FuboTV Inc PRE 14A, filed Nov 2, 2020
FuboTV Inc. (FUBO)
PRE 14A
2020-11-02
For: 2020-12-14
View Original
Added on
October 15, 2026
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the
Registrant ☒ Filed
by a party other than the Registrant ☐
Check
the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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fuboTV Inc.
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(Name of Registrant as Specified in Its Charter)
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(Name of Person(s) Filing Proxy Statement if other than the
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Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
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Per unit price or other underlying value of transaction computed
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Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
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1.
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Amount Previously Paid:
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2.
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Form, Schedule or Registration Statement No.:
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Filing Party:
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Date Filed:
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1330 Avenue of the Americas
New York, NY 10019
November , 2020
Dear Shareholders of fuboTV Inc.:
We are pleased to invite you to the 2020 Annual
Meeting of Shareholders of fuboTV Inc., or the Annual Meeting,
which will be held on December 14th
at 12:00 p.m. Eastern Time. Due to
health and safety concerns from the coronavirus (COVID-19) outbreak
and the increasingly severe protocols that federal, state, and
local governments have imposed, we have adopted a virtual format
for our Annual Meeting this year. The Annual Meeting (and any
adjournment or postponement thereof) will be held this year as a
virtual only meeting, accessible at the following website address:
https://www.issuerdirect.com/virtual-event/fubo.
Please
review this Notice of Annual Meeting and Proxy Statement, which
describes the formal business to be transacted and procedures for
voting on matters to be considered during the Annual
Meeting.
Your
vote is important. Whether or not you plan to attend the Annual
Meeting, we hope you will vote as soon as possible. You may vote
over the Internet, by phone or by mailing a proxy or voting
instruction card. Voting over the Internet, by phone or by written
proxy will ensure your representation at the Annual Meeting
regardless of whether you attend the meeting virtually. Please
review the instructions on the proxy or voting instruction card
regarding each of these voting options. You may, of course, choose
to attend the Annual Meeting virtually and vote your shares
virtually during the meeting. To be admitted to the Annual Meeting
and vote your shares virtually during the meeting, you will need to
enter the Control ID and Request ID numbers found on your proxy
card.
However
you choose to participate, we encourage you to review this Proxy
Statement and to vote your shares as soon as possible.
On
behalf of the Board of Directors, thank you for your
support.
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Sincerely,
David
Gandler
Chief Executive Officer
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NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD DECEMBER 14, 2020 AT 12:00 P.M. EASTERN
TIME
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Time and Date
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12:00 p.m. Eastern Time on December 14, 2020.
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Webcast Address
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Due to health and safety concerns from the coronavirus (COVID-19)
outbreak and the protocols that federal, state, and local
governments have imposed, we have adopted a virtual format for our
Annual Meeting this year. The Annual Meeting (and any adjournment
or postponement thereof) will be held this year as a virtual only
meeting, accessible at the following website address:
https://www.issuerdirect.com/virtual-event/fubo.
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Items of Business
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1. To
re-elect as directors each of the seven nominees named in the
attached Proxy Statement to serve until the earlier of: the next
annual shareholders’ meeting, his or her successor being
selected and qualified, or his or her earlier death, resignation or
removal from office;
2. To
approve, on an advisory basis, the compensation of our named
executive officers for fiscal year 2019;
3. To
approve, on an advisory basis, the frequency of future shareholder
advisory votes on the compensation of our named executive
officers;
4. To
approve the ability of the Company to grant incentive stock options
under the 2020 Equity Incentive Plan, or the 2020 Plan, and an
amendment to the 2020 Plan to increase its share reserve
(collectively referred to as the 2020 Plan Proposal);
5. To
ratify a form of indemnification agreement for use with our
directors and officers;
6. To
ratify the approval of KPMG LLP as the independent registered
public accounting firm for the Company for the fiscal year ending
December 31, 2020; and
7. To
transact such other business as may be properly brought before the
Annual Meeting or any adjournments or postponement
thereof.
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Adjournments and Postponements
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Any action on the items of business described above may be
considered at the Annual Meeting at the time and on the date
specified above or at any time and date to which the Annual Meeting
may be properly adjourned or postponed.
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Record Date
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You are entitled to notice of and to vote at the Annual Meeting and
at any adjournment or postponement that may take place only if you
were a shareholder as of the close of business on November 13,
2020.
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Meeting Admission
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You are invited to attend the Annual Meeting live via webcast if
you are a shareholder of record or a beneficial owner of shares of
our capital stock, in each case, as of November 13, 2020.
Instructions regarding how to connect and participate live via the
internet, including how to demonstrate proof of stock ownership,
are posted
at https://www.issuerdirect.com/virtual-event/fubo.
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Voting
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Your vote is very important. Whether or not you plan to attend the
Annual Meeting, we encourage you to read this proxy statement and
submit your proxy or voting instructions as soon as possible. You
may submit your proxy or voting instruction card for the Annual
Meeting by completing, signing, dating and returning your proxy or
voting instruction card in the pre-addressed envelope provided, or,
in most cases, by using the Internet. For specific instructions on
how to vote your shares, please refer to the section entitled
“Questions and Answers” beginning on page 1 of
this proxy statement and the instructions on the proxy or voting
instruction card. You can revoke a proxy prior to its exercise at
the Annual Meeting by following the instructions in the
accompanying proxy statement. See “Proxy Statement Questions and
Answers—What can I do if I change my mind after I vote my
shares?” for more details on the process
to revoke a proxy.
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Important Notice Regarding the Availability of Proxy Materials for
the Annual Meeting to be Held on December 14,
2020. The proxy statement, the accompanying materials
and our 2019 annual report are being mailed on or about November ,
2020 to all of our shareholders entitled to vote at the Annual
Meeting. A copy of our Proxy Statement and our 2019 annual report
are also posted on https://www.issuerdirect.com/virtual-event/fubo
and are available from the SEC on its website at
www.sec.gov.
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By Order of the Board of Directors,
Edgar
Bronfman,
Jr.
Executive Chairman of the Board of Directors
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TABLE OF CONTENTS
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Page
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PROXY STATEMENT QUESTIONS AND ANSWERS
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6
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DIRECTORS AND CORPORATE GOVERNANCE
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12
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Board
Composition
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12
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Director
Independence
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Board
Leadership
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Board
Meetings
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Board
Committees
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Identifying
and Evaluating Director Nominees
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Risk
Oversight
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Compensation
Risk Assessment
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Communications
with Directors
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Code
of Business Conduct and Ethics
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Corporate
Governance Guidelines
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Compensation
Committee Interlocks and Insider Participation
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EXECUTIVE OFFICERS
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EXECUTIVE COMPENSATION
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Process
and Procedures for Compensation Decisions
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Fiscal
2019 Summary Compensation Table
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Named
Executive Officer Employment Arrangements
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Grants
of Plan-Based Awards
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Outstanding
Equity Awards at Fiscal 2019 Year End
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25
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401(k)
Plan
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30
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Indemnification
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30
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DIRECTOR COMPENSATION
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30
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Compensation
of Non-Employee Directors
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30
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Outside
Director Compensation Policy
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BENEFICIAL OWNERSHIP OF SHARES OF CAPITAL STOCK
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31
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DELINQUENT SECTION 16(A) REPORTS
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35
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CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
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35
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Policies
and Procedures for Transactions with Related Persons
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Transactions
and Relationships with Directors, Officers and 5%
Shareholders
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PROPOSALS REQUIRING YOUR VOTE
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ITEM
1 — Election of Directors
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ITEM
2 — Advisory Vote to Approve the Fiscal 2019 Compensation of
our Named Executive Officers
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ITEM
3 — Advisory Vote on the Frequency of Future Shareholder
Advisory Votes on the Compensation of our Named Executive
Officers
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42
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ITEM
4 — 2020 Plan Proposal
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43
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ITEM
5 — Ratification of Form of Indemnification
Agreement
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51
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ITEM
6 — Ratification of Independent Registered Public Accounting
Firm
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52
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TRANSACTION OF OTHER BUSINESS
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58
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OTHER
INFORMATION
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APPENDICES
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Appendix A —
2020 Equity Incentive Plan, As Amended
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59
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Appendix B —
Form of Indemnification Agreement
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59
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1330 Avenue of the Americas
New York, NY 10019
PROXY STATEMENT FOR ANNUAL MEETING OF SHAREHOLDERS
fuboTV
Inc., sometimes referred to as the Company, fuboTV, we, us, or our,
is furnishing this proxy statement, or the Proxy Statement, to our
shareholders as of the close of business on November 13, 2020, or
the Record Date, for the solicitation of proxies by our Board of
Directors, which we refer to as our Board, for the Company’s
Annual Meeting of Shareholders to be held on December 14, 2020, at
12:00 p.m. Eastern Time. The Annual Meeting will be held virtually
only at the following web address:
https://www.issuerdirect.com/virtual-event/fubo.
We
are delivering a “full set” of our proxy materials by
mail to all of our shareholders of record as of the close of
business on the Record Date. Our proxy materials include the Notice
of Annual Meeting, or the Notice, this Proxy Statement, and a proxy
card, which we refer to collectively as the Proxy Materials. We
intend to provide definitive copies of our Proxy Materials to our
shareholders on or about November , 2020. In addition to mailing
our Proxy Materials, we will also provide access to our Proxy
Materials over the Internet at
https://www.issuerdirect.com/virtual-event/fubo, by November ,
2020. The Notice and the Proxy Statement instruct you on how to
access and review all of the important information contained in the
Proxy Materials via the Internet. The Notice and the Proxy
Statement also instruct you on how you may submit your vote by
mail, the Internet, toll-free number, or at the Annual
Meeting.
The
voting of shares will not affect a shareholder’s right to
attend the Annual Meeting. A paper proxy that is signed may be
changed by sending in a timely, but later dated, signed paper
proxy. Any shareholder sending in or completing a proxy may also
revoke it at any time before it is exercised by giving timely
notice to Gina Sheldon, Corporate Secretary, at (829) 947-3254 ,
fuboTV Inc., 1330 Avenue of the Americas, New York, NY or attending
the Annual Meeting and voting.
5
PROXY STATEMENT QUESTIONS AND ANSWERS
Why am I receiving this Proxy Statement?
You
are receiving these materials from us because you were a
shareholder of record at the close of business on the Record Date.
As a shareholder of record, you are invited to attend our Annual
Meeting and are entitled to vote on the items of business described
in this Proxy Statement. This Proxy Statement contains important
information about the Annual Meeting and the items of business to
be transacted at such Annual Meeting. You are strongly encouraged
to read this Proxy Statement, which includes information that you
may find useful in determining how to vote.
This
Proxy Statement, the accompanying materials and our 2019 annual
report are being mailed on or about November , 2020 to all of our
shareholders entitled to vote at the Annual Meeting. A copy of our
proxy statement and our 2019 annual report are also posted on
https://www.issuerdirect.com/virtual-event/fubo and are available
from the Securities and Exchange Commission, or SEC, on its website
at www.sec.gov.
How do I attend the Annual Meeting?
If you are a holder of Company shares as of the
Record Date, you can join the Annual Meeting by accessing the
meeting URL at https://www.issuerdirect.com/virtual-event/fubo
and by entering the shareholder
information, including the Control ID and the Request ID, provided
on your proxy card. On the day of the Annual Meeting, shareholders
may attend and submit questions virtually at our Annual Meeting by
logging in at https://www.issuerdirect.com/virtual-event/fubo. We
encourage you to navigate to https://www.issuerdirect.com/virtual-event/fubo
prior to the start time to allow ample
time for the check-in procedures. If you encounter any difficulties accessing the
Annual Meeting during the meeting time, please call (844)
399-3386.
If
you hold your shares beneficially through a bank or broker, will
not be able to vote your shares during the Annual Meeting, but you
will still be able to attend the Annual Meeting, so long as you
demonstrate proof of stock ownership. Instructions on how to
participate via the Internet, including how to demonstrate proof of
stock ownership, are posted at
https://www.issuerdirect.com/virtual-event/fubo.
What is the purpose of the Annual Meeting?
For
shareholders to vote on the following proposals to:
1.
re-elect
as directors each of the seven nominees named in the attached Proxy
Statement to serve the earlier of: the next annual
shareholders’ meeting, his or her successor being selected
and qualified, or his or her earlier death, resignation or removal
from office;
2.
approve,
on an advisory basis, the fiscal year 2019 compensation of our
named executive officers;
3.
approve,
on an advisory basis, the frequency of future shareholder advisory
votes on the compensation of our named executive
officers;
4.
approve
the ability of the Company to grant incentive stock options under
the 2020 Equity Incentive Plan, or the 2020 Plan, and an amendment
to the Plan to increase its share reserve (collectively referred to
as the 2020 Plan Proposal);
5.
ratify
the Company’s form of indemnification agreement for use with
our directors and officers;
6.
ratify
the approval of KPMG LLP as the independent registered public
accounting firm for the Company for the fiscal year ending December
31, 2020; and
7.
transact
such other business as may be properly brought before the Annual
Meeting or any adjournments or postponement thereof.
How does the Board of Directors recommend I vote on these
proposals?
The
Board recommends that you vote:
●
FOR the election of each of the seven nominees named
in the attached Proxy Statement to serve until the earlier of: the
next annual shareholders’ meeting, his or her successor being
selected and qualified, or his or her earlier death, resignation or
removal from office;
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FOR the approval, on an advisory basis, of the fiscal
year 2019 compensation of our named executive
officers;
●
to hold future shareholder advisory votes on the
compensation of our named executive officers every
ONE
YEAR;
●
FOR the approval of the 2020 Plan
Proposal;
●
FOR the ratification of the Company’s form of
indemnification agreement for use with directors and officers;
and
●
FOR the ratification of the approval of KPMG LLP as
the independent registered public accounting firm for the Company
for the fiscal year ending December 31, 2020.
6
Who is entitled to vote at the Annual Meeting?
Holders
of fuboTV common stock and fuboTV Series AA Convertible Preferred
Stock, or the Series AA Preferred Stock, at the close of business
on the Record Date are entitled to receive the Notice and to vote
their shares at the Annual Meeting. Holders of shares of common
stock are entitled to one vote for each share of common stock at
the Annual Meeting. Holders of shares of Series AA Preferred Stock
are entitled to 0.8 votes per share of Series AA Preferred Stock at
the Annual Meeting.
On all of the matters to be voted upon at the
Annual Meeting, the shares of common stock and Series AA Preferred
Stock will vote together as a single voting group, and not as
separate voting groups. See “How many votes do I
have?” in
this section for more information regarding the voting power of the
shares of each class of our capital stock.
What is the difference between holding shares as a shareholder of
record and as a beneficial owner?
If
your shares are registered directly in your name with
fuboTV’s transfer agent, American Stock Transfer & Trust
Company, LLC, you are considered the “shareholder of
record” with respect to those shares, and the Notice and
Proxy Materials were sent directly to you by the Company. As a
shareholder of record, you have the right to grant your voting
proxy directly to the individuals listed on the proxy card or to
vote by attending the Annual Meeting.
If
your shares are held in a stock brokerage account or by a bank or
other nominee, you are considered the “beneficial
owner” of shares held in street name. The Notice and the
Proxy Materials have been forwarded to you by your broker, bank or
other nominee who is considered, with respect to those shares, the
shareholder of record. As the beneficial owner, you have the right
to direct your broker, bank or other nominee on how to vote your
shares by following their instructions for voting.
How can I vote my shares?
Shareholder of Record: Shares
Registered in Your Name. If you
are a shareholder of record, you may vote in one of the following
ways:
●
You may vote during the Annual
Meeting live via the Internet. If you plan to attend the Annual Meeting live via
webcast, you may vote by following the instructions posted at
https://www.issuerdirect.com/virtual-event/fubo. To be admitted to
the Annual Meeting and vote your shares, you will be required to
enter certain shareholder information, including the Control ID and
the Request ID, provided on your proxy card.
●
You may vote by mail.
Complete, sign and date the proxy card
that accompanies this Proxy Statement and return it promptly in the
postage-prepaid envelope provided (if you received printed Proxy
Materials). Your completed, signed and dated proxy card must be
received prior to the Annual Meeting.
●
You may vote by
telephone. To vote over the
telephone, dial toll-free 1-866-752-VOTE (8683) and follow the
recorded instructions. You will be asked to provide the company
number, Control ID and the Request ID from your proxy card.
Telephone voting is available 24 hours a day, 7 days a week, until
the meeting adjourns.
●
You may vote via the
Internet. To vote via
the Internet, go to www.iproxydirect.com/FUBO to
complete an electronic proxy card
(have your proxy card in hand when you visit the website). You will
be asked to provide the Control ID and Request ID from your proxy
card. Internet voting is available 24 hours a day, 7 days a week,
until the meeting adjourns.
Beneficial Owners: Shares
Registered in the Name of a Broker, Bank or Other Nominee.
If you are a beneficial owner of
shares held of record by a broker, bank or other nominee, you will
receive voting instructions from your broker, bank or other
nominee. You must follow the voting instructions provided by your
broker, bank or other nominee in order to instruct your broker,
bank or other nominee on how to vote your shares. Beneficial owners
of shares should generally be able to vote by returning the voting
instruction card, or by telephone or via the Internet. However, the
availability of telephone or Internet voting will depend on the
voting process of your broker, bank, or other nominee.
As discussed above,
if you are a beneficial owner, you may not
vote your shares
live via the Internet at the Annual Meeting.
What happens if I decide to attend the Annual Meeting, but I have
already voted or submitted a proxy covering my shares?
You
may still attend the Annual Meeting. Please be aware that
attendance at the Annual Meeting will not, by itself, revoke a
proxy.
7
What can I do if I change my mind after I vote my
shares?
Shareholder of Record: Shares
Registered in Your Name. If you
are a shareholder of record, you can change your vote or revoke
your proxy at any time before the Annual Meeting
by:
●
entering
a new vote by Internet or telephone (until the applicable deadline
for each method as set forth above);
●
returning
a later-dated proxy card (which automatically revokes the earlier
proxy);
●
providing
a written notice of revocation to our Corporate Secretary at 1330
Avenue of the Americas, New York, NY 10019, Attention: Corporate
Secretary with copy to proxy@issuerdirect.com, which must be
received prior to 5:00 p.m. ET on December 13, 2020;
or
●
attending
the Annual Meeting and voting live via the Internet. Attendance at
the Annual Meeting live via the Internet will not cause your
previously granted proxy to be revoked unless you specifically so
request.
Beneficial Owner: Shares
Registered in the Name of a Broker, Bank or Other Nominee.
If you are the beneficial owner of
your shares, you must contact the broker, bank or other nominee
holding your shares and follow their instructions to change your
vote or revoke your proxy.
What shares can I vote?
You
can vote all shares that you owned on the Record Date. These shares
include (1) shares held directly in your name as the
shareholder of record, and (2) shares held for you as the
beneficial owner through a broker, bank or other
nominee.
How many votes do I have?
Each
holder of shares of common stock is entitled to one vote for each
share of common stock on each matter properly brought before the
Annual Meeting. Each holder of shares of Series AA Preferred Stock
is entitled to 0.8 votes per share of Series AA Preferred Stock on
each matter properly brought before the Annual Meeting. On all of
the matters to be voted upon at the Annual Meeting, the shares of
common stock and Series AA Preferred Stock will vote together as a
single voting group, and not as separate voting
groups.
As
of the Record Date, there were shares of common stock outstanding
and entitled to vote at the Annual Meeting and shares of Series AA
Preferred Stock outstanding and entitled to vote at the Annual
Meeting.
Is there a list of shareholders entitled to vote at the Annual
Meeting?
The
names of shareholders of record entitled to vote at the Annual
Meeting will be available for ten days prior to the Annual Meeting
and can be examined by any shareholder for any purpose germane to
the Annual Meeting, between the hours of 9:30 a.m. and 4:30 p.m.
Eastern Time, (1) at our principal executive offices at 1330 Avenue
of the Americas, New York, NY 10019, by contacting the Corporate
Secretary of the Company or (2) at
https://www.issuerdirect.com/virtual-event/fubo. The list may be
accessed during the Annual Meeting at
https://www.issuerdirect.com/virtual-event/fubo.
What are broker non-votes?
Broker
non-votes occur when a beneficial owner of shares held in
“street name” does not give instructions to the broker
holding the shares as to how to vote on matters deemed
“non-routine” and there is at least one
“routine” matter to be voted upon at the meeting.
Generally, if shares are held in street name, the beneficial owner
of the shares is entitled to give voting instructions to the broker
holding the shares. If the beneficial owner does not provide voting
instructions, the broker can still vote the shares with respect to
matters that are considered to be “routine,” but not
with respect to “non-routine” matters. Therefore, if a
beneficial owner does not provide the broker with voting
instructions regarding a “non-routine” matter, the
broker will not be allowed to vote such beneficial owner’s
shares on that “non-routine” proposal, resulting in a
broker non-vote. In the event that a broker votes shares on the
“routine” matters, but does not vote shares on the
“non-routine” matters, those shares will be treated as
broker non-votes with respect to the “non-routine”
proposals. Accordingly, if you own shares through a nominee, such
as a broker or bank, please be sure to instruct your nominee how to
vote to ensure that your vote is counted on each of the
proposals.
8
What matters are considered “routine” and
“non-routine”?
The
ratification of KPMG LLP as our independent registered public
accounting firm (Proposal No. 6) is considered
“routine,” but the election of directors (Proposal No.
1), the non-binding vote on our executive compensation (Proposal
No. 2), the non-binding vote on the frequency of our executive
compensation votes (Proposal No. 3), the 2020 Plan Proposal
(Proposal No. 4) and the ratification of our form of
indemnification agreement (Proposal No. 5) are considered
“non-routine.”
How many shares are required to approve the proposals being voted
upon at the Annual Meeting?
The
presence of the holders of a majority of the outstanding shares of
capital stock entitled to vote at the Annual Meeting, present in
person or represented by proxy, is necessary to constitute a
quorum. Assuming there is a proper quorum of shares represented at
the Annual Meeting, the voting requirements for approval of the
proposals at the Annual Meeting are as follows:
Proposal No. 1: Election of
Directors. The
re-election of each of the seven nominees as directors requires a
plurality of the voting power of the shares present or represented
by proxy at the Annual Meeting and entitled to vote thereon.
“Plurality” means that the seven nominees for director
who receive the largest number of votes cast “FOR” are
elected as directors, even if those nominees do not receive a
majority of the votes cast. As a result, any shares not voted
“FOR” a particular nominee (whether as a result of
shareholder abstention or a broker non-vote) will not be counted in
such nominee’s favor and will have no effect on the outcome
of the election. You may vote “FOR” or
“WITHOLD” for each of the nominees for election as
director.
Proposal No. 2: Advisory Vote
on the Compensation of our Named Executive Officers.
The advisory vote regarding named
executive officer compensation for the fiscal year 2019, requires,
under Florida law, a majority of the votes cast to be voted
“FOR” the proposal in order for the proposal to pass.
Abstentions and broker non-votes will not be counted as votes
“FOR” or “AGAINST” the proposal, and thus
will have no effect on the outcome of this proposal. Because this
vote is advisory only, it will not be binding on us or on our
Board. However, our Board or our compensation committee will
consider the outcome of the vote when making future decisions
regarding executive compensation.
Proposal No. 3: Advisory Vote
on the Frequency of Future Advisory Votes to Approve the
Compensation of our Named Executive Officers.
The frequency of future
advisory votes on executive compensation selected by shareholders
from the options of “ONE YEAR”, TWO YEARS” or
“THREE YEARS”, will be whichever frequency that
receives the highest number of votes from the holders of shares
present in person or represented by proxy at the Annual Meeting and
entitled to vote thereon. Abstentions and broker non-votes will
have no effect on the outcome of this vote. Because this vote is
advisory only, it will not be binding on us or on our Board.
However, our Board or our compensation committee will consider the
outcome of the vote when determining how often we should submit to
shareholders an advisory vote to approve the compensation of our
named executive officers.
Proposal No. 4: Approval of
the ability of the Company to grant “incentive stock
options” under the 2020 Equity Incentive Plan and an
Amendment to Increase the Share Reserve. Approval of the 2020 Plan Proposal requires, under
Florida law, a majority of the votes cast to be voted
“FOR” the proposal in order for the proposal to pass.
Abstentions and broker non-votes will not be counted as votes
“FOR” or “AGAINST” the proposal, and thus
will have no legal effect on the outcome of this
proposal.
Proposal No. 5: Ratification
of Indemnification Agreement. Ratification of the Company’s form of
indemnification agreement for use with our directors and officers
requires, under Florida law, a majority of the votes cast to be
voted “FOR” the proposal in order for the proposal to
pass. Abstentions and broker non-votes will not be counted as votes
“FOR” or “AGAINST” the proposal, and thus
will have no effect on the outcome of this
proposal.
Proposal No. 6: Ratification
of Appointment of Independent Auditors. The ratification of the appointment
of KPMG LLP as the independent registered public accounting firm
for the Company for the fiscal year ending December 31, 2020
requires, under Florida law, a majority of the votes cast to be
voted “FOR” the proposal in order for the proposal to
pass. Abstentions will not be counted as votes “FOR” or
“AGAINST” the proposal, and thus will have no effect on
the outcome of this proposal. Broker non-votes are not
expected to result from this proposal.
Could other matters be decided at the Annual Meeting?
At
the date of this Proxy Statement, we did not know of any matters to
be raised at the Annual Meeting other than those referred to in
this Proxy Statement. If other matters are properly presented at
the Annual Meeting for consideration, the proxy holders named on
the proxy card will have the discretion to vote on those matters
for you.
9
Who will pay for the cost of this proxy solicitation?
We
will pay the cost of soliciting proxies. Our directors, senior
executives or employees, acting without special compensation, may
also solicit proxies. Proxies may be solicited by personal
interview, mail, electronic transmission, facsimile transmission or
telephone. We are required to send copies of proxy-related
materials or additional solicitation materials to brokers,
fiduciaries and custodians who will forward these materials to the
beneficial owners of our shares. On request, we will reimburse
brokers and other persons representing beneficial owners of shares
for their reasonable expenses in forwarding these materials to
beneficial owners. In addition, our Board of Directors has retained
Alliance Advisors LLC, an independent proxy solicitation firm, to
assist it in soliciting proxies, for approximately $ . Proxies may
be solicited by mail, telephone or other electronic
means.
Who will count the vote?
fuboTV
has designated a representative of Issuer Direct Corporation as the
Inspector of Election who will tabulate the votes.
What does it mean if I receive more than one set of printed
materials?
If
you receive more than one set of printed materials, your shares may
be registered in more than one name and/or are registered in
different accounts. Please follow the voting instructions on each
set of printed materials, as applicable, to ensure that all of your
shares are voted.
I share an address with another shareholder, and we received only
one printed copy of the Proxy Materials. How may I
obtain an additional copy of the Proxy Materials?
We
have adopted an SEC-approved procedure called
“householding,” under which we can deliver a single
copy of the Proxy Materials and annual report to multiple
shareholders who share the same address unless we receive contrary
instructions from one or more of the shareholders. This
procedure reduces our printing and mailing
costs. Shareholders who participate in householding will
continue to be able to access and receive separate proxy
cards. Upon written or oral request, we will undertake to
deliver promptly a separate copy of the Proxy Materials and annual
report to any shareholder at a shared address to which we delivered
a single copy of any of these documents. To receive a
separate copy, or, if you are receiving multiple copies, to request
that we only send a single copy of next year’s Proxy
Materials and annual report, you may contact us as
follows:
fuboTV Inc.
1330 Avenue of the Americas
New York, NY 10019
Attn: Corporate Secretary
Shareholders
who hold shares in street name may contact their brokerage firm,
bank, broker-dealer or other nominee to request information about
householding.
10
Note Regarding Our Recent Merger
On
April 1, 2020, fuboTV Acquisition Corp., a Delaware corporation and
our wholly owned subsidiary, or Merger Sub, merged with and into
fuboTV Media Inc., a Delaware corporation, which was then known as
fuboTV Inc., or fuboTV Sub, whereby fuboTV Sub continued as the
surviving corporation and became our wholly owned subsidiary
pursuant to the terms of the Agreement and Plan of Merger and
Reorganization, or the Merger Agreement, dated as of March 19, 2020
by and among the Company, Merger Sub and fuboTV Sub, or the
Merger.
