICLE XII
Admission of Members
SECTION 12.01. Substituted Members. Subject to the provisions of Article X, in connection with the Permitted Transfer of a Unit, the Transferee shall be admitted as a substituted Member of the Company (a “Substituted Member”) on the effective date of such Permitted Transfer, which effective date shall not be earlier than the date of compliance with the conditions to such Transfer, and the Schedule of Members shall be updated in accordance with Section 3.01(d).
SECTION 12.02. Additional Members. Subject to the provisions of Section 3.01 and Article X, any Person (other than the Members as of the Effective Time) may be admitted as an additional member of the Company (any such Person, an “Additional Member”) only upon furnishing to the Manager (a) counterparts of the Joinder and any applicable Other Agreements and (b) such other documents or instruments as may be reasonably necessary or appropriate to effect such Person’s admission as a Member (including entering into such documents as the Manager may deem appropriate in its reasonable discretion to effect the same). The admission of any Additional Member shall become effective on the date on which the Manager determines in its reasonable discretion that the conditions set forth in this Section 12.02 have been satisfied with respect to such Additional Member.
ARTICLE XIII
Resignation
SECTION 13.01. Withdrawal and Resignation of Members. No Member shall have the power or right to withdraw or otherwise resign as a Member prior to the dissolution and winding up of the Company pursuant to Article XIV. Upon or after the dissolution of the Company, a Member may resign as a Member solely with the prior written consent of the Manager. The attempt by any Member to resign as a Member upon or following the dissolution of the Company pursuant to Article XIV without the prior written consent of the Manager, but prior to such Member receiving the full amount of Distributions from the Company to which such Member is entitled pursuant to Article XIV, shall be deemed a breach this Agreement and such Member shall be liable to the Company for all damages (including all lost profits and special, indirect and consequential damages) directly or indirectly caused by the resignation of such Member as a Member. Upon a Transfer of all of a Member’s Units in a Transfer permitted by this Agreement, subject to the provisions of Section 10.06, such Member shall cease to be a Member.
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ARTICLE XIV
Dissolution and Liquidation
SECTION 14.01. Dissolution. The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following events:
(a) the decision of the Manager together with the approval of the Majority Members to dissolve the Company;
(b) a dissolution of the Company under Section 18-801(4) of the Delaware Act; or
(c) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Delaware Act.
Except as otherwise set forth in this Article XIV, the Company is intended to have perpetual existence. The Company shall not be dissolved by the admission of any Additional Member or any Substituted Member or the withdrawal or resignation or attempted withdrawal or resignation of any Member. Notwithstanding any other provision of this Agreement, (i) an Event of Withdrawal with respect to any Member shall not cause such Member to cease to be a Member and, upon the occurrence of such Event of Withdrawal, the Company shall continue without dissolution and (ii) each of the Members hereby waives any right it may have to agree in writing to dissolve the Company upon an Event of Withdrawal (other than pursuant to Section 14.01(a)).
SECTION 14.02. Liquidation and Termination. Upon the dissolution of the Company, whether voluntary or involuntary, the Manager shall act as the liquidating trustee or may appoint one or more Persons to act as the liquidating trustee. The liquidating trustee shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Delaware Act. The costs of dissolution, liquidation and winding up shall be borne by the Company. Until final distribution, the liquidating trustee shall continue to operate the Company properties with all of the power and authority of the Manager. Subject to the Delaware Act, the steps to be accomplished by the liquidating trustee are as follows:
(a) as promptly as possible after dissolution and again after final liquidation, the liquidating trustee shall cause a proper accounting to be made, by a recognized firm of certified public accountants, of the Company’s assets, liabilities and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;
(b) the liquidating trustee shall pay, satisfy or discharge from Company funds, or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash fund for contingent liabilities in such amount and for such term as the liquidating trustee may reasonably determine):
(i) first, all expenses incurred in the dissolution, liquidation and winding up of the Company;
(ii) second, all of the debts, liabilities and obligations owed to creditors of the Company, other than Members; and
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(iii) third, all of the debts and liabilities owed to the Members (other than any distributions owed to such Members in their capacity as Members pursuant to this Agreement); and
(c) all remaining assets of the Company shall be distributed to the Members in accordance with Section 4.01(a) and Section 4.03(b)(i) by the end of the Taxable Year during which the final liquidation of the Company occurs (or, if later, within 90 days after the date of the final liquidation). The distribution of cash and property to the Members in accordance with the provisions of this Section 14.02 and Section 14.03 constitutes a complete return to the Members of their Capital Contributions, a complete distribution to the Members of their interest in the Company and all the Company’s property and constitutes a compromise to which all Members have consented within the meaning of the Delaware Act. In the event that a Member returns funds to the Company, such Member shall have no claim against any other Member for those funds.
SECTION 14.03. Deferment; Distribution in Kind. Notwithstanding the provisions of Section 14.02, but subject to the order of priorities set forth therein, if upon dissolution of the Company the liquidating trustee determines that an immediate sale of all or part of the Company’s assets would be impractical or would cause undue loss (or would otherwise not be beneficial) to the Members, the liquidating trustee may, in the liquidating trustee’s sole discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy Company liabilities (other than loans to the Company by Members) and reserves. Subject to the order of priorities set forth in Section 14.02, the liquidating trustee may, in the liquidating trustee’s sole discretion, distribute to the Members, in lieu of cash, (a) all or any portion of such remaining Company assets in-kind in accordance with the provisions of Section 14.02(b)(iii) and Section 14.02(c), (b) as tenants in common and in accordance with the provisions of Section 14.02(b)(iii) and Section 14.02(c), undivided interests in all or any portion of such Company assets or (c) a combination of the foregoing. Any such Distributions in kind shall be subject to (i) such conditions relating to the disposition and management of such assets as the liquidating trustee deems reasonable and equitable and (ii) the terms and conditions of any agreements governing such assets (or the operation thereof or the holders thereof) at such time. Any Company assets distributed in kind will first be written up or down to their Fair Market Value, thus creating Profit or Loss (if any), which shall be allocated in accordance with Article V. The liquidating trustee shall determine the Fair Market Value of any property (other than cash) so distributed.
SECTION 14.04. Certificate of Cancellation. On completion of the distribution of Company assets as provided in this Article XIV, the Manager (or such other Person or Persons as the Delaware Act may require or permit) shall (a) file or cause to be filed a certificate of cancellation with the Secretary of State of the State of Delaware, (b) cancel any other filings made pursuant to this Agreement that are or should be cancelled and (c) take such other actions as may be necessary to terminate the Company. The Company shall be deemed to continue in existence for all purposes of this Agreement until it is terminated pursuant to this Section 14.04.
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SECTION 14.05. Reasonable Time for Winding Up. A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 14.02 and Section 14.03 in order to minimize any losses otherwise attendant upon such winding up.
SECTION 14.06. Return of Capital. The liquidating trustee shall not be personally liable for the return of Capital Contributions or any portion thereof to the Members (it being understood that any such return shall be made solely from Company assets available therefor).
ARTICLE XV
General Provisions
SECTION 15.01. Confidentiality.
(a) The Members and their respective Affiliates shall, and shall direct their respective Representatives to, (i) hold confidential and not disclose, without the prior written approval of the Manager, all confidential or proprietary written, recorded or oral information or data (including research, developmental, technical, marketing, sales, subscriber, financial, operating, performance, cost, business and process information or data, knowhow and computer programming and other software techniques) provided by or on behalf of the Company or any of its Subsidiaries to the Members or their respective Affiliates or Representatives, whether such confidentiality or proprietary status is indicated orally or in writing or if such Member (or the applicable Affiliate or Representative of such Member) should reasonably have understood that the information should be treated as confidential, whether or not the specific words “confidential” or “proprietary” are used (“Confidential Information”), and (ii) use such Confidential Information only for the purpose of performing its obligations hereunder, managing and monitoring such Member’s investment in the Company and its Subsidiaries and carrying on the business of the Company and its Subsidiaries; provided, that the Members and their respective Affiliates and Representatives may disclose or use such Confidential Information (x) in their capacity as directors, officers or employees of Hulu or its Affiliates, (y) to any other Member, in its capacity as such, to such Member’s Representatives that are attorneys, accountants, consultants and other professional advisors and to any Affiliate of such Member and their respective directors and employees, to the extent necessary to perform their services in connection with monitoring their investment in the Company and its Subsidiaries, in each case in the ordinary course of business (provided, however, that the recipients of such Confidential Information are subject to confidentiality and non-disclosure obligations at least as restrictive as those set forth in this Section 15.01) or (z) as may be necessary in connection with such Member’s enforcement of its rights under this Agreement.
(b) Notwithstanding the foregoing, the confidentiality and non-use obligations of Section 15.01(a) will not apply to Confidential Information:
(i) that any Member, its Affiliates or any of their Representatives is required to disclose by judicial or administrative process, or by other requirements of applicable Law or regulation or any governmental authority (including any applicable rule, regulation or order of a self-governing authority, including any securities exchange or national quotation system on which outstanding securities of Fubo or Disney are listed); provided that, if such Member is not a Hulu Group Entity, such Member shall, where and to the extent legally permitted and reasonably practicable, (A) give the Company reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (B) reasonably cooperate with the Company, at the Company’s sole cost and expense, in attempting to obtain such protective measures;
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(ii) that becomes available to the public other than as a result of a breach of this Section 15.01;
(iii) that can be demonstrated as having been independently developed by such Member without use of or reliance upon Confidential Information; or
(iv) that has been provided to any Member, its Affiliates or any of their respective Representatives by a Person (other than a Member or its Affiliates) who is not known, after reasonable inquiry, to be subject to the confidentiality obligations of this Section 15.01.
SECTION 15.02. Amendments.
(a) Any amendment or modification of this Agreement shall require the affirmative consent or approval of the Majority Members and shall be made in accordance with Section 14.01 and Section 14.02, as applicable, of the Fubo Charter; provided, however, that any such amendment that changes (i) the rights, powers or duties of the Members holding a class or series of Units so as to affect such rights, powers or duties adversely shall also require the affirmative consent or approval of the Members holding a majority of the outstanding Units of such affected class or series, (ii) this Section 15.02(a) (including related definitions as they are used directly or indirectly herein) shall also require the affirmative consent or approval of the Manager and each Member and (iii) any provision that expressly requires the approval, consent or action of any Member or adversely affects such Member as compared to the effect of such amendment on the other Members shall also require the affirmative consent or approval of such first Member.
(b) Notwithstanding the foregoing, the Manager may amend or modify any provision of this Agreement or the Schedule of Members pursuant to Section 3.01(d), Section 3.02(b) or Section 6.01(c) without further act, vote, approval or consent of the Members or any other Person notwithstanding any other provision of this Agreement or, to the fullest extent permitted by applicable Law, the Delaware Act or other applicable Law, so long as such amendment or modification does not change the powers, preferences or relative, participating, optional, special or other rights, if any, or the qualifications, limitations or restrictions of the Members holding a class or series of Units so as to affect them adversely.
SECTION 15.03. Title to Company Assets. Company assets shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof. The Company shall hold title to all of its property in the name of the Company and not in the name of any Member. All Company assets shall be recorded as the property of the Company on its books and records, irrespective of the name in which legal title to such Company assets is held. The Company’s credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be transferred or encumbered for, or in payment of, any individual obligation of any Member.
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SECTION 15.04. Addresses and Notices. All notices, requests, claims, demands and other communications hereunder to any party hereto shall be in writing and shall be deemed given if delivered personally, by email (to the extent that no “bounce back” or similar message indicating non-delivery is received with respect thereto) or if sent by overnight courier (providing proof of delivery) to the parties hereto at the following addresses, or such other address or email address as such party may hereafter specify by like notice to the other parties hereto:
(a) if to the Company:
| Fubo Operations LLC | |
|---|---|
| 1290 Avenue of the Americas, 9th Floor | |
| New York, New York 10104 | |
| Attention: | Chief Legal Officer |
| Email: | * * * |
(b) if to Fubo:
| FuboTV Inc. | |
|---|---|
| 1290 Avenue of the Americas, 9th Floor | |
| New York, New York 10104 | |
| Attention: | Chief Legal Officer |
| Email: | * * * |
(c) if to Hulu:
| c/o The Walt Disney Company | |
|---|---|
| 500 South Buena Vista Street | |
| Burbank, California 91521 | |
| Attention: | Justin Warbrooke |
| James Kapenstein | |
| Email: | * * * |
| * * * |
(d) if to any other Member: to the address or addresses specified in a Joinder executed pursuant to Section 12.02.
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Any notice delivered pursuant to subsections (a) or (b) of this Section 15.04 shall include a further copy (which shall not constitute notice) to:
| Latham & Watkins LLP | |
|---|---|
| 1271 Avenue of the Americas | |
| New York, New York 10020 | |
| Attention: | Andrew Elken |
| Owen Alexander | |
| Greg Rodgers | |
| Jenna Cooper | |
| Email: | Andrew.Elken@lw.com |
| Owen.Alexander@lw.com | |
| Greg.Rodgers@lw.com | |
| Jenna.Cooper@lw.com |
Any notice delivered pursuant to subsection (c) of this Section 15.04 shall include a further copy (which shall not constitute notice) to:
| Cravath, Swaine & Moore LLP | |
|---|---|
| Two Manhattan West | |
| 375 Ninth Avenue | |
| New York, New York 10001 | |
| Attention: | Faiza Saeed |
| Daniel Cerqueira | |
| Cole DuMond | |
| Alexander Greenberg | |
| Email: | fsaeed@cravath.com |
| dcerqueira@cravath.com | |
| cdumond@cravath.com | |
| agreenberg@cravath.com |
SECTION 15.05. Binding Effect; Intended Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
SECTION 15.06. Creditors. To the fullest extent permitted by applicable Law, none of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to the Company or any of its Affiliates may have or acquire (except pursuant to the terms of a separate agreement executed by the Company in favor of such creditor) at any time as a result of making the loan any direct or indirect interest in Company Profits, Losses, Distributions, capital or property other than as a secured creditor.
SECTION 15.07. Waiver. No failure by any party hereto to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.
SECTION 15.08. Counterparts; Delivery by Electronic Transmission. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of electronic mail transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Section 15.08 shall apply mutatis mutandis to any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto.
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SECTION 15.09. Governing Law; Specific Performance.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(b) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by any other party hereto of any covenant or obligation contained in this Agreement, the non-breaching party shall be entitled (in addition to any other remedy that may be available to it, including pursuant to this Agreement, whether in law or equity) to (i) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation and (ii) an injunction restraining such breach or threatened breach, without proof of damages or otherwise. No party hereto shall oppose the granting of an injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement on the basis that the other parties have an adequate remedy at law or that an award of equitable relief is unenforceable, invalid or not an appropriate remedy for any reason at law or equity. No party hereto seeking any injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement in accordance with this Section 15.09 shall be required to provide any bond or other security in connection with any such order or injunction.
SECTION 15.10. Dispute Resolution; Arbitration. Except as otherwise set forth in Section 15.10(e), any and all controversies, claims or disputes arising out of or related to this Agreement or the interpretation, performance or breach hereof, including any action or claim based in tort, contract or statute or alleged violations of state or federal common law rights or duties, and the determination of the scope or applicability of the agreement to arbitrate set forth in this Section 15.10 (each, a “Dispute”), shall be resolved according to the following procedures, which shall constitute the sole dispute resolution mechanism hereunder:
(a) In the event that the parties hereto are unable to resolve any Dispute informally following good faith discussions, then such Dispute shall be submitted to confidential, final and binding arbitration before a single arbitrator (the “Initial Arbitrator”). If the parties to any Dispute are unable to agree on an Initial Arbitrator within 15 Business Days after the commencement of an arbitration, an Initial Arbitrator shall be selected in accordance with the rules of JAMS or its successor (“JAMS”). Unless the parties to the Dispute agree otherwise, the Initial Arbitrator shall be a former or retired judge or justice of any New York state or federal court with experience in matters involving the digital media industry. The arbitration shall be initiated and conducted according to the JAMS Comprehensive Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, in effect at the time the request for arbitration is made (the “Arbitration Rules”), at the office of JAMS in New York, New York or at such other location as may be agreed to by the parties to the Dispute.
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(b) Within 10 Business Days after the rendering of an award, any party to the Dispute may notify JAMS of its intention to appeal the award. The appeal will be administered by JAMS and conducted at the office of JAMS in New York, New York or at such other location as may be agreed to by the parties to the Dispute. The appeal shall be heard by a single Arbitrator or, at the election of any party to the Dispute, by three arbitrators (each such arbitrator, an “Appeal Arbitrator”; each Initial Arbitrator or Appeal Arbitrator, an “Arbitrator”); provided that, unless the parties to the Dispute agree otherwise, (i) each Appeal Arbitrator shall be a former or retired judge or justice of any New York state or federal court with experience in matters involving the digital media industry and (ii) if such appeal is heard by a single Appeal Arbitrator, such Appeal Arbitrator must have at least 15 years’ experience as a judge. If the parties to any Dispute are unable to agree on the Appeal Arbitrator(s) within 15 Business Days after a notice of an appeal is served on each other party to such Dispute, the Appeal Arbitrator(s) shall be selected in accordance with the JAMS rules. The Appeal Arbitrator(s) shall be entitled to accept the initial award, modify the award or substitute his or her own award. The award, as confirmed, modified or replaced by the Appeal Arbitrator(s), shall be final and binding, and judgment thereon may be entered by any court having jurisdiction thereof. Except as provided herein, the JAMS Optional Appeal Arbitration Procedure shall apply to the appeal.
(c) Each Arbitrator shall serve as a neutral, independent and impartial arbitrator. In adjudicating the Dispute, the Arbitrators shall follow Delaware Law for substantive issues and the applicable Arbitration Rules (including the JAMS Rules and Procedures) for issues of procedure; provided that the Initial Arbitrator shall entertain any motion for summary judgment by any party to the Dispute and shall apply the standards governing such motions under the Federal Rules of Civil Procedure. To the extent that discovery is allowed under the Arbitration Rules, the Federal Rules of Civil Procedure shall govern any expert discovery. The Arbitrators shall have the power and authority to award any relief that would have been available in any court, including equitable relief (e.g., injunction, specific performance), and, cumulative with all other remedies, shall grant specific performance whenever possible. Notwithstanding the foregoing, the Arbitrators shall have no power to issue any award or decision that is contrary to, or inconsistent with, any applicable statute, case law or constitutional law, nor shall the Arbitrators have any power to modify or change any material term of this Agreement; provided that, for the avoidance of doubt, this sentence shall not change that Delaware Law, and not any other Law, shall apply to all substantive issues. The parties hereto hereby waive the right to seek special, punitive, exemplary, incidental, consequential or indirect damages, or loss of profits, in connection with any Dispute, and the Arbitrators shall have no authority to award any such damages or losses on any basis and such relief shall not be recoverable by any other process or in any other proceeding.
(d) The Arbitrators will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If, and only if, any party to the Dispute refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable, pursuant to this Section 15.10) within 30 days after such award is rendered and after such party is given five Business Days’ written notice to cure its failure to perform, then any other party to the Dispute may enforce the final award in any court of competent jurisdiction in state or federal court in New York County, New York.
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(e) Nothing herein shall preclude any party to a Dispute from seeking, in accordance with this Section 15.10(e), preliminary or provisional relief from a state or federal court of competent jurisdiction in the State of New York as may be necessary to protect such party’s rights and interests hereunder. Without otherwise limiting the intent of the parties hereto that all Disputes be subject to arbitration as described in this Section 15.10, any Dispute, or portion thereof, seeking a pre-arbitral injunction, pre-arbitral attachment or other Order in aid of arbitration may, and any Dispute, or portion thereof, that may not be arbitrated pursuant to applicable Law shall, be submitted for trial exclusively in the United States District Court for the Southern District of New York, or, if and only if the United States District Court for the Southern District of New York does not have jurisdiction, then before the State Supreme Court in New York County, New York, or, if and only if neither such court shall have jurisdiction, then before any other court sitting in New York County, New York having subject matter jurisdiction. The parties hereto expressly consent to the exclusive jurisdiction of such courts and consent to service of process outside of the State of New York pursuant to the requirement of such court in any matter subject to it. Any process in such proceedings may be served by, in addition to other methods available under applicable Law, delivering or mailing such process, by registered or certified mail, to such addresses as are designated in Section 15.04. Any such delivery or mail service shall have the same effect as personal service within the State of New York; provided that the documents are also sent via e-mail to the applicable e-mail addresses designated in Section 15.04. Without limiting any pre-arbitral relief that may be granted by a court in accordance with this Section 15.10(e), the Arbitrators shall have the full authority to grant preliminary or provisional relief, to order any party to any Dispute to request that a court modify or vacate any pre-arbitral relief issued by such court and to award damages for the failure of such party to comply with such order.
(f) Claimants and respondents shall bear their own costs of the arbitration, including attorney’s fees and expenses, and share equally the Arbitrators’ fees and JAMS’ administrative costs. For purposes of cost sharing, all claimants shall be considered one party and all respondents shall be considered one party.
(g) The parties hereto agree that any arbitration hereunder, including any related appeal, shall be kept confidential, and that the existence of the proceeding and all of its elements (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall be deemed confidential and shall not be disclosed beyond the Arbitrators, the parties to the Dispute, their respective counsels, outside experts and consultants assisting the parties’ respective counsels in connection with such Dispute and any other Person who is necessary to the conduct of the arbitration proceeding, except as and to the extent required by applicable Law. The parties hereto also agree that any court proceeding shall be kept confidential and that, in the event any party to a Dispute makes application to any court in connection with this Agreement (including any proceedings to compel arbitration or to enforce a final award which can only be instituted if another party refuses to perform its obligations under this Agreement), such party shall take all steps reasonably within its power to cause such application, and any exhibits (including copies of any award or decisions of the Arbitrators), to be filed under seal, shall oppose any challenge by any third party to such sealing and shall give any other party involved in the applicable proceeding or arbitration notice of any such challenge.
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SECTION 15.11. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable Law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
SECTION 15.12. Further Action. The parties shall execute and deliver all documents, provide all information and take or refrain from taking such actions as may be reasonably necessary or appropriate to achieve the purposes of this Agreement.
SECTION 15.13. Effectiveness. This Agreement shall be effective as of the Closing (as defined in the Business Combination Agreement) (the “Effective Time”).
SECTION 15.14. Entire Agreement. This Agreement and those documents expressly referred to herein constitute the entire agreement, and supersede all other prior agreements and understandings (both written and oral), among the parties hereto with respect to the subject matter hereof and thereof. For the avoidance of doubt, the Original LLC Agreement, as in effect immediately prior to the Effective Time, is superseded by this Agreement as of the Effective Time and shall be of no further force and effect thereafter.
SECTION 15.15. Remedies. Each Member shall have all rights and remedies set forth in this Agreement and all rights and remedies which such Person has been granted at any time under any other agreement or contract and all of the rights which such Person has under any Law. Any Person having any rights under any provision of this Agreement or any other agreements contemplated hereby shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by Law.