Following
the Merger, the name of the Company changed from “FaceBank
Group, Inc.” to “fuboTV Inc.,” and the name of
fuboTV Sub changed from “fuboTV Inc.” to “fuboTV
Media, Inc.” Unless otherwise indicated, references to the
“Company,” “fuboTV,” “we,”
“us,” or “our” refer to fuboTV Inc.,
formerly known as FaceBank Group, Inc. References to
“FaceBank Pre-Merger” refer to FaceBank Group, Inc.
prior to the Merger, and references to “fuboTV
Pre-Merger” refer to fuboTV Media Inc. prior to the Merger.
Subsequent to the Merger, certain members of the Board resigned,
two of our executive officers resigned, and certain executive
officers of fuboTV Pre-Merger were appointed to be executive
officers of fuboTV.
At
the effective time of the Merger, or the Effective Time, all of the
capital stock of fuboTV Pre-Merger was converted into the right to
receive an aggregate of 32,324,362 shares of our newly-created
class of Series AA Preferred Stock, such that the conversion of all
of the capital stock of fuboTV Pre-Merger would result in the
former fuboTV Pre-Merger shareholders holding, in the aggregate,
approximately two-thirds of the capital stock of fuboTV on a fully
diluted basis. Each share of Series AA Preferred Stock is entitled
to 0.8 votes per share and is convertible into two (2) shares of
our common stock (subject to equitable adjustments for stock
splits, stock combinations, recapitalizations, reclassifications,
extraordinary distributions and similar events following the date
of the designation of the Series AA Preferred Stock) following the
sale of such share of Series AA Preferred Stock on an
arms’-length basis either (i) pursuant to Rule 144 under the
Securities Act or (ii) pursuant to an effective registration
statement under the Securities Act, provided, in each case, that
such sale is conditioned on the applicable holder of Series AA
Preferred Stock executing and delivering to us documentation
reasonably requested by us in connection therewith and as is
reasonably necessary to effectuate such transfer. The effect of the
Merger and the terms of the Series AA Preferred Stock was to
initially establish an approximate two-thirds majority ownership of
the Company on a fully diluted basis for the holders of fuboTV
Pre-Merger stock while preserving a majority voting interest for
the holders of FaceBank Pre-Merger stock.
As
part of the Merger, we also assumed 8,051,098 stock options issued
and outstanding under the fuboTV Inc. 2015 Equity Incentive Plan
with a weighted-average exercise price of $1.32 per share. From and
after the Effective Time, such options may be exercised for shares
of our common stock.
11
DIRECTORS AND CORPORATE GOVERNANCE
Board Composition
Our
Board currently consists of seven members. Pursuant to our bylaws,
as amended, the term of each director expires at the next annual
shareholders’ meeting following his or her election, whether
such director had been elected by the shareholders or elected by a
majority of the Board to fill a vacancy.
David
Gandler was appointed in April 2020, at the Effective Time of the
Merger, by a majority of the then-existing members of the Board.
The remaining six directors joined the Board subsequent to the
Merger. Each of Edgar Bronfman, Jr., Henry Ahn, Ignacio Figueras
and Laura Onopchenko were appointed by a majority of the directors
to fill a vacancy existing prior to his or her respective
appointment. Each of Daniel Leff and Pär-Jörgen
Pärson were elected by the holders of Series AA Preferred
Stock. Since
the listing of our common stock on the New York Stock Exchange on
October 8, 2020, all seven directors will now be elected by the
holders of outstanding shares of our voting stock, which includes
our common stock and Series AA Preferred Stock, voting as one
voting group.
As
recommended by our nominating and corporate governance committee,
all seven of our current directors have been nominated by the Board
for re-election. If elected, each nominee has consented to serve as
a director and to hold office until the earlier of: the next annual
shareholders’ meeting, his or her successor being selected
and qualified, or his or her earlier death, resignation or removal
from office.
The
principal occupations and certain other information about the
nominees (including the skills and qualifications that led to the
conclusion that they should serve as directors), as of October 26,
2020, are set forth below.
|
Name
|
|
Age
|
|
Position(s)
|
|
Director
Since
|
|
Nominees:
|
|
|
|
|
|
|
|
David
Gandler
|
|
45
|
|
Chief
Executive Officer and Director
|
|
April
2020
|
|
Edgar
Bronfman, Jr.
|
|
65
|
|
Executive
Chairman and Director
|
|
April
2020
|
|
Pär-Jörgen
Pärson
|
|
57
|
|
Director
|
|
May
2020
|
|
Daniel
Leff
|
|
52
|
|
Director
|
|
July
2020
|
|
Henry
Ahn
|
|
58
|
|
Director
|
|
July
2020
|
|
Ignacio
Figueras
|
|
43
|
|
Director
|
|
August
2020
|
|
Laura
Onopchenko
|
|
53
|
|
Director
|
|
September
2020
|
Information Regarding the Nominees for Election as
Directors
Edgar Bronfman, Jr. joined the Board in
May 2020 following the Merger, bringing decades of experience in
media and technology. In addition to his service on our Board,
since May 2020 Mr. Bronfman has also been employed by the Company
as Executive Chairman. Since October 2017, Mr. Bronfman has served
as chairman of Waverley Capital LLC, a media-focused venture
capital firm, of which he is also a co-founder and general partner.
Since 2014, Mr. Bronfman has served as managing partner of
Accretive, LLC, a private equity firm. Mr. Bronfman served in
various roles at Warner Music Group, a multinational entertainment
and record label, most recently serving as chief executive officer
from March 2004 to August 2011 and as a member of the board of
directors from March 2004 to May 2013, including serving as
chairman of the board of directors from March 2004 to January 2012.
Mr. Bronfman served on the boards of directors of IAC InterActive
Corp, a media and internet company, from February 1998 through
October 2019 and Accretive Health, Inc. (now known as R1 RCM Inc.),
a healthcare management company, from October 2006 until February
2016. Mr. Bronfman has also served as executive chairman of Global
Thermostat Operations, LLC, a company designed to develop and
commercialize technology for the direct capture of carbon dioxide,
since 2010 and has served on the boards of Insureon Holdings, LLC
since 2012 and Everspring Inc. since 2014. Mr. Bronfman is Chairman
of the board of Endeavor Global, Inc., a member of the board of
trustees of the NYU Elaine A. and Kenneth G. Langone Medical
Center, a member of the board of the Council of Foreign Relations,
Vice President of the Ann L. Bronfman Foundation and Director of
the Clarissa and Edgar Bronfman Jr. Foundation. Mr.
Bronfman’s qualifications to serve on the Board include his
experience as a member of senior management of various public and
global companies, which gives him particular insight into business
strategy, leadership, marketing, consumer branding and
international operations. The Board also considered his high level
of financial literacy and insight into the media, entertainment and
technology industries as well as his private equity experience. See
“Involvement in Certain
Legal Proceedings” for certain details regarding
legal proceedings involving Mr. Bronfman.
Henry Ahn joined the Board in July
2020. Mr. Ahn has served as President of Content Distribution and
Partnerships for Univision Communications Inc., or Univision, since
July 2018. In this role, Mr. Ahn leads content distribution sales,
operations, finance and strategy. Mr. Ahn specializes in media
contract negotiations, business strategy, content licensing, new
media strategy and authenticated streaming/video on-demand for
Univision, with emphasis on distribution deal execution and
relationships with new and existing distributors including
multichannel video programming and online video distributors,
mobile carriers, as well as electronic sell-through providers.
Prior to joining Univision, Mr. Ahn served as distribution
executive for Scripps Networks Interactive, or SNI, where he led
sales, negotiations, strategic planning and marketing efforts for
SNI related to every aspect of content distribution. Prior to that,
he served as Executive Vice President of TV Networks Distribution,
at NBC Universal where he worked for 17 years. Mr. Ahn received his
bachelor’s degree in Business Administration from Boston
College and his Master of Business Administration from Fordham
Gabelli School of Business in New York. Mr. Ahn’s
qualifications to serve on the Board include that he was formerly a
board observer of fuboTV Pre-Merger, as well as his experience with
media contract negotiations, content licensing, new media strategy
and authenticated streaming/video on-demand.
12
Ignacio “Nacho” Figueras
joined the Board in August 2020. Mr. Figueras is an award-winning
Argentinian polo player, an entrepreneur, television personality,
spokesperson, investor and philanthropist. Mr. Figueras is
currently the captain and co-owner of the Black Watch polo team and
is the owner of Cria Yatay, a successful global horse breeding
operation based in Argentina. In addition to his polo career, in
collaboration with Flavors & Fragrances, Mr. Figueras has
developed a luxury fragrance line, The Ignacio Figueras Collection,
which is expanding to stores internationally in 2020; a portion of
the proceeds from the collection’s sales support Sentebale, a
charity of which Mr. Figueras has been an ambassador since 2006.
Further, in 2013, Mr. Figueras and Estudio Ramos co-founded the
Figueras Design Group (FDG), a global design consultancy
headquartered in Buenos Aires with offices in New York and Chicago.
Mr. Figueras is also an investor and a member of the board of
directors and advisors at Flow Water, a fast-growing premium
wellness water brand in North America as well as an advisory board
member for Saudi Arabia’s Giga Project Amaala. Mr. Figueras
is recognized around the globe for his nearly two-decade
association as a spokesperson with Ralph Lauren and Ralph Lauren
fragrances. Mr. Figueras brings to the Board valuable insight into
the sports industry through his first-hand experience as a
world-class athlete in the United States and globally.
Laura Onopchenko joined the Board in
September 2020. Ms. Onopchenko has more than 25 years of experience
in a variety of finance roles with a particulars expertise in
high-growth situations. Ms. Onopchenko joined Getaround, a global
leader in carsharing, in September 2020 as its CFO. Ms. Onopchenko
previously served as CFO at NerdWallet, a website and app that
provides financial guidance to more than 160 million consumers
every year. During Ms. Onopchenko’s tenure, NerdWallet grew
meaningfully, surpassed $100M in annual revenue, and achieved and
sustained profitability. Before NerdWallet, she was vice president
of finance at DaVita Rx, the pharmacy division at DaVita. During
her five-years at the company, the business quadrupled to more than
$1 billion in yearly revenue and fulfilled millions of
prescriptions. Earlier in her career, Ms. Onopchenko worked as an
investment banker, an early-stage tech investor, and in a variety
of operating roles in environments ranging from start-ups to
Fortune 500 companies. Ms. Onopchenko has a BA in Economics from UC
Berkeley and an MBA from The Wharton School of the University of
Pennsylvania. Ms. Onopchenko’s qualifications to serve of the
Board include her experience with high-growth companies and her
financial expertise.
Dr. Daniel Leff joined the Board in
July 2020. Dr. Leff is Co-Founder and Managing Partner of Waverley
Capital, a media-focused venture capital fund. He is also Founder
and Managing Partner of Luminari Capital, a media-focused venture
capital fund that he founded in 2013. Prior to co-founding Waverley
Capital and prior to founding Luminari Capital, Dr. Leff was a
Partner with Globespan Capital Partners. Earlier in his career, Dr.
Leff worked for Sevin Rosen Funds and Redpoint Ventures and held
engineering, marketing and strategic investment positions with
Intel Corporation. Dr. Leff has been an investor and/ or director
in a multitude of publicly-traded and private media companies,
including 1Mainstream (sold to Cisco), Art19, Elemental
Technologies (sold to Amazon), Endel, Headspace, Matterport,
MikMak, MOVL (sold to Samsung), PlutoTV (sold to ViacomCBS), Roku
(serving on its board of directors from 2011 to 2018), TheAthletic,
and Wondery. Additionally, Dr. Leff served on the board of
directors of fuboTV Pre-Merger from May 2015 until March 2020,
immediately prior to the Merger. Dr. Leff earned a Bachelor of
Science degree in Chemistry from The University of California,
Berkeley and a Ph.D. in Physical Chemistry from the University of
California, Los Angeles. Dr. Leff also earned an MBA from The UCLA
Anderson Graduate School of Management, where he was an Anderson
Venture Fellow and where he currently serves on the Board of
Visitors. Dr. Leff’s qualifications to serve on the Board
include his decades of experience in investing and serving on the
boards of both private and publicly-traded media companies giving
him particular insight into business strategy, leadership, and
marketing in the industry as well as his prior service on the
fuboTV Pre-Merger board of directors.
David Gandler was appointed as our
Chief Executive Officer and Director in April 2020 upon the closing
of the Merger. He previously served as President and Chief
Executive Officer of fuboTV Pre-Merger and as a member of fuboTV
Pre-Merger’s board of directors from March 2014 to April
2020. Prior to joining fuboTV Pre-Merger, Mr. Gandler served as
Vice President, Ad Sales at DramaFever, a video streaming service
acquired in 2016 by Warner Bros. Entertainment Inc., from 2013 to
2014. Prior to 2013, Mr. Gandler held positions at Scripps Networks
Interactive, Inc., Time Warner Cable and Telemundo, a division of
NBCUniversal Media, LLC. Mr. Gandler received a B.A. degree in
economics from Boston University. Mr. Gandler brings our board his
considerable experience in the digital media industry as well as
the operational insight and expertise he has accumulated as both
our Chief Executive Officer and as the Chief Executive Officer of
fuboTV Pre-Merger since its inception.
Pär-Jörgen Pärson joined
the Board in May 2020. Since 2004, Pär-Jörgen Pärson
has been a General Partner of Northzone, a venture capital firm,
where his primary areas of focus are disruptive businesses in
consumer internet, health, and fintech. Before joining Northzone,
Mr. Pärson ran his own investment firm and was a consultant at
McKinsey & Company. Until April 1, 2020, Mr. Pärson served
on the board of directors of fuboTV Pre-Merger. In addition, Mr.
Pärson serves on the board of directors of Spring Health Inc,
a health tech company, Noquo Foods AB, a Swedish foodtech startup,
Sourcepoint Inc, a media tech company, Neverthink OY, an online
video service, and Activate Inc, a media tech company. Previously,
Mr. Pärson served on the board of directors of (i) Spotify AB,
the subscription music streaming service, from 2008 to 2017, (ii)
payments company iZettle AB (which was acquired by PayPal) from
2011 to 2016, (iii) Avito AB, an online classifieds service
(acquired by Naspers in 2016) from 2011 to 2016, (iv) Qapital
Insight AB, a fintech company, from 2013 to 2018, (v) Widespace AB,
an adtech business, from 2012 to 2018, and (vi) Jukely Inc, a live
music subscription service, from 2014 to 2020. Mr. Pärson
holds an M.B.A. from the Stockholm School of Economics. Mr.
Pärson’s qualifications to serve on the Board include
his prior service on the board of directors of fuboTV Pre-Merger,
his experience as a member of the board of directors of consumer
internet and media companies, through which he has valuable insight
into business strategy, leadership, and international operations,
and his venture capital experience.
13
Involvement in Certain Legal Proceedings
On
January 21, 2011, a Paris Trial Court found Edgar Bronfman, Jr.,
our Executive Chairman and Director, guilty of a charge of insider
trading on trades that Mr. Bronfman made in Vivendi Universal
stock. Mr. Bronfman appealed the conviction, and in May 2014, the
Paris Court of Appeal affirmed the Paris Trial Court’s
decision. Mr. Bronfman appealed the Paris Court of Appeal’s
decision to the Appellate Court, which rejected his appeal in April
2017. The final judgment, entered by the Paris Court of Appeal,
required Mr. Bronfman to pay a 2.5 million Euro fine in connection
with the conviction. Notwithstanding the Paris Court of
Appeal’s decision, Mr. Bronfman continues to believe that his
trading in Vivendi Universal stock was proper. In electing Mr.
Bronfman as a director of fuboTV, the Board considered these
proceedings and related matters and concluded that they did not
raise any concerns about Mr. Bronfman’s qualification to
serve on the Board.
Director Independence
Since
October 8, 2020, our common stock is listed on the New York Stock
Exchange, or NYSE. Under the rules of the NYSE, independent
directors must comprise a majority of a listed company’s
board of directors. In addition, the rules of the NYSE require
that, subject to specified exceptions, each member of a listed
company’s audit, compensation and nominating and governance
committees be independent. Under the rules of the NYSE, a director
will only qualify as an “independent director” if, in
the opinion of that company’s board of directors, that person
does not have a relationship that would interfere with the exercise
of independent judgment in carrying out the responsibilities of a
director.
Audit
committee members must also satisfy the independence criteria set
forth in Rule 10A-3 under the Securities Exchange Act of 1934,
as amended, or the Exchange Act, and under the rules of the NYSE.
To be considered independent for purposes of Rule 10A-3 and
under the rules of the NYSE, a member of an audit committee of a
listed company may not, other than in his or her capacity as a
member of the audit committee, board of directors, or any other
board committee: (1) accept, directly or indirectly, any
consulting, advisory, or other compensatory fee from the listed
company or any of its subsidiaries; or (2) be an affiliated
person of the listed company or any of its
subsidiaries.
The
Board has undertaken a review of its composition, the composition
of its committees and the independence of each director and has
determined that Messrs. Ahn, Leff, and Pärson, and Ms.
Onopchenko do not have a relationship that would interfere with the
exercise of independent judgment in carrying out the
responsibilities of a director and that each is
“independent” as that term is defined under the
applicable rules and regulations of the SEC and the NYSE.
Accordingly, a majority of our directors are independent, as
required under applicable NYSE rules. Our audit committee,
compensation committee and nominating and governance committee are
each entirely comprised of independent directors. In making these
determinations, the Board considered the current and prior
relationships that each non-employee director has with our Company,
relationships between our Company and the companies where our
independent directors serve as executive officers or have a
significant ownership interest and all other facts and
circumstances the Board deemed relevant in determining their
independence, including the beneficial ownership of our capital
stock by each non-employee director.
During
fiscal year 2019, none of the members of the Board were
“independent” as that term is defined under the
applicable rules and regulations of the SEC and the
NYSE.
Family Relationships
No
family relationships exist between any of the Company’s
directors and executive officers. There are no arrangements or
understandings between directors and any other person concerning
service as a director.
Board Leadership
The
Board does not have a policy on whether or not the role of the
Chief Executive Officer and Chairman should be separate or, if it
is to be separate, whether the Chairman should be selected from the
non-employee directors or be an employee. Currently, we operate
with Mr. Gandler serving as a director and our Chief Executive
Officer and Mr. Bronfman, Jr. serving as our Executive Chairman and
Chairman of the Board. We believe that the separation of the
Chairman and Chief Executive Officer positions suit the talents,
expertise and experience that each of Mr. Gandler and Mr. Bronfman,
Jr. bring to the Company.
14
Board Meetings
The
Board met 13 times during fiscal year 2019. Each director attended
75% or more of the total number of meetings of the Board held
(during the period in which the director served on the Board).
There were no committees of the Board during fiscal year 2019. As
all of our incumbent directors were appointed in fiscal year 2020,
during fiscal year 2019, none of our incumbent directors were
serving on the Board, and none of our incumbent directors attended
any Board meetings.
Beginning October
8, 2020, the date we listed on the NYSE, at each of our regularly
scheduled Board and committee meetings, the non-management,
independent directors will participate in an executive session
without any members of the Company’s management present.
During these executive sessions of independent directors, the
chairs of each of the audit committee, the compensation committee,
and the nominating and corporate governance committee preside on a
rotating basis based on the topics to be discussed.
Pursuant to our
corporate governance guidelines, each director is encouraged to
attend each annual meeting of shareholders. The Annual Meeting will
be our first annual shareholders’ meeting.
Committees of the Board
On
August 6, 2020, the Board established an audit committee, a
compensation committee and a nominating and corporate governance
committee. The following table provides membership information as
of October 26, 2020. As the Board had not established committees
prior to August 6, 2020, there were no committees as of December
31, 2019.
|
Name
|
Audit
|
Compensation
|
Nominating
and Corporate Governance
|
|
Edgar Bronfman,
Jr.
|
|
|
|
|
Henry
Ahn
|
✓
|
|
|
|
Ignacio
Figueras
|
|
✓
|
|
|
Laura
Onopchenko
|
✓*
|
|
|
|
David
Gandler
|
|
|
|
|
Daniel
Leff
|
✓
|
|
✓*
|
|
Pär-Jörgen
Pärson
|
|
✓*
|
✓
|
________________________
*
Committee
Chairperson
The
composition and responsibilities of each committee are described
below. Members serve on these committees until their resignation or
until otherwise determined by the Board. Each of the audit,
compensation, and nominating and corporate governance committees is
a standing committee and operates pursuant to a separate written
charter adopted by the Board that is available on the Investor Relations section of
the Company’s website at http://ir.fubo.tv. The inclusion of
our website address in this proxy statement does not include or
incorporate by reference into this Proxy Statement the information
on or accessible through our website.
15
Audit Committee
As of
December 31, 2019, we did not have an audit committee. Our audit
committee was formed on August 6, 2020. As of the date of this
Proxy Statement, our audit committee consisted of Ms. Onopchenko,
who is the chair of the committee, Dr. Leff and Mr. Ahn. We believe
that our audit committee members meet the requirements for
financial literacy under the current requirements of the
Sarbanes-Oxley Act of 2002, the NYSE listing standards and SEC
rules and regulations. In addition, the Board has determined that
Ms. Onopchenko and Dr. Leff are audit committee financial experts
within the meaning of SEC regulations. We have made this
determination based on information received by our Board, including
questionnaires provided by the members of our audit
committee.
Audit
committee members must satisfy the independence criteria set forth
in Rule 10A-3 under the Exchange Act and under the rules of
the NYSE. In order to be considered to be independent for purposes
of Rule 10A-3(b)(1) under the Exchange Act, a member of an
audit committee of a listed company may not, other than in his or
her capacity as a member of the audit committee, the board of
directors, or any other board committee: (1) accept, directly
or indirectly, any consulting, advisory, or other compensatory fee
from the listed company or any of its subsidiaries; or (2) be
an affiliated person of the listed company or any of its
subsidiaries. Each member of our audit committee satisfies the
independence requirements under the NYSE listing standards and
Rule 10A-3(b)(1) of the Exchange Act.
Our
audit committee’s duties and responsibilities are to, among
other things:
●
appoint and oversee
an independent registered public accounting firm and approve audit
and non-audit services;
●
evaluate the
independence and qualifications of the independent registered
public accounting firm at least annually;
●
review our annual
audited consolidated financial statements and quarterly
consolidated financial statements;
●
discuss with
management the Company’s procedures with respect to the
presentation of the Company’s financial information (paying
attention to any use of “pro forma” or
“adjusted” non-GAAP information) and review earnings
press releases, earnings guidance provided to analysts and rating
agencies and financial information;
●
provided to the
public, analysts and ratings agencies;
●
review the
responsibilities, functions, qualifications and performance of our
internal audit function, including our internal audit
function’s charter, budget, objectivity and the scope and
results of internal audits;
●
approve the hiring,
promotion, demotion or termination of the person in charge of our
internal audit function;
●
review the results
of the internal audit program, including significant issues in
internal audit reports and responses by management;
●
review the hiring
of employees or former employees of our independent registered
public accounting firm and oversee compliance with such
policies;
●
review, approve and
monitor related party transactions involving directors or executive
officers as further detailed in the Company’s Related Person
Transactions Policy, including the development and maintenance of
policies and procedures for the committee’s review, approval
and/or ratification of such transactions;
16
●
adopt and oversee
procedures to address complaints we receive regarding accounting,
internal accounting controls or auditing matters and the procedures
shall allow for the confidential, anonymous submission by our
employees of concerns regarding questionable accounting or auditing
matters;
●
review and discuss
with management and our independent registered public accounting
firm, on at least an annual basis, the overall adequacy and
effectiveness of our legal, regulatory and ethical compliance
programs, including the Company’s Code of Business Conduct
and Ethics, compliance with anti-bribery and anti-corruption laws
and regulations, and compliance with export control
regulations,
●
rely on
management’s identification and assessment of the
operational, financial, strategic, regulatory and other risks
described in connection with its review of enterprise risk,
management’s assessment thereof and any draft risk factors
presented by management;
●
discuss with
management and our independent registered public accounting firm
any correspondence with regulators or governmental agencies and any
reports or complaints that raise material issues regarding our
financial statements or policies and discuss with our chief
financial officer any legal matters that may have a material impact
on the financial statements or our compliance
procedures;
●
review and discuss
with management, including the Company’s internal audit
function, if applicable, and the Company’s independent
auditor guidelines and policies to identify, monitor, and address
enterprise risks, including discussion of the Company’s major
financial risk exposures and the steps management has taken to
monitor and control such exposure, and oversee and monitor
management’s plans to address such risks;
●
engage independent
legal, accounting and other advisors as it determines necessary or
appropriate to carry out its duties;
●
review with the
full Board any issues that arise regarding the quality or integrity
of the Company’s financial statements, the Company’s
compliance with legal or regulatory requirements, the performance
and independence of the Company’s independent auditor and the
performance of the internal audit function, if
applicable;
●
review at least
annually the adequacy of the committee’s charter and
recommend any proposed changes to the Board for approval;
and
●
conduct and present
to the Board an annual self-performance evaluation of the
committee.
Our
audit committee operates under a written charter that satisfies the
applicable rules of the SEC and the listing standards of the NYSE.
As it was not established until August 6, 2020, our audit committee
did not hold any meetings in fiscal year 2019.
Compensation Committee
As of
December 31, 2019, we did not have a compensation committee. Our
compensation committee was formed on August 6, 2020. As of the date
of this Proxy Statement, our compensation committee consisted of
Mr. Pärson, who is the chair of the committee, and Mr. Ahn.
Each member of the compensation committee meets the requirements
for independence under, and the functioning of our compensation
committee complies with, any applicable requirements of the
Sarbanes-Oxley Act, the NYSE listing standards and SEC rules and
regulations. Additionally, each member of the compensation
committee is a “non-employee director” as defined in
Rule 16b-3 promulgated under the Exchange Act.
Our
compensation committee’s duties and responsibilities are to,
among other things:
●
review and approve
annually the corporate goals and objectives applicable to the
compensation of the CEO, evaluate at least annually the CEO’s
performance in light thereof, and consider factors related to the
performance of the Company in approving the compensation level of
the CEO;
●
review at least
annually and approve or recommend for approval to the Board members
other than the CEO, the CEO’s compensation, including any
amendments to or terminations of any of the foregoing;
17
●
in consultation
with the CEO, review at least annually and approve or recommend for
approval to the Board members other than the CEO compensation for
the other Executive Officers, including any prospective or former
Executive Officers, including any amendments to or terminations of
any of the foregoing;
●
review and approve,
as well as approve amendments to or terminations of, any
compensatory contracts or similar transactions or arrangements with
such other employees as the committee determines, including
employment agreements, severance arrangements, transition or
consulting agreements, retirement agreements and change-in-control
agreements or provisions;
●
review, approve and
administer, including the termination of, the Company’s
employee benefit and equity incentive plans, including granting
stock options, restricted stock units, stock purchase rights or
other equity-based or equity-linked awards to individuals eligible
for such grants (including grants to individuals subject to Section
16 of the Exchange Act in compliance with Rule 16b-3 promulgated
thereunder) in accordance with procedures and guidelines as may be
established by the Board, and amending such stock options,
restricted stock units, stock purchase rights or other equity-based
or equity-linked awards, as well as adopting, amending and
terminating such plans, including approving changes in the number
of shares reserved for issuance thereunder, subject to obtaining
any required shareholder approval;
●
advise the Board on
management proposals to shareholders on executive compensation
matters, including advisory votes on executive compensation and the
frequency of such votes, and proposals received from shareholders
on executive compensation matters, and in conjunction with the
nominating and corporate governance committee, oversee
management’s engagement with shareholders and proxy advisory
firms on executive compensation matters, then review the results of
such votes and consider any implications in connection with the
committee’s ongoing determinations and recommendations
regarding our executive compensation policies and
practice;
●
establish, and
periodically review, our employee compensation plans, and oversee
the development and implementation of our compensation plans to
ensure that these plans are consistent with this general
compensation strategy;
●
periodically review
and approve new executive compensation programs and total
compensation levels;
●
periodically review
the operations of the Company’s executive compensation
programs to determine whether they are properly coordinated and
achieving their intended purpose(s);
●
establish and
periodically review policies for the administration of executive
compensation programs;
●
periodically review
the impact of tax and accounting rules changes;
●
review and discuss
compensation risk and risk management with respect to the Company's
compensation policies and practices;
●
approve, or
recommend to the Board for approval, the creation or revision of
any clawback policy allowing us to recoup compensation paid to
employees, if and as the committee determines to be necessary or
appropriate, or as required by applicable law;
●
review and
determine the form and amount of compensation to be paid, for
service on the Board and Board committees and for service as a
chairperson of a Board committee;
●
oversee regulatory
compliance with respect to compensation matters affecting
us;
●
review and discuss
with management the executive compensation information included in
this proxy statement;
●
retain or obtain
the advice of compensation consultants, independent legal counsel
and other advisers;
18
●
review and discuss
with management the compensation discussion and analysis that we
may be required to include in SEC filings from time to
time;
●
prepare the
compensation committee report on executive compensation that may be
required by the SEC from time to time to be included in our annual
proxy statements or annual reports on Form 10-K filed with the
SEC;
●
conduct and present
to the Board an annual self-performance evaluation of the
committee; and
●
review at least
annually the adequacy of the committee’s charter and
recommend any proposed changes to the Board for
approval.