SECTION 15.16. Interpretation. When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article, Section, Exhibit or Schedule to this Agreement unless otherwise indicated. The words “include”, “includes” and “including” when used herein shall not be deemed to be terms of limitation, but rather shall be deemed in each case to be followed by the words “without limitation”. The word “will” shall be construed to have the same meaning as the word “shall”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “or” shall not be exclusive. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement” “hereof”, “herein”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and include any exhibits, schedules or other attachments to this Agreement. References to the Stockholders Agreement shall be operative only so long as such agreement remains in effect. Whenever required by the context, references to a Fiscal Year shall refer to a portion thereof. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. The parties hereto have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and other advisors and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise.
[Remainderof page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Amended and Restated Limited Liability Company Agreement of Fubo Operations LLC as of the date first set forth above.
| As the Company | |
|---|---|
| FUBO<br> OPERATIONS LLC | |
| By: | /s/ James Kapenstein |
| Name: | James M. Kapenstein |
| Title: | Authorized Signatory |
| As a Member | |
|---|---|
| HULU,<br> LLC | |
| By: | /s/ James Kapenstein |
| Name: | James M. Kapenstein |
| Title: | Authorized Signatory |
| As a Member and as the Manager | |
|---|---|
| FUBOTV<br> INC. | |
| By: | /s/ Gina DiGioia |
| Name: | Gina DiGioia |
| Title: | Chief Legal Officer and Corporate Secretary |
[Signaturepage to the Amended and Restated Limited Liability Company Agreement]
Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of [●] (this “Joinder”), is delivered pursuant to that certain Amended and Restated Limited Liability Company Agreement of Fubo Operations LLC, a Delaware limited liability company (the “Company”), entered into effective as of October 29, 2025 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “LLC Agreement”). Capitalized terms used but not otherwise defined herein have the respective meanings set forth in the LLC Agreement.
| 1. | Joinder<br> to the LLC Agreement. Upon the execution of this Joinder by the undersigned and delivery<br> hereof to the Manager, the undersigned hereby is and hereafter will be a Member under the<br> LLC Agreement and a party thereto, with all the rights, privileges and responsibilities of<br> a Member thereunder. The undersigned hereby agrees that it shall comply with and be fully<br> bound by the terms of the LLC Agreement as if it had been a signatory thereto as of the date<br> thereof. The undersigned consents and agrees that its signature page hereto may be appended<br> to the LLC Agreement as the undersigned’s signature thereto. |
|---|---|
| 2. | Incorporation<br> by Reference. All terms and conditions of the LLC Agreement are hereby incorporated by<br> reference in this Joinder as if set forth herein in full. |
| --- | --- |
| 3. | Address.<br> All notices under the LLC Agreement to the undersigned shall be directed to: |
| --- | --- |
[Name]
[Address]
[City, State, Zip Code]
Attention:
Email:
| A-1 |
| --- |
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Joinder as of the day and year first above written.
| [NAME OF NEW MEMBER] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Accepted<br> and agreed | |
| --- | --- |
| as<br> of the date first set forth above: | |
| FUBO<br> OPERATIONS LLC | |
| By: | FuboTV<br> Inc., its manager |
| By: | |
| Name: | |
| Title: |
[Signaturepage to Limited Liability Company Agreement Joinder]
| A-2 |
| --- |
Exhibit10.4
STOCKHOLDERS AGREEMENT
by and between
FUBOTV INC.
and
HULU, LLC
Dated as of October 29, 2025
| TABLE OF CONTENTS | |||
|---|---|---|---|
| ARTICLE<br> I | |||
| Definitions | 1 | ||
| SECTION 1.01. | Definitions | 1 | |
| ARTICLE<br> II | |||
| Stockholder Voting Agreement | 7 | ||
| SECTION 2.01. | Agreement<br> to Vote | 7 | |
| SECTION 2.02. | Appointment<br> and Removal of Unaffiliated Independent Designees | 8 | |
| ARTICLE<br> III | |||
| Transfers | 8 | ||
| SECTION 3.01. | Transfer<br> Restrictions | 8 | |
| SECTION 3.02. | Permitted<br> Transfers | 8 | |
| SECTION 3.03. | Legends<br> and Compliance with Securities Laws | 9 | |
| SECTION 3.04. | Improper<br> Transfer | 10 | |
| ARTICLE<br> IV | |||
| Financial and Other Information | 10 | ||
| SECTION 4.01. | Company<br> Information | 10 | |
| SECTION 4.02. | Company<br> Public Documents | 11 | |
| SECTION 4.03. | Hulu<br> Group Public Documents | 12 | |
| SECTION 4.04. | Other<br> Financial Reporting Matters | 13 | |
| SECTION 4.05. | Controlled<br> Company Status | 16 | |
| SECTION 4.06. | Record<br> Retention | 16 | |
| SECTION 4.07. | Liability | 17 | |
| SECTION 4.08. | Return<br> of Information | 17 | |
| SECTION 4.09. | Production<br> of Witnesses; Records; Cooperation; Exchange of Information | 17 | |
| SECTION 4.10. | Privilege | 18 | |
| SECTION 4.11. | Compliance<br> with Specified Company Group Organizational Provisions | 18 |
| i |
| --- | | | ARTICLE<br> V | | | | --- | --- | --- | --- | | Miscellaneous | | | 18 | | SECTION 5.01. | | Effectiveness;<br> Termination; Survival | 18 | | SECTION 5.02. | | Notices | 19 | | SECTION 5.03. | | Expenses | 20 | | SECTION 5.04. | | Amendments;<br> Waivers; Consents | 20 | | SECTION 5.05. | | Interpretation | 21 | | SECTION 5.06. | | Percentage<br> Interest | 21 | | SECTION 5.07. | | Severability | 22 | | SECTION 5.08. | | Counterparts;<br> Delivery by Electronic Transmission | 22 | | SECTION 5.09. | | Entire<br> Agreement | 22 | | SECTION 5.10. | | Governing<br> Law; Specific Performance | 22 | | SECTION 5.11. | | Dispute<br> Resolution; Arbitration | 23 | | SECTION 5.12. | | Assignment;<br> No Third-Party Beneficiaries | 25 | | SECTION 5.13. | | Confidentiality | 25 | | Exhibits | | | | | Exhibit A | | Joinder<br> Agreement | A-1 | | Schedules | | | | | Schedule 1 | | Authorized<br> Hulu Group Reporting Personnel | S-1 | | Schedule 2 | | Hulu<br> Group Reporting Personnel | S-2 |
| ii |
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This STOCKHOLDERS AGREEMENT, dated as of October 29, 2025 (this “Agreement”), is entered into by and between FuboTV Inc., a Delaware corporation (the “Company”) and Hulu, LLC, a Delaware limited liability company (“Hulu”), and any Permitted Affiliate Transferee (as defined herein) that executes a joinder to this Agreement pursuant to Section 3.02 after the date of this Agreement.
WHEREAS, Hulu and the Company are parties to that certain Business Combination Agreement, dated as of January 6, 2025 (the “Business Combination Agreement”), by and among The Walt Disney Company, a Delaware corporation (“Disney”), Hulu and the Company;
WHEREAS, pursuant to the transactions contemplated by the Business Combination Agreement (the “Transactions”), Hulu holds 100% of the issued and outstanding Class B Common Stock (as defined herein) as of the date of this Agreement; and
WHEREAS, Hulu and the Company desire to enter into this Agreement to, inter alia, set forth certain of their rights, duties and obligations as a result of the Transactions with respect to certain stockholder voting matters, Transfers (as defined herein) of Common Stock and other corporate matters.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement, the following terms shall have the following meanings.
“13D Group” means any group of Persons formed for the purpose of acquiring, holding, voting or disposing of Common Stock that would be required under Section 13(d) of the Exchange Act to file a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act.
“Action” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, foreign or international Governmental Entity or any arbitration or mediation tribunal.
“Adversarial Action” means any actual or potential Action between any member of the Hulu Group or any officer, manager or director of a member of the Hulu Group (in their capacity as such), on the one hand, and any member of the Company Group or any officer, manager or director of a member of the Company Group (in their capacity as such), on the other hand.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the Company and its Subsidiaries, on the one hand, shall be deemed to not be Affiliates of Disney and its other Subsidiaries (including Hulu), on the other hand, and vice versa.
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| --- |
“Agreement” has the meaning set forth in the Preamble.
“Annual Meeting of Stockholders” has the meaning ascribed to it in the Bylaws.
“Appeal Arbitrator” has the meaning set forth in Section 5.11(b).
“Arbitration Rules” has the meaning set forth in Section 5.11(a).
“Arbitrator” has the meaning set forth in Section 5.11(b).
“Authorized Hulu Group Reporting Personnel” means the individuals set forth on Schedule 1; provided that Hulu may, in its sole discretion, change, in whole or in part, the individuals designated as Authorized Hulu Group Reporting Personnel at any time upon written notice given to the Company in accordance with Section 5.02.
“beneficially own”, “beneficial ownership”, “beneficial interest” and words of similar import have the meaning assigned to such terms in Rule 13d-3 and 13d-5 under the Exchange Act as in effect on the date of this Agreement and a Person’s beneficial ownership of Common Stock shall be calculated in accordance with the provisions of such rule.
“Board of Directors” means the Board of Directors of the Company.
“Business Combination Agreement” has the meaning set forth in the Recitals.
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by applicable Law to close.
“Bylaws” means the Bylaws of the Company.
“Certificate of Incorporation” means the Certificate of Incorporation of the Company.
“Class A Common Stock” means the shares of Class A Common Stock, par value $0.0001 per share, of the Company.
“Class B Common Stock” means the shares of Class B Common Stock, par value $0.0001 per share, of the Company.
“Common Stock” means the Class A Common Stock and the Class B Common Stock, collectively.
“Company” has the meaning set forth in the Preamble.
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“Company Auditors” means, as applicable, the current and former independent certified public accountants of the Company.
“Company Earnings Release Materials” means, with respect to the Company, all earnings releases and any financial guidance for a current or future period, together with any related materials to be made available to the public in connection therewith.
“Company Group” means, collectively, the Company, Newco and their respective Subsidiaries. For the avoidance of doubt, no member of the Hulu Group shall be a member of the Company Group.
“Company Public Appearance” has the meaning set forth in Section 4.04(d).
“Company Public Documents” has the meaning set forth in Section 4.02.
“Competing DMVPD Transaction” has the meaning ascribed to it in the Certificate of Incorporation.
“Confidential Information” has the meaning set forth in Section 5.13(a).
“Consolidated Financial Statements” means, with respect to each annual and quarterly accounting period of the Company, the consolidated financial statements (and notes thereto) of the Company Group, which shall include a consolidated income statement, a consolidated balance sheet, a consolidated statement of cash flows and a consolidated statement of shareholders’ equity, for such period and, in the case of each quarterly period, for the period from the beginning of the current annual accounting period of the Company to the end of such quarterly period (or, in the case of the consolidated balance sheet, as of the end of the preceding annual accounting period), setting forth in each case in comparative form for each such annual or quarterly accounting period the consolidated financial statements (and notes thereto) for the corresponding annual or quarterly accounting period, as applicable, and other periods of the previous annual accounting period, as applicable, in each case prepared in reasonable detail and in accordance with Article 10 of Regulation S-X and GAAP.
“Consolidation Period” means the period during which Disney or any other member of the Hulu Group consolidates the results of operations and financial position of the Company or any other member of the Company Group or accounts for its investment in the Company or any other member of the Company Group under the equity method of accounting (determined in accordance with GAAP consistently applied and consistent with SEC reporting requirements) or completes a financial statement audit for any such period.
“Credit Rating Agencies” means Moody’s Investors Service, Inc., Standard & Poor’s Ratings Services, a Subsidiary of S&P Global Inc., Fitch Ratings Inc. or, in each case, any successor thereto.
“Director” means a member of the Board of Directors.
“Disclosing Party” has the meaning set forth in Section 4.09(a).
| 3 |
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“Disney” has the meaning set forth in the Recitals.
“Disney Auditors” means the independent certified public accountants of Disney.
“Dispute” has the meaning set forth in Section 5.11.
“Encumbrance” means any security interest, pledge, charge, mortgage, lien or other material encumbrance, except for restrictions arising under applicable securities Laws.
“Exchange Act” means the Securities Exchange Act of 1934, together with the rules and regulations promulgated thereunder.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Entity” means any U.S. federal, state or local, or foreign, international or supranational, government, court or tribunal, or administrative, executive, governmental or regulatory or self-regulatory body, agency or authority thereof.
“Group” means the Company Group or the Hulu Group, as the context requires.
“Hulu” has the meaning set forth in the Preamble.
“Hulu Affiliated Designees” has the meaning ascribed to it in the Certificate of Incorporation.
“Hulu Designees” has the meaning ascribed to it in the Certificate of Incorporation.
“Hulu Group” means, collectively, Hulu and its Affiliates. For the avoidance of doubt, no member of the Company Group shall be a member of the Hulu Group.
“Hulu Group Earnings Release Materials” means, with respect to any member of the Hulu Group, all earnings releases and any financial guidance for a current or future period, together with any related materials to be made available to the public in connection therewith.
“Hulu Group Public Documents” has the meaning set forth in Section 4.03.
“Hulu Group Reporting Personnel” means the individuals set forth on Schedule 2; provided that Hulu may, in its sole discretion, change, in whole or in part, the individuals designated as Hulu Group Reporting Personnel at any time upon written notice given to the Company in accordance with Section 5.02.
“Information” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, documents, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.
| 4 |
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“Initial Arbitrator” has the meaning set forth in Section 5.11(a).
“Investment Personnel” means members of the investment community, including any financial analysts, investment managers or any fixed income investors or stockholders of the Company.
“JAMS” has the meaning set forth in Section 5.11(a).
“Joinder” has the meaning set forth in Section 3.02(b).
“Law” means any foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, statute, ordinance, code, rule, regulation, or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity.
“Lockup Period” has the meaning set forth in Section 3.01.
“Newco” means Fubo Operations LLC, a Delaware limited liability company.
“Order” means any order, judgment, award, decision, decree, injunction, ruling, writ or assessment of, or agreement with, any governmental authority (whether temporary, preliminary or permanent) that is binding on any Person or its property under applicable Law.
“Permitted Affiliate Transferee” means any Affiliate of Hulu that executes a Joinder.
“Permitted Transfer” has the meaning set forth in Section 3.02(a).
“Person” means a natural person, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or governmental or other entity, whether or not a legal entity.
“Privilege” has the meaning set forth in Section 4.10.
“Qualifying Institution” means a nationally or internationally recognized financial institution.
“Relevant Stockholders” means, as of any date of determination, Hulu and each Permitted Affiliate Transferee (if any) as of such date.
“Representative” means, with respect to any Person, its Affiliates or any of its or its Affiliates’ respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors.
“Requesting Party” has the meaning set forth in Section 4.09(a).
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“Retention Policies” means (a) the record retention policies of the Hulu Group as of date of this Agreement or as reasonably adopted or modified by the Hulu Group after the date of this Agreement (to the extent that the Hulu Group has provided written notice of such adoption or modification to the Company) and (b) any record retention policy to which the parties hereto may otherwise agree after the date of this Agreement.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, together with the rules and regulations promulgated thereunder.
“Special Meeting of Stockholders” has the meaning ascribed to it in the Bylaws.
“Specified Company Group Organizational Provisions” has the meaning set forth in Section 4.11.
“Stock Exchange Standards” has the meaning set forth in Section 4.05.
“Subsidiary” means, with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient, together with any contractual rights, to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which is owned directly or indirectly by such first Person). Notwithstanding the foregoing, for purposes of this Agreement, the Company, Newco and their respective Subsidiaries, on the one hand, shall be deemed to not be Subsidiaries of Hulu or any direct or indirect parent company thereof (including Disney) or any other Subsidiary of any such parent company, on the other hand, and Newco and its Subsidiaries shall be deemed to be Subsidiaries of the Company.
“Trade Secrets” means, collectively, trade secrets and other confidential or proprietary information, know-how, inventions, discoveries, improvements, methods, techniques, systems, processes, procedures, programs, codes, designs, compilations, formulas, schematics and drawings.
“Transactions” has the meaning set forth in the Recitals.
“Transfer” means, with respect to any shares of Common Stock, any sale, assignment, transfer, distribution or other disposition thereof (whether directly or indirectly, whether in whole or in part, whether with or without consideration and whether voluntarily or involuntarily or by operation of Law), or other conveyance, creation, incurrence or assumption of a legal or beneficial interest therein, or a participation or Encumbrance therein (whether with or without consideration and whether voluntarily or involuntarily or by operation of Law), or creation of any short position in any such security or any other action or position otherwise reducing risk related to ownership through hedging or other derivative instrument, whether in a single transaction or a series of related transactions and whether to a single Person or a 13D Group; provided that a Transfer of the shares or other equity interests of Hulu or any direct or indirect parent company thereof shall not constitute a “Transfer” hereunder. The terms “Transferred”, “Transferor” and “Transferee” have meanings correlative to the foregoing.
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“Trigger Date” means the date on which the Consolidation Period ends.
“Unaffiliated Independent Designees” has the meaning ascribed to it in the Certificate of Incorporation.
ARTICLE II
Stockholder Voting Agreement
SECTION 2.01. Agreement to Vote. From and after the date of this Agreement, until the first date on which the Hulu Group ceases to collectively own at least 50% of the then-outstanding shares of Common Stock, each of Hulu and each Permitted Affiliate Transferee (if any) agrees:
(a) to (i) cause all shares of Common Stock owned of record or beneficially owned by it to be present (in person or by proxy) at any duly called and noticed Annual Meeting of Stockholders or Special Meeting of Stockholders and (ii) vote (or cause to be voted) at such meeting all such shares of Common Stock in accordance with this Agreement; and
(b) to vote (or cause to be voted) all shares of Common Stock owned of record or beneficially owned by it (i) (x) subject to clause (y) of this Section 2.01(b)(i), in favor of the Directors that are nominated by the Board of Directors in accordance with Article VII of the Certificate of Incorporation, including all nominees of the Unaffiliated Independent Designees or of the Board of Directors, as applicable, to fill vacancies created by the death, resignation, disqualification or removal of an Unaffiliated Independent Designee and (y) solely until the second anniversary of the date of this Agreement, against any individuals nominated as an Unaffiliated Independent Designee who is not an initial Unaffiliated Independent Designee (or a replacement of any such initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Board of Directors), in each case of this clause (i), at any Annual Meeting of Stockholders and any Special Meeting of Stockholders (and by any written consent in lieu of any such meeting), (ii) solely until the second anniversary of the date of this Agreement, at any Annual Meeting of Stockholders and any Special Meeting of Stockholders (and by any written consent in lieu of any such meeting), in favor of each initial Unaffiliated Independent Designee (and any replacement of any initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Board of Directors) to continue to serve on the Board of Directors and (iii) in accordance with the recommendation of the Board of Directors (“for,” “against,” “withhold,” “abstain” or otherwise) with respect to any proposal made by the Board of Directors and presented at any Annual Meeting of Stockholders and any Special Meeting of Stockholders (and by any written consent in lieu of any such meeting), other than (x) a proposal with respect to the nomination of Directors, which shall be governed by clauses (i)-(ii) of this Section 2.01(b), or (y) a proposal for which the approval of Hulu is required pursuant to the Certificate of Incorporation.
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SECTION 2.02. Appointment and Removal of Unaffiliated Independent Designees. Solely until the second anniversary of the date of this Agreement, each of the Company and each Relevant Stockholder agrees to take all actions necessary and within its control to cause each initial Unaffiliated Independent Designee (or a replacement of any such initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Board of Directors) to continue to serve on the Board of Directors until the second anniversary of the date of this Agreement, including, solely until the second anniversary of the date of this Agreement, (i) in the case of the Company, using its reasonable best efforts to cause each initial Unaffiliated Independent Designee (or a replacement of any such initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Board of Directors) to be included as the only Unaffiliated Independent Designees in the slate of nominees recommended by the Company for election to the Board of Directors at any Annual Meeting of Stockholders and any Special Meeting of Stockholders (and by any written consent in lieu of any such meeting) and (ii) in the case of each Relevant Stockholder, causing the Hulu Designees to vote in favor of the nomination of each initial Unaffiliated Independent Designee (or a replacement of any such initial Unaffiliated Independent Designee who has died, resigned, been disqualified or removed from the Board of Directors) for election to the Board of Directors at any Annual Meeting of Stockholders and any Special Meeting of Stockholders (and by any written consent in lieu of any such meeting).
ARTICLE III
Transfers
SECTION 3.01. Transfer Restrictions. For a period of 24 months beginning on the date of this Agreement (the “Lockup Period”), each of Hulu and each Permitted Affiliate Transferee (if any) shall not Transfer, agree to Transfer or solicit any Transfer of any shares of Common Stock owned of record or beneficially owned by it to any Person other than as set forth in Section 3.02, unless such Transfer is approved by the audit committee of the Board of Directors. For the avoidance of doubt, following the expiration of the Lockup Period, this Article III shall not limit the ability of Hulu or any Permitted Affiliate Transferee to Transfer or agree to Transfer any shares of Common Stock to any Person.
SECTION 3.02. Permitted Transfers.
(a) Notwithstanding anything to the contrary in Section 3.01, each of Hulu and each Permitted Affiliate Transferee (if any) may Transfer or agree to Transfer any shares of Common Stock (each, a “Permitted Transfer”):
(i) subject to Section 3.02(b), to an Affiliate of Hulu;
(ii) to the Company or a Subsidiary of the Company;
(iii) acquired by it after the date of this Agreement; or
(iv) in connection with the consummation of any Competing DMVPD Transaction.
(b) No Transfer of shares of Common Stock pursuant to Section 3.02(a)(i) shall be effective until such time as such Transferee has executed and delivered to the Company, as a condition precedent to such Transfer, a joinder to this Agreement substantially in the form of Exhibit A (a “Joinder”). No Permitted Affiliate Transferee shall permit a change of control of such Permitted Affiliate Transferee, other than to Hulu or an Affiliate of Hulu, if the shares of Common Stock held by such Permitted Affiliate Transferee represent a majority of the fair market value of all of the assets directly or indirectly held by such Permitted Affiliate Transferee.
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(c) As promptly as reasonably practicable, but in no event later than two Business Days prior to any Transfer of, or entry into an agreement to Transfer, any shares of Common Stock pursuant to Section 3.02(a)(i) or Section 3.02(a)(iv), Hulu or any Permitted Affiliate Transferee, as the case may be, shall, as Transferor, deliver written notice thereof to the Company setting forth the number of shares of Common Stock that is anticipated to be Transferred and the identity of the anticipated Transferee (if known).
(d) Notwithstanding anything to the contrary in Section 3.01, Hulu and each Permitted Affiliate Transferee (if any) shall be permitted to (i) pledge shares of Common Stock under any bona fide credit facility or similar facility maintained by any member of the Hulu Group with a Qualifying Institution or (ii) deposit shares of Common Stock in a margin account, in each case, so long as Hulu or such Permitted Affiliate Transferee, as applicable, continues to exercise voting control over such pledged or deposited shares of Common Stock; provided that, with respect to any such pledge or deposit made during the Lockup Period, Hulu or such Permitted Affiliate Transferee shall, as a condition to such pledge or deposit being permitted by this Agreement, provide the Company with prior written notice of such transaction and the identity of the Qualifying Institution; provided further that a foreclosure on such shares or other similar action by the Qualifying Institution or other pledgee shall constitute a Transfer unless such foreclosure or similar action otherwise qualifies as a Permitted Transfer.