The
compensation committee may delegate its authority to subcommittees
or the chair of the compensation committee. Although the
compensation committee does not currently do so, it may delegate to
officers of the Company the authority to make equity grants to
employees or consultants of the Company who are not directors of
the Company or executive officers of the Company under the
Company’s equity plans. The compensation committee has the
right, in its sole discretion, to retain or obtain the advice of
compensation consultants, independent legal counsel and other
advisers. The compensation committee periodically engages
Compensia, an outside consultant to advise on compensation-related
matters. For a discussion regarding the role of management
and compensation consultants in the compensation-setting process,
refer to “Compensation-Setting
Process.”
Our
compensation committee operates under a written charter that
satisfies the applicable rules of the SEC and the listing standards
of the NYSE. As it was not established until August 6, 2020, our
compensation committee did not hold any meetings in fiscal year
2019.
Nominating and Corporate Governance Committee
As of
December 31, 2019, we did not have a nominating and corporate
governance committee. Our nominating and corporate governance
committee was formed on August 6, 2020. As of the date of this
Proxy Statement, our nominating and corporate governance committee
consisted of Dr. Leff, who is the chair of the committee, and Mr.
Pärson. Each member of the nominating and corporate governance
committee meets the requirements for independence under, and the
functioning of our nominating and corporate governance committee
complies with, any applicable requirements of the Sarbanes-Oxley
Act, the NYSE listing standards and SEC rules and
regulations.
Our
nominating and governance committee’s duties and
responsibilities are to, among other things:
●
make
recommendations to the Board regarding desired qualifications,
expertise and characteristics sought of Board members, which
assessment may include numerous factors, such as character,
professional ethics and integrity, judgment, business acumen,
proven achievement and competence in one’s field, the ability
to exercise sound business judgment, tenure on the Board and skills
that are complementary to the Board, an understanding of the
Company’s business, an understanding of the responsibilities
that are required of a member of the Board, other time commitments,
diversity with respect to professional background, education, race,
ethnicity, gender, age and geography, as well as other individual
qualities and attributes that contribute to the total mix of
viewpoints and experience represented on the Board, or the Director
Criteria;
●
make
recommendations to the Board regarding the current composition,
organization and governance of the Board and its
committees;
●
establish
procedures for identifying individuals qualified to become Board
members based on the Director Criteria;
●
establish
procedures for evaluating the performance of individual members of
the Board eligible for re-election, and selecting, or recommending
for the selection of the Board, the director nominees for election
to the Board by the shareholders at the annual meeting of
shareholders or any special meeting of shareholders at which
directors are to be elected;
●
establish
procedures for considering the Board’s leadership structure,
including the separation of the Chairman and Chief Executive
Officer roles and/or appointment of a lead independent director of
the Board, either permanently or for specific purposes, and making
such recommendations to the Board as the committee deems
appropriate;
19
●
establish
procedures for developing and reviewing periodically the policies
and procedures for considering shareholder nominees for election to
the Board;
●
establish
procedures for considering director nominee recommendations from
shareholders of the Company that are validly made and in accordance
with applicable laws, rules and regulations and the provisions of
the Company’s certificate of incorporation and
bylaws;
●
establish
procedures for evaluating and recommending termination of
membership of individual directors for cause or for other
appropriate reasons;
●
establish
procedures for evaluating the “independence” of
directors and director nominees against the independence
requirements of the securities exchange on which the
Company’s securities are listed, applicable rules and
regulations of the SEC and other applicable laws;
●
establish
procedures for recommending to the Board nominees to fill vacancies
and newly created directorships on the Board and nominees to stand
for election as directors;
●
conduct a periodic
review of the Company’s succession planning process for the
chief executive officer, or the CEO, and any other members of the
Company’s executive management team, report its findings and
recommendations to the Board, and assist the Board in evaluating
potential successors to the CEO or other members of the
Company’s executive management team;
●
periodically review
the structure and composition of each committee of the Board and
make recommendations, if any, to the Board for changes to the
committees of the Board, including changes in the structure,
composition or mandate of the committees, as well as the creation
or dissolution of committees;
●
develop and
recommend to the Board corporate governance guidelines and annually
review the corporate governance guidelines and their application,
and make recommendations, if any, to the Board for changes to the
corporate governance guidelines;
●
oversee the
Company’s corporate governance practices, including reviewing
and recommending to the Board for approval any changes to the
Company’s corporate governance framework;
●
oversee the
Company’s director orientation and continuing education,
including making recommendations for continuing education of Board
members and evaluating the participation of members of the Board in
accordance with applicable listing standards;
●
oversee the
evaluation of the Board and its committees and report such
evaluation to the Board;
●
develop, approve,
review and monitor compliance with our Code of Business Conduct and
Ethics, consider questions of possible conflicts of interest of
board members and other corporate officers, review actual and
potential conflicts of interest of board members and corporate
officers, other than related party transactions reviewed by the
audit committee, and approve or prohibit any involvement of such
persons in matters that may involve a conflict of interest or
taking of a corporate opportunity;
●
administer policies
and procedures for various constituencies that are involved with
the Company to communicate with the non-management Board
members;
●
engage independent
legal counsel, search firms, and other advisors as it determines
necessary to carry out its duties, for which Company must provide
appropriate funding, as determined by the committee, for the
payment of compensation to any advisors engaged by the committee
pursuant to the engagement of legal counsel, search firms, and
other advisors, and have the sole authority to retain and terminate
any search firm to be used to identify director candidates,
including the sole authority to approve the search firm’s
fees and other retention terms;
●
conduct and present
to the Board an annual self-performance evaluation of the
committee; and
●
review at least
annually the adequacy of the committee’s charter and
recommend any proposed changes to the Board for
approval.
20
Our
nominating and governance committee operates under a written
charter that satisfies the applicable listing requirements and
rules of the NYSE. As it was not established until August 6, 2020,
our nominating and corporate governance committee did not hold any
meetings in fiscal year 2019.
Identifying and Evaluating Director Nominees
The
Board has delegated to the nominating and governance committee the
responsibility of identifying individuals qualified to become board
members and recommending to the Board nominees to fill vacancies
and newly created directorships and the nominees to stand for
election as directors. If the nominating and governance committee
determines that an additional or replacement director is required,
it may take such measures that it considers appropriate in
connection with its evaluation of a director candidate, including
candidate interviews, inquiry of the person or persons making the
recommendation or nomination, engagement of an outside search firm
to gather additional information, or reliance on the knowledge of
the members of the committee, the Board or management.
In its
evaluation of director candidates, including the members of the
Board eligible for reelection, the nominating and governance
committee will consider the current size and composition of the
Board and the needs of the Board and its committees. Some of the
factors that our nominating and governance committee considers
include, without limitation, character, integrity, judgment,
diversity, including diversity in terms of gender, race, ethnicity
and experience, independence, area of expertise, corporate
experience, length of service, potential conflicts of interest,
other commitments and similar factors.
Nominees must also
have the highest personal and professional ethics and integrity,
proven achievement and competence in the nominee’s field and
the ability to exercise sound business judgment, skills that are
complementary to those of the existing Board, the ability to assist
and support management and make significant contributions to the
Company’s success, and an understanding of the fiduciary
responsibilities that are required of a member of the Board and the
commitment of time and energy necessary to diligently carry out
those responsibilities.
A
shareholder who wants to nominate a candidate for election to the
Board should direct the nomination by written notice to the
Corporate Secretary and must meet the deadlines and other
requirements set forth in the Company's bylaws and the rules and
regulations of the SEC. See “Other Information—Shareholder Proposals
and Director Nominees” for more information. In
addition, the nominating and governance committee will consider
candidates recommended by shareholders in the same manner as
candidates recommended to the committee from other sources.
Shareholders should submit recommendations for director candidates
to our General Counsel or the Legal Department, at 1330 Avenue of
the Americas, New York, NY 10019. The recommendation must include
the candidate’s name, home and business contact information,
detailed biographical data, relevant qualifications, a signed
letter from the candidate confirming willingness to serve,
information regarding any relationships between the candidate and
the Company and evidence of the recommending shareholder’s
ownership of Company stock. Such recommendations must also include
a statement from the recommending shareholder in support of the
candidate, particularly within the context of the criteria for
Board membership.
Risk Oversight
Risk is
inherent with every business, and we face a number of risks,
including strategic, financial, business and operational, legal and
compliance, and reputational. Management is responsible for the
day-to-day management of risks the Company faces, while, our Board,
as a whole and assisted by its committees, has responsibility for
the oversight of risk management. This oversight is conducted
primarily through committees of the Board, as disclosed in the
descriptions of each of the committees above and in the charters of
each of the committees. The audit committee primarily oversees
management’s process for identifying, monitoring and
addressing enterprise risks and the adequacy and effectiveness of
the Company’s policies and practices regarding information
technology risk management and internal controls related to
cybersecurity. The compensation committee considers the risks
associated with our compensation policies and practices, with
respect to all employees. All committees receive regular reports
from officers responsible for oversight of particular risks within
the Company. The Board periodically receives reports by each
committee chair regarding the committee’s considerations and
actions. The Board's allocation of risk oversight responsibility
may change from time to time based on the evolving needs of the
Company.
21
Compensation Risk Assessment
The
compensation committee periodically reviews the Company’s
general compensation strategy and reviews the risks arising from
the Company’s compensation policies and practices for all
employees that are reasonably likely to have a material adverse
effect on the Company and to evaluate compensation policies and
practices that could mitigate such risks. In addition, our
compensation committee has engaged Compensia to independently
review our executive compensation program. Based on these reviews,
our compensation committee structures our executive compensation
program to encourage our named executive officers focus on both
short-term and long-term success. We therefore do not believe that
our executive compensation program creates risks that are
reasonably likely to have a material adverse effect on
us.
Communications with Directors
Any
communication from a shareholder or other interested party to the
Board generally, the non-management or independent directors or a
particular director regarding bona fide concerns or questions
should be in writing and should be delivered to the care of the
General Counsel at legal@fubo.tv or by registered or overnight mail
at the principal executive office of the Company at 1330 Avenue of
the Americas, New York, NY 10019. Each communication should
indicate that it contains a shareholder or interested party
communication.
The
General Counsel will, in consultation with appropriate directors as
necessary, generally review communications from shareholders and
interested parties and forward such communications or a summary
thereof to the Board or the applicable director or directors.
Communications that the General Counsel, in consultation with
appropriate directors as necessary, deems are improper or
irrelevant to the functioning of the Board or the Company will not
be forwarded.
This
procedure does not apply to communications to independent directors
from officers or directors of the Company who are shareholders or
shareholder proposals submitted pursuant to Rule 14a-8 under the
Exchange Act.
Code of Business Conduct and Ethics
Our
Board has adopted a Code of Business Conduct and Ethics, which
establishes the standards of ethical conduct applicable to all
directors, officers and employees of our Company, including our
Chief Executive Officer, Chief Financial Officer and Chief
Accounting Officer. The code addresses, among other things,
conflicts of interest, compliance with disclosure controls and
procedures and internal controls over financial reporting,
corporate opportunities and confidentiality requirements. Our Code
of Business Conduct and Ethics is available on the Investor
Relations section of the Company’s website at
http://ir.fubo.tv. We intend to disclose any amendments to the
code, or any waivers of its requirements, on our website to the
extent required by SEC applicable rules and regulations. The
inclusion of our website address in this Proxy Statement does not
include or incorporate by reference into this proxy statement the
information on or accessible through our website.
Corporate Governance Guidelines
Our
Board has adopted corporate governance guidelines, which assists
the Board in the exercise of its responsibilities. Our corporate
governance guidelines are available on the Investor Relations
section of the Company’s website at
http://ir.fubo.tv.
Compensation Committee Interlocks and Insider
Participation
None of
the members of our compensation committee is an officer or employee
of our Company. None of our executive officers currently serves, or
in the past year has served, as a member of the board of directors
or compensation committee of any entity that has one or more
executive officers serving on our Board or compensation
committee.
A
member of the Board and compensation committee,
Pär-Jörgen Pärson, is a General Partner of
Northzone, a venture capital firm which is an affiliate of certain
record and beneficial owners of more than 5% of the voting power of
our capital stock.
Compensation-Setting Process
Upon
its formation on August 6, 2020, our compensation committee became
primarily responsible for establishing and reviewing our general
compensation strategy. In addition, the compensation committee
oversees our compensation and benefit plans and policies,
administers our equity incentive plans and reviews and approves
annually all compensation decisions relating to all of our
executive officers, including our Chief Executive Officer. The
compensation committee considers recommendations from our Chief
Executive Officer regarding the compensation of our executive
officers other than himself. Under its charter, our compensation
committee has the right to retain or obtain the advice of
compensation consultants, independent legal counsel and other
advisers. The compensation committee periodically engages
Compensia, an outside consultant to advise on compensation-related
matters.
22
EXECUTIVE OFFICERS
As of
the date of this Proxy Statement, fuboTV’s executive officers
included the following individuals:
|
Name
|
|
Age
|
|
Position(s)
|
|
Edgar
Bronfman, Jr.
|
|
65
|
|
Executive
Chairman and Director
|
|
David
Gandler
|
|
45
|
|
Chief
Executive Officer and Director
|
|
Simone
Nardi
|
|
46
|
|
Chief
Financial Officer
|
|
Alberto
Horihuela Suarez
|
|
33
|
|
Chief
Marketing Officer
|
|
Jordan
Fiksenbaum
|
|
49
|
|
President
|
Information
regarding Edgar Bronfman, Jr. and David Gandler, each of whom also
serves as a director, is set forth above under “Directors and Corporate
Governance.”
Simone Nardi became our Chief Financial
Officer in May 2020, after having been Interim Chief Financial
Officer since April 2020. Prior to joining the Company, Mr. Nardi
served as SVP, Chief Financial Officer of Scripps
Networks International, the global arm of Scripps Networks
Interactive, Inc., where he played a key role in driving the
international expansion of the Company. Before joining Scripps
Networks Interactive in 2013, Mr. Nardi served as Chief Financial
Officer of multiple divisions at NBC Universal, including as SVP
and Chief Financial Officer of NBC Universal Networks International
and International TV Production. His achievements while at NBC
Universal’s international businesses include global
phenomenon Downton Abbey.
Previously, as Chief Financial Officer of NBC Universal’s
business development division, he drove multiple expansion projects
including the set-up phase of Hulu. Mr. Nardi formerly served on
the board of directors of Scripps’ joint venture with Corus
Entertainment, one of the largest media groups in Canada; on the
supervisory board of TVN Group, a leading media and entertainment
group in Poland (acquired by Scripps Networks Interactive in 2015);
and as a director of UKTV, a joint venture between Scripps Networks
Interactive and BBC Studios. Mr. Nardi received a bachelor’s
degree in Economics and Business Administration from
Università Bocconi.
Jordan Fiksenbaum was appointed as our
President on February 1, 2019, and since June 2017, he has served
as Chief Executive Officer of PEC, our majority-owned subsidiary.
Prior to joining PEC, Mr. Fiksenbaum was the founder and Chief
Executive Officer of Pop Experience from January 2015 until May
2017. From January 2014 until September 2014, Mr. Fiksenbaum served
as Vice President of Marketing/PR-Resident 7Show Division of Cirque
du Soleil. Mr. Fiksenbaum has been working professionally in the
live entertainment industry for over 30 years, and brings to the
Company his relevant experience in senior management including
strategic planning, operations, sales, marketing, promotions, event
programming, and ticketing. While at Cirque du Soleil, he was
responsible for the marketing, sales and public relations
initiatives of nine resident shows, including launching Michael
Jackson One in Las Vegas, which features an appearance of the
holographic likeness of Michael Jackson. Within the theatre
industry, Mr. Fiksenbaum worked on numerous award-winning
productions, including The Phantom of the Opera, Ragtime,
Disney’s the Lion King, Wicked, Les Misérables and
Spamalot. Mr. Fiksenbaum received a bachelor of arts from York
University in Toronto, Canada.
Alberto Horihuela Suarez has served as
the Chief Marketing Officer of the Company since the Merger. Mr.
Horihuela was a co-founder of fuboTV Pre-Merger, serving as fuboTV
Pre-Merger’s Chief Marketing Officer since June 2014. Prior
to joining fuboTV Pre-Merger, Mr. Horihuela co-founded and served
from June 2013 through May 2015 as the Chief Executive Officer of
Primerad Network, a video ad network for Hispanics in the U.S., and
he was the Head of Latin America from November 2012 through June
2014 at DramaFever, a video streaming service acquired in 2016 by
Warner Bros. Entertainment Inc. Mr. Horihuela holds a B.A. in
Economics from the University of Chicago.
EXECUTIVE COMPENSATION
Compensation of Named Executive Officers for Fiscal Year
2019
Summary Compensation Table for Fiscal Year 2019
For the
year ended December 31, 2019, our “named executive
officers,” as such term is defined in Item 402(m)(2) of
Regulation S-K, are:
●
John Textor, our
former Chief Executive Officer,
●
Alexander Bafer,
our former Executive Chairman and former Chief Executive Officer,
and
●
Jordan Fiksenbaum,
our President and the Chief Executive Officer of Pulse Evolution
Corporation.
The
table below summarizes all compensation awarded to, earned by, or
paid to each of our “named executive officers,”, during
the years ended December 31, 2019 and 2018. Because the summary
compensation table relates to the named executive officers as of
December 31, 2019, it does not include compensation for the
management team following the Merger.
23
|
Name
|
Year
|
Salary
($)
|
Bonus
($)
|
Option Awards
($)(1)
|
Total
($)
|
|
John
Textor (2)
|
|
|
|
|
|
|
Former Chief Executive Officer
|
2019
|
$500,000(3)
|
$100,000
|
$-
|
$600,000
|
|
Former Chief Executive Officer
|
2018
|
$198,925(3)
|
$50,000
|
$-
|
$248,925
|
|
|
|
|
|
|
|
|
Alexander
Bafer (4)
|
|
|
|
|
|
|
Former Executive Chairman
|
2019
|
$500,000
|
$100,000
|
$-
|
$600,000
|
|
Former Chief Executive Officer and Executive Chairman
|
2018
|
$334,341
|
$50,000
|
$469,871(5)
|
$854,212
|
|
|
|
|
|
|
|
|
Jordan
Fiksenbaum (6)
|
|
|
|
|
|
|
President of the Company and Chief Executive Officer of Pulse
Evolution Corporation
|
2019
|
$180,000(7)
|
-
|
|
$180,000
|
|
Chief Executive Officer of Pulse Evolution Corporation
|
2018
|
$420,000(7)
|
|
$2,800,000(8)
|
$3,220,000
|
(1)
Amounts
shown in this column do not reflect dollar amounts actually
received by our named executive officers. Instead, these amounts
reflect the aggregate grant date fair value of the stock options
granted, computed in accordance with the provisions of FASB ASC
Topic 718. For additional details regarding the assumptions and
methodologies used to calculate the amounts reported, please see
the discussion of equity awards contained in the notes to our
financial statements included elsewhere in this
Prospectus.
(2)
Mr.
Textor served as our Chief Executive Officer from August 8, 2018
until April 1, 2020, as our Executive Chairman from April 1, 2020
to April 29, 2020 and as a director from August 8, 2018 to July 31,
2020. Since April 29, 2020 he has served as our Head of
Studio.
(3)
Represents an
annual salary of $500,000. Mr. Textor’s salary in 2018
reflects that he commenced employment in August 2018, and $198,925
of his $500,000 annual salary was accrued from August 8, 2018 until
December 31, 2018. Mr. Textor was also entitled to receive an
annual bonus of $100,000 which was accrued on a pro rata basis in
2018.
(4)
Mr.
Bafer served as our Chief Executive Officer from February 2018 to
August 8, 2018, when he resigned as Chief Executive Officer and
assumed the role of Executive Chairman. On April 1, 2020, Mr. Bafer
resigned from his position as Executive Chairman. Mr. Bafer
resigned from our Board and all other positions at the Company and
its subsidiaries on July 31, 2020.
(5)
Represents the fair
value of (i) a stock option covering 8,334 shares of common stock
granted on February 1, 2018 at an exercise price of $28.20 for Mr.
Bafer’s service as Chief Executive Officer from February 1,
2018 until August 8, 2018, and (ii) a stock option covering 8,333
shares of common stock granted on February 1, 2018 at an exercise
price of $28.20 for Mr. Bafer’s service as Executive Chairman
of the Board. These options were terminated immediately upon Mr.
Bafer’s termination on July 31, 2020.
(6)
Mr.
Fiksenbaum has served as our President since February 2019 and as
the Chief Executive Officer of Pulse Evolution Corporation, our
majority-owned subsidiary, since June 2017.
(7)
For
2019, 100% of Mr. Fiksenbaum’s compensation represents
compensation in exchange for Mr. Fiksenbaum’s service as our
President. For 2018, 100% of Mr. Fiksenbaum’s compensation
represents compensation paid in exchange for Mr. Fiksenbaum’s
service as Chief Executive Officer of Pulse Evolution
Corporation.
(8)
Represents
the fair value of a stock award covering 10,000,000 shares of
common stock of Pulse Evolution Corporation granted on June 15,
2018 pursuant to the Pulse Evolution Corporation 2015 Equity
Incentive Plan for Mr. Fiksenbaum’s service as Chief
Executive Officer of Pulse Evolution Corporation.
24
Outstanding Equity Awards at Fiscal 2019 Year-End
The
following table sets forth information regarding the outstanding
equity awards held by our named executive officers as of December
31, 2019.
|
Name
|
Grant
Date
|
Number of Shares
Underlying Unexercised Options Exercisable Number of Shares
Underlying Unexercised Options Unexercisable
|
Exercise Price
Per Unit ($)
|
Expiration
Date
|
|
Alexander
Bafer
|
2/1/2018(1)
|
16,667(1)
|
$28.20
|
2/1/2028
|
(1)
Represents
(i) a stock option covering 8,334 shares of common stock granted on
February 1, 2018 as compensation for Mr. Bafer’s service as
Chief Executive Officer from February 1, 2018 until August 8, 2018,
and (ii) a stock option covering 8,333 shares of common stock
granted on February 1, 2018 as compensation for Mr. Bafer’s
service as Executive Chairman of the Board. These options were
fully vested at the time of the grant and were terminated
immediately upon Mr. Bafer’s termination on July 31,
2020.
Named Executive Officer Employment Arrangements
Except
as otherwise described below, there are no compensatory plans or
arrangements, including payments to be received from the Company
with respect to any named executive officer, that would result in
payments to such person because of his or her resignation,
retirement or other termination of employment with the Company, or
our subsidiaries, any change in control, or a change in the
person’s responsibilities following a change in control of
the Company.
John Textor
Textor Employment Agreement
In connection with the closing of the Company’s acquisition
of Evolution AI Corporation, or Evolution, our majority-owned
subsidiary, we entered into an employment agreement as of August 8,
2018 with Mr. Textor, or the Textor Employment Agreement. Pursuant
to the terms of the Textor Employment Agreement, the Company agreed
to employ Mr. Textor as the Company’s Chief Executive
Officer. His employment letter agreement has no specific term and
provides that Mr. Textor is an at-will employee. In exchange for
Mr. Textor’s services as Chief Executive Officer, the Company
agreed to pay Mr. Textor an annual base salary of $500,000, subject
to discretionary annual increases. In addition, Mr. Textor is also
eligible to receive equity awards, and an annual target bonus
payment equal, as a percentage of his base salary, to that received
by all other C-suite executives, subject to a minimum bonus of
$100,000 per year. Subject to the minimum bonus, the bonus will be
determined based on the achievement of certain performance
objectives of the Company as established by the compensation
committee.
Upon
termination of Mr. Textor’s employment by the Company,
whether with Cause or without Cause, or by Mr. Textor with Good
Reason or without Good Reason:
(a)
The
Company will pay Mr. Textor his base salary and benefits (then
owed, or accrued and owed in the future, but in all events and
without increasing Mr. Textor’s rights under any other
provision of the Textor Employment Agreement, excluding any bonus
payments not yet paid) through the date of
termination;
(b)
The
Company will pay Mr. Textor accrued but unpaid bonus and benefits
(then owed or accrued) through the date of termination;
and
(c)
The
Company will pay Mr. Textor any unreimbursed expenses incurred by
Mr. Textor pursuant to the terms of the Textor Employment
Agreement.
25
Upon
termination of Mr. Textor’s employment by the Company without
Cause, or by Mr. Textor with Good Reason, in addition to the
payments set forth in (a) through (c) above, the Company will pay
Mr. Textor (i) an amount equal to his base salary (other than
bonus) as determined as of the date of termination, and (ii) any
unvested incentive awards then held by Mr. Textor will immediately
vest in full. Upon termination of Mr. Textor’s employment by
the Company with Cause, or by Mr. Textor without Good Reason, in
addition to the payments set forth in (a) through (c) above, any
unvested incentive awards then held by Mr. Textor will be
immediately forfeited.
Pursuant to the
terms of the Textor Employment Agreement, a termination for
“Cause” means a termination, subject to the notice
requirements set forth in the Textor Employment Agreement, based
upon:
(i)
A
material violation by Mr. Textor of any material written rule or
policy of the Company (A) for which violation any employee may be
terminated pursuant to the written policies of the Company
reasonably applicable to an executive employee, and (B) which Mr.
Textor fails to correct within 10 days after he receives written
notice from the Board of such violation;
(ii)
Misconduct by Mr.
Textor to the material and demonstrable detriment of the Company;
or
(iii)
Mr.
Textor’s conviction (by a court of competent jurisdiction,
not subject to further appeal) of, or pleading guilty to, a
felony.
As used
in the Textor Employment Agreement, Good Reason means the
occurrence, without Mr. Textor’s express written consent, of
any of the following:
(i)
A
significant diminution by the Company of Mr. Textor’s role
with the Company or a significant detrimental change in the nature
and/or scope of Mr. Textor’s status with the Company
(including a diminution in title);
(ii)
A
reduction in base salary or target or maximum bonus, other than as
part of an across the board reduction in salaries of management
personnel (including all vice presidents and positions above) of
less than 20%;
(iii)
At any
time following a change of control of the Company, a material
diminution by the Company of compensation and benefits (taken as a
whole) provided to Mr. Textor immediately prior to a Change of
Control;
(iv)
The
relocation of Mr. Textor’s principal executive office to a
location more than 50 miles further from Mr. Textor’s
principal residence than Mr. Textor’s principal executive
office immediately prior to such relocation, or any requirement
that Mr. Textor be based anywhere other than Mr. Textor’s
principal executive office; or
(v)
Any
other material breach by the Company of any of the terms and
conditions of the Textor Employment Agreement.
If it
is determined that any payment or benefit provided to Mr. Textor
under the Textor Employment agreement or otherwise, whether or not
in connection with a change of control, would constitute an
“excess parachute payment” within the meaning of
section 280G of the Code, such that the payment or benefit would be
subject to an excise tax under section 4999 of the Code, the Textor
Employment Agreement provides that the Company will pay to Mr.
Textor an additional amount such that the net amount of the
additional payment retained by Mr. Textor after the payment of any
excise tax and any federal, state and local income and employment
tax on the additional payment, will be equal to the excise tax due
on the additional payment and any interest and penalties in respect
of such excise tax.
Additionally,
following the termination of Mr. Textor’s employment, he will
be eligible to receive reimbursement for any out-of-pocket
expenses, including travel expenses and also including
attorneys’ fees (subject to the terms of the Textor
Employment Agreement), that are incurred in connection with Mr.
Textor providing information and assistance to the Company as may
reasonably be requested by the Company in connection with any
audit, governmental investigation, litigation, or other dispute in
which the Company is or may become a party and as to which Mr.
Textor has knowledge.
We are
currently in negotiations with Mr. Textor regarding his separation
from the Company through the entrance into a separation
agreement.
Alexander Bafer
Bafer Termination and Release Agreement
Concurrent with the closing of that certain Share Exchange
Agreement, or the Exchange Agreement, with Evolution and certain of
the Evolution shareholders pursuant to which the Company intended
to acquire 100% of the issued and outstanding shares of common
stock of Evolution (such transaction is referred to as the
Exchange), the Company and Mr. Bafer entered into that certain
Termination and Release Agreement dated as of August 8, 2018, or
the Bafer Termination Agreement. In connection with the Exchange,
Mr. Bafer resigned from his position as Chief Executive Officer on
August 8, 2018. Pursuant to the terms of the Bafer Termination
Agreement, the employment agreement dated as of July 25, 2016
between the Company and Mr. Bafer, or the 2016 Bafer Agreement, was
terminated, effective immediately in connection with Mr.
Bafer’s resignation; provided, however, that (i) the
provisions of Article 4 and Article 6 (other than Sections 6.7 and
6.8) remained in full force and effect, and (ii) the parties agreed
that the Company owed Mr. Bafer certain past due payments pursuant
to the 2016 Bafer Agreement and other instruments between the
parties, which amounts remain owed to Mr. Bafer until paid. The
Bafer Termination Agreement contained customary representations and
warranties. Previously, the Company and Mr. Bafer entered into
employment agreements effective July 25, 2016, April 11, 2017 and
February 1, 2018. Such agreements are no longer in
effect.
26
Bafer Executive Chairman Agreement
Concurrent with the closing of the Exchange, the Company entered
into an Agreement for Executive Chairman of the Board effective
August 8, 2018, or the Bafer Executive Chairman Agreement. The
Bafer Executive Chairman Agreement had an initial term of one year
from August 8, 2018 and continued thereafter until Mr. Bafer was
replaced as Chairman of the Board. In exchange for Mr.
Bafer’s services as Chairman of the Board, the Company agreed
to pay Mr. Bafer an annual base salary of $500,000, subject to
annual increases as determined in the sole discretion of the
compensation committee or the full Board if no compensation
committee existed. In addition, Mr. Bafer was also eligible to
receive equity awards, and an annual target bonus payment equal, as
a percentage of his base salary, to that received by all other
C-suite executives, subject to a minimum bonus of $100,000 per
year. Subject to the minimum bonus, the bonus was be determined
based on the achievement of certain performance objectives of the
Company as established by the compensation committee.
The
Bafer Executive Chairman Agreement provided that Mr. Bafer was
entitled to a lump sum payment equal to the then current Base
Salary upon termination of the Bafer Executive Chairman Agreement.
Mr. Bafer resigned as Chairman on April 1, 2020 and as a Director
on July 31, 2020. The Company and Mr. Bafer executed a separation
and settlement agreement and release on August 1,
2020.
Bafer Separation and Settlement Agreement and Release
We entered into a Separation and Settlement Agreement and Release,
or the Bafer Release, with Mr. Bafer effective August 1, 2020.
Pursuant to the terms of the Bafer Release, we will pay Mr. Bafer a
total of $500,000, payable in equal monthly installments, over the
first 24 months following the effective date of the Bafer Release.
Pursuant to the Bafer Release, Mr. Bafer resigned from any
positions or affiliate he held with us. The Bafer Release provides
for a customary release of claims and non-disparagement provision
in favor of us.
Jordan Fiksenbaum
Fiksenbaum Employment Agreement
In
connection with Mr. Fiksenbaum’s appointment as President, we
entered into an Employment Agreement, or the Fiksenbaum Agreement,
with Mr. Fiksenbaum, effective February 1, 2019. Pursuant to the
terms of the Fiksenbaum Agreement, in exchange for Mr.
Fiksenbaum’s service as President, we agreed to pay Mr.
Fiksenbaum an annual salary of $180,000. In addition, Mr.
Fiksenbaum is eligible for an annual target bonus payment similar,
as a percentage of base salary, to that received by all other
C-Suite executives, with the actual bonus to be determined based on
the achievement of certain performance objectives of the Company as
established by the Chief Executive Officer and as communicated to
Mr. Fiksenbaum as soon as practicable after commencement of the
year in respect of which the bonus is paid. The bonus may be
greater or less than the target bonus, based on the level of
achievement of the applicable performance objectives. Mr.
Fiksenbaum is also eligible to receive equity awards under the
Company’s incentive compensation plans and
otherwise.
The Fiksenbaum Agreement will terminate upon Mr. Fiksenbaum’s
death or total disability (as defined in Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended). In addition, the
Company may terminate Mr. Fiksenbaum’s employment at any time
with or without Cause, and Mr. Fiksenbaum may resign at any time
either with or without Good Reason (each as defined in the
Fiksenbaum Agreement). Upon termination of Mr. Fiksenbaum’s
employment by the Company, with or without Cause, or by Mr.
Fiksenbaum with or without Good Reason, or upon Mr.
Fiksenbaum’s death or total disability, Mr. Fikenbaum is
entitled to: (i) his base salary and benefits (then owed, or
accrued on a pro rata basis in proportion to the number of months
worked and the base salary).; and (ii) any unreimbursed expenses
incurred by Mr. Fiksenbaum. Further, if Mr. Fiksenbaum’s
employment is terminated by the Company with Cause or by Mr.
Fiksenbaum without Good Reason, any unvested incentive awards
(whether based in equity or cash) then held by Mr. Fiksenbaum shall
immediately be forfeited. Mr. Fiksenbaum is subject to
non-competition and non-solicitation clauses pursuant to the terms
of the Fiksenbaum Agreement.
If it is determined that any payment or benefit provided to Mr.
Fiksenbaum under the Fiksenbaum Employment agreement or otherwise,
whether or not in connection with a change of control, would
constitute an “excess parachute payment” within the
meaning of section 280G of the Code, such that the payment or
benefit would be subject to an excise tax under section 4999 of the
Code, the Fiksenbaum Employment Agreement provides that the Company
will pay to Mr. Fiksenbaum an additional amount such that the net
amount of the additional payment retained by Mr. Fiksenbaum after
the payment of any excise tax and any federal, state and local
income and employment tax on the additional payment, will be equal
to the excise tax due on the additional payment and any interest
and penalties in respect of such excise tax.
Additionally, following the termination of Mr. Fiksenbaum’s
employment, he will be eligible to receive reimbursement for any
out-of-pocket expenses, including travel expenses and also
including attorneys’ fees (subject to the terms of the
Fiksenbaum Employment Agreement), that are incurred in connection
with Mr. Fiksenbaum providing information and assistance to the
Company as may reasonably be requested by the Company in connection
with any audit, governmental investigation, litigation, or other
dispute in which the Company is or may become a party and as to
which Mr. Fiksenbaum has knowledge.
We are
currently in negotiations with Mr. Fiksenbaum regarding his
transition from separation from fuboTV Inc. through the entrance
into a separation agreement; however, we expect that Mr. Fiksenbaum
will continue in a management role at Pulse Evolution Corporation,
our majority-owned subsidiary.
27
Other Executive Officer Employment Arrangements
Employment Agreements
David Gandler
On
October 8, 2020, the Company entered into a new executive
employment agreement, or the Gandler Employment, Agreement, with
David Gandler to supersede his existing employment agreement,
originally dated April 1, 2020, or the Prior Employment Agreement.
The Prior Employment Agreement was otherwise set to expire upon the
uplist of the Company’s common stock on either NASDAQ or the
New York Stock Exchange, or the Uplist. Mr. Gandler is the
Company’s Chief Executive Officer and a member of the Board.
Under the Gandler Employment Agreement, Mr. Gandler will receive an
annual base salary of $500,000 and, beginning with the 2021 fiscal
year, eligible for an annual bonus of $500,000 subject to the
achievement of certain performance objectives. For the 2020 fiscal
year, Mr. Gandler will earn a bonus of $100,000 upon the Uplist,
and be eligible to earn a pro-rata portion of the $500,000 annual
bonus for the remainder of the year, subject to the achievement of
certain performance objectives. If Mr. Gandler’s employment
is terminated by the Company outside of the Change of in Control
Period (as defined in the Gandler Employment Agree) other than for
Cause (as defined in the Gandler Employment Agree), death or
disability, he will be eligible to receive severance payments equal
to 12 months of base salary and benefits continuation coverage. If
during the Change in Control Period, (i) the Company terminates his
employment with the Company other than for Cause (as defined in the
Gandler Employment Agree), death or disability, or (ii) Mr. Gandler
resigns for Good Reason (as defined in the Gandler Employment
Agreement), in addition to the severance amounts previously
described, Mr. Gandler shall be entitled to full acceleration of
time-based equity awards and payment of his annual bonus. All
severance is subject to Mr. Gandler’s execution of a release
of claims and continued compliance with restrictive
covenants.
On
October 8, 2020, the Company also entered into an amendment to the
At-Will Employment, Confidential Information, and Invention
Assignment Agreement with David Gandler, or the Amendment. Pursuant
to the Amendment, Mr. Gandler is now subject to a one-year
post-termination non-compete.
Edgar Bronfman Jr.
On
April 29, 2020, we entered into a letter agreement, or the Bronfman
Letter Agreement, with Edgar Bronfman Jr., pursuant to which Mr.
Bronfman agreed to serve as our Executive Chairman in addition to
serving as a member of our Board. The Bronfman Letter Agreement
provides that Mr. Bronfman’s employment as our Executive
Chairman is for an indefinite period and is terminable by either
Mr. Bronfman or us upon 30 days’ advance written notice. In
the event Mr. Bronfman’s employment with the Company is
terminated by the Company without cause, by Mr. Bronfman following
the Company’s material breach of any agreement between Mr.
Bronfman and the Company or due to Mr. Bronfman’s death or
disability, any outstanding portion of his option awards, described
below, that remains unvested as of the date of such termination of
employment will remain outstanding and eligible to vest in
accordance with the terms of the applicable stock option agreement.
In addition, any unvested portion of the option awards that remains
outstanding as of the date of a change in control of the Company
will immediately vest in full and become exercisable.
Simone Nardi
The
Company entered into an employment agreement with Mr. Nardi, or the
Nardi Employment Agreement, effective May 30, 2020, pursuant to
which Mr. Nardi agreed to serve as the Company’s Chief
Financial Officer. Pursuant to the Nardi Employment Agreement, Mr.
Nardi will receive an annual base salary of $430,000 per year,
subject to increase, but not decrease, at the discretion of the
compensation committee of the Board and the Chief Executive
Officer. Mr. Nardi will be eligible to receive a target maximum
annual bonus of $235,000, based on the Company achieving certain
performance-based objectives, as established by the Company’s
compensation committee and the Chief Executive Officer. In the
event Mr. Nardi’s employment with the Company is terminated
without Cause or for Good Reason (each as defined in the Nardi
Employment Agreement) within 12 months following a change of
control, any unvested portion of his option award, described below,
that remains outstanding as of the date of a change in control of
the Company will immediately vest in full and become exercisable.
Further, in the event Mr. Nardi’s employment with the Company
is terminated without Cause or for Good Reason, the Company shall
pay Mr. Nardi an amount equal to 50% of his then annual base
salary, other than bonus, as determined as of the date of
termination, and any outstanding portion of incentive awards that
remains unvested shall immediately vest. Mr. Nardi is also eligible
to participate in the Company’s employee benefit plans as in
effect from time to time on the same terms as generally made
available to other senior executives of the Company and have other
benefits provided to executives of the Company. The Nardi
Employment Agreement contains standard non-compete and
confidentiality provisions.
28
Stock Option Agreements
David Gandler
On
April 1, 2020, pursuant to a stock option agreement, we granted Mr.
Gandler a stock option to purchase 4,846,658 shares of our common
stock at a price of $8.124 per share, under the terms of our 2020
Equity Incentive Plan, or the 2020 Plan. Mr. Gandler’s option
vests over a four-year period at a rate of 1/48 per month of the
total grant per month. Mr. Gandler’s stock options are
subject to 100% accelerated vesting in the event of his termination
without cause or for good reason following a change in
control.
In
addition, Mr. Gandler was granted a stock option to cover 4,100,000
shares under the 2020 Plan, effective October 8, 2020, at an
exercise price of $10.00 per share. The stock option forfeits if
the Pool Increase is not approved by shareholders at the Annual
Meeting. The grant vesting will be reviewed following the end of
each year from 2021 through 2025. Applicable performance targets
for stock price, revenue, gross margin, subscribers, new markets
launched and new revenue streams have been set. Each year the Board
will review performance against targets in a wholistic manner to
determine in its discretion if any vesting is warranted. As a
condition to receiving this grant, Mr. Gandler and his affiliates
and transferees agree that his existing founder shares will not be
sold over the five year performance period, except that 50% of his
founder shares may be sold from 2021 to 2023, with no more than 25%
sold in 2021, and no more than 20% in each of 2022 and 2023, or the
Selling Restrictions. The Selling Restrictions will lapse if the
Pool Increase is not passed by shareholders at the Annual
Meeting.
Edgar Bronfman Jr.
On
April 29, 2020, under the terms of a stock option award agreement
and the terms of the 2020 Plan, Mr. Bronfman received a stock
option covering 1,875,000 shares of our common stock. The option
has an exercise price of $8.76 per share and an expiration date of
April 29, 2027, will generally vest in equal annual installments
over a period of four years, in each case subject to earlier
vesting upon the achievement of certain stock price
milestones.
On June
28, 2020, under the terms of a stock option award agreement and the
terms of the 2020 Plan, Mr. Bronfman received a stock option
covering 1,203,297 shares of our common stock. The option has an
exercise price of $11.15 per share and an expiration date of April
29, 2027, will generally vest in equal annual installments over a
period of four years, in each case subject to earlier vesting upon
the achievement of certain stock price
milestones.
In the
event Mr. Bronfman’s employment is terminated by us without
cause, by Mr. Bronfman following the Company’s material
breach of any agreement between Mr. Bronfman and us or due to Mr.
Bronfman’s death or disability, any outstanding portion of
the options that remains unvested as of the date of such
termination of employment will remain outstanding and eligible to
vest in accordance with the terms of the applicable stock option
agreement. In addition, any unvested portion of the options that
remains outstanding as of the date of a change in control will
immediately vest in full and become exercisable.
Simone Nardi
In
connection with his appointment as Chief Financial Officer, on June
8, 2020, Mr. Nardi was granted a stock option to purchase 850,000
shares of the Company’s common stock at an exercise price of
$10.435 per share pursuant to the 2020 Plan. Twenty-five percent of
the shares subject to Mr. Nardi’s award shall vest on the one
year anniversary of Mr. Nardi’s appointment as Chief
Financial Officer on May 30, 2020, and 1/48 of the total number of
shares shall vest each monthly anniversary of his appointment date
thereafter, such that the total number of shares shall be
fully-vested on the four-year anniversary of his date of
appointment as Chief Financial Officer. In the event Mr.
Nardi’s employment with the Company is terminated without
Cause or for Good Reason (each as defined in the Nardi Employment
Agreement) within 12 months following a change of control, any
unvested portion of the option award that remains outstanding as of
the date of a change in control of the Company will immediately
vest in full and become exercisable.
29
Alberto Horihuela Suarez
In
connection with his appointment as an executive officer, on August
6, 2020, Mr. Horihuela was granted a stock option to purchase
200,000 shares of the Company’s common stock at an exercise
price of $9.98 per share pursuant to the 2020 Plan. Twenty-five
percent of the shares subject to Mr. Horihuela’s award will
vest on the one year anniversary of the vesting commencement date
of August 6, 2020, and 1/48 of the total number of shares shall
vest each monthly anniversary of the vesting commencement date
thereafter, such that the total number of shares shall be fully
vested on the four-year anniversary of the vesting commencement
date. On September 9, 2020, Mr. Horihuela’s option to
purchase 200,000 shares of common stock was amended pursuant to an
Amendment to Stock Option Agreement, or the Option Amendment, to
provide that in the event Mr. Horhihuela’s employment with
the Company is terminated without Cause or for Good Reason (as
defined in the Option Amendment) within 12 months following a
change of control, any unvested portion of the option award that
remains outstanding as of the date of a change in control of the
Company will immediately vest in full and become
exercisable.
401(k) Plan
We
maintain a tax-qualified 401(k) retirement plan for all U.S.
employees. Under our 401(k) plan, employees may elect to defer up
to all eligible compensation, subject to applicable annual Code
limits. We do not match any contributions made by our employees,
including executives. We intend for our 401(k) plan to qualify
under Section 401(a) and 501(a) of the Code so that contributions
by employees to our 401(k) plan, and income earned on those
contributions, are not taxable to employees until withdrawn from
our 401(k) plan.
Indemnification
Since
the Merger, we have entered into an indemnification agreement with
each of our directors and executive officers, and we are asking the
shareholders to approve the form of such indemnification agreement,
or the Indemnification Agreement, at the Annual Meeting. See
“Item 5—Ratification
of Form of Indemnification Agreement.” The
Indemnification Agreement and our certificate of incorporation and
bylaws, each as amended, require us to indemnify our directors and
executive officers to the fullest extent permitted by Florida law.
See “Certain Relationships
and Related Person Transactions—Transactions and
Relationships with Directors, Officers and 5%
Shareholders—Indemnification of Officers and
Directors.”
DIRECTOR COMPENSATION
Non-Employee Director Compensation
We
compensate non-employee members of the Board. With the exception of
the Executive Chairman, directors who are also employees do not
receive cash or equity compensation for service on the Board in
addition to compensation payable for their service as our
employees. The non-employee members of the Board are reimbursed for
travel, lodging and other reasonable expenses incurred in attending
board of directors or committee meetings.
We
established our Outside Director Compensation Policy on May 21,
2020 to set forth guidelines for the compensation of our
non-employee directors for their service on our Board. Under our
Outside Director Compensation Policy, each non-employee director
receives an initial award of either an option to purchase shares of
common stock or restricted stock units, in each case with a Value
(as defined in the policy) of $330,000. If such an award is an
option, it vests in 36 equal, monthly installments after the grant
date, subject to continued service through the vesting date; if
such an award is in the form of RSUs, such portion of the initial
award will vest in three annual installments beginning with the
first anniversary after the grant date, subject to continued
service through the vesting date. The cash and equity components of
our compensation policy for non-employee directors are set forth
below:
|
Position
|
Annual Cash
Retainer
|
Annual Equity
Grant
|
|
Base Fee
|
$45,000
|
$228,000
|
|
Chairperson Fee
|
|
|
|
Chairman of the
Board (including Executive Chairman)
|
$50,000
|
|
|
Audit
Committee
|
$24,000
|
|
|
Compensation
Committee
|
$16,000
|
|
|
Nominating and
Corporate Governance Committee
|
$10,000
|
|
|
Committee Member Fee
|
|
|
|
Audit
Committee
|
$10,000
|
|
|
Compensation
Committee
|
$7,500
|
|
|
Nominating and
Corporate Governance Committee
|
$5,000
|
|
Additionally, each
non-employee director receives an annual restricted stock unit
award with a Value (as defined in the policy) of $228,000,
effective on the date of each annual meeting of the shareholders,
beginning with the first annual meeting of the shareholders in
2020; provided, however, that a non-employee director will not be
eligible for an annual award unless he or she has been a director
for at least six months prior to the annual meeting of the
shareholders. As a result. Mr. Pärson is the only non-employee
director who will be eligible for an annual award at the Annual
Meeting.
30
2019 Director Compensation
In
2019, we did not have any non-employee directors. None of our
directors received additional compensation for their services as a
director.
The
following table sets forth the compensation paid (in respect of
Board service) to our directors in fiscal year 2019 who were not
named executive officers.
|
Name
|
Fees earned orpaid in cash ($)
|
Stock Awards ($)
|
Option Awards($)
|
Non-equity incentive plan compensation
($)
|
Nonqualified deferred compensation earnings ($)
|
All other compensation
($)
|
Total
($)
|
||
|
Frank Esposito (1)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||
|
Bradley Albert (2)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||
|
Justin Morris (3)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||
(1)
Does not include
compensation paid to Mr. Esposito for his services as the
Company’s Chief Legal Officer and/or as a consultant during
fiscal year 2019.
(2)
Does not include
compensation earned by Mr. Albert for his services the
Company’s President and Chief Creative Officer and/or as a
consultant during fiscal year 2019.
(3)
Does not include
compensation earned by Mr. Morris for his services as the
Company’s Chief Operating Officer and/or as a consultant
during fiscal year 2019.
Indemnification
Since
the Merger, we have entered into an indemnification agreement with
each of our directors and executive officers, and we are asking the
shareholders to approve the form of such indemnification agreement,
or the Indemnification Agreement, at the Annual Meeting. See
“Item 5—Ratification
of Form of Indemnification Agreement.” The
Indemnification Agreement and our certificate of incorporation and
bylaws, each as amended, require us to indemnify our directors and
executive officers to the fullest extent permitted by Florida law.
See “Certain Relationships
and Related Person Transactions—Transactions and
Relationships with Directors, Officers and 5%
Shareholders—Indemnification of Officers and
Directors.”
BENEFICIAL OWNERSHIP OF SECURITIES
The
following table sets forth certain information with respect to the
beneficial ownership of our capital stock as of October 26, 2020,
referred to as the “Beneficial Ownership Date”,
by:
●
each
person (or group of affiliated persons) who is known by us to
beneficially own more than 5% of the outstanding shares of each
class of our voting securities;
●
each of
our directors;
●
each of
our named executive officers; and
●
all
directors and executive officers as a group.
Beneficial
ownership is determined in accordance with the rules of the SEC. In
computing the number of shares beneficially owned by a person and
the percentage ownership of that person, shares of common stock
subject to options or warrants held by that person that are
currently exercisable or exercisable within 60 days of the
Beneficial Ownership Date are deemed outstanding, but are not
deemed outstanding for computing the percentage ownership of any
other person. The percentage of beneficial ownership is based on
(i) 67,495,090 shares of our common stock and (ii) 32,116,018
shares of our Series AA Preferred Stock.
To our
knowledge, except as set forth in the footnotes to this table and
subject to applicable community property laws, each person named in
the table has sole voting and investment power with respect to the
shares set forth opposite such person’s name. Except as
otherwise indicated, the address of each of the persons in this
table is c/o fuboTV Inc. 1330 Avenue of the Americas, New York, NY
10019.
31
|
|
Common
Stock
|
Series AA
Preferred (1)
|
|
||||
|
|
Number
|
|
% of
outstanding
|
Number
|
|
% of
outstanding
|
Combined Voting
Power (2) %
|
|
|
|
|
|
|
|
|
|
|
Directors and Officers
|
|
|
|
|
|
|
|
|
David
Gandler
|
2,338,954
|
(3)
|
3.35%
|
1,575,817
|
(4)
|
4.91%
|
3.57%
|
|
Edgar Bronfman,
Jr.
|
3,649,725
|
(5)
|
5.15%
|
2,650,628
|
(6)
|
8.25%
|
5.98%
|
|
John
Textor
|
8,194,455
|
(7)
|
12.14%
|
-
|
|
-
|
8.79%
|
|
Alexander
Bafer
|
2,787,129
|
(8)
|
4.13%
|
-
|
|
-
|
2.99%
|
|
Pär-Jörgen
Pärson
|
9,796
|
(9)
|
*
|
-
|
|
-
|
*
|
|
Daniel
Leff
|
580,530
|
(10)
|
*
|
2627,788
|
(11)
|
8.18%
|
2.87%
|
|
Henry
Ahn
|
9,212
|
(12)
|
*
|
-
|
|
-
|
*
|
|
Ignacio
Figueras
|
7,348
|
(13)
|
*
|
-
|
|
-
|
*
|
|
Laura
Onopchenko
|
5,717
|
(14)
|
*
|
-
|
|
-
|
*
|
|
Jordan
Fiksenbaum
|
474,009
|
|
*
|
-
|
|
-
|
*
|
|
All executive
officers and directors as a group (12 persons)
|
20,331,990
|
(15)
|
27.43%
|
3,965,448
|
|
12.35%
|
21.20%
|
|
|
|
|
|
|
|
|
|
|
5% Beneficial Owners Not Named Above
|
|
|
|
|
|
|
|
|
Entities affiliated
with The Walt Disney Company (16)
|
-
|
|
-
|
3,315,006
|
|
10.32%
|
2.85%
|
|
Entities affiliated
with A-Fund II, L.P. (17)
|
-
|
|
-
|
1,675,889
|
|
5.22%
|
1.44%
|
|
Entities Affiliated
with AMC Networks Ventures LLC (18)
|
-
|
|
-
|
1,796,747
|
|
5.59%
|
1.54%
|
|
Entities Affiliated
with Bullingham Holdings, LLC (19)
|
-
|
|
-
|
1,794,363
|
|
5.59%
|
1.54%
|
|
Entities Affiliated
with Northzone VIII L.P. (20)
|
554,016
|
(21)
|
*%
|
3,499,146
|
|
10.90%
|
3.59%
|
|
Entities Affiliated
with Comcast Corporation (22)
|
-
|
|
-
|
3,727,886
|
|
11.61%
|
3.20%
|
|
Entities Affiliated
with Viacom International Inc. (23)
|
-
|
|
-
|
3,057,364
|
|
9.52%
|
2.62%
|
|
Entities Affiliated
with FBNK Finance S.A.R.L. (24)
|
-
|
|
7.16%
|
-
|
|
-
|
5.19%
|
|
Entities affiliated
with Discovery, Inc. (25)
|
-
|
|
-
|
2,574,587
|
|
8.02%
|
2.21%
|
*
Represents less than 1% of the total.
(1)
Subject
to the terms of the Certificate of Designation of the Series AA
Preferred Stock, each share of Series AA Preferred Stock converts
into two shares of our common stock only following the sale of such
share of Series AA Preferred Stock on an arms’-length basis
either pursuant to Rule 144 under the Securities Act, or pursuant
to an effective registration statement under the Securities Act,
provided that such sale is conditioned on the applicable holder of
Series AA Preferred Stock executing and delivering to us
documentation reasonably requested by us in connection therewith
and as is reasonably necessary to effectuate such transfer.
However, all of the shares of Series AA Preferred Stock were deemed
issued on April 1, 2020 for purposes of Rule 144 and are subject to
transfer restrictions under Rule 144. Further, each share of Series
AA Preferred Stock only converts into two shares of our common
stock with the sale of such shares on an arms’-length basis
either pursuant to an exemption from registration under Rule 144
promulgated under the Securities Act or following an
arms’-length transfer pursuant to an effective registration
statement under the Securities Act, and thus each holder of Series
AA Preferred Stock will never hold the shares of our common stock
issuable upon conversion thereof. As such, we do not consider the
holder of a share of Series AA Preferred Stock to beneficially own
any shares of our common stock and have included the holdings of
our directors and officers of our Series AA Preferred Stock for
voting power purposes only. Additionally, the total number of
shares of Series AA Preferred Stock outstanding does not include
104,155 shares that are issuable pursuant to the Merger Agreement
to former holders of capital stock of fuboTV Pre-Merger as Stock
Merger Consideration (as defined in the Merger
Agreement).
(2)
Represents
percentage of voting power of the Series AA Preferred Stock and our
common stock voting together as a single class. Each share of
Series AA Preferred Stock has 0.8 votes, and each share of our
common stock has one vote.
(3)
Represents
2,338,954 shares of common stock issuable pursuant to options held
directly by Mr. Gandler exercisable within 60 days of October 26,
2020.