(e) No later than five Business Days after executing any definitive agreement providing for a Competing DMVPD Transaction, Hulu shall notify the Board of Directors of the execution of such definitive agreement. No later than five Business Days prior to any Transfer of any shares of Common Stock in connection with the consummation of any Competing DMVPD Transaction pursuant to Section 3.02(a)(iv), Hulu shall (i) deliver to the Board of Directors a certificate, signed by an executive officer of Hulu, certifying that such transaction constitutes a Competing DMVPD Transaction and (ii) provide the Company with reasonable access during normal business hours to an executive officer of an applicable member of the Hulu Group to discuss such certification, it being understood that any such discussion may be subject to, and limited by, any applicable confidentiality obligations with respect to such Competing DMVPD Transaction.
SECTION 3.03. Legends and Compliance with Securities Laws .
(a) In addition to any other legend or stop transfer orders that may be required by the Certificate of Incorporation or applicable Law, all certificates or book-entries representing shares of Common Stock that are subject to the restrictions on Transfer set forth in Section 3.01 shall bear a legend or be subject to a stop transfer order or notation referencing such restrictions, as applicable. The Company shall, upon the request of Hulu or any Permitted Affiliate Transferee, promptly issue replacement certificates that are free from the legends contemplated by this Section 3.03(a) (or, in the case of any book-entry shares, update the Company’s stock records to remove the stop transfer orders or notations contemplated by this Section 3.03(a)) in order to permit Hulu or such Permitted Affiliate Transferee, as applicable, to engage in Transfers that are not restricted hereunder or by the Securities Act or any applicable securities Laws.
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(b) Notwithstanding anything to the contrary in this Agreement, it shall be a condition to any Transfer of shares of Common Stock by Hulu or any Permitted Affiliate Transferee that (i) such Transfer comply with the provisions of the Securities Act and applicable securities Laws and, if reasonably requested by the Company, then Hulu or such Permitted Affiliate Transferee, as applicable, shall have provided the Company with an opinion of outside legal counsel, reasonably acceptable to the Company, to such effect; provided that no such opinion shall be required as a condition to (x) any Transfer effectuated pursuant to Section 3.02(a)(i) or Section 3.02(a)(ii), in each case, unless requested by the Company’s transfer agent, or (y) any Transfer of shares of Common Stock acquired by Hulu or any Permitted Affiliate Transferee after the date of this Agreement pursuant to an open market purchase, and (ii) no applicable Law or judgment issued by any Governmental Entity which would prohibit such Transfer shall be in effect, and all consents of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity necessary for the consummation of such Transfer shall have been obtained or filed or shall have occurred.
SECTION 3.04. Improper Transfer. Any attempt by Hulu or any Permitted Affiliate Transferee to Transfer or agree to Transfer any shares of Common Stock not in compliance with this Agreement shall, to the fullest extent permitted by applicable Law, be null and void ab initio, the purported Transferee shall have no rights or privileges in or with respect to the Company with respect to such attempted Transferred shares of Common Stock and the Company shall not give any effect in the Company’s stock ledger or register to such attempted Transfer.
ARTICLE IV
Financial and Other Information
SECTION 4.01. Company Information.
(a) Consolidated Financial Statements. The Company shall use reasonable best efforts to deliver to the Hulu Group Reporting Personnel the Consolidated Financial Statements for any fiscal year of the Company and each fiscal quarter of any fiscal year of the Company as promptly as reasonably practicable within the time periods specified by the Authorized Hulu Group Reporting Personnel; provided that, in no event shall the Company deliver such Consolidated Financial Statements later than 20 Business Days after the earlier of the end of the applicable annual or quarterly period of (i) Hulu or (ii) the Company.
(b) Internal Reporting. The Company shall, and shall cause each other member of the Company Group to, deliver to the Hulu Group Reporting Personnel such monthly, quarterly and annual financial reports and other financial information, and any customary management certifications or representation letters with respect thereto, as the Authorized Hulu Group Reporting Personnel may reasonably request in writing, which are consistent with respect to content and timing with the information supplied by Subsidiaries of Disney to management of Disney in the ordinary course of business. Except as the parties hereto may otherwise agree hereafter, the Company shall use reasonable best efforts to ensure that all information provided pursuant to this Section 4.01(b) shall be generally consistent with the Hulu Group’s policies and practices with respect to the provision of comparable information by Subsidiaries of Disney; provided, however, that in the event any such policies and practices are amended, supplemented or otherwise modified after the date of this Agreement, the Company shall not be required to comply with any such amendment, supplement or other modification unless and until the Company has been notified of such amendment, supplement or other modification in writing.
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(c) Other Information. The Company shall, within the reasonable time periods specified by the Authorized Hulu Group Reporting Personnel, use reasonable best efforts to deliver to the Hulu Group Reporting Personnel such additional information and data with respect to the Company Group as may be reasonably requested by the Authorized Hulu Group Reporting Personnel from time to time.
(d) Meetings with Management. The Company shall, from time to time upon reasonable prior written notice, provide the Hulu Group Reporting Personnel (or their designees) with an opportunity to meet with the management of the Company to discuss the information required to be delivered by this Section 4.01.
SECTION 4.02. Company Public Documents. The Company shall, and shall cause each other member of the Company Group that files information with the SEC to, deliver to the Hulu Group Reporting Personnel drafts, as promptly as reasonably practicable following the preparation thereof (and in any event reasonably in advance of the printing, filing or public dissemination thereof) of (a) all Company Earnings Release Materials, reports, notices, proxy statements, information statements and non-ordinary course press releases, in each case to be sent or made available by any member of the Company Group to its security holders or the public, (b) all regular, periodic and other reports, or any other materials, to be filed or furnished by any member of the Company Group under Sections 13, 14 and 15 of the Exchange Act (including reports on Form 10-K, Form 10-Q, Form 8-K and annual reports to stockholders) and (c) all registration statements and prospectuses to be filed by any member of the Company Group with the SEC or any securities exchange or automated or electronic quotation system on which shares of capital stock of any member of the Company Group are traded or quoted (the documents identified in clauses (a) through (c), collectively, the “Company Public Documents”). From and after the delivery of any such draft of a Company Public Document, the Company shall, and shall cause each other member of the Company Group to, deliver to the Hulu Group Reporting Personnel all material revisions to such draft prior to the printing, filing or public dissemination thereof. No later than four Business Days before the earliest of the date a Company Public Document (including any Company Earnings Release Material filed on Form 8-K) is printed, filed or publicly disseminated, the Company shall, and shall cause each other member of the Company Group to, deliver to the Hulu Group Reporting Personnel a substantially final draft of such Company Public Document; provided that, with respect to reports on Form 8-K (other than any Company Earnings Release Material filed on Form 8-K), the Company shall use reasonable best efforts to deliver such draft no later than two Business Days before such time and, in any event, shall deliver such draft no later than one Business Day before such time. Notwithstanding the foregoing obligations, the Company may continue to revise such Company Public Document so long as any such revisions, other than revisions which are de minimis or typographical, are delivered to the Hulu Group Reporting Personnel by the Company as soon as practicable (and in any event reasonably in advance of the printing, filing or public dissemination thereof). The Company shall deliver to the Hulu Group Reporting Personnel final copies of any Company Public Document no later than the date such Company Public Document is printed, filed or publicly disseminated, whichever is earliest (except to the extent that such Company Public Document is publicly available via the SEC’s Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system). The Company shall consider in good faith any reasonable comments of the Hulu Group.
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SECTION 4.03. Hulu Group Public Documents. The Company shall, and shall direct the Company Auditors to, cooperate with the Hulu Group to the extent reasonably requested by the Authorized Hulu Group Reporting Personnel in the preparation of (a) any Hulu Group Earnings Release Materials, reports, notices, proxy statements, information statements and press releases, in each case to be sent or made available by any member of the Hulu Group to its security holders or the public, (b) all regular, periodic and other reports, or any other materials, to be filed or furnished by any member of the Hulu Group under Sections 13, 14 and 15 of the Exchange Act (including reports on Form 10-K, Form 10-Q, Form 8-K and annual reports to stockholders) and (c) all registration statements and prospectuses to be filed by any member of the Hulu Group with the SEC or any securities exchange or automated or electronic quotation system on which shares of capital stock of any member of the Hulu Group are traded or quoted (the documents identified in clauses (a) through (c), collectively, the “Hulu Group Public Documents”); provided that reasonable and documented out-of-pocket costs and expenses incurred by the Company in connection with the foregoing shall be the responsibility of the Hulu Group. The Company shall provide to the Hulu Group Reporting Personnel all information that the Authorized Hulu Group Reporting Personnel reasonably request in writing in connection with the preparation of any Hulu Group Public Document or that, in the judgment of legal counsel to any member of the Hulu Group, is required under applicable Law to be disclosed or incorporated by reference therein or to be included in public communications related thereto. The Company shall provide such information within the reasonable time periods specified by the Authorized Hulu Group Reporting Personnel (which dates may be earlier than the dates on which the Company otherwise would be required to have such information available) to enable the Hulu Group to print, file and publicly disseminate any Hulu Group Public Documents on such dates as the Hulu Group may determine in its sole discretion. If and to the extent reasonably requested by the Authorized Hulu Group Reporting Personnel in writing, the Company shall, within the reasonable time periods specified by the Authorized Hulu Group Reporting Personnel, diligently review all drafts of any Hulu Group Public Document and reasonably assist in the preparation of any portion of such Hulu Group Public Document pertaining to the Company Group. Without limiting the obligations of the Company pursuant to Section 4.04(i), prior to any printing, filing or public dissemination of any Hulu Group Public Document, an appropriate executive officer of the Company shall, if requested by the Authorized Hulu Group Reporting Personnel in writing, confirm to the best of such officer’s knowledge that the information provided by the Company relating to the Company Group in such Hulu Group Public Document is accurate, true and correct in all material respects. Unless required by applicable Law or GAAP, the Company shall not, and shall cause each other member of the Company Group to not, (i) publicly disclose, through any channel or medium, any information that is inconsistent with the information that is provided by the Company for any Hulu Group Public Document or (ii) publicly disclose, through any channel or medium, any information that is not subject to the Company’s delivery obligations pursuant to Section 4.02 if such information materially deviates from information that is included in any existing Company Public Document unless, with respect to this clause (ii), the Company delivers to the Hulu Group Reporting Personnel written notice of such disclosure reasonably in advance thereof, specifying with reasonable specificity each such deviation contemplated in such disclosure. With respect to any Hulu Group Public Document to be filed with the SEC, prior to such filing, Hulu shall provide the Company with a draft of any portion of such Hulu Group Public Document to be filed that makes specific reference to the Company, but only to the extent such information materially deviates from information previously included in any existing Hulu Group Public Document, and shall give the Company a reasonable opportunity to review such portion of the applicable Hulu Group Public Document. Hulu shall consider in good faith any reasonable comments of the Company; provided that the final form of any such Hulu Group Public Document shall be determined by the Hulu Group in its sole discretion.
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SECTION 4.04. Other Financial Reporting Matters.
(a) Maintenance of Books and Records. The Company shall, and shall cause each other member of the Company Group to, (i) make and keep books, records and accounts that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company Group; (ii) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (A) the Company’s financial statements are reliable and timely prepared in accordance with GAAP and applicable Law; (B) all transactions of the Company Group are executed in accordance with the general or specific authorization of the Company’s management; (C) all transactions of the Company Group are recorded as necessary to (I) permit preparation of Consolidated Financial Statements in conformity with GAAP or any other criteria applicable to such statements and (II) maintain accountability for assets; and (D) access to assets of the Company Group is permitted only in accordance with the general or specific authorization of the Company’s management, and any unauthorized use or disposition of assets of the Company Group that could have a material effect on the Company’s financial statements is prevented or detected and communicated in a timely manner; and (iii) otherwise comply with the provisions of Section 404 of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder, including Exchange Act Rule 13a-15.
(b) Quarterly and Annual Reporting. Upon reasonable advance notice from the Authorized Hulu Group Reporting Personnel of Disney’s planned filing date for any given period (including reasonable notice of any changes to such date), the Company shall use reasonable best efforts to file (x) its Quarterly Report on Form 10-Q with the SEC on or about the same day as Disney’s planned filing date with the SEC for its Quarterly Report on Form 10-Q for the corresponding period and (y) its Annual Report on Form 10-K with the SEC on or about the same day as Disney’s planned filing date with the SEC for its Annual Report on Form 10-K for the corresponding period, in each case of (x) and (y), unless the Company is otherwise required by applicable Law, and the Company shall provide advance written notice to the Hulu Group Reporting Personnel as promptly as reasonably practicable if the Company is unable to do so; provided that in no event shall the Company file such report for any given period prior to Disney’s filing of its own such report for the corresponding period, unless the Company is so required by applicable Law.
(c) Earnings Releases. The Company shall consult with the Authorized Hulu Group Reporting Personnel as to the timing of the Company’s annual and quarterly earnings releases and earnings release conference calls and any financial guidance for a current or future period. Upon reasonable advance notice from the Authorized Hulu Group Reporting Personnel of Disney’s planned date to publicly release its earnings or any financial guidance, or hold its earnings release conference call, for any given period (including reasonable notice of any changes to such date), the Company shall use reasonable best efforts to publicly release its earnings or any financial guidance, and hold its earnings release conference call, for such period on the same date and within a reasonable time following Disney’s public earnings release on such day, and the Company shall provide advance written notice to the Hulu Group Reporting Personnel as promptly as reasonably practicable if the Company is unable to do so; provided that in no event shall the Company publicly release its earnings or hold its earnings release conference call for any given period prior to Disney’s public release of its earnings for such period, nor shall the Company publicly release any financial guidance for any given period prior to Disney’s public release of any financial guidance for such period, in each case unless the Company is so required by applicable Law.
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(d) Public Appearances. The Company shall notify the Hulu Group Reporting Personnel in writing reasonably in advance of the date of (i) all scheduled public meetings and conference calls to be held between the Company and Investment Personnel, including any “investor day” or similar event, and (ii) any conferences to be attended by any members of the management of the Company if the primary purpose of such attendance is to meet with Investment Personnel (each, a “Company Public Appearance”), and the Company shall consult with the Authorized Hulu Group Reporting Personnel as to the appropriate timing for all such Company Public Appearances. The Company shall not schedule or attend any Company Public Appearance on any date to which the Authorized Hulu Group Reporting Personnel reasonably objects. The foregoing shall not require the Company to notify the Hulu Group Reporting Personnel of one-on-one discussions between any member of the management of the Company and Investment Personnel.
(e) Meetings with Credit Rating Agencies. The Company shall notify the Hulu Group Reporting Personnel in writing reasonably in advance of the date of all scheduled meetings and conference calls to be held between the Company and members of the Credit Rating Agencies and shall consult with the Authorized Hulu Group Reporting Personnel as to the appropriate timing for all such meetings or calls. The Company shall not schedule any such meeting or call on any date to which the Authorized Hulu Group Reporting Personnel reasonably objects.
(f) Auditors. (i) The Company will use its reasonable best efforts to enable the Company Auditors to complete their audit such that they will date their opinion on the Company’s annual financial statements on the same date that the Disney Auditors date their opinion on Disney’s annual financial statements, and to enable Disney to meet its timetable for the printing, filing and public dissemination of Disney’s annual financial statements. In addition, the Company will authorize the Company Auditors to make available to the Disney Auditors (A) the personnel who performed or are performing the annual audit of the Company and (B) consistent with customary professional practice and courtesy of such auditors with respect to the furnishing of work papers, work papers related to the financial information and annual audit of the Company, in each case within a reasonable time period before the Company Auditors’ opinion date (and in any event, no later than 15 Business Days before the Company Auditors’ opinion date), so that the Disney Auditors are able to perform the procedures they consider necessary to take responsibility for the work of the Company Auditors as it relates to the Disney Auditors’ report on Disney’s annual financial statements, all within sufficient time to enable Disney to meet its timetable for the printing, filing and public dissemination of Disney’s annual financial statements; provided that reasonable and documented out-of-pocket costs and expenses incurred by the Company in connection with the foregoing shall be the responsibility of the Hulu Group. If the Disney Auditors identify to Disney, in any management letter or other written correspondence in connection with its annual audit of Disney, any issue with the accounting principles, any proposed adjustment or any similar area of concern with respect to the Company Group, the Authorized Hulu Group Reporting Personnel shall promptly inform the Company and provide the Company with an excerpt of the applicable portions of such management letter or other correspondence.
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(g) Access to Records. If the Authorized Hulu Group Reporting Personnel determine in good faith that there may be an inaccuracy in the financial statements of a member of the Company Group or a deficiency or inadequacy in the internal accounting controls or operations of a member of the Company Group that could impact Disney’s financial statements, at the request of the Authorized Hulu Group Reporting Personnel, the Company shall provide the Disney Auditors and such other Representatives of the Hulu Group as are designated by the Authorized Hulu Group Reporting Personnel with access to the Company Group’s books and records so that such Persons may conduct audits relating to the financial statements provided by the Company under this Agreement as well as to the internal accounting controls and operations of the Company Group. The Company shall make available the appropriate personnel of the Company Group to advise and assist with any such audit upon reasonable prior written notice from the Authorized Hulu Group Reporting Personnel. Reasonable and documented out-of-pocket costs and expenses incurred by the Company in connection with the obligations under this Section 4.04(g) shall be the responsibility of the Hulu Group.
(h) Accounting Matters. To the extent reasonably requested by the Authorized Hulu Group Reporting Personnel, the Company shall cooperate in good faith with the Hulu Group to align the Company’s accounting estimates, judgments, policies and principles with those of the Hulu Group. Without limiting the foregoing and excluding changes required by the SEC, the Financial Accounting Standards Board or the Public Company Accounting Oversight Board, the Company shall (i) give the Hulu Group Reporting Personnel reasonable advance written notice of any proposed material changes to the Company’s accounting estimates, judgments, policies or principles and (ii) not make any changes to its accounting estimates, judgments, policies or principles that could reasonably be expected to affect any member of the Hulu Group unless the Company has (x) received the prior written consent of the Authorized Hulu Group Reporting Personnel (which consent shall not be unreasonably withheld, conditioned or delayed) and (y) consulted with the Disney Auditors, if so requested by the Authorized Hulu Group Reporting Personnel upon reasonable notice. The Authorized Hulu Group Reporting Personnel shall use reasonable best efforts to promptly respond to any request by the Company to make any change contemplated by clause (ii) of the preceding sentence. With respect to any material changes to the Company’s accounting estimates, judgments, policies or principles that the Company reasonably concludes in good faith are required by the SEC, the Financial Accounting Standards Board or the Public Company Accounting Oversight Board, the Company shall give the Hulu Group Reporting Personnel notice, in writing, of such changes reasonably in advance of the implementation thereof.
(i) Management Certification. The Company shall, not later than 12 Business Days prior to the date on which Disney plans to file its corresponding Quarterly Report on Form 10-Q or Annual Report on Form 10-K, cause its principal executive officer and principal financial officer (as such terms are defined in the rules and regulations of the SEC) to submit to the Hulu Group Reporting Personnel certifications of such officers, in a form reasonably acceptable to the Authorized Hulu Group Reporting Personnel, attesting to the accuracy and completeness of the Company’s financial and accounting records referred to therein in all material respects and the establishment and maintenance by the Company of disclosure controls and procedures and internal control over financial reporting, and such other Information as the Authorized Hulu Group Reporting Personnel reasonably determine is necessary to support the certifications of Disney’s principal executive officer and principal financial officer that are required under Section 302 or Section 906 of the Sarbanes-Oxley Act of 2002 with respect to each Quarterly Report on Form 10-Q and Annual Report on Form 10-K of Disney within the Consolidation Period.
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(j) Special Reports of Deficiencies, Violations or Corrections. The Company shall notify the Hulu Group Reporting Personnel in writing as promptly as reasonably practicable after any officer of the Company or any Director becomes aware of any of the following events or circumstances: (i) any significant deficiency or material weakness in the design or operation of internal controls over financial reporting which is reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information, (ii) any fraud, whether or not material, that involves the management of the Company or other employees who have a significant role in the Company’s internal controls over financial reporting, (iii) any illegal act within the meaning of Section 10A(b) and (f) of the Exchange Act, (iv) any report of evidence or allegation of a possible material violation of any U.S. federal or state Law that any attorney representing any member of the Company Group, whether or not employed by any member of the Company Group, has made to any officers or Directors of the Company pursuant to the provisions of Section 307 of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder, including Part 205, (v) any event that is reasonably likely to require the Company to (A) disclose in any Annual Report on Form 10-K that the financial statements of the Company included in such filing reflect the correction of an error to previously issued financial statements (in which case the Company’s written notification to the Hulu Group Reporting Personnel shall also state whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the Company’s executive officers during the relevant recovery period pursuant to Rule 10D-1(b) under the Exchange Act, and the outcome of such analysis) or (B) conclude that any previously issued financial statements should no longer be relied upon because of an error in such financial statements as described under Item 4.02 of Form 8-K and (vi) the occurrence of any event following a reporting period that would reasonably be expected to be required by GAAP to be disclosed as a subsequent event in the Consolidated Financial Statements of the Company or in any financial statements of Disney.
SECTION 4.05. Controlled Company Status. So long as the Company qualifies as a “controlled company” for purposes of any applicable corporate governance listing standards of any securities exchange or automated or electronic quotation system on which shares of the Class A Common Stock are traded or quoted (the “Stock Exchange Standards”), the Company shall elect to be a “controlled company” for purposes of such Stock Exchange Standards and shall disclose in its annual meeting proxy statement that it is a “controlled company” and the basis for that determination. If the Company ceases to qualify as a “controlled company” for purposes of any Stock Exchange Standards, the Company shall take any and all actions reasonably necessary to cause the Company to comply with the applicable Stock Exchange Standards as then in effect within the timeframe for compliance available under such Stock Exchange Standards.
SECTION 4.06. Record Retention. Neither party hereto shall destroy, or permit any member of its respective Group to destroy, any Information which the other party hereto may have the right to obtain pursuant to this Agreement prior to the end of the retention period set forth in the Retention Policies without first notifying such other party of the proposed destruction and giving such other party the opportunity to take possession of such Information prior to such destruction; provided, however, that in the case of any Information relating to taxes or employee benefits, such period shall be extended to the expiration of the applicable statute of limitations (giving effect to any extensions thereof). Notwithstanding the foregoing, neither party hereto shall destroy, or permit any member of its Group to destroy, any Information known by such party to be required by applicable Law to be retained.
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SECTION 4.07. Liability. Neither party hereto shall have any liability to the other party hereto in the event that any Information exchanged or provided pursuant to this Agreement that is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the party providing such Information.
SECTION 4.08. Return of Information. Following the Trigger Date, in the event that any Information provided by one Group to the other Group solely pursuant to this Article IV is no longer required to be retained by the receiving party pursuant to applicable Law, the receiving party shall, upon the written request of the other party, promptly either (at the election of the receiving party) return to the other party all Information in a tangible form (including all copies thereof) or certify to the other party that it has destroyed such Information (and such copies thereof).