32
(4)
Represents
617,817 shares of common stock held by Mr. Gandler in his
individual capacity. Also includes (i) 241,000 held directly by
Diana Gandler, Mr. Gandler’s spouse, (ii) 359,000 shares held
directly by David Gandler & Yuriy Boykivttees Diana Gandler
2020 Family Irrevocable Trust U/A Dtd 09-30-20, David Gandler has
voting and investment power over this trust, the beneficiaries are
David Gandler and descendants of Diana Gandler, the trustees are
David Gandler and Yuriy Boykiv, and there are no voting agreements
associated with this trust, (iii) 179,000 shares held directly by
Yuriy Boykiv Trustee Chloe Gandler 2020 Irrevocable Trust U/A Dtd
09-30-20, David Gandler has voting and investment power over this
trust, the beneficiary is Chloe Gandler, the trustee is Yuriy
Boykiv, and there are no voting agreements associated with this
trust, and (iv) 179,000 shares held directly by Yuriy Boykiv
Trustee Forest Gandler 2020 Irrevocable Trust U/A Dtd 09-30-20,
David Gandler has voting and investment power over this trust, the
beneficiary is Forest Gandler, the trustee is Yuriy Boykiv, and
there are no voting agreements associated with this
trust.
(5)
Represents
2,338,954 shares of common stock issuable pursuant to options held
directly by Mr. Bronfman exercisable within 60 days of October 26,
2020. Also includes (i) 285,714 shares of common stock held
directly by Waverley Capital, LP, or Waverley Capital, and (ii)
285,714 shares issuable upon exercise of a warrant held directly by
Waverley Capital and exercisable within 60 days of October 26,
2020. According to information provided to the Company by Waverley
Capital, the general partner of Waverley Capital is Waverley
Capital Partners, LLC. Mr. Bronfman and Dr. Daniel V. Leff, as
managing members of Waverley Capital Partners, LLC, may be deemed
to have shared voting and investment power with respect to these
securities. Each of Mr. Bronfman and Dr. Leff and Waverley Capital
Partners, LLC disclaims beneficial ownership of these securities
except to the extent of its pecuniary interest therein and the
inclusion of these securities herein shall not be deemed an
admission by any of them of beneficial ownership of the reported
securities for purposes of Rule 13 under the Exchange Act or for
any other purposes. The address for Waverley Capital is 535 Ramona
Street, Suite #8, Palo Alto, CA 94301.
(6)
Represents
22,840 shares of Series AA Preferred Stock held by Mr. Bronfman in
his individual capacity. Also includes (i) 1,715,821 shares of
Series AA Preferred Stock held directly by Luminari Capital, L.P.,
or Luminari Capital, (ii) 513,105 shares of Series AA Preferred
Stock held directly by Waverley Capital and (iii) 398,862 shares of
Series AA Preferred Stock held directly by WL fuboTV, LP, or WL
fuboTV.
The general partner of Luminari Capital is
Luminari Capital Partners, LLC. Mr. Bronfman has an assignee
interest in Luminari Capital Partners, LLC. Dr. Daniel V. Leff, as
managing member of Luminari Capital Partners, LLC, may be deemed to
have shared voting and investment power with respect to these
securities. The general partner of Waverley Capital is Waverley
Capital Partners, LLC. Mr. Bronfman and Dr. Daniel V. Leff, as
managing members of Waverley Capital Partners, LLC, may be deemed
to have shared voting and investment power with respect to these
securities. The general partner of WL fuboTV is WL fuboTV GP, LLC.
Mr. Bronfman and Dr. Daniel V. Leff, as managing members of WL
fuboTV GP, LLC, may be deemed to have shared voting and investment
power with respect to these shares. The address for Luminari
Capital, Waverley Capital and WL fuboTV is 535 Ramona Street, Suite
#8, Palo Alto, CA 94301.
(7)
Based
on information reported by Mr. Textor in a Form 4 filed by him on
September 21, 2020. Represents (i) 89,418 shares of common stock
held by Mr. Textor; 7,648,947 shares of common stock held jointly
by Mr. Textor and Deborah W. Textor, Mr. Textor’s spouse;
(ii) 246,535 held by Mrs. Textor directly; and (iii) 209,555 held
by Mrs. Textor as custodian for Mr. and Mrs. Textor’s
son.
(8)
Based
on information provided to the Company by Mr. Bafer on September
28, 2020. Represents (i) 127,883 shares of common stock held by Mr.
Bafer and (ii) 2,500,610 shares held by Brick Top Holdings, Inc., a
company owned and controlled by Mr. Bafer. Mr. Bafer has voting and
dispositive control over the shares held by Brick Top Holdings,
Inc.
(9)
Represents
9,796 shares of common stock issuable pursuant to options held
directly by Mr. Pärson exercisable within 60 days of October
26, 2020.
(10)
Represents
(i) 9,102 shares of common stock issuable pursuant to an option
held directly by Dr. Leff exercisable within 60 days of August 31,
2010, (ii) 285,714 shares of common stock held directly by Waverley
Capital and (iii) 285,714 shares issuable upon exercise of a
warrant held directly by Waverley Capital and exercisable within 60
days of October 26, 2020. According to information provided to the
Company by Waverley Capital, the general partner of Waverley
Capital is Waverley Capital Partners, LLC. Dr. Daniel V. Leff, and
Mr. Bronfman, as managing members of Waverley Capital Partners,
LLC, may be deemed to have shared voting and investment power with
respect to these securities. Each of Mr. Bronfman and Dr. Leff and
Waverley Capital Partners, LLC disclaims beneficial ownership of
these securities except to the extent of its pecuniary interest
therein and the inclusion of these securities herein shall not be
deemed an admission by any of them of beneficial ownership of the
reported securities for purposes of Rule 13 under the Exchange Act
or for any other purposes. The address for Waverley Capital is 535
Ramona Street, Suite #8, Palo Alto, CA 94301.
(11)
Represents
(i) 1,715,821 shares of Series AA Preferred Stock held directly by
Luminari Capital, (ii) 513,105 shares of Series AA Preferred Stock
held directly by Waverley Capital; and (iii) 398,862 shares of
Series AA Preferred Stock held directly by WL fuboTV,. The general
partner of Luminari Capital is Luminari Capital Partners, LLC.
Daniel V. Leff, as managing member of Luminari Capital Partners,
LLC, may be deemed to have shared voting and investment power with
respect to these securities. The general partner of Waverley
Capital is Waverley Capital Partners, LLC. Dr. Daniel V. Leff and
Mr. Bronfman, as managing members of Waverley Capital Partners,
LLC, may be deemed to have shared voting and investment power with
respect to these securities. The general partner of WL fuboTV is WL
fuboTV GP, LLC. Dr. Daniel V. Leff and Mr. Bronfman, as managing
members of WL fuboTV GP, LLC, may be deemed to have shared voting
and investment power with respect to these shares. The address for
Luminari Capital, Waverley Capital and WL fuboTV is 535 Ramona
Street, Suite #8, Palo Alto, CA 94301.
(12)
Represents
9,212 shares of common stock issuable pursuant to an option held
directly by Mr. Ahn exercisable within 60 days of October 26,
2020.
(13)
Represents
7,348 shares of common stock issuable pursuant to an option held
directly by Mr. Figueras exercisable within 60 days of October 26,
2020.
(14)
Represents
5,717 shares of common stock issuable pursuant to an option held
directly by Ms. Onopchenko exercisable within 60 days of October
26, 2020.
33
(15)
Includes an
aggregate of (i) 571,428 shares issuable pursuant to warrants
exercisable within 60 days of October 26, 2020; (ii) 6,055,433
shares issuable pursuant to options outstanding exercisable within
60 days of October 26, 2020; and (iii) 11,651,889 shares of common
stock outstanding beneficially owned by 12 individuals, including
the Company’s executive officers and directors.
(16)
Based
on information reported by the Walt Disney Company on Schedule 13G
filed with the SEC on April 15, 2020. TFCF America, Inc. is the
direct holder of the shares of Series AA Preferred Stock. TFCF
America, Inc. is a wholly owned subsidiary of TFCF Corporation,
which is a wholly owned subsidiary of Disney Enterprises, Inc.,
which is a wholly owned subsidiary of TWDC Enterprises 18 Corp.,
which is a wholly owned subsidiary of The Walt Disney Company. The
Walt Disney Company listed its address as 500 South Buena Vista
Street; Burbank, California, 91521.
(17)
Based
on information provided to the Company by AF II and AF II
Affiliates (each as hereinafter defined). Represents (i) 1,574,127
shares held directly by A-Fund II, L.P., or AF II, and (ii) 101,762
shares held directly by A-Fund II Affiliates Fund, L.P., or AF II
Affiliates. A-Fund Investment Management II, L.P., the general
partner of AF II, or the DGP, and A-Fund International II, Ltd.,
the general partner of the DGP, or the UGP, may each be deemed to
have sole voting and dispositive power over the shares held by AF
II. The DGP, the general partner of AF II Affiliates, and the UGP,
the general partner of the DGP, may each be deemed to have sole
voting and dispositive power over the shares held by AF II
Affiliates. K. David Chao and Jason Krikorian are the directors of
the UGP and may be deemed to share voting and dispositive power
over the shares held by AF II and AF II Affiliates. Such persons
and entities disclaim beneficial ownership of shares held by AF II
and shares held by AF II Affiliates, except to the extent of any
pecuniary interest therein. The address for AF II and AF II
Affiliates is 2420 Sand Hill Road, Suite 200, Menlo Park,
California 94025.
(18)
Based
on information reported by AMC Networks Inc. on Schedule 13G filed
on August 12, 2020. AMC Networks Ventures LLC is the direct holder
of the shares of Series AA Preferred Stock. AMC Networks Ventures
LLC is a wholly owned subsidiary of Rainbow Media Holdings LLC,
which is a wholly owned subsidiary of AMC Networks Inc. The mailing
address for AMC Networks Inc. was listed as 11 Penn Plaza, New
York, NY 10001.
(19)
The
address for Bullingham Holdings, LLC is 660 Madison Ave, 17th
Floor, New York, New York 10065.
(20)
Based
on information provided to the Company by Northzone VIII L.P, or
the NZ Fund. The NZ Fund is the direct holder of all of the shares,
including those described in footnote 17 below. NZ VIII GP L.P., or
the GP of the Fund, is the general partner of the NZ Fund, and NZ
VIII (GP) Limited, or the General Partner, is the general partner
of the GP of the NZ Fund. The address for the NZ Fund, the GP of
the Fund and the General Partner is 12 Castle Street, St. Helier,
Jersey, Channel Islands, JE2 3RT.
(21)
Represents (i)
277,008 shares of common stock held directly by the NZ Fund and
(ii) 277,008 shares issuable upon exercise of a warrant held
directly by the NZ Fund and exercisable within 60 days of October
26, 2020.
(22)
Based
on information reported by Comcast Corporation on Schedule 13G
filed on April 13, 2020. Sky Ventures Limited is the direct holder
of the shares of Series AA Preferred Stock. Sky Ventures Limited is
a wholly owned subsidiary of Sky UK Limited, which is a wholly
owned subsidiary of Sky Limited, which is a wholly owned subsidiary
of Comcast Bidco Limited, which is a wholly owned subsidiary of
Comcast Bidco Holdings Limited, which is a wholly owned subsidiary
of Comcast Corporation. The address for Comcast Corporation was
listed as One Comcast Center, Philadelphia, Pennsylvania
19103-2838.
(23)
The
address for Viacom International Inc. is 1515 Broadway, New York,
New York, 10036.
(24)
Based
on information reported by FBNK Finance S.A.R.L. on Schedule 13G
filed on July 20, 2020. FBNK Finance S.A.R.L. is the direct holder
of the shares of common stock. The address for FBNK Finance
S.A.R.L. was listed as 1 Cote d’Eich, Luxembourg, Luxembourg
L-1450.
(25)
Based
on information reported by Discovery, Inc. on Schedule 13G filed on
May 20, 2020. Scripps Networks LLC is the direct holder of the
shares of Series AA Preferred Stock. Scripps Networks LLC is a
wholly owned subsidiary of Networks Holdings, Inc., which is a
wholly owned subsidiary of Scripps Networks Interactive Inc., which
is a wholly owned subsidiary of Discovery, Inc. The address for
Discovery Inc. was listed as 8403 Colesville Road, Silver Spring,
MD 20910.
34
DELINQUENT SECTION 16(A) REPORTS
Section
16(a) of the Exchange Act and the rules of the SEC thereunder
require our executive officers, directors and certain shareholders
who beneficially own more than 10% of a registered class of the
Company’s equity securities to file reports of ownership and
changes in ownership of our common stock with the SEC and the New
York Stock Exchange.
Based
solely on a review of the copies of such reports furnished to us
and representations that no other reports were required, we believe
that all required reports were filed on time for fiscal year 2019,
except for the following: a Form 3 filed by John C. Textor related
to his being subject to Section 16 was filed late on September 11,
2019; a Form 4 filed by John C. Textor related to the closing of a
share exchange and automatic conversion of Series X Preferred Stock
into Common Stock was filed late on September 11, 2019; a Form 4
filed by John C. Textor related to the purchase of Common Stock was
filed late on September 12, 2019, and a Form 4 filed by John C.
Textor related to the purchase of Common Stock was filed late on
September 24, 2019.
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
Policies and Procedures for Transactions with Related
Persons
Prior
to August 6, 2020, we did not have a written policy for the review,
approval or ratification of transactions with related parties. When
such transactions arose prior to August 6, 2020, they were referred
to our Board for consideration and approval.
On
August 6, 2020 our Board adopted a written related party
transaction policy setting forth the policies and procedures for
the review, approval and ratification of related person
transactions. Since the adoption of such policy, our audit
committee has the primary responsibility for reviewing and
approving or disapproving related party transactions. A related
person transaction refers to any transaction, arrangement or
relationship, or any series of similar transactions, arrangements
or relationships, or any proposed transaction, arrangement or
relationship, in which we (including any of our subsidiaries) are a
participant and in which any related person has, had or will have a
direct or indirect material interest and the aggregate amount
involved exceeds $120,000, subject to the exceptions set forth in
Item 404 of Regulation S-K under the Securities Act of 1933, as
amended. A related person refers to our directors, director
nominees and executive officers, any person or entity known by us
to be the beneficial owner of more than 5% of any class of our
voting securities, or any immediate family member of any of the
foregoing.
Since
the approval of our related transaction policy on August 6, 2020,
related person transactions are reviewed, approved and ratified by
the audit committee of our Board. The audit committee of our Board
will be provided with the details of each related person
transaction (or proposed related person transaction), including the
terms of the transaction, the business purpose of the transaction
and the benefits to us and to the relevant related person. In the
event our management determines that it is impractical or
undesirable to wait until a meeting of the audit committee to
consummate a related person transaction, the chairperson of the
audit committee may approve such transaction, if the aggregate
amount involved in any such transaction, or series of related
transactions, is expected to be less than $250,000. Any such
approval must be reported to the audit committee at its next
regularly scheduled meeting.
In
determining whether to approve or ratify a related person
transaction, the audit committee (or the chairperson of the audit
committee, if applicable) will consider, among other factors, the
following factors to the extent relevant to the related person
transaction: whether the terms of the related person transaction
are fair to our company and on terms no less favorable than terms
generally available to an unaffiliated third party under the same
or similar circumstances; the extent of the related person’s
interest in the transaction; whether there are business reasons for
us to enter into the related person transaction; whether the
related person transaction would impair the independence of an
outside director, including the ability of any director to serve on
the compensation committee of the Board; and whether the related
person transaction would present an improper conflict of interest
for any of our directors or executive officers, taking into account
the size of the transaction, the overall financial position of the
director, executive officer or related person, the direct or
indirect nature of the director’s, executive officer’s
or related person’s interest in the transaction and the
ongoing nature of any proposed relationship, and any other factors
the audit committee deems relevant. After considering all such
facts, circumstances and factors, our audit committee determines
whether approval or ratification of the related person transaction
is in our best interests. Any member of the audit committee who has
an interest in the transaction under discussion will recuse himself
or herself from any discussion or vote of the audit committee on
the transaction creating the conflict, except that such director
must provide all material information concerning such transaction
to the audit committee as requested. The audit committee shall
update the Board with respect to any related person transactions as
part of its regular updates to the Board regarding audit committee
activities.
35
If a
related person transaction is of the type that will be ongoing, the
audit committee may establish guidelines for us to follow in our
ongoing dealings with the related person, and the audit committee
shall review and assess such ongoing relationships. A related
person transaction entered into without pre-approval of the audit
committee shall not be deemed to violate our related person
transaction policy, or be invalid or unenforceable, so long as the
transaction is brought to the audit committee as promptly as
reasonably practical after it is entered into or after it becomes
reasonably apparent that the transaction is covered by the policy,
and the transaction is ratified by the audit
committee.
Transactions and Relationships with Directors, Officers and 5%
Shareholders
The
following is a summary of related person transactions since January
1, 2018, other than the compensation arrangements, including
employment, termination of employment, and change in control
arrangements described in “Executive Compensation” and
“Directors and Corporate
Governance—Compensation of Non-Employee
Directors,” in which:
●
we or any of our
subsidiaries have been or will be a participant;
●
the amount involved
exceeded or exceeds the lesser of $120,000 and 1% of the average of
our total assets at year-end for the last two completed fiscal
years; and
●
any of our
directors, executive officers or holders of more than five percent
of our capital stock, or any members of their immediate family, had
or will have a direct or indirect material interest.
Amounts
owed to related parties as of September 30, 2020, December 31, 2019
and 2018 consist of the following (in thousands).
|
|
|
December
31,
|
|
|
|
September 30,
2020
|
2019
|
2018
|
|
|
|
|
|
|
Affiliate fees
(1)
|
$85,116
|
|
|
|
Alexander Bafer,
Executive Chairman (2)
|
458
|
$20
|
$25
|
|
John Textor, Chief
Executive Officer (2)
|
264
|
592
|
304
|
|
Others
|
9
|
53
|
69
|
|
Total
|
$85,847
|
$665
|
$398
|
(1)
The
Company has entered into affiliate distribution agreements with New
Univision Enterprises, LLC and related entities, AMC Network
Ventures, LLC and related entities, Viacom International, Inc. and
related entities and Discovery, Inc. and related entities, which
are holders of the Company’s convertible preferred stock. AMC
Networks Ventures, LLC is also the lender under the senior secured
loan under which fuboTV Sub is the borrower. The accrued fees
payable under the affiliate distribution agreements are classified
as accounts payables – due to related parties and accrued
expenses – due to related parties in the accompanying
condensed consolidated balance sheet. The aggregate affiliate
distribution fees recorded to subscriber related expenses for
related parties were $37.0 million and $60.0 for the three and nine
months ended September 30, 2020, respectively, and $0 for the three
and nine months ended September 30, 2019,
respectively.
(2)
Our former Chairman and director, Mr. Bafer,
advanced an unsecured, non-interest-bearing loan. As of the
execution of the Bafer Release, the Company’s obligations
under the loan are deemed to have been satisfied. The amounts due
to John Textor, Head of Studio and former director and Chief
Executive Officer represent a liability assumed in the acquisition
of Evolution. The amounts due to other related parties also
represent liabilities assumed in the acquisition of Evolution. For
accrued compensation due to Mr. Bafer and Mr. Textor, see
“ Executive
Compensation.”
36
Cash Advances, Loans and Related Transactions
Promissory Note Issued to Former Executive Chairman and Chief
Executive Officer
In July
2015, we issued convertible promissory notes to Mr. Bafer, former
director, Executive Chairman and Chief Executive Officer, in
exchange for the cancellation of previously issued promissory notes
in the aggregate of $530,000 and accrued interest of $13,000 for a
total of $543,000. In October 2015, the notes matured and became
past due. As a result, the stated interest of 5% increased to 22%
pursuant to the term of the notes. In July 2016, the Company and
Mr. Bafer agreed to extend the maturity date of these notes to
August 1, 2017 and cure the default. There were no other terms
changed and no additional compensation paid. On May 22, 2019, PEC
issued a non-convertible promissory note, or the Replacement Note,
to replace the convertible promissory notes. The note had a
principal balance of $264,365, accrued interest at a rate of 8% per
annum and matured on August 31, 2019. During the year ended
December 31, 2019, Mr. Bafer was repaid $258,850 of the principal
balance and approximately $46,160 of interest. As part of this
transaction, the Company and Mr. Bafer agreed to transfer approx.
$124,000 from his note balance to accrued payroll. The Company and
Mr. Bafer executed a separation and settlement agreement and
release on August 1, 2020, pursuant to which all amounts payable to
Mr. Bafer under past notes issued to Mr. Bafer were
extinguished.
Convertible Promissory Note Issued to Former Chief Executive
Officer
On
December 28, 2016, we issued an unsecured convertible promissory
note in the principal amount of $50,000 to Birchwood Capital, LLC,
or Birchwood, an entity owned by David Cohen, who was our Chief
Executive Officer at the time. The convertible promissory note had
an interest rate of 3% and was due on March 24, 2017. On November
6, 2018, in exchange for the outstanding convertible promissory
note and for no additional consideration, we issued a convertible
debenture for $50,000 to Birchwood. The convertible debenture had
an interest rate of 10% per annum. On January 9, 2019, Mr. Cohen
sold the convertible debenture to Jonathan Christopher, LLC, whose
managing member was our VP of Business Development at the time. On
October 25, 2019, Jonathan Christopher, LLC was issued 16,666
shares of our common stock upon conversion of the convertible
debenture.
Promissory Note Issued to Trust Affiliated with Former Chief
Executive Officer
In
connection with the acquisition by the Company of Pulse Evolution
Corporation, or PEC, one of our majority-owned subsidiaries, in
2018, the Company assumed a promissory note held by the Dale O
Lovett Trust for $30,000 that had been issued by PEC on January 17,
2017. John C. Textor, who was, at the time of the assumption, the
Company’s Chief Executive Officer, is a beneficiary of the
Dale O Lovett Trust. The current amount of principal and accrued
interest owed to the Dale O Lovett Trust is $34,500. The Company
and the Dale O Lovett Trust entered into a waiver and amendment to
the $30,000 Note on August 3, 2020, pursuant to which (i) the
parties agreed to extend the maturity date of the $30,000 note to
December 31, 2020 and (ii) the Dale O Lovett Trust agreed to waive
any Event of Default arising as a result of the failure of the
Company to pay certain amounts due under such note. On September
13, 2020, the Company and the Dale O Lovett Trust entered into a
second amendment to the $30,000 note, pursuant to which the parties
agreed to lower the interest rate from 8% to 4% per
annum.
Cash Advance from Entity Controlled by Former Chief Executive
Officer
During
the year ended December 31, 2019, the Company received a $300,000
advance from FaceBank, Inc., a development stage company controlled
by John C. Textor. At the time of the advance, Mr. Textor was our
Chief Executive Officer.
Pledge Agreement Involving Former Chief Executive
Officer
On
March 19, 2020, in connection with the Note Purchase Agreement by
and among the Company, FB Loan and certain of the Company’s
subsidiaries, the parties to the Note Purchase Agreement entered
into a Third Party Pledge Agreement pursuant to which John Textor,
Head of Studio and at the time, the Company’s Chief Executive
Officer, granted to FB Loan a security interest (through a pledge
agreement) in 4,250,000 shares, or the Pledged Shares, of FaceBank
Group, Inc. held by Mr. Textor, at the request of the Company. In
connection with the pledge agreement, the Company agreed to
indemnify Mr. Textor and, in the event Mr. Textor’s shares
were forfeited under the pledge agreement, to issue Mr. Textor a
number of shares equal to the number of Pledged Shares within five
days of forfeiture. The Company agreed that such replacement shares
would be entitled to demand and piggyback registration rights. The
pledge agreement was terminated in connection with the repayment of
the FB Loan in July 2020.
37
License Agreement between PEC, its Subsidiaries and John
Textor
On
March 3, 2017, in connection with the separation of John Textor
from PEC and its wholly owned subsidiaries, After August, Inc. and
Pulse Entertainment Corporation (which entities are collectively
referred to as the Licensor Group), the Licensor Group granted to
John Textor an exclusive license to use and exploit any and all
rights related to computer-generated digital likeness of human;
photo-realistic human animation; and human animation and
holographic modeling for a period of five years. On August 3, 2020,
the Company and John Textor entered into an agreement pursuant to
which John Textor waived any and all rights to license the
intellectual property under the agreement.
IP Agreement Involving Entity Controlled by Former Chief Executive
Officer
On July
31, 2019, the Company entered into the Digital Likeness Development
Agreement, or the Mayweather Agreement, by and among the Company,
Floyd Mayweather, and FaceBank, Inc., a Florida corporation.
FaceBank, Inc. is a development-stage company controlled by John
Textor, our Head of Studio and at the time, the Company’s
Chief Executive Officer. Pursuant to the terms of the Mayweather
Agreement, the Company and FaceBank, Inc. agreed to work directly
with Mr. Mayweather to research, capture and analyze photographic,
filmed and mathematical representations of the face and body of Mr.
Mayweather in order to develop a comprehensive and hyper-realistic,
computer generated “digital likeness” of Mr. Mayweather
for global exploitation in commercial applications (such likeness
is referred to as Virtual Mayweather).
On
January 25, 2020, the parties to the Mayweather Agreement entered
into an amendment to the Mayweather Agreement, or the Amended
Mayweather Agreement, which supersedes the Mayweather Agreement.
All terms of the Agreement remain the same except (i) the term of
the Amended Mayweather Agreement extends through October 22, 2024,
and (ii) in place of granting Mr. Mayweather shares of our common
stock with an approximate fair market value of $1 million as set
forth in the Mayweather Agreement, pursuant to the Amended
Mayweather Agreement, the Company granted an option to purchase
280,000 shares of the Company’s common stock with an exercise
price of $7.20 per share.
Share Exchange Agreement with Brick Top Holdings, Inc.
On
August 8, 2018, the Company entered into a Share Exchange Agreement
with Brick Top Holdings, Inc., or Brick Top, an entity owned by
Alexander Bafer, former director and former Chairman and Chief
Executive Officer, and Southfork Ventures, Inc., or Southfork, an
entity owned by Chris Leone, the Company’s then-Chief
Operating Officer and Director, pursuant to which the Company
agreed to acquire up to all of the shares of Series A Preferred
Stock of the Company held by Brick Top and Southfork, in exchange
for the issuance of shares of the Company’s common stock to
Brick Top and Southfork. The closing of the share exchange
contemplated by the Share Exchange Agreement occurred on August 8,
2018. On such date, the Company issued (i) 2,725,000 shares of its
common stock to Brick Top in exchange for the transfer of 3,750,000
shares of the Company’s Series A Preferred Shares from Brick
Top to the Company, and (ii) 908,333 shares of its common stock in
exchange for the transfer of 1,250,000 shares of the
Company’s Series A Preferred Stock from Southfork to the
Company. This transaction was intended to simplify the capital
structure of the Company and to ensure voting rights were
proportional and equitable among all shareholders after the
Company’s acquisition of Evolution.
Sale of Common Stock to 5% Shareholders
In May
2020, we sold shares of our common stock at $7.00 per share and
issued warrants to purchase our common stock with an exercise price
of $7.00 per share to the following related persons:
●
285,714 shares of
our common stock and a warrant to purchase 285,714 shares of common
stock to Waverley Capital, an entity controlled by Edgar Bronfman,
Jr., our Executive Chairman and a director and Daniel Leff, a
director, for gross proceeds of $1,999,998.00; and
●
277,008 shares of
our common stock and a warrant to purchase 277,008 shares of our
common stock to Northzone VIII L.P., an entity that holds 10.90% of
our Series AA Preferred Stock as of October 26, 2020, for gross
proceeds of $1,939,056.00.
In
October 2020, we sold 200,000 shares of our common stock in a
public offering, for an aggregate of $2,000,000 at the public
offering price of $10 per share, to Waverley Capital.
38
Indemnification of Officers and Directors
Our
articles of incorporation and bylaws, each as amended, provide that
we 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 Florida
law.