SECTION 4.09. Production of Witnesses; Records; Cooperation; Exchange of Information. (a) Except in the case of an Adversarial Action, each of Hulu and the Company (in such capacity, the “Disclosing Party”) shall, subject to applicable Law, use its reasonable best efforts to make available to the other party (in such capacity, the “Requesting Party”), upon written request from the Requesting Party, the directors, officers, employees, other personnel and agents of the members of its respective Group, in each case, as of the time of the applicable Action, as witnesses and any books, records or other documents within its control, to the extent that any such individual (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the Requesting Party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought; provided that the Requesting Party shall bear all costs and expenses in connection therewith (including reasonable and documented costs (x) of outside counsel for the Disclosing Party and (y) incurred by the Disclosing Party or other members of its respective Group in connection with the production of any such books, records or other documents). Without limiting the foregoing, (i) each of Hulu and the Company shall, on behalf of itself and the other members of its respective Group, cooperate and consult to the extent reasonably necessary with respect to any such Action and (ii) the obligations of Hulu and the Company to provide witnesses pursuant to this Section 4.09(a) are intended to be interpreted in a manner so as to facilitate cooperation and shall include the obligation to provide witnesses without regard to whether the witness or the employer of the witness could assert a possible business conflict.
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(b) Except in the case of an Adversarial Action, and without altering any other right or obligation hereunder of either party hereto, the Disclosing Party, on behalf of itself and the other members of its Group, shall, subject to applicable Law, use reasonable best efforts to provide, or cause to be provided, to the Requesting Party, at any time after the date of this Agreement and as soon as reasonably practicable after written request therefor (which request shall specify the basis of such request in reasonable detail), any Information (or a copy thereof) in the possession or under the control of the Disclosing Party’s Group which the Requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the Requesting Party or a member of the Requesting Party’s Group by applicable Law or (ii) to comply with its obligations under this Agreement; provided, however, that nothing in this Section 4.09(b) shall require either party hereto, as a Disclosing Party, to disclose any (A) Information that would give rise to a material risk of waiving the protection to the Disclosing Party, or any other member of the Disclosing Party’s Group, of any Privilege, (B) contract to which the Disclosing Party, or any other member of the Disclosing Party’s Group, is a party or is otherwise bound if disclosing such contract would violate, cause a default pursuant to or give a third party the right to terminate or accelerate any rights pursuant to such contract, (C) Trade Secrets or (D) Information related to pricing or other matters that are highly sensitive or competitive in nature; provided further that, without limiting the foregoing, in the event that the Disclosing Party does not provide Information in reliance on the immediately preceding proviso, it shall provide notice to the Requesting Party that it is withholding such Information on such basis.
SECTION 4.10. Privilege. The provision of any Information pursuant to this Article IV shall not be deemed a waiver of any privilege, including privileges arising under or related to the attorney-client privilege, work product doctrine or any other legal privilege (a “Privilege”). Neither the Company or any member of the Company Group nor Hulu or any other member of the Hulu Group will be required to provide any Information pursuant to this Article IV if the provision of such Information would give rise to a material risk of waiving any Privilege afforded such Information.
SECTION 4.11. Compliance with Specified Company Group Organizational Provisions. The Company shall, and shall cause each other member of the Company Group to, take any and all actions reasonably necessary to ensure continued compliance by each member of the Company Group with the provisions of its respective certificate or articles of incorporation, bylaws, operating agreement or other constituent documents that may not, in accordance with their terms, be amended without the approval of Hulu or any of the Hulu Affiliated Designees (the “Specified Company Group Organizational Provisions”). The Company shall notify Hulu in writing as promptly as reasonably practicable after becoming aware of any act or activity taken or proposed to be taken by the Company or any other member of the Company Group which resulted or would result in non-compliance with any Specified Company Group Organizational Provision.
ARTICLE V
Miscellaneous
SECTION 5.01. Effectiveness; Termination; Survival. This Agreement is effective as of the date hereof and shall terminate automatically (a) upon the Trigger Date or (b) in the event that the Hulu Group collectively owns 100% of the outstanding shares of Common Stock. Notwithstanding the foregoing, (i) the provisions of Section 2.02 shall survive the earlier termination of this Agreement pursuant to clause (a) of the foregoing sentence until the second anniversary of the date of this Agreement, (ii) Article III shall survive the termination of this Agreement pursuant to clause (a) of the foregoing sentence until the expiration of the Lockup Period, (iii) the provisions of Section 4.06 (with respect to Information pertaining to time periods prior to the termination of this Agreement), Section 4.07, Section 4.08, Section 4.09, Section 4.10 and this Article V shall survive the termination of this Agreement pursuant to clause (a) of the foregoing sentence and (iv) the provisions of Section 4.11 shall survive the termination of this Agreement pursuant to clause (a) of the foregoing sentence until the date on which the Hulu Group ceases to collectively own at least 10% of the then-outstanding shares of Common Stock and (v) the provisions of Section 4.01, Section 4.02, Section 4.03 and Section 4.04 shall terminate upon the last day of the fiscal year in which the Trigger Date occurs; provided that the provisions of Section 4.01, Section 4.02, Section 4.03 and Section 4.04 shall survive termination pursuant to this Section 5.01(iii), and shall survive the termination of this Agreement, for so long as any member of the Hulu Group includes information about the Company Group in its financial statements, but only to the extent relating to (A) such information about the Company Group that any member of the Hulu Group includes in its financial statements and (B) a fiscal year in which the Hulu Group collectively owned at least 50% of the outstanding shares of Common Stock on any date during such fiscal year. Nothing in this Section 5.01 shall be deemed to release any party from any liability for any willful and material breach of this Agreement or to impair the right of either party to compel specific performance by the other party of its obligations under this Agreement.
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SECTION 5.02. Notices. All notices, requests, claims, demands and other communications hereunder to any party hereto shall be in writing and shall be deemed given if delivered personally, by email (to the extent that no “bounce back” or similar message indicating non-delivery is received with respect thereto) or if sent by overnight courier (providing proof of delivery) to the parties hereto at the following addresses, or such other address or email address as such party may hereafter specify by like notice to the other parties hereto:
(a) if to the Company:
FuboTV Inc.
1290 Avenue of the Americas, 9th Floor
New York, New York 10104
Attention: Chief Legal Officer
Email: * * *
(b) if to Hulu (excluding, for the avoidance of doubt, any notice to the Authorized Hulu Group Reporting Personnel or the Hulu Group Reporting Personnel):
c/o The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Justin Warbrooke
James Kapenstein
Email: * * *
* * *
(c) if to any Permitted Affiliate Transferee: to the address or addresses specified in the Joinder executed by such Permitted Affiliate Transferee;
(d) if to the Authorized Hulu Group Reporting Personnel: to the address or addresses specified in Schedule 1 (as may be amended from time to time); and
(e) if to the Hulu Group Reporting Personnel: to the address or addresses specified in Schedule 2 (as may be amended from time to time).
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Any notice delivered pursuant to subsection (a) of this Section 5.02 shall include a further copy (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, New York 10020
Attention: Andrew Elken
Owen Alexander
Greg Rodgers
Jenna Cooper
Email: Andrew.Elken@lw.com
Owen.Alexander@lw.com
Greg.Rodgers@lw.com
Jenna.Cooper@lw.com
Any notice delivered pursuant to subsections (b) or (c) of this Section 5.02 shall include a further copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Two Manhattan West
375 Ninth Avenue
New York, New York 10001
Attention: Faiza Saeed
Daniel Cerqueira
Cole DuMond
Alexander Greenberg
Email: fsaeed@cravath.com
dcerqueira@cravath.com
cdumond@cravath.com
agreenberg@cravath.com
SECTION 5.03. Expenses . Except as otherwise set forth herein, each party to this Agreement shall pay its own expenses incurred in connection with this Agreement.
SECTION 5.04. Amendments; Waivers; Consents.
(a) No term or provision of this Agreement may be amended (including, in each case, by way of merger, consolidation, operation of law or otherwise) or waived unless such amendment or waiver (i) is in writing and signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by the party making such waiver, and (ii) complies with Section 14.01 and Section 14.02 of the Certificate of Incorporation; provided that, notwithstanding the foregoing, Hulu may, in its sole discretion, amend Schedule 1 or Schedule 2 at any time upon written notice given to the Company in accordance with Section 5.02. Each party may, in its sole discretion, waive any and all rights granted to it in this Agreement; provided that no waiver by any party of any provision hereof shall be effective unless explicitly set forth in writing and executed by the party so waiving.
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(b) The waiver by of any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach. No failure by any party hereto to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.
SECTION 5.05. Interpretation. When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article, Section, Exhibit or Schedule to this Agreement unless otherwise indicated. The words “include,” “includes” and “including” when used herein shall not be deemed to be terms of limitation, but rather shall be deemed in each case to be followed by the words “without limitation”. The word “will” shall be construed to have the same meaning as the word “shall”. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “or” shall not be exclusive. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement”, “hereof”, “herein”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement and include any exhibits, schedules or other attachments to this Agreement. Whenever required by the context, references to a fiscal year shall refer to a portion thereof. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or Law defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. The parties hereto have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and other advisors and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement. References to “Disney” in this Agreement shall mean The Walt Disney Company or the then-current ultimate parent company of Hulu. Any reference in this Agreement to any request, approval, notification, determination, consent, consultation or similar action by or with the Authorized Hulu Group Reporting Personnel shall mean any such request, approval, notification, determination, consent, consultation or similar action by or with any individual identified as Authorized Hulu Group Reporting Personnel pursuant to this Agreement (but, for the avoidance of doubt, any notification, delivery or similar obligation by the Company to the Hulu Group Reporting Personnel shall require notification or delivery to all members of the Hulu Group Reporting Personnel in accordance with Section 5.02).
SECTION 5.06. Percentage Interest. For purposes of this Agreement, the percentage of Common Stock owned by any holder or holders as of any particular time shall be determined by dividing (a) the number shares of Common Stock owned of record or beneficially owned by such holder or holders by (b) the total number of shares of Common Stock outstanding as of such time. Such percentage shall be calculated to the fourth decimal place.
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SECTION 5.07. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable Law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
SECTION 5.08. Counterparts; Delivery by Electronic Transmission. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of electronic mail transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Section 5.08 shall apply mutatis mutandis to any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto.
SECTION 5.09. Entire Agreement. This Agreement and those documents expressly referred to herein constitute the entire agreement and supersede all other prior agreements and understandings (both written and oral) among the parties hereto with respect to the subject matter hereof and thereof.
SECTION 5.10. Governing Law; Specific Performance.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(b) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by any other party hereto of any covenant or obligation contained in this Agreement, the non-breaching party shall be entitled (in addition to any other remedy that may be available to it, including pursuant to this Agreement, whether in law or equity) to (i) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation and (ii) an injunction restraining such breach or threatened breach, without proof of damages or otherwise. No party hereto shall oppose the granting of an injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement on the basis that the other parties have an adequate remedy at law or that an award of equitable relief is unenforceable, invalid or not an appropriate remedy for any reason at law or equity. No party hereto seeking any injunction or other equitable relief to prevent any breach of this Agreement or to enforce specifically the terms and provisions of this Agreement in accordance with this Section 5.10(b) shall be required to provide any bond or other security in connection with any such order or injunction.
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SECTION 5.11. Dispute Resolution; Arbitration. Except as otherwise set forth in Section 5.11(e), any and all controversies, claims or disputes arising out of or related to this Agreement or the interpretation, performance or breach hereof, including any action or claim based in tort, contract or statute or alleged violations of state or federal common law rights or duties, and the determination of the scope or applicability of the agreement to arbitrate set forth in this Section 5.11 (each, a “Dispute”), shall be resolved according to the following procedures, which shall constitute the sole dispute resolution mechanism hereunder:
(a) In the event that the parties hereto are unable to resolve any Dispute informally following good faith discussions, then such Dispute shall be submitted to confidential, final and binding arbitration before a single arbitrator (the “Initial Arbitrator”). If the parties to any Dispute are unable to agree on an Initial Arbitrator within 15 Business Days after the commencement of an arbitration, an Initial Arbitrator shall be selected in accordance with the rules of JAMS or its successor (“JAMS”). Unless the parties to the Dispute agree otherwise, the Initial Arbitrator shall be a former or retired judge or justice of any New York state or federal court with experience in matters involving the digital media industry. The arbitration shall be initiated and conducted according to the JAMS Comprehensive Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, in effect at the time the request for arbitration is made (the “Arbitration Rules”), at the office of JAMS in New York, New York or at such other location as may be agreed to by the parties to the Dispute.