Section
607.0831 of the Florida Business Corporation Act, or the FBCA,
directors of a corporation will not be personally liable for
monetary damages to the corporation or any other person for any
statement, vote, decision, or failure to act regarding corporate
management or policy unless the director breached or failed to
perform his or her duties as a director and the director’s
breach of, or failure to perform, those duties
constitutes:
●
a violation of the
criminal law, unless the director had reasonable cause to believe
his or her conduct was lawful or had no reasonable cause to believe
his or her conduct was unlawful;
●
a transaction from
which the director derived an improper personal benefit, either
directly or indirectly;
●
a circumstance
under which the liability provisions of Section 607.0834 of the
FBCA are applicable (relating to liability for unlawful
distributions);
●
in a proceeding by
or in the right of the corporation to procure a judgment in its
favor or by or in the right of a shareholder, conscious disregard
for the best interest of the corporation, or willful misconduct;
or
●
in a proceeding by
or in the right of someone other than the corporation or a
shareholder, recklessness or an act or omission which was committed
in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or
property.
Any
repeal of or modification to our certificate of incorporation and
our bylaws, each as amended, may not adversely affect any right or
protection of a director or officer for or with respect to any acts
or omissions of such director or officer occurring prior to such
amendment or repeal. Our bylaws also provide that we shall advance
expenses incurred by a director or officer in advance of the final
disposition of any action or proceeding and permit us to secure
insurance on behalf of any officer, director, employee or other
agent for any liability arising out of his or her actions in
connection with their services to us.
We have
entered into separate indemnification agreements with our directors
and executive officers, in addition to the indemnification provided
for in our articles of incorporation and bylaws, each as amended.
These agreements, among other things, provide that we will
indemnify our directors and executive officers for certain
expenses, including attorney’s fees, judgments, fines,
penalties and settlement amounts incurred by a director or
executive officer in any action or proceeding arising out of such
person’s services as one of our directors or executive
officers, or any other company or enterprise to which the person
provides services at our request. We believe that these provisions
and agreements are necessary to attract and retain qualified
persons as directors and executive officers. We also maintain
customary directors’ and officers’ liability
insurance.
The
limitation of liability and indemnification provisions contained in
our articles of incorporation and our bylaws, each as amended, may
discourage shareholders from bringing a lawsuit against our
directors for breach of their fiduciary duty. They may also reduce
the likelihood of derivative litigation against our directors and
officers, even though an action, if successful, might benefit us
and other shareholders. Further, a shareholder’s investment
may be adversely affected to the extent that we pay the costs of
settlement and damage awards against directors and officers as
required by these indemnification provisions.
Except
as described below, there is no pending litigation or proceeding
involving one of our current directors or executive officers as to
which indemnification is required or permitted, and we are not
aware of any threatened litigation or proceeding that may result in
a claim for indemnification.
As
previously disclosed in prior filings with the SEC and as further
disclosed below, there are actions pending, and actions that were
previously pending, against Mr. Textor, where due to his positions
at the Company at the time referenced in the allegations, he may be
entitled to indemnification pursuant to: (1) the terms of our
articles of incorporation and bylaws and (2) an indemnification
agreement between the Company and Mr. Textor. Such indemnification
agreement is substantially in the form of the indemnification
agreement we are requesting that shareholders ratify pursuant to
Proposal No. 5.
39
Andrew Kriss and Eric Lerner vs. FaceBank Group, Inc. et.
al.
On June
8, 2020, Andrew Kriss and Eric Lerner, or the Plaintiffs, filed a
Summons with Notice in the Supreme Court of the State of New York,
Nassau County, or the Notice, naming as defendants FaceBank Group,
Inc., John Textor and Frank Patterson, among others (Index No.
605474/20). The Notice lists claims for breach of express contract
and implied duties, fraud, aiding and abetting fraud, fraud in the
inducement, fraudulent misrepresentation, fraudulent concealment,
fraudulent conveyance, unjust enrichment and declaratory relief,
and states that the Plaintiffs seek monetary damages in an amount
to be proven at trial, but not less than six million dollars
($6,000,000) on the breach of contract claim with interest from the
date of the alleged breach on September 9, 2014.
40
PROPOSALS REQUIRING YOUR VOTE
ITEM 1 — Election of
Directors
Board Composition
Our
Board currently consists of seven members. Pursuant to our bylaws,
as amended, the term of each director expires at the next annual
shareholders’ meeting following his or her election, whether
such director had been elected by the shareholders or elected by a
majority of the Board to fill a vacancy.
David
Gandler was appointed in April 2020 at the Effective Time of the
Merger. The remaining six directors joined the Board subsequent to
the Merger. Each of Edgar Bronfman, Jr., Henry Ahn, Ignacio
Figueras and Laura Onopchenko was appointed by a majority of the
directors to fill a vacancy existing prior to his or her respective
appointment. Each of Daniel Leff and Pär-Jörgen
Pärson were elected by the holders of Series AA Preferred
Stock.
Since
the listing of our common stock on the New York Stock Exchange on
October 8, 2020, all seven directors are elected by the holders of
outstanding shares of our voting stock, which includes our common
stock and Series AA Preferred Stock, voting as a voting
group.
Nominees
As
recommended by the nominating and corporate governance committee,
the Board has nominated all seven of our current directors for
reelection. If elected, each nominee has consented to serve as a
director and to hold office until the
earlier of: the next annual shareholders’ meeting, his or her
successor being selected and qualified, or his or her earlier
death, resignation or removal from office. The proxy holders
named on the proxy card intend to vote the proxy (if you are a
shareholder of record) for the election of Messrs. Bronfman, Jr.,
Ahn, Figueras, Gandler, Leff and Pärson and Ms. Onopchenko,
unless you indicate on the proxy card that your vote should be cast
against him or her.
Summary
information regarding our nominees as of September 30, 2020 is set
forth below. For more information about the nominees, please see
“Directors and Corporate
Governance—Board Composition.”
|
Name
|
|
Age
|
|
Position(s)
|
|
Director
Since
|
|
Nominees:
|
|
|
|
|
|
|
|
David
Gandler
|
|
45
|
|
Chief
Executive Officer and Director
|
|
April
2020
|
|
Edgar
Bronfman, Jr.
|
|
65
|
|
Executive
Chairman and Director
|
|
April
2020
|
|
Pär-Jörgen
Pärson
|
|
57
|
|
Director
|
|
May
2020
|
|
Daniel
Leff
|
|
52
|
|
Director
|
|
July
2020
|
|
Henry
Ahn
|
|
58
|
|
Director
|
|
July
2020
|
|
Ignacio
Figueras
|
|
43
|
|
Director
|
|
August
2020
|
|
Laura
Onopchenko
|
|
53
|
|
Director
|
|
September
2020
|
Required Vote
The
re-election of each of the seven nominees as directors requires a
plurality of the voting power of the shares present or represented
by proxy at the Annual Meeting and entitled to vote thereon.
“Plurality” means that the seven nominees for director
who receive the largest number of votes cast “FOR” are
elected as directors, even if those nominees do not receive a
majority of the votes cast. As a result, any shares not voted
“FOR” a particular nominee (whether as a result of
shareholder abstention or a broker non-vote) will not be counted in
such nominee’s favor and will have no effect on the outcome
of the election. You may vote “FOR” or
“WITHOLD” for each of the nominees for election as
director.
Recommendation of our
Board
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR”
THE ELECTION OF EACH OF EDGAR BRONFMAN, JR., HENRY AHN, IGNACIO
FIGUERAS, DAVID GANDLER, DANIEL LEFF, PÄR-JÖRGEN
PÄRSON AND LAURA ONOPCHENKO TO SERVE ON OUR BOARD OF
DIRECTORS.
41
ITEM 2 — Advisory Vote
to Approve the Compensation of our Named Executive
Officers
Section 14A of
the Exchange Act requires that we provide our shareholders with the
opportunity to vote to approve, on a non-binding, advisory basis,
the compensation of our named executive officers as disclosed in
the section “Executive
Compensation,” the compensation tables and the related
narratives appearing in this Proxy Statement. The vote on this
resolution is not intended to address any specific element of
compensation, but rather the overall compensation of our named
executive officers and the design and effectiveness of our
executive compensation program. Our President, Jordan Fiksenbaum,
has an interest in the approval of the Advisory Vote to Approve the
Compensation of our Named Executive Officers because he is a
beneficiary of this compensation.
Separately, under
Proposal No. 3, we asking our shareholders to vote on a
non-binding, advisory basis on the frequency with which we should
hold future advisory votes to approve the compensation of our named
executive officers. The result of that vote will determine the date
of the next advisory vote on the compensation of our named
executive officers.
Prior
to the establishment of our compensation committee on August 6,
2020, our Board was responsible for designing and administering our
executive compensation program to provide a competitive
compensation and benefits package that reflects executive
performance, job complexity, and strategic value of the position,
which it believes also includes retention incentives, performance
incentives, and alignment with the interests of the Company’s
shareholders. We encourage you to carefully review the
“Executive
Compensation” section of this Proxy Statement for
additional details on the Company’s executive compensation
for the fiscal year ended December 31, 2019. The
“Executive
Compensation” section of this Proxy Statement also
includes information on the processes our compensation committee is
using to determine the structure and amounts of the compensation of
executive officers in fiscal year 2020 and beyond.
We are
asking you to indicate your support for the compensation of our
named executive officers as described in this Proxy Statement. This
vote is not intended to address any specific item of compensation,
but rather the overall compensation of our named executive officers
and the objectives, policies and practices described in this Proxy
Statement. Accordingly, we are asking you to vote, on an advisory
basis, on the following resolution at the Annual
Meeting:
RESOLVED, that the shareholders of
fuboTV Inc. hereby approve, on a non-binding advisory basis, the
compensation of the Company’s named executive officers, as
disclosed in the Company's proxy statement for the 2020 Annual
Meeting of Shareholders, pursuant to the compensation disclosure
rules of the SEC, including in “Executive Compensation,” the
compensation tables and the narrative discussions that accompany
the compensation tables.
Required Vote
The
advisory vote regarding named executive officer compensation for
fiscal year 2019 requires, under Florida law, a majority of the
votes cast to be voted “FOR” the proposal in order for
the proposal to pass. Abstentions and broker non-votes will not be
counted as votes “FOR” or “AGAINST” the
proposal, and thus will have no effect on the outcome of this
proposal. Because this vote is advisory only, it will not be
binding on us or on our Board. However, our Board or our
compensation committee will consider the outcome of the vote when
making future decisions regarding executive
compensation.
Recommendation of our Board
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR”
THE APPROVAL, ON AN ADVISORY BASIS, OF THE COMPENSATION OF OUR
NAMED EXECUTIVE OFFICERS FOR FISCAL YEAR 2019.
ITEM 3 — Advisory Vote
on the Frequency of Future Advisory Votes to Approve Named
Executive Officer Compensation
Section 14A of
the Exchange Act provides that shareholders must be given the
opportunity to vote, on a non-binding advisory basis, on how
frequently we should seek future non-binding advisory votes to
approve the compensation of our named executive
officers.
By
voting with respect to this proposal, shareholders may indicate
whether they would prefer that we conduct future non-binding
advisory votes to approve the compensation of our named executive
officers every one, two or three years. Shareholders also may, if
they wish, abstain from casting a vote on this proposal. Our Board
has determined that an annual non-binding advisory vote to approve
the compensation of our named executive officers will allow our
shareholders to provide timely input on the Company's executive
compensation philosophy, policies and practices as disclosed in the
proxy statement.
42
Required Vote
The frequency
of future advisory votes on executive compensation selected by
shareholders from the options of “ONE YEAR”, “TWO
YEARS” or “THREE YEARS”, will be whichever
frequency that receives the highest number of votes from the
holders of shares present in person or represented by proxy at the
Annual Meeting and entitled to vote thereon. Abstentions and broker
non-votes will have no effect on the outcome of this vote. Because
this vote is advisory only, it will not be binding on us or on our
Board. However, our Board or our compensation committee will
consider the outcome of the vote when determining how often we
should submit to shareholders an advisory vote to approve the
compensation of our named executive officers.
Recommendation of the Board
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE TO HOLD FUTURE
SHAREHOLDER ADVISORY VOTES ON THE COMPENSATION OF OUR NAMED
EXECUTIVE OFFICERS EVERY “ONE YEAR.”
ITEM 4 — Approval of
the Ability to Grant Incentive Stock Options under the 2020 Equity
Incentive Plan and an Amendment to Increase the Share
Reserve
The
shareholders are being asked to approve the ability to grant
incentive stock options under our new equity incentive plan, the
2020 Equity Incentive Plan, or the 2020 Plan, including and a
recent increase in the number of shares of common stock reserved
for issuance under the 2020 Plan by 19,000,000 shares, or, together
the 2020 Plan Proposal. Our Board adopted the 2020 Plan on April 1,
2020 with an initial share pool of 12,116,646, or the Initial Pool.
The size of this share pool was negotiated as a part of our
acquisition of fuboTV Inc., a Delaware corporation. The initial
2020 Plan including the Initial Pool was effective upon approval
without a requirement of any shareholder approval under applicable
law. However, shareholder approval of the initial 2020 Plan
including the Initial Pool is required within 12 months after
adoption of the initial 2020 Plan in order allow for the grants of
U.S. federal income tax-qualified “incentive stock
options.” In October 2020,
following our uplisting onto the New York Stock Exchange, our Board
approved an amendment to our 2020 Plan to increase the number of
shares of common stock reserves for issuance under the 2020 Plan by
19,000,000 shares of our common stock, or the Share Reserve
Increase. A copy of the 2020 Plan, as amended by this proposal, is
set forth in this proxy statement as Appendix A. The shareholders
are being asked to approve the 2020 Plan Proposal so that (i)
options granted under the 2020 Plan are eligible for treatment as
incentive stock options, and (ii) we may continue to use our 2020
Plan to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional
incentives to our employees, directors and consultants and to
promote the success of our business. If shareholders approve the
2020 Plan Proposal, then:
●
All
shares subject to the 2020 Plan, including the Initial Pool plus
the Share Reserve Increase approved in October 2020 will be
eligible to granted as “incentive stock options,” which
are tax qualified option under the Internal Revenue Code;
and
●
The
Share Reserve Increase will be available for issuance to our
employees, directors and our service provider, including our
October 2020 grant to our chief executive officer described
below.
As noted, on October 8, 2020, we granted Mr.
Gandler, our chief executive officer, a performance-based vesting
stock option covering 4,100,000 shares of our common stock at an
exercise price per share of $10.00 per share, or the CEO Option.
The CEO Option (as part of the Share Reserve Increase) is subject
to shareholder approval of the 2020 Plan Proposal, and will not be
issued if it is shareholder approval is not obtained. Please note
that the CEO Option was not granted options under the Initial Pool,
awards granted under which will not be forfeited if shareholders do
not approve the 2020 Plan Proposal. The CEO Option is subject to 5
calendar year performance periods, and vesting, if any, will be
determined with respect to target levels of achievement against
guideline performance metrics. In the first quarter of each year
following a performance period, our Board will review and evaluate
performance against the guidelines, and make a wholistic determination in its reasonable
discretion of the amount of vesting, if any, that occurs on the
date of review. The amount that may vest with respect to any
performance period may be equal to, or higher or lower than, 20%.
In the event a change in control occurs prior to the date that our
Board last reviews performance with respect to the prior
performance period, the CEO Option will accelerate and vest as to
an aggregate amount of shares such that the total vesting of the
option will be based on the price per share payable to our
shareholders in the change in control as described in the option
agreement.
43
Reasons for Voting for Approval of the 2020 Plan
Proposal
The 2020 Plan Proposal Will Allow Us to Retain and to Continue
Attracting and Retaining High Quality Talent
Our
Board believes that our success depends on the ability to attract
and retain the best available personnel and that the ability to
grant equity awards is crucial to recruiting and retaining the
services of such individuals. In addition, our Board believes that
equity awards align the interests of service providers and
shareholders by giving service providers an ownership stake in the
company, motivate service providers to achieve outstanding
performance, and provide an effective means of rewarding service
providers for their contributions to our success.
If
shareholders do not approve the 2020 Plan Proposal at the 2020
Annual Meeting, then
●
No shares under the 2020 Plan may be issued as
“incentive stock options”;
●
The
Share Reserve Increase would be available to be issued to our
service providers; and
●
the
CEO Option would forfeit.
Please
note that in all cases, the Initial Pool shall remain in effect
even if shareholders do not approve the 2020 Plan
Proposal.
As a
result of the above, it would be challenging to attract and retain
talent. Furthermore, we will be unable to continue our equity
incentive program and we will have to restructure our existing
compensation programs for reasons that are not directly related to
the achievement of our business objectives, which could prevent us
from successfully attracting and retaining highly skilled executive
officers and other service providers. To remain competitive without
equity-based compensation arrangements, it likely will be necessary
to replace components of compensation previously awarded in equity
with cash. We do not believe increasing cash compensation to make
up for any shortfall in equity compensation would be practical or
advisable, because we believe that a combination of equity awards
and cash compensation provide a more effective compensation
strategy than cash alone for attracting, retaining and motivating
our employees long-term and aligning employees’ and
shareholders’ interests. In addition, any significant
increase in cash compensation in lieu of equity awards could
substantially increase our operating expenses and reduce our cash
flow from operations, which could adversely affect our business
results and could adversely affect our business strategy, including
using cash flow for strategic acquisitions, research and
development of innovative new products, and improvements in the
quality and performance of existing products.
As
noted above, we granted to Mr. Gandler an option to purchase
4,100,000 shares subject to the Share Reserve Increase to our chief
executive officer, and that such option will forfeit automatically
if the shareholders do not approve the 2020 Plan
Proposal.
A Reasonable Number of Shares Will Be Reserved Under the 2020
Plan
If our
shareholders approve the 2020 Plan Proposal, a total aggregate of
31,116,646 shares of our common stock will have been reserved for
issuance under the 2020 Plan. We anticipate that these shares of
our common stock will be enough to meet our expected needs for
approximately three years. The compensation committee, with the
assistance of its independent compensation consultant, and our
Board considered the following when determining the number of
shares to reserve for issuance under the 2020 Plan:
●
Number of Shares Remaining. As of
October 26, 2020, the number of
shares of our common stock that remained available for issuance
under the 2020 Plan was 17,713,843,
including the Share Reserve Increase. As of the same date,
the outstanding equity awards under the 2020 Plan covered a total
of 14,320,196 shares of our
common stock, which consists of 14,320,196 shares subject to outstanding
options, with a weighted average exercise price of $9.33, and a weighted term of five years.
●
Overhang. As of October 26, 2020, 14,320,196 shares were
subject to outstanding equity awards under our 2020 Plan, which
represent approximately 21% of the outstanding shares as of October 26, 2020.
44
The 2020 Plan Includes Compensation and Governance Best
Practices
The
2020 Plan includes provisions that are considered best practice for
compensation and corporate governance purposes. These provisions
protect our shareholders’ interests, as follows:
●
Administration.
The 2020 Plan will be administered by the compensation committee,
which consists entirely of independent non-employee
directors.
●
Annual Limits on Awards to
Non-Employee Directors. The
2020 Plan sets reasonable limits as to the awards that non-employee
directors may receive during each fiscal year.
●
Limited
transferability. Awards under
the 2020 Plan generally may not be sold, assigned, transferred,
pledged, or otherwise encumbered, unless otherwise approved by the
administrator.
●
No Tax
Gross-ups. The 2020 Plan does
not provide for any tax gross-ups.
●
Forfeiture Events. Each award under the 2020 Plan
will be subject to any clawback policy of ours, and the
administrator may require a participant to forfeit, return,
or reimburse us all or a portion of the award and any amounts paid
under the award in order to comply with such clawback policy or
applicable laws.
Our
executive officers and directors have an interest in the approval
of the 2020 Plan because they are eligible to receive equity awards
under the 2020 Plan.
2020 Equity Incentive Plan
Our
Equity Incentive Plan, or the 2020 Plan, became effective on April
1, 2020. Our 2020 Plan provides for the grant of incentive stock
options, within the meaning of Section 422 of the Code, to our
employees and any parent and subsidiary corporations’
employees, but only if our 2020 Plan is approved within 12 months
following the date our board adopted our 2020 Plan, and for the
grant of nonstatutory stock options, restricted stock, restricted
stock units, or RSUs, stock appreciation rights, performance units
and performance shares to our employees, directors and consultants
and our parent, subsidiaries’ and affiliates’ employees
and consultants.
As of October 26, 2020, stock options covering
14,320,196 shares of our common stock were outstanding under our
2020 Plan, which includes the 4,100,000 shares covered by the
option grant issued to David Gandler, which will be forfeited
automatically if the shareholders do not approve the Share Reserve
Increase, which would reserve for issuance pursuant to our 2020
Plan an additional 19,000,000 shares. As of October 26,
2020, approximately 220 employees, 6 directors and 38
consultants were eligible to participate in the 2020 Plan. As of
the same date, the closing price of a share of Company common stock
as reported on NYSE was $13.73.
Authorized Shares
A
total of 12,116,646 shares of our common stock were reserved for
issuance pursuant to our 2020 Plan. Additionally, if any award
issued pursuant to our 2014 Plan or 2015 Plan expires or becomes
unexercisable without having been exercised in full, is forfeited
to or repurchased by us due to the failure to vest, the unpurchased
shares (or for awards other than stock options or stock
appreciation rights the forfeited or repurchased shares) which were
subject thereto will become available for future grant or sale
under the 2020 Plan (unless the 2020 Plan has terminated), provided
that no more than 11,875,329 shares may become available in this
manner. Notwithstanding the foregoing and, subject to adjustment as
provided in the 2020 Plan, the maximum number of shares that may be
issued upon the exercise of incentive stock options will equal the
aggregate share number stated above, plus, to the extent allowable
under Code Section 422 and the Treasury Regulations promulgated
thereunder, any shares that become available for issuance under the
2020 Plan in accordance with the foregoing.
The
shareholders are being asked to approve the Share Reserve Increase,
which would reserve for issuance pursuant to our 2020 Plan an
additional 19,000,000 shares. Such increase to the shares available
under the 2020 Plan is subject to approval by our
shareholders.
45
If an
award expires or becomes unexercisable without having been
exercised in full, is surrendered pursuant to an exchange program,
or, with respect to restricted stock, restricted stock units,
performance units or performance shares, is forfeited to or
repurchased by us due to the failure to vest, the unpurchased
shares (or for awards other than options or stock appreciation
rights the forfeited or repurchased shares) which were subject
thereto will become available for future grant or sale under the
2020 Plan (unless the 2020 Plan has terminated). Only shares
actually issued pursuant to a stock appreciation right will cease
to be available under the 2020 Plan; all remaining shares under
stock appreciation rights will remain available for future grant or
sale under the 2020 Plan (unless the 2020 Plan has terminated).
Shares that have actually been issued under the 2020 Plan under any
award will not be returned to the 2020 Plan and will not become
available for future distribution under the 2020 Plan. However, if
shares issued pursuant to awards of restricted stock or, restricted
stock units, performance shares or performance units are
repurchased by us or are forfeited to us due to the failure to
vest, such shares will become available for future grant under the
2020 Plan. Shares used to pay the exercise price of an award or to
satisfy the tax withholdings related to an award will become
available for future grant or sale under the 2020 Plan. To the
extent an award under the 2020 Plan is paid out in cash rather than
shares, such cash payment will not result in reducing the number of
shares available for issuance under the 2020 Plan.
Plan Administration
Our
Board or one or more committees appointed by our Board will
administer our 2020 Plan. In addition, if we determine it is
desirable to qualify transactions under our 2020 Plan as exempt
under Rule 16b-3 of the Exchange Act, or Rule 16b-3, such
transactions will be structured with the intent that they satisfy
the requirements for exemption under Rule 16b-3. Subject to the
provisions of our 2020 Plan, the administrator has the power to
administer our 2020 Plan and make all determinations deemed
necessary or advisable for administering the 2020 Plan, including
the power to determine the fair market value of our common stock,
select the service providers to whom awards may be granted,
determine the number of shares covered by each award, approve forms
of award agreements for use under the 2020 Plan, determine the
terms and conditions of awards (including the exercise price, the
time or times at which the awards may be exercised, any vesting
acceleration or waiver or forfeiture restrictions and any
restriction or limitation regarding any award or the shares
relating thereto), construe and interpret the terms of our 2020
Plan and awards granted under it, prescribe, amend and rescind
rules relating to our 2020 Plan, including creating sub-plans and
modify or amend each award, including the discretionary authority
to extend the post-termination exercisability period of awards
(provided that no option or stock appreciation right will be
extended past its original maximum term), and to allow a
participant to defer the receipt of payment of cash or the delivery
of shares that would otherwise be due to such participant under an
award. The administrator also has the authority to allow
participants the opportunity to transfer outstanding awards to a
financial institution or other person or entity selected by the
administrator and to institute an exchange program by which
outstanding awards may be surrendered or cancelled in exchange for
awards of the same type which may have a higher or lower exercise
price or different terms, awards of a different type or cash, or by
which the exercise price of an outstanding award is increased or
reduced. The administrator’s decisions, interpretations and
other actions are final and binding on all
participants.
Stock Options
Stock
options may be granted under our 2020 Plan. The exercise price of
options granted under our 2020 Plan generally must at least be
equal to the fair market value of our common stock on the date of
grant. The administrator will determine the methods of payment of
the exercise price of an option, which may include cash, shares or
other property acceptable to the administrator, as well as other
types of consideration permitted by applicable law. After the
termination of service of an employee, director or consultant, they
may exercise their option for the period of time stated in their
option agreement. In the absence of a specified time in an award
agreement, if termination is due to death or disability, the option
will remain exercisable for twelve months. In all other cases, in
the absence of a specified time in an award agreement, the option
will remain exercisable for three months following the termination
of service. An option may not be exercised later than the
expiration of its term. Subject to the provisions of our 2020 Plan,
the administrator determines the other terms of
options.
Stock Appreciation Rights
Stock
appreciation rights may be granted under our 2020 Plan. Stock
appreciation rights allow the recipient to receive the appreciation
in the fair market value of our common stock between the exercise
date and the date of grant. Stock appreciation rights may not have
a term exceeding ten years. After the termination of service of an
employee, director or consultant, they may exercise their stock
appreciation right for the period of time stated in their stock
appreciation rights agreement. In the absence of a specified time
in an award agreement, if termination is due to death or
disability, the stock appreciation rights will remain exercisable
for twelve months. In all other cases, in the absence of a
specified time in an award agreement, the stock appreciation rights
will remain exercisable for three months following the termination
of service. However, in no event may a stock appreciation right be
exercised later than the expiration of its term. Subject to the
provisions of our 2020 Plan, the administrator determines the other
terms of stock appreciation rights, including when such rights
become exercisable and whether to pay any increased appreciation in
cash or with shares of our common stock, or a combination thereof,
except that the per share exercise price for the shares to be
issued pursuant to the exercise of a stock appreciation right will
be no less than 100% of the fair market value per share on the date
of grant.
46
Restricted Stock
Restricted
stock may be granted under our 2020 Plan. Restricted stock awards
are grants of shares of our common stock that vest in accordance
with terms and conditions established by the administrator. The
administrator will determine the number of shares of restricted
stock granted to any employee, director or consultant and, subject
to the provisions of our 2020 Plan, will determine the terms and
conditions of such awards. The administrator may impose whatever
conditions to vesting it determines to be appropriate (for example,
the administrator may set restrictions based on the achievement of
specific performance goals or continued service to us); provided,
however, that the administrator, in its sole discretion, may
accelerate the time at which any restrictions will lapse or be
removed. Recipients of restricted stock awards generally will have
voting and dividend rights with respect to such shares upon grant
without regard to vesting, unless the administrator provides
otherwise. Shares of restricted stock that do not vest are subject
to our right of repurchase or forfeiture.
Restricted Stock Units
RSUs
may be granted under our 2020 Plan. RSUs are bookkeeping entries
representing an amount equal to the fair market value of one share
of our common stock. Subject to the provisions of our 2020 Plan,
the administrator determines the terms and conditions of RSUs,
including the vesting criteria and the form and timing of payment.
The administrator may set vesting criteria based upon the
achievement of company-wide, divisional, business unit or
individual goals (including continued employment or service),
applicable federal or state securities laws or any other basis
determined by the administrator in its discretion. The
administrator, in its sole discretion, may pay earned RSUs in the
form of cash, in shares of our common stock or in some combination
thereof. Notwithstanding the foregoing, the administrator, in its
sole discretion, may accelerate the time at which any vesting
requirements will be deemed satisfied.
Performance Units and Performance Shares
Performance
units and performance shares may be granted under our 2020 Plan.