(b) Within 10 Business Days after the rendering of an award, any party to the Dispute may notify JAMS of its intention to appeal the award. The appeal will be administered by JAMS and conducted at the office of JAMS in New York, New York or at such other location as may be agreed to by the parties to the Dispute. The appeal shall be heard by a single Arbitrator or, at the election of any party to the Dispute, by three arbitrators (each such arbitrator, an “Appeal Arbitrator”; each Initial Arbitrator or Appeal Arbitrator, an “Arbitrator”); provided that, unless the parties to the Dispute agree otherwise, (i) each Appeal Arbitrator shall be a former or retired judge or justice of any New York state or federal court with experience in matters involving the digital media industry and (ii) if such appeal is heard by a single Appeal Arbitrator, such Appeal Arbitrator must have at least 15 years’ experience as a judge. If the parties to any Dispute are unable to agree on the Appeal Arbitrator(s) within 15 Business Days after a notice of an appeal is served on each other party to such Dispute, the Appeal Arbitrator(s) shall be selected in accordance with the JAMS rules. The Appeal Arbitrator(s) shall be entitled to accept the initial award, modify the award or substitute his or her own award. The award, as confirmed, modified or replaced by the Appeal Arbitrator(s), shall be final and binding, and judgment thereon may be entered by any court having jurisdiction thereof. Except as provided herein, the JAMS Optional Appeal Arbitration Procedure shall apply to the appeal.
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(c) Each Arbitrator shall serve as a neutral, independent and impartial arbitrator. In adjudicating the Dispute, the Arbitrators shall follow Delaware Law for substantive issues and the applicable Arbitration Rules (including the JAMS Rules and Procedures) for issues of procedure; provided that the Initial Arbitrator shall entertain any motion for summary judgment by any party to the Dispute and shall apply the standards governing such motions under the Federal Rules of Civil Procedure. To the extent that discovery is allowed under the Arbitration Rules, the Federal Rules of Civil Procedure shall govern any expert discovery. The Arbitrators shall have the power and authority to award any relief that would have been available in any court, including equitable relief (e.g., injunction, specific performance), and, cumulative with all other remedies, shall grant specific performance whenever possible. Notwithstanding the foregoing, the Arbitrators shall have no power to issue any award or decision that is contrary to, or inconsistent with, any applicable statute, case law or constitutional law, nor shall the Arbitrators have any power to modify or change any material term of this Agreement; provided that, for the avoidance of doubt, this sentence shall not change that Delaware Law, and not any other Law, shall apply to all substantive issues. The parties hereto hereby waive the right to seek special, punitive, exemplary, incidental, consequential or indirect damages, or loss of profits, in connection with any Dispute, and the Arbitrators shall have no authority to award any such damages or losses on any basis and such relief shall not be recoverable by any other process or in any other proceeding.
(d) The Arbitrators will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If, and only if, any party to the Dispute refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable, pursuant to this Section 5.11) within 30 days after such award is rendered and after such party is given five Business Days’ written notice to cure its failure to perform, then any other party to the Dispute may enforce the final award in any court of competent jurisdiction in state or federal court in New York County, New York.
(e) Nothing herein shall preclude any party to a Dispute from seeking, in accordance with this Section 5.11(e), preliminary or provisional relief from a state or federal court of competent jurisdiction in the State of New York as may be necessary to protect such party’s rights and interests hereunder. Without otherwise limiting the intent of the parties hereto that all Disputes be subject to arbitration as described in this Section 5.11, any Dispute, or portion thereof, seeking a pre-arbitral injunction, pre-arbitral attachment or other Order in aid of arbitration may, and any Dispute, or portion thereof, that may not be arbitrated pursuant to applicable Law shall, be submitted for trial exclusively in the United States District Court for the Southern District of New York, or, if and only if the United States District Court for the Southern District of New York does not have jurisdiction, then before the State Supreme Court in New York County, New York, or, if and only if neither such court shall have jurisdiction, then before any other court sitting in New York County, New York having subject matter jurisdiction. The parties hereto expressly consent to the exclusive jurisdiction of such courts and consent to service of process outside of the State of New York pursuant to the requirement of such court in any matter subject to it. Any process in such proceedings may be served by, in addition to other methods available under applicable Law, delivering or mailing such process, by registered or certified mail, to such addresses as are designated in Section 5.02. Any such delivery or mail service shall have the same effect as personal service within the State of New York; provided that the documents are also sent via e-mail to the applicable e-mail addresses designated in Section 5.02. Without limiting any pre-arbitral relief that may be granted by a court in accordance with this Section 5.11(e), the Arbitrators shall have the full authority to grant preliminary or provisional relief, to order any party to any Dispute to request that a court modify or vacate any pre-arbitral relief issued by such court and to award damages for the failure of such party to comply with such order.
(f) Claimants and respondents shall bear their own costs of the arbitration, including attorney’s fees and expenses, and share equally the Arbitrators’ fees and JAMS’ administrative costs. For purposes of cost sharing, all claimants shall be considered one party and all respondents shall be considered one party.
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(g) The parties hereto agree that any arbitration hereunder, including any related appeal, shall be kept confidential, and that the existence of the proceeding and all of its elements (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall be deemed confidential and shall not be disclosed beyond the Arbitrators, the parties to the Dispute, their respective counsels, outside experts and consultants assisting the parties’ respective counsels in connection with such Dispute and any other Person who is necessary to the conduct of the arbitration proceeding, except as and to the extent required by applicable Law. The parties hereto also agree that any court proceeding shall be kept confidential and that, in the event any party to a Dispute makes application to any court in connection with this Agreement (including any proceedings to compel arbitration or to enforce a final award which can only be instituted if another party refuses to perform its obligations under this Agreement), such party shall take all steps reasonably within its power to cause such application, and any exhibits (including copies of any award or decisions of the Arbitrators), to be filed under seal, shall oppose any challenge by any third party to such sealing and shall give any other party involved in the applicable proceeding or arbitration notice of any such challenge.
SECTION 5.12. Assignment; No Third-Party Beneficiaries. This Agreement and all of the provisions hereto shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations set forth herein shall be assigned by any party hereto without the prior written consent of the other parties hereto and any purported assignment without such consent shall be void. Nothing in this Agreement shall be construed as giving any Person, other than the parties hereto and their heirs, successors, legal representatives and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.
SECTION 5.13. Confidentiality.
(a) Except as otherwise contemplated by this Agreement, each of Hulu and the Company shall, and shall direct each other member of its respective Group and its respective Representatives to, (i) hold confidential and not disclose, without the prior written approval of the other party hereto, all confidential or proprietary written, recorded or oral information or data (including research, developmental, technical, marketing, sales, subscriber, financial, operating, performance, cost, business and process information or data, knowhow and computer programming and other software techniques) provided by or on behalf of one Group or any Representative of any member of such Group (in such Representative’s capacity as such) to the other Group or any Representative of any member of such other Group (in such Representative’s capacity as such), whether such confidentiality or proprietary status is indicated orally or in writing or if such member of the receiving Group or such Representative of the receiving Group should reasonably have understood that the information should be treated as confidential, whether or not the specific words “confidential” or “proprietary” are used (“Confidential Information”) and (ii) use such Confidential Information only for the purpose of performing its obligations hereunder, managing and monitoring Hulu’s investment in the Company and its Subsidiaries and carrying on the business of the Company and its Subsidiaries; provided that (x) the Hulu Group and its Representatives may disclose or use such Confidential Information in their capacity as directors, officers or employees of any member of the Hulu Group and (y) each of Hulu and the Company may disclose such Confidential Information to its respective Representatives that are attorneys, accountants, consultants and other professional advisors and to any member of its respective Group and such Group member’s respective directors and employees, to the extent necessary to perform their services in connection with monitoring Hulu’s investment in the Company and its Subsidiaries and carrying on the business of the Company and its Subsidiaries, in each case in the ordinary course of business (provided, however, that the recipients of such Confidential Information are subject to confidentiality and non-disclosure obligations at least as restrictive as those set forth in this Section 5.13) and (z) each of Hulu and the Company may disclose such Confidential Information as may be necessary in connection with the enforcement of its respective rights under this Agreement.
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(b) Notwithstanding the foregoing, the confidentiality and non-use obligations of Section 5.13(a) will not apply to Confidential Information:
(i) that any member of either Group or any Representative of any member of either Group is required to disclose by judicial or administrative process, or by other requirements of applicable Law or regulation or any governmental authority (including any applicable rule, regulation or order of a self-governing authority, including any securities exchange or national quotation system on which outstanding securities of the Company or Disney are listed); provided, that either the Company or Hulu, on behalf of such disclosing Person, as applicable, shall, where and to the extent legally permitted and reasonably practicable, (A) give Hulu or the Company, as applicable, reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (B) reasonably cooperate with Hulu or the Company, as applicable, in attempting to obtain such protective measures; provided further that any costs and expenses incurred in connection with seeking or obtaining such protective measures shall be borne solely by the party (Hulu or the Company, as applicable) requesting such protective measures.
(ii) that becomes available to the public other than as a result of a breach of this Section 5.13;
(iii) that can be demonstrated as having been independently developed by a member of such Group without use of or reliance upon Confidential Information; or
(iv) that has been provided to any member of a Group or any of such member’s Representatives by a Person (other than a member of the other Group) who is not known, after reasonable inquiry, to be subject to confidentiality obligations with respect to such Confidential Information.
[SignaturePage Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their authorized officers as of the date first written above.
| FUBOTV INC. | |
|---|---|
| By: | /s/ Gina DiGioia |
| Name: | Gina<br> DiGioia |
| Title: | Chief<br>Legal Officer and Corporate Secretary |
| HULU,<br>LLC | |
| --- | --- |
| By: | /s/ James Kapenstein |
| Name: | James<br> M. Kapenstein |
| Title: | Authorized Signatory |
[SignaturePage to Stockholders Agreement]
EXHIBIT A
FORM OF JOINDER AGREEMENT
This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining Party”) in accordance with the Stockholders Agreement dated as of October 29, 2025 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Stockholders Agreement”) by and between FuboTV Inc., a Delaware corporation, and Hulu, LLC, a Delaware limited liability company. Capitalized terms used but not defined herein have the respective meanings ascribed to such terms in the Stockholders Agreement.
The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to and a “Permitted Affiliate Transferee” and a “Relevant Stockholder” under the Stockholders Agreement as of the date hereof and, without limiting the generality of the foregoing, shall be subject to the Stockholders Agreement and shall have all of the rights and obligations of a Permitted Affiliate Transferee and a Relevant Stockholder thereunder as if it had executed the Stockholders Agreement as of the date thereof. The Joining Party hereby ratifies, and agrees to be bound by, as of the date hereof, all of the terms, provisions and conditions contained in the Stockholders Agreement that are applicable to Permitted Affiliate Transferees and Relevant Stockholders.
All notices under the Stockholders Agreement to the undersigned shall be directed to:
[Name]
[Address]
[City, State, Zip Code]
Attention:
Email:
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IN WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as of the date written below.
Date: ___________,____________
| [NAME<br> OF JOINING PARTY], |
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| By: |
| Name: |
| Title: |
AGREED ON THIS [ ] day of [ ], 20[ ]:
| FUBOTV<br> INC., |
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| By: |
| Name: |
| Title: |
| A-2 |
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