Performance units and performance shares are awards that will
result in a payment to a participant only if performance goals
established by the administrator are achieved or the awards
otherwise vest. The administrator will establish performance
objectives or other vesting criteria in its discretion, which,
depending on the extent to which they are met, will determine the
number or the value of performance units and performance shares to
be paid out to participants. The administrator may set performance
objectives based on the achievement of company-wide, divisional,
business unit or individual goals (including continued employment
or service), applicable federal or state securities laws or any
other basis determined by the administrator in its discretion.
After the grant of a performance unit or performance share, the
administrator, in its sole discretion, may reduce or waive any
performance criteria or other vesting provisions for such
performance units or performance shares. Performance units shall
have an initial dollar value established by the administrator on or
prior to the grant date. Performance shares shall have an initial
value equal to the fair market value of our common stock on the
grant date. The administrator, in its sole discretion, may pay
earned performance units or performance shares in the form of cash,
in shares or in some combination thereof.
Non-Employee Directors
Our
2020 Plan provides that all non-employee directors will be eligible
to receive all types of awards (except for incentive stock options)
under our 2020 Plan. Our 2020 Plan includes a maximum annual limit
of $750,000 of equity awards that may be granted to a non-employee
director in any fiscal year, increased to $1,500,000 in connection
with the non-employee director’s initial service. For
purposes of this limitation, the value of equity awards is based on
the grant date fair value (determined in accordance with GAAP). Any
equity awards granted to a person for their services as an
employee, or for their services as a consultant (other than as a
non-employee director), will not count for purposes of the
limitation. The maximum limit does not reflect the intended size of
any potential compensation or equity awards to our non-employee
directors.
Non-transferability of Awards
Unless
the administrator provides otherwise, our 2020 Plan generally does
not allow for the transfer of awards and only the recipient of an
award may exercise an award during their lifetime. If the
administrator makes an award transferrable, such award will contain
such additional terms and conditions as the administrator deems
appropriate.
47
Certain Adjustments
In
the event of certain changes in our capitalization, to prevent
diminution or enlargement of the benefits or potential benefits
available under our 2020 Plan, the administrator will adjust the
number and class of shares that may be delivered under our 2020
Plan or the number, and price of shares covered by each outstanding
award and the numerical share limits set forth in our 2020
Plan.
Dissolution or Liquidation
In
the event of our proposed liquidation or dissolution, the
administrator will notify participants as soon as practicable and
all awards will terminate immediately prior to the consummation of
such proposed transaction.
Merger or Change in Control
Our
2020 Plan provides that in the event of our merger with or into
another corporation or entity or a “change in control”
(as defined in our 2020 Plan), each outstanding award will be
treated as the administrator determines, including, without
limitation, that (i) awards will be assumed, or substantially
equivalent awards will be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof) with appropriate
adjustments as to the number and kind of shares and prices; (ii)
upon written notice to a participant, that the participant’s
awards will terminate upon or immediately prior to the consummation
of such merger or change in control; (iii) outstanding awards will
vest and become exercisable, realizable or payable, or restrictions
applicable to an award will lapse, in whole or in part, prior to or
upon consummation of such merger or change in control and, to the
extent the administrator determines, terminate upon or immediately
prior to the effectiveness of such merger or change in control;
(iv) (A) the termination of an award in exchange for an amount of
cash or property, if any, equal to the amount that would have been
attained upon the exercise of such award or realization of the
participant’s rights as of the date of the occurrence of the
transaction (and, for the avoidance of doubt, if as of the date of
the occurrence of the transaction the administrator determines in
good faith that no amount would have been attained upon the
exercise of such award or realization of the participant’s
rights, then such award may be terminated by us without payment) or
(B) the replacement of such award with other rights or property
selected by the administrator in its sole discretion; (v) with
respect only to an award (or portion thereof) that is unvested as
of immediately prior to the effective time of the merger or change
in control, the termination of the award immediately prior to the
effective time of the merger or change in control with such payment
to the participant (including no payment) as the administrator
determines in its discretion; or (vi) any combination of the
foregoing. The administrator will not be obligated to treat all
awards, all awards a participant holds, or all awards of the same
type, similarly. In the event that awards (or portion thereof) are
not assumed or substituted for in the event of a merger or change
in control, the participant will fully vest in and have the right
to exercise all of their outstanding options and stock appreciation
rights, including shares as to which such awards would not
otherwise be vested or exercisable, all restrictions on restricted
stock and RSUs will lapse and, with respect to awards with
performance-based vesting, all performance goals or other vesting
criteria will be deemed achieved at 100% of target levels and all
other terms and conditions met, in all cases, unless specifically
provided otherwise under the applicable award agreement or other
written agreement between the participant and us or any of our
subsidiaries or parents, as applicable. If an option or stock
appreciation right is not assumed or substituted in the event of a
merger or change in control, the administrator will notify the
participant in writing or electronically that the option or stock
appreciation right will be exercisable for a period of time
determined by the administrator in its sole discretion and the
vested option or stock appreciation right will terminate upon the
expiration of such period.
For
awards granted to an outside director, the outside director will
fully vest in and have the right to exercise all of their
outstanding options and stock appreciation rights, all restrictions
on restricted stock and RSUs will lapse and, for awards with
performance-based vesting, unless specifically provided for in the
award agreement, all performance goals or other vesting criteria
will be deemed achieved at 100% of target levels and all other
terms and conditions met.
Clawback
Awards
will be subject to any clawback policy of ours that we are required
to adopt pursuant to the listing standards of any national
securities exchange or association on which our securities are
listed or as is otherwise required by the Dodd-Frank Wall Street
Reform and Consumer Protection Act or other applicable laws. The
administrator also may specify in an award agreement that the
participant’s rights, payments or benefits with respect to an
award will be subject to reduction, cancellation, forfeiture or
recoupment upon the occurrence of certain specified events. Our
Board may require a participant to forfeit, return or reimburse us
all or a portion of the award or shares issued under the award, any
amounts paid under the award and any payments or proceeds paid or
provided upon disposition of the shares issued under the award in
order to comply with such clawback policy or applicable
laws.
Amendment and Termination
The
administrator has the authority to amend, suspend or terminate our
2020 Plan provided such action does not impair the existing rights
of any participant. Our 2020 Plan automatically will terminate in
2030, unless we terminate it sooner.
48
Federal Tax Aspects
The
following summary is intended only as a general guide to the
material U.S. federal income tax consequences of participation in
the 2020 Plan. The summary is based on existing U.S. laws and
regulations, and there can be no assurance that those laws and
regulations will not change in the future. The summary does not
purport to be complete and does not discuss the tax consequences
upon a participant’s death, or the provisions of the income
tax laws of any municipality, state or non-U.S. country in which
the participant may reside. As a result, tax consequences for any
particular participant may vary based on individual
circumstances.
Incentive Stock Options
An
optionee recognizes no taxable income for regular income tax
purposes as a result of the grant or exercise of an incentive stock
option qualifying under Section 422 of the Code. Optionees who
neither dispose of their shares within two (2) years following the
date the option was granted nor within one (1) year following the
exercise of the option normally will recognize a capital gain or
loss equal to the difference, if any, between the sale price and
the purchase price of the shares. If an optionee satisfies such
holding periods upon a sale of the shares, the Company will not be
entitled to any deduction for federal income tax purposes. If an
optionee disposes of shares within two (2) years after the date of
grant or within one (1) year after the date of exercise, or a
disqualifying disposition, the difference between the fair market
value of the shares on the exercise date and the option exercise
price (not to exceed the gain realized on the sale if the
disposition is a transaction with respect to which a loss, if
sustained, would be recognized) will be taxed as ordinary income at
the time of disposition. Any gain in excess of that amount will be
a capital gain. If a loss is recognized, there will be no ordinary
income, and such loss will be a capital loss. Any ordinary income
recognized by the optionee upon the disqualifying disposition of
the shares generally should be deductible by the Company for
federal income tax purposes, except to the extent such deduction is
limited by applicable provisions of the Code.
The
difference between the option exercise price and the fair market
value of the shares on the exercise date is treated as an
adjustment in computing the optionee’s alternative minimum
taxable income and may be subject to an alternative minimum tax
which is paid if such tax exceeds the regular tax for the year.
Special rules may apply with respect to certain subsequent sales of
the shares in a disqualifying disposition, certain basis
adjustments for purposes of computing the alternative minimum
taxable income on a subsequent sale of the shares and certain tax
credits which may arise with respect to optionees subject to the
alternative minimum tax.
Nonstatutory Stock Options
Options
not designated or qualifying as incentive stock options will be
nonstatutory stock options having no special U.S. tax status. An
optionee generally recognizes no taxable income as the result of
the grant of such an option. Upon exercise of a nonstatutory stock
option, the optionee normally recognizes ordinary income equal to
the amount that the fair market value of the shares on such date
exceeds the exercise price. If the optionee is an employee, such
ordinary income generally is subject to withholding of income and
employment taxes. Upon the sale of stock acquired by the exercise
of a nonstatutory stock option, any gain or loss, based on the
difference between the sale price and the fair market value on the
exercise date, will be taxed as capital gain or loss. No tax
deduction is available to the Company with respect to the grant of
a nonstatutory stock option or the sale of the stock acquired
pursuant to such grant.
Stock Appreciation Rights
In
general, no taxable income is reportable when a stock appreciation
right is granted to a participant. Upon exercise, the participant
generally will recognize ordinary income in an amount equal to the
fair market value of any shares of our common stock received. If
the participant is an employee, such ordinary income generally is
subject to withholding of income and employment taxes. Any
additional gain or loss recognized upon any later disposition of
the shares would be capital gain or loss.
Restricted Stock Awards
A
participant acquiring restricted stock generally will recognize
ordinary income equal to the fair market value of the shares on the
vesting date. If the participant is an employee, such ordinary
income generally is subject to withholding of income and employment
taxes. The participant may elect, pursuant to Section 83(b) of the
Code, to accelerate the ordinary income tax event to the date of
acquisition by filing an election with the Internal Revenue Service
no later than thirty (30) days after the date the shares are
acquired. Upon the sale of shares acquired pursuant to a restricted
stock award, any gain or loss, based on the difference between the
sale price and the fair market value on the date the ordinary
income tax event occurs, will be taxed as capital gain or
loss.
49
Restricted Stock Unit Awards
There
generally are no immediate tax consequences of receiving an award
of restricted stock units. A participant who is awarded restricted
stock units generally will be required to recognize ordinary income
in an amount equal to the fair market value of shares issued to
such participant at the end of the applicable vesting period or, if
later, the settlement date elected by the administrator or a
participant. If the participant is an employee, such ordinary
income generally is subject to withholding of income and employment
taxes. Any additional gain or loss recognized upon any later
disposition of any shares received would be capital gain or
loss.
Performance Shares and Performance Unit Awards
A
participant generally will recognize no income upon the grant of a
performance share or a performance unit award. Upon the settlement
of such awards, participants normally will recognize ordinary
income in the year of receipt in an amount equal to the cash
received and the fair market value of any cash or nonrestricted
shares received. If the participant is an employee, such ordinary
income generally is subject to withholding of income and employment
taxes. Upon the sale of any shares received, any gain or loss,
based on the difference between the sale price and the fair market
value on the date the ordinary income tax event occurs, will be
taxed as capital gain or loss.
Section 409A
Section
409A of the Code provides certain requirements for non-qualified
deferred compensation arrangements with respect to an
individual’s deferral and distribution elections and
permissible distribution events. Awards granted under the 2020 Plan
with a deferral feature will be subject to the requirements of
Section 409A of the Code. If an award is subject to and fails to
satisfy the requirements of Section 409A of the Code, the recipient
of that award may recognize ordinary income on the amounts deferred
under the award, to the extent vested, which may be prior to when
the compensation is actually or constructively received. Also, if
an award that is subject to Section 409A fails to comply with
Section 409A’s provisions, Section 409A imposes an additional
20% federal income tax on compensation recognized as ordinary
income, as well as interest on such deferred compensation. Certain
states have enacted laws similar to Section 409A which impose
additional taxes, interest and penalties on non-qualified deferred
compensation arrangements. The Company will also have withholding
and reporting requirements with respect to such
amounts.
Medicare Surtax
A
participant’s annual “net investment income”, as
defined in Section 1411 of the Internal Revenue Code, may be
subject to a 3.8% federal surtax, generally referred to as the
Medicare Surtax. Net investment income may include capital gain
and/or loss arising from the disposition of shares subject to a
participant’s awards under the 2020 Plan. Whether a
participant’s net investment income will be subject to the
Medicare Surtax will depend on the participant’s level of
annual income and other factors.
Tax Effect for the Company
The
Company generally will be entitled to a tax deduction in connection
with an award under the 2020 Plan in an amount equal to the
ordinary income realized by a participant and at the time the
participant recognizes such income (for example, the exercise of a
nonstatutory stock option). Special rules limit the deductibility
of compensation paid to our chief executive officer and other
“covered employees” as determined under Section 162(m)
and applicable guidance. Under Section 162(m), the annual
compensation paid to any of these specified executives will be
deductible only to the extent that it does not exceed
$1,000,000.
New Plan Benefits
The
number of awards that an employee, director, or consultant may
receive under the 2020 Plan is in the discretion of the
administrator and therefore cannot be determined in advance. No
equity awards were granted by us in fiscal year 2019, and as a
result the benefits or amounts which would have been received by or
allocated to our employees, directors, or consultants for the last
completed fiscal year is not determinable.
As
noted above, we granted to Mr. Gandler an option to purchase
4,100,000 shares subject to the Share Reserve Increase to our chief
executive officer, and that such option will forfeit automatically
if the shareholders do not approve the 2020 Plan
Proposal.
50
Required Vote
Approval of the
Company’s 2020 Plan Proposal requires, under Florida law, a
majority of the votes cast to be voted “FOR” the
proposal in order for the proposal to pass. Abstentions and broker
non-votes will not be counted as votes “FOR” or
“AGAINST” the proposal, and thus will have no effect on
the outcome of this proposal.
Recommendation of the Board
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS
VOTE “FOR” THE APPROVAL OF THE 2020 PLAN
PROPOSAL.
ITEM 5
— Ratification of Form of
Indemnification Agreement
OnApril
1, 2020, in connection with the Merger, the Board approved a form
of indemnification agreement, substantially in the form appended to
this Proxy Statement as Appendix B, or the
Indemnification Agreement, and authorized and directed us to enter
into the Indemnification Agreement with each of our current and
future directors and executive officers, and certain of our prior
directors and officers who were directors and/or officers at the
time of the approval of the Indemnification Agreement. The Company
has entered into the Indemnification Agreement with each of our
current directors and executive officers, who we refer to
collectively as the Indemnified Parties. We are asking you to
ratify the Indemnification Agreement and our execution thereof with
each of our future directors and executive officers.
Pursuant to the
terms and conditions of the Indemnification Agreement, the
Indemnified Parties are indemnified by the Company against certain
liabilities arising out of their service to the Company. Prior to
the entry into the Indemnification Agreement with each of our
current directors and officers, we did not have indemnification
agreements with our directors and officers, except to the extent
provided for by the individual employment agreements of our past
and current officers.
The
Board believes the Indemnification Agreement serves the best
interests of the Company and its shareholders. The Board believes
it is extremely important for us to be able to continue to attract
and retain the services of knowledgeable and experienced persons as
directors and officers who, through their efforts and expertise,
can make a significant contribution to our success. However, our
ability in this regard is threatened by both a growing risk of
litigation directed against corporate directors and officers
generally, as well as the difficult market for directors’ and
officers’ liability insurance, in which the available
coverage is more limited than in the past and the cost of which has
increased substantially. The Board believes the Indemnification
Agreement will strengthen our ability to retain and attract
well-qualified directors and officers in light of these
circumstances. The Indemnification Agreement is intended to
complement the indemnity protection available under applicable law,
our articles of incorporation and bylaws, each as amended, and the
directors’ and officers’ insurance policies which are
or may hereafter be maintained by the Company.
Although neither
shareholder approval nor ratification of the Indemnification
Agreement is required by law, the Board believes it is appropriate
to submit the Indemnification Agreement to the Company’s
shareholders for ratification because the members of the Board and
the executive officers are parties to, and the beneficiaries of,
the rights contained in the Indemnification Agreement. If the
shareholders fail to ratify the Indemnification Agreement, the
Board will consider whether or not to seek a modification or
termination of the agreements that have been entered into to-date.
Even if the Indemnification Agreement is ratified, the Board in its
discretion may amend the Indemnification Agreement, or any one of
them, at any time, if the Board believes that such amendment would
be in the best interests of the Company and its
shareholders.
Description of the Indemnification Agreement
The
Indemnification Agreement requires us to indemnify the indemnitee,
to the fullest extent permitted by applicable law, against all
expenses, judgments, fines and amounts paid in settlement incurred
by the indemnitee in connection with any proceeding, whether of a
civil, criminal, administrative or investigative nature, in which
the indemnitee may be or may have been involved as a party, witness
or otherwise, by reason of the fact that indemnitee was a director
or officer of our company, or by reason of any action or inaction
on indemnitee’s part while acting as a director or officer of
our company, or by reason of the fact that indemnitee was serving,
at the request of our company, in certain capacities for other
entities. In addition, the Indemnification Agreement provides for
the advancement of expenses, including attorney fees, incurred by
the indemnitee in defending against any such proceeding. The
Indemnification Agreement sets out, among other things, the process
for determining entitlement to indemnification, the conditions to
advancement of expenses, the procedures for enforcement of
indemnification rights, the limitations on indemnification and
requirements relating to the notice and defense of claims for which
indemnification is sought.
51
The
Indemnification Agreement only provides for indemnification for
expenses if the indemnitee acted in good faith and in a manner the
indemnitee reasonably believed to be in or not opposed to our best
interests and, with respect to any criminal proceeding, had no
reasonable cause to believe that such indemnitee’s conduct
was unlawful. No indemnification for expenses will be made under
the Indemnification Agreement for any claim as to which a court of
competent jurisdiction has finally adjudged the indemnitee to be
liable to us, except to the extent that the court has determined
that, despite the adjudication of liability but in view of all the
circumstances of the case, the indemnitee is fairly and reasonably
entitled to indemnification for such expenses as the court has
deemed proper.
The
foregoing description is only a summary of certain provisions of
the Indemnification Agreement, and is qualified in its entirety by
reference to the Indemnification Agreement.
Indemnification Under Applicable Law
For a
summary of the application of the provisions of our articles and
bylaws, each as amended, and applicable law to the indemnification
of our directors and officers, see “Certain Relationships and Related Person
Transaction—Indemnification of Officers and
Directors.”
Required Vote
Ratification of the
Company’s form of indemnification agreement for use with our
directors and officers requires, under Florida law, a majority of
the votes cast to be voted “FOR” the proposal in order
for the proposal to pass. Abstentions and broker non-votes will not
be counted as votes “FOR” or “AGAINST” the
proposal, and thus will have no effect on the outcome of this
proposal.
Recommendation of the Board
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR”
THE RATIFICATION OF THE FORM OF INDEMNIFICATION AGREEMENT FOR USE
WITH OUR DIRECTORS AND OFFICERS.
ITEM 6 — Ratification
of Independent Registered Public Accounting
Firm
The
audit committee has selected KPMG LLP to serve as our independent
registered public accounting firm for the fiscal year ending
December 31, 2020, and has further directed that management submit
the selection of KPMG LLP as our independent registered public
accounting firm for ratification by the shareholders at the Annual
Meeting.
We are
asking our shareholders to ratify the selection of KPMG LLP as our
independent registered public accounting firm. Although
ratification is not required by our bylaws or otherwise, we are
submitting the selection of KPMG LLP to our shareholders for
ratification as a matter of good corporate practice and because we
value our shareholders’ views on the Company’s
independent registered public accounting firm. In the event that
our shareholders fail to ratify the selection, the audit committee
will review its future selection of independent auditors. Even if
this selection is ratified, pursuant to the Sarbanes-Oxley Act of
2002, the audit committee is directly responsible for the
appointment, compensation, retention and oversight of the work of
our independent registered public accounting firm and may determine
to change the firm selected at such time and based on such factors
as it determines to be appropriate.
Representatives of
KPMG LLP are expected to be present at the Annual Meeting to answer
appropriate questions. They also will have the opportunity to make
a statement if they desire to do so.
52
Change in Independent Registered Public Accounting
Firm
Resignation of Fruci & Associates II, PLLC
On
January 15, 2019, we received a notice of resignation from Fruci
& Associates II, PLLC, or Fruci, our independent registered
accounting firm since November 9, 2017. Citing its boutique size
Fruci indicated that because of the Company’s change in
operations and its business plan to grow substantially and quickly,
the Company would be better served by a larger audit firm with
experience consistent with the Company’s future plans and
change in operations. Fruci also expressed its view of the positive
working relationship between the Company and Fruci staff, a
sentiment which was shared by management of the Company, and
Fruci’s disappointment that the Company had grown beyond
Fruci’s boutique business model. Fruci’s report on the
Company’s financial statements for the fiscal year ended
December 31, 2017 did not contain an adverse opinion or a
disclaimer of opinion and was not qualified or modified as to
uncertainty, audit scope or accounting principles. Furthermore,
during the Company’s fiscal year ended December 31, 2017 and
through January 15, 2019, there have been no disagreements with
Fruci on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedure,
which disagreements, if not resolved to Fruci’s satisfaction,
would have caused Fruci to make reference to the subject matter of
the disagreement in connection with its report on the
Company’s financial statements for such period.
Except
as set forth below, for the fiscal year ended December 31, 2017 and
through January 31, 2019, there were no “reportable
events” as that term is described in Item 304(a)(1)(v) of
Regulation S-K. Fruci’s report for the fiscal year ended
December 31, 2017 included an explanatory paragraph indicating that
there was substantial doubt about the Company’s ability to
continue as a going concern.
We provided Fruci with a copy of the disclosures
made in connection with the filing of a Form 8-K on January 22,
2019 and requested that Fruci a furnish a letter addressed
to the Securities and Exchange Commission, as required by Item
304(a)(3) of Regulation S-K stating whether it agreed with such
disclosures, and if not, stating the respects in which it did not
agree. A copy of the letter was filed as an exhibit to the Form 8-K
filed on January 22, 2019.
Engagement and Dismissal of Marcum LLP
On
March 1, 2019, the Board appointed Marcum LLP, or Marcum, as our
new independent registered accounting firm. During the
Company’s two most recent fiscal years prior to the
appointment of Marcum and the subsequent interim period through
March 1, 2019, neither the Company nor anyone acting on the
Company’s behalf consulted Marcum with respect to any of the
matters or reportable events set forth in Item 304(a)(2)(i) and
(ii) of Regulation S-K.
On
March 31, 2020, the Company dismissed Marcum from its role as the
Company’s independent registered public accounting firm, and
on March 31, 2020 the Company engaged Salberg & Company P.A.,
or Salberg, as its new independent registered public accounting
firm. The change of the Company’s independent registered
public accounting firm from Marcum to Salberg was approved
unanimously by our Board. The report of Marcum on the
Company’s consolidated financial statements for the fiscal
year ended December 31, 2018 did not contain an adverse opinion or
disclaimer of opinion and was not qualified or modified as to
uncertainty, audit scope or accounting principles. In connection
with the audit of the Company’s consolidated financial
statements for the fiscal year ended December 31, 2018, and in the
subsequent interim period through April 7, 2020, there were no
disagreements with Marcum on any matters of accounting principles
or practices, financial statement disclosure or auditing scope and
procedures which, if not resolved to the satisfaction of Marcum,
would have caused Marcum to make reference to the matter in their
report. There were no reportable events (as that term is described
in Item 304(a)(1)(v) of Regulation S-K) during the fiscal year
ended December 31, 2018, or in the subsequent period through April
7, 2020.
We provided Marcum with a copy of the disclosures made in
connection with the filing of a Form 8-K on April 7, 2020 and
requested that Marcum furnish a letter addressed to the Securities
and Exchange Commission, as required by Item 304(a)(3) of
Regulation S-K stating whether it agreed with such disclosures, and
if not, stating the respects in which it did not agree. A copy of
the letter was filed as an exhibit to the Form 8-K/A filed on April
14, 2020.
53
Engagement and Disengagement of Salberg & Company
P.A.
On
March 31, 2020, we appointed Salberg as our new independent
registered public accounting firm. During the Company’s two
most recent fiscal years prior to the appointment of Salberg and
the subsequent interim period through April 6, 2020, neither the
Company nor anyone acting on its behalf consulted with Salberg
regarding any of the matters described in Items 304(a)(2)(i) and
(ii) of Regulation S-K.
On
April 23, 2020, Salberg disengaged from its role as the
Company’s independent registered public accounting firm.
Because Salberg has not issued any reports on the Company’s
financial statements, no Salberg report for the past two years
contained an adverse opinion or a disclaimer of opinion and/or was
qualified or modified as to uncertainty, audit scope or accounting
principles. Furthermore, during the Company’s two most recent
fiscal years and through April 23, 2020, there have been no
disagreements with Salberg on any matter of accounting principles
or practices, financial statement disclosure or auditing scope or
procedure, which disagreements, if not resolved to Salberg’s
satisfaction, would have caused Salberg to make reference to the
subject matter of the disagreement in connection with reports on
the Company’s financial statements for such periods. There
were no reportable events (as that term is described in Item
304(a)(1)(v) of Regulation S-K) during the fiscal year ended
December 31, 2018, or in the subsequent period through April 23,
2020.
On
April 23, 2020, the Company engaged L J Soldinger Associates, LLC,
or Soldinger, as its new independent registered public accounting
firm. The change of the Company’s independent registered
public accounting firm from Salberg to Soldinger was approved
unanimously by our Board.
We
provided Salberg with a copy of the foregoing disclosures in
connection with the filing of a Form 8-K on April 29, 2020, and
requested that Salberg furnish a letter addressed to the Securities
and Exchange Commission, as required by Item 304(a)(3) of
Regulation S-K stating whether it agreed with such disclosures, and
if not, stating the respects in which it did not agree. A copy of
the letter was filed as an exhibit to the Form 8-K filed on April
29, 2020.
Engagement and Dismissal of L J Soldinger Associates,
LLC
On
April 23, 2020, the Board appointed L J Soldinger Associates, LLC,
or Soldinger, as the Company’s new independent registered
public accounting firm. During the Company’s two most recent
fiscal years prior to the appointment of Soldinger and the
subsequent interim period through April 23, 2020, neither the
Company nor anyone acting on its behalf consulted with Soldinger
regarding any of the matters described in Items 304(a)(2)(i) and
(ii) of Regulation S-K.
On
September 21, 2020, the Company dismissed Soldinger from its role
as the Company’s independent registered public accounting
firm, and on September 21, 2020 the Company engaged KPMG, LLP, or
KPMG, as its new independent registered public accounting firm. The
change of the Company’s independent registered public
accounting firm from Soldinger to KPMG was approved by the
Company’s audit committee. The report of Soldinger on the
Company’s consolidated financial statements for the fiscal
year ended December 31, 2019 did not contain an adverse opinion or
disclaimer of opinion and was not qualified or modified as to
uncertainty, audit scope or accounting principles. In connection
with the audit of the Company’s consolidated financial
statements for the fiscal year ended December 31, 2019, and in the
subsequent interim period through September 21, 2020, there were no
disagreements with Soldinger on any matters of accounting
principles or practices, financial statement disclosure or auditing
scope and procedures which, if not resolved to the satisfaction of
Soldinger, would have caused Soldinger to make reference to the
matter in their report. There were no reportable events (as that
term is described in Item 304(a)(1)(v) of Regulation S-K) during
the fiscal year ended December 31, 2018, or in the subsequent
periods ended March 31, 2020 or June 30, 2020.
We provided Soldinger with a
copy of the foregoing disclosures in connection with the filing of
a Form 8-K on September 24, 2020, and requested that Salberg
furnish a letter addressed to the Securities and Exchange
Commission, as required by Item 304(a)(3) of Regulation S-K stating
whether it agreed with such disclosures, and if not, stating the
respects in which it did not agree. A copy of the letter was filed
as an exhibit to the Form 8-K filed on September 24,
2020.
Engagement of KPMG LLP
On
September 21, 2020, the audit committee approved the appointment of
KPMG as our new independent registered public accounting firm. On
September 21, 2020, we entered into an engagement agreement with
KPMG effective immediately.
During
our two most recent fiscal years ended December 31, 2019 and 2018,
and the subsequent interim period through September 21, 2020,
neither the Company nor anyone acting on its behalf consulted with
KPMG regarding either: (i) the application of accounting principles
to a specified transaction, either completed or proposed, or the
type of audit opinion that might be rendered on our financial
statements, in connection with which either a written report or
oral advice was provided to the Company that KPMG concluded was an
important factor considered by the Company in reaching a decision
as to the accounting, auditing or financial reporting issue; or
(ii) any matter that was either the subject of a disagreement (as
defined in Item 304(a)(1)(iv) of Regulation S-K and the related
instructions) or reportable event (as defined in Item 304(a)(1)(v)
of Regulation S-K).
54
Fees Paid to Prior Independent Registered Public Accounting
Firms
The
following tables present fees for professional audit services
rendered by the Company’s previous independent registered
public accounting firms, including (i) L J Soldinger Associates,
LLC, (ii) Ernst & Young LLP (which was fuboTV
Pre-Merger’s auditor for the fiscal years ended 2018 and
2019), (iii) Salberg & Company P.A. and (iv) Marcum LLP for the
audits of the Company’s annual financial statements and
internal control over financial reporting for the fiscal years
ended December 31, 2018 and 2019 and fees billed (or fees that will
be billed in the future) for audit-related, tax, and other services
rendered by each of such firms during those periods or for work
performed in respect of such periods. All of these fees were
approved by the audit committee or, prior to the audit
committee’s existence, by the Board.
Fees Paid to L J Soldinger Associates, LLC
|
|
Year Ended December 31,
|
|
|
|
2018
|
2019(4)
|
|
Audit
fees(1)
|
$-
|
$901,000
|
|
Audit-related
fees(2)
|
-
|
345,000
|
|
Tax
fees(2)
|
-
|
92,000
|
|
All
other fees
|
-
|
-
|
|
Total
fees
|
$-
|
$1,338,000
|
_________________
(1)
Audit fees
consisted principally of work performed in connection with the
audit of our consolidated financial statements for the year ended
December 31, 2019 included in our periodic filings, review of our
quarterly financial statements, the restatements of our financial
statements, work related to Soldinger’s dismissal and the
onboarding of KPMG.
(2)
Audit-related fees
consist of work performed on various registration statements and
provision of consents and comfort letters in connection with such
registration statements in the year ended December 31,
2020.
(3)
Tax fees consisted
principally of compliance and tax consulting services performed in
connection with the preparation of corporate income tax returns for
the fiscal years ended December 31, 2019, 2018 and 2017 that were
performed in the year ended December 31, 2020.
(4)
Consists of fees
for work performed in the year ended December 31,
2020.
Fees Paid to Ernst & Young LLP
|
|
Year Ended December 31,
|
|
|
|
2018
|
2019(3)
|
|
Audit
fees(1)
|
$-
|
$210,000
|
|
Audit-related
fees(2)
|
-
|
309,000
|
|
Tax
fees
|
-
|
-
|
|
All
other fees
|
-
|
|
|
Total
fees
|
$-
|
$519,000
|
(1)
Audit fees
consisted principally of work performed in connection with the
audit of fuboTV Pre-Merger’s consolidated financial
statements for the year ended December 31, 2019 included in our
periodic filings and registration statements, review of our
quarterly financial statements and services that are normally
provided by the independent registered public accountants in
connection with statutory and regulatory filings or engagements,
including related to the provision of consents and comfort letters.
(2)
Audit-related fees
consist of work performed on various registration statements and
provision of consents and comfort letters in connection with such
registration statements.
(3)
Consists of
fees for work performed in the year ended December 31,
2020.
55
Fees Paid to Marcum LLP
|
|
Year Ended December 31,
|
|
|
|
2018(3)
|
2019
|
|
Audit
fees(1)
|
$125,000
|
$-
|
|
Audit-related
fees(2)
|
253,000
|
-
|
|
Tax
fees
|
-
|
-
|
|
All
other fees
|
-
|
-
|
|
Total
fees
|
$378,000
|
$-
|
(1)
Audit fees payable
to Marcum LLP were for professional services rendered for the
audits of our annual financial statements for the year ended
December 31, 2018.
(2)
Consists of
$253,000 for services related to services rendered for the audits
of our annual financial statements for the year ended December 31,
2018 in connection with regulatory filings and registration
statements filed in the year ended December 31, 2020.
(3)
Consists of
fees for work performed in the year ended December 31,
2020.
Policy on Audit Committee Pre-Approval of Audit and Permissible
Non-Audit Services of Independent Registered Public Accounting
Firm
Pursuant to the
audit committee charter and policy, the audit committee reviews and
approves, in advance, (i) the scope and plans for the audits and
the audit fees and (ii) approves in advance (or, where permitted
under the rules and regulations of the SEC, subsequently) all
non-audit and tax services to be performed by the independent
auditor that are not otherwise prohibited by law or regulations and
any associated fees.
The
audit committee has determined that the rendering of services other
than audit services by Soldinger is compatible with maintaining the
then-principal accountant’s independence.
Audit Report of the Board of Directors Audit
Committee(1)
The
Board reviewed and discussed the audited financial statements for
the fiscal year ended December 31, 2019 with management of the
Company. The Board discussed with L J Soldinger Associates, LLC,
our independent registered public accounting firm at the time, or
Soldinger, the matters required to be discussed by the applicable
requirements of the Public Company Accounting Oversight Board, or
PCAOB, and the Securities and Exchange Commission, or the SEC. The
Board also received the written disclosures and the letter from the
independent registered public accounting firm required by
applicable requirements of the PCAOB regarding the independent
accountants’ communications with our Board concerning
independence, and discussed with the independent registered public
accounting firm the accounting firm’s
independence.
56
Based
on the foregoing, the Board approved the inclusion of the audited
financial statements in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2019, filed May 29,
2020.
After
discussing the results of a review of certain of the Company’
accounting practices and financial reporting with Soldinger and
with management of the Company, the Board approved the restatement
of Company’s financial statements for the fiscal year ended
December 31, 2019. The Board and audit committee discussed with
Soldinger the matters required to be discussed by the applicable
requirements of the PCAOB and the SEC. The Board and the audit
committee also received the written disclosures and the letter from
Soldinger required by applicable requirements of the PCAOB
regarding the independent accountants’ communications with
our audit committee concerning independence, and discussed with the
independent registered public accounting firm the accounting
firm’s independence.
Based
on the foregoing, the Board approved the inclusion of the restated
audited financial statements in our Annual Report on Form 10-K/A
(Amendment No. 1) for the fiscal year ended December 31, 2019,
filed August 11, 2020.
The
Board of Directors
David
Gandler(2)
(3)
Edgar
Bronfman, Jr. (3)
Ignacio
Figueras(3)
Pär-Jörgen
Pärson(3)
Daniel
Leff(3)
Henry Ahn(3)
This
report shall not be deemed to be “soliciting material”
or to be “filed” with the SEC or subject to Regulation
14A promulgated by the SEC or Section 18 of the Exchange Act, and
shall not be deemed incorporated by reference into any prior or
subsequent filing by fuboTV under the Securities Act of 1933, as
amended, or the Securities Act, or the Exchange Act, except to the
extent fuboTV specifically requests that the information be treated
as “soliciting material” or specifically incorporates
it by reference.
|
|
|
|
|
|
(1) For the
audited financial statements approved for use in the Annual Report
on Form 10-K for the fiscal year ended December 31, 2019, filed May
29, 2020, the entire Board functioned as the Company’s audit
committee. Our audit committee was formed on August 6, 2020. For
the restated audited financial
statements approved for use in the Annual Report on Form 10-K/A
(Amendment No. 1) for the fiscal year ended December 31, 2019,
filed August 11, 2020, the audit committee and the Board discussed
the restated audited financial statements, which the Board
approved.
(2) David
Gandler is the sole current Board member who participated in the
relevant review and discussions for the audited financial
statements included in the Annual Report on Form 10-K, filed May
29, 2020. Departed Board members who took part in the relevant
review and discussions, and new members of the Board or the audit
committee who did not take part in the relevant review and
discussions, are not included.
(3) Participated
in the relevant review and discussions for the restated audited
financial statements included in the Annual Report on Form 10-K/A
(Amendment No. 1), filed August 11, 2020. Laura Onopchenko did not
take part in the relevant review and discussions, as they occurred
prior to her appointment.
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57
Required Vote
The
ratification of the appointment of KPMG LLP as the independent
registered public accounting firm for the Company for the fiscal
year ending December 31, 2020 requires, under Florida law, a
majority of the votes cast to be voted “FOR” the
proposal in order for the proposal to pass. Abstentions will not be
counted as votes “FOR” or “AGAINST” the
proposal, and thus will have no effect on the outcome of this
proposal. Broker non-votes are not expected to result from this
proposal.
Recommendation of the Board
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR”
THE RATIFICATION OF THE APPOINTMENT OF KPMG LLP AS OUR INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING
DECEMBER 31, 2020.
TRANSACTION OF OTHER BUSINESS
The
Board knows of no other matters that will be presented for
consideration at the Annual Meeting. If any other matters are
properly brought before the Annual Meeting, the persons appointed
in the accompanying proxy intend to vote the shares represented
thereby in accordance with their best judgment on such matters,
under applicable laws.
OTHER INFORMATION
Shareholder Proposals and Nominations of Directors
The
Company has not yet selected the date of the 2021 Annual Meeting of
Shareholders; however, it anticipates holding its 2021 Annual
Meeting of Shareholders in June 2021, and will disclose the date of
the 2021 Annual Meeting of Shareholders, when determined, in a
subsequent filing with the SEC. Any shareholder proposals submitted
pursuant to Rule 14a-8 under the Exchange Act must be received by
us at our principal executive offices at 1330 Avenue of the
Americas, New York, NY 10019, to the attention of the Corporate
Secretary, no later than March 8, 2021 and any other shareholder
proposals submitted other than pursuant to Rule 14a-8 must also be
submitted no later than March 8, 2021.
Householding of Proxy Materials
The SEC
has adopted rules that permit companies and intermediaries (e.g.,
brokers) to satisfy the delivery requirements for the Proxy
Materials with respect to two or more shareholders sharing the same
address by delivering a single set of the Proxy Materials addressed
to those shareholders. This process, which is commonly referred to
as “householding,” potentially means extra convenience
for shareholders and
cost savings for companies.
This
year, a number of brokers with account holders who are fuboTV
shareholders will be “householding” our proxy
materials. A single set of Proxy Materials will be delivered to multiple
shareholders sharing an address unless contrary instructions have
been received from the affected shareholders. Once you have
received notice from your broker that they will be
“householding” communications to your address,
“householding” will continue until you are notified
otherwise or until you revoke your consent. If, at any time, you no
longer wish to participate in “householding” and would
prefer to receive a separate set of Proxy Materials, please notify
your broker or fuboTV. Direct your written request to Corporate
Secretary, fuboTV Inc., 1330 Avenue of the Americas, New York, NY
10019, or contact our Corporate Secretary at (829) 947-3254. We undertake to promptly
deliver, upon written or oral request, a separate set of our Proxy
Materials to shareholders at a shared address to which a single
copy of such documents was delivered. Shareholders who currently
receive multiple sets of Proxy Materials at their addresses and would like
to request “householding” of their communications
should contact their brokers.
Fiscal Year 2019 Annual Report
Our
financial statements for our fiscal year ended December 31,
2019 are included in our 2019 Annual Report on Form 10-K filed
with the Securities and Exchange Commission, or the SEC, on May 29,
2020, our Form 10-K/A filed with the SEC on August 11, 2020, or our
Annual Report, which we will make available to shareholders at the
same time as this Proxy Statement. This Proxy Statement
and our Annual Report are also posted on the Investor Relations
section of our website, http://ir.fubo.tv, and at the website of
the SEC, at www.sec.gov. You may also obtain a copy of
our Annual Report without charge by sending a written request to
fuboTV Inc., 1330 Avenue of the Americas, New York, NY 10019,
Attention: Corporate Secretary.
Information
contained on, or that can be accessed through http://ir.fubo.tv, is
not intended to be incorporated by reference into this Proxy
Statement, and references to our website address in this Proxy
Statement are inactive textual references only.
Availability of Bylaws
A copy
of our bylaws and the amendments thereto may be obtained by
accessing fuboTV’s filings on the SEC’s website at
www.sec.gov. You may also obtain a copy of the relevant
bylaw provisions regarding the requirements for making shareholder
proposals and nominating director candidates by sending a written
request to fuboTV Inc., 1330 Avenue of the Americas, New York, NY
10019, Attention: Corporate Secretary.
58
APPENDIX A
2020 EQUITY INCENTIVE PLAN, AS AMENDED
1.
Purposes of the Plan. The
purposes of this Plan are:
●
to attract and
retain the best available personnel for positions of substantial
responsibility,
●
to provide
additional incentive to Employees, Directors and Consultants,
and
●
to promote the
success of the Company’s business.
The
Plan permits the grant of Incentive Stock Options, Nonstatutory
Stock Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Units and Performance
Shares.
1.
“Administrator” means the
Board or any of its Committees as will be administering the Plan,
in accordance with Section 4 of the Plan.
2.
“Applicable Laws” means
the legal and regulatory requirements relating to the
administration of equity-based awards, including but not limited to
the related issuance of shares of Common Stock, including but not
limited to under U.S. federal and state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed or quoted and
the applicable laws of any non-U.S. country or jurisdiction where
Awards are, or will be, granted under the Plan.
3.
“Award” means, individually or collectively, a grant under
the Plan of Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Units or Performance
Shares.
4.
“Award
Agreement” means the
written or electronic agreement setting forth the terms and
provisions applicable to each Award granted under the Plan. The
Award Agreement is subject to the terms and conditions of the
Plan.
5.
“Board” means the Board of
Directors of the Company.
1.
Change in Ownership of the
Company. A change in the
ownership of the Company which occurs on the date that any one person, or
more than one person acting as a group (“Person”),
acquires ownership of the stock of the Company that, together with
the stock held by such Person, constitutes more than fifty
percent (50%) of the total voting
power of the stock of the Company; provided, however, that for
purposes of this subsection, the acquisition of additional stock by
any one Person, who is considered to own more than fifty
percent (50%) of the total voting
power of the stock of the Company will not be considered a Change
in Control. Further, if the stockholders of the Company immediately
before such change in ownership continue to retain immediately
after the change in ownership, in substantially the same
proportions as their ownership of shares of the Company’s
voting stock immediately prior to the change in ownership, direct
or indirect beneficial ownership of fifty percent (50%) or more of
the total voting power of the stock of the Company or of the
ultimate parent entity of the Company, such event shall not be
considered a Change in Control under this subsection (i). For this
purpose, indirect beneficial ownership shall include, without
limitation, an interest resulting from ownership of the voting
securities of one or more corporations or other business entities
which own the Company, as the case may be, either directly or
through one or more subsidiary corporations or other business
entities; or
2.
Change in Effective Control of the
Company. A change in the effective control of the Company
which occurs on the date that a majority of members of the Board is
replaced during any twelve (12) month period by Directors whose
appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or
election. For purposes of this subsection (ii), if any Person is
considered to be in effective control of the Company, the
acquisition of additional control of the Company by the same Person
will not be considered a Change in Control; or
3.
Change in Ownership of a Substantial
Portion of the Company’s Assets. A change in the ownership of a substantial portion
of the Company’s assets which occurs on the date that any
Person acquires (or has acquired during the twelve (12) month
period ending on the date of the most recent acquisition by such
person or persons) assets from the Company that have a total
gross fair market value equal to or more than fifty percent
(50%) of the total gross fair
market value of all of the assets of the Company immediately prior
to such acquisition or acquisitions; provided, however, that for
purposes of this subsection (iii), the following will not
constitute a change in the ownership of a substantial portion of
the Company’s assets: (A) a transfer to an entity that
is controlled by the Company’s stockholders immediately after
the transfer, or (B) a transfer of assets by the Company to:
(1) a stockholder of the Company (immediately before the asset
transfer) in exchange for or with respect to the
Company’s stock, (2) an entity, fifty percent
(50%) or more of the total value
or voting power of which is owned, directly or indirectly, by the
Company, (3) a Person, that owns, directly or
indirectly, fifty percent (50%) or more of the total value or voting power of all
the outstanding stock of the Company, or (4) an entity, at
least fifty percent (50%) of the total value or voting power of which is
owned, directly or indirectly, by a Person described in this
subsection (iii)(B)(3). For purposes of this subsection (iii),
gross fair market value means the value of the assets of the
Company, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such
assets.
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For
purposes of this Section 2(f), persons will be considered to be
acting as a group if they are owners of a corporation that enters
into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Company.
Notwithstanding the
foregoing, a transaction will not be deemed a Change in Control
unless the transaction qualifies as a change in control event
within the meaning of Code Section 409A, as it has been and may be
amended from time to time, and any proposed or final Treasury
Regulations and Internal Revenue Service guidance that has been
promulgated or may be promulgated thereunder from time to
time.
Further
and for the avoidance of doubt, a transaction will not constitute a
Change in Control if: (i) its sole purpose is to change the
jurisdiction of the Company’s incorporation, or (ii) its sole
purpose is to create a holding company that will be owned in
substantially the same proportions by the persons who held the
Company’s securities immediately before such
transaction.
7.
“Code” means the Internal
Revenue Code of 1986, as amended. Reference to a specific section
of the Code or regulation thereunder shall include such section or
regulation, any valid regulation promulgated under such section,
and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such section or
regulation.
8.
“Committee” means a committee of Directors or of other
individuals satisfying Applicable Laws appointed by the Board, or
by a duly authorized committee of the Board, in accordance with
Section 4
hereof.
9.
“Common Stock” means the
common stock of the Company.
10.
“Company” means fuboTV
Inc., a Florida
corporation, or any successor thereto.
11.
“Consultant” means any
natural person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render bona fide services to such entity,
provided the services (i) are not in connection with the offer
or sale of securities in a capital-raising transaction, and
(ii) do not directly promote or maintain a market for the
Company’s securities, in each case, within the meaning of
Form S-8 promulgated under the Securities Act, and provided
further, that a Consultant will include only those persons to whom
the issuance of Shares may be registered under Form S-8 promulgated
under the Securities Act.
12.
“Director” means a member
of the Board.
13.
“Disability” means total
and permanent disability as defined in Code
Section 22(e)(3), provided that
in the case of Awards other than Incentive Stock Options, the
Administrator in its discretion may determine whether a permanent
and total disability exists in accordance with uniform and
non-discriminatory standards adopted by the Administrator from time
to time.
14.
“Employee” means any
person, including Officers and Directors, employed by the Company
or any Parent or Subsidiary of the Company. Neither service as a
Director nor payment of a director’s fee by the Company will
be sufficient to constitute “employment” by the
Company.
15.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
16.
“Exchange
Program” means a program
under which (i) outstanding Awards are surrendered or cancelled in
exchange for awards of the same type (which may have higher or
lower exercise prices and different terms), awards of a different
type, and/or cash, (ii) Participants would have the opportunity to
transfer any outstanding Awards to a financial institution or other
person or entity selected by the Administrator, and/or (iii) the
exercise price of an outstanding Award is reduced or increased. The
Administrator will determine the terms and conditions of any
Exchange Program in its sole discretion.
17.
“Fair Market Value” means,
as of any date, the value of Common Stock determined as
follows:
1.
If the Common Stock
is listed on any established stock exchange or a national market
system (other than an over-the counter market, which will not be
considered an established stock exchange of national market system
for the purposes of this definition), including without limitation
the New York Stock Exchange, the Nasdaq Global Select Market, the
Nasdaq Global Market or the Nasdaq Capital Market of The Nasdaq
Stock Market, its Fair Market Value will be the closing sales price
for such stock (or, if no closing sales price was reported on that
date, as applicable, on the last trading date such closing sales
price was reported) as quoted on such exchange or system on the day
of determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
2.
If the Common Stock
is regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share will be
the mean between the high bid and low asked prices for the Common
Stock on the day of determination (or, if no bids and asks were
reported on that date, as applicable, on the last trading date such
bids and asks were reported), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
3.
In the absence of
an established market for the Common Stock, the Fair Market Value
will be determined in good faith by the Administrator.
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18.
“Fiscal Year” means the
fiscal year of the Company.
19.
“Incentive Stock Option”
means an Option that by its terms qualifies and is otherwise
intended to qualify as an incentive stock option within the meaning
of Code Section 422 and the regulations promulgated
thereunder.
20.
“Nonstatutory Stock
Option” means an Option that by its terms does not
qualify or is not intended to qualify as an Incentive Stock
Option.
21.
“Officer” means a person
who is an officer of the Company within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated
thereunder.
22.
“Option” means a stock
option granted pursuant to the Plan.
23.
“Outside Director” means a
Director who is not an Employee.
24.
“Parent” means a
“parent corporation,” whether now or hereafter
existing, as defined in Code Section 424(e).
25.
“Participant” means the
holder of an outstanding Award.
26.
“Performance Share” means
an Award denominated in Shares which may be earned in whole or in
part upon attainment of performance goals or other vesting criteria
as the Administrator may determine pursuant to Section
10.
27.
“Performance
Unit” means an Award which may be earned in whole or
in part upon attainment of performance goals or other vesting
criteria as the Administrator may determine and which may be
settled for cash, Shares or other securities or a combination of
the foregoing pursuant to Section 10.
28.
“Period of Restriction”
means the period during which the transfer of Shares of Restricted
Stock are subject to restrictions and therefore, the Shares are
subject to a substantial risk of forfeiture. Such restrictions may
be based on the passage of time, the achievement of target levels
of performance, or the occurrence of other events as determined by
the Administrator.
29.
“Plan” means this 2020
Equity Incentive Plan.
30.
“Restricted Stock”
means Shares issued pursuant to an
Award of Restricted Stock under Section 8 of the Plan,
or issued pursuant to the early exercise of an
Option.
31.
“Restricted Stock
Unit” means a bookkeeping
entry representing an amount equal to the Fair Market Value of one
Share, granted pursuant to Section 9. Each
Restricted Stock Unit represents an unfunded and unsecured
obligation of the Company.
32.
“Rule 16b-3” means Rule
16b-3 of the Exchange Act or any successor to Rule 16b-3, as in
effect when discretion is being exercised with respect to the
Plan.
33.
“Section 16(b)” means
Section 16(b) of the Exchange Act.
34.
“Securities Act” means the
Securities Act of 1933, as amended.
35.
“Service Provider” means
an Employee, Director or Consultant.
36.
“Share” means a share of
the Common Stock, as adjusted in accordance with Section 15 of the
Plan.
37.
“Stock Appreciation Right”
means an Award, granted alone or in connection with an Option, that
pursuant to Section 7 is designated as a Stock Appreciation
Right.
38.
“Subsidiary” means a
“subsidiary corporation,” whether now or hereafter
exist-ing, as defined in Code Section 424(f).
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2.
Lapsed
Awards. If an Award expires or
becomes unexercisable without having been exercised in full, is
surrendered pursuant to an Exchange Program, or, with respect to
Restricted Stock, Restricted Stock Units, Performance Units or
Performance Shares, is forfeited to or repurchased by the Company
due to the failure to vest, the unpurchased Shares (or for Awards
other than Options or Stock Appreciation Rights the forfeited or
repurchased Shares) which were subject thereto will become
available for future grant or sale under the Plan (unless the Plan
has terminated). With respect to Stock Appreciation Rights, only
Shares actually issued pursuant to a Stock Appreciation Right will
cease to be available under the Plan; all remaining Shares under
Stock Appreciation Rights will remain available for future grant or
sale under the Plan (unless the Plan has terminated). Shares that
have actually been issued under the Plan under any Award will not
be returned to the Plan and will not become available for future
distribution under the Plan; provided, however, that if Shares
issued pursuant to Awards of Restricted Stock, Restricted Stock
Units, Performance Shares or Performance Units are repurchased by
the Company or are forfeited to the Company due to the failure to
vest, such Shares will become available for future grant under the
Plan. Shares used to pay the exercise price of an Award or to
satisfy the tax withholdings related to an Award will become
available for future grant or sale under the Plan. To the extent an
Award under the Plan is paid out in cash rather than Shares, such
cash payment will not result in reducing the number of Shares
available for issuance under the Plan. Notwithstanding the
foregoing and, subject to adjustment as provided in Section
15, the maximum number of Shares that may be issued
upon the exercise of Incentive Stock Options will equal the
aggregate Share number stated in Section 3(a), plus, to
the extent allowable under Code Section 422 and the Treasury
Regulations promulgated thereunder, any Shares that become
available for issuance under the Plan pursuant to Sections
3(b) and
3(c).
3.
Prior Plan
Awards. If any award issued
pursuant to the Company’s 2014 Incentive Stock Plan or the
2015 Equity Incentive Plan of fuboTV Inc. expires or becomes
unexercisable without having been exercised in full, is forfeited
to or repurchased by the Company due to the failure to vest, the
unpurchased Shares (or for awards other than stock options or stock
appreciation rights the forfeited or repurchased Shares) which were
subject thereto will become available for future grant or sale
under the Plan (unless the Plan has terminated), provided that no
more than 11,875,329 Shares may become available under the Plan
pursuant to this Section 3(c).
4.
Share
Reserve. The Company, during
the term of this Plan, will at all times reserve and keep available
such number of Shares as will be sufficient to satisfy the
requirements of the Plan.
1.
Procedure.
1.
Multiple Administrative Bodies.
Different Committees with respect to different groups of Service
Providers may administer the Plan.
2.
Rule 16b-3. To the extent
desirable to qualify transactions hereunder as exempt under Rule
16b-3, the transactions contemplated hereunder will be structured
to satisfy the requirements for exemption under Rule
16b-3.
3.
Other Administration. Other
than as provided above, the Plan will be administered by
(A) the Board or (B) a Committee, which Committee will be
constituted to satisfy Applicable Laws.
2.
Powers of the Administrator.
Subject to the provisions of the Plan, and in the case of a
Committee, subject to the specific duties delegated by the Board to
such Committee, the Administrator will have the authority, in its
discretion:
1.
to determine the
Fair Market Value;
2.
to select the
Service Providers to whom Awards may be granted
hereunder;
3.
to determine the
number of Shares to be covered by each Award granted
hereunder;
4.
to approve forms of
Award Agreements for use under the Plan;
5.
to determine the
terms and conditions, not inconsistent with the terms of the Plan,
of any Award granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time or times when
Awards may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Award
or the Shares relating thereto, based in each case on such factors
as the Administrator will determine;
6.
to
institute and determine the terms and conditions of an Exchange
Program;
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7.
to construe and
interpret the terms of the Plan and Awards granted pursuant to the
Plan;
8.
to prescribe, amend
and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the
purpose of satisfying applicable non-U.S. laws or for qualifying
for favorable tax treatment under applicable non-U.S.
laws;
9.
to modify or amend
each Award (subject to Section 20(c) of the Plan), including
but not limited to the discretionary authority to extend the
post-termination exercisability period of Awards; provided,
however, that in no case will an Option or Stock Appreciation Right
be extended beyond its original maximum term;
10.
to allow Participants to satisfy tax withholding
obligations in a manner prescribed in Section 15(d);
11.
to authorize any
person to execute on behalf of the Company any instrument required
to effect the grant of an Award previously granted by the
Administrator;
12.
to allow a
Participant to defer the receipt of the payment of cash or the
delivery of Shares that otherwise would be due to such Participant
under an Award; and
13.
to make all other
determinations deemed necessary or advisable for administering the
Plan.
3.
Effect of
Administrator’s Decision. The
Administrator’s decisions, determinations and interpretations
will be final and binding on all Participants and any other holders
of Awards and will be given the maximum deference permitted by
Applicable Laws.
5.
Eligibility. Restricted Stock,
Restricted Stock Units, Performance Shares and Performance Units
may be granted to any Service Providers. Nonstatutory Stock Options
and Stock Appreciation Rights, to the extent required for exemption
under Section 409A, may be granted only to Service Providers
rendering services to the Company or a Subsidiary (not a Parent).
Incentive Stock Options may be granted only to
Employees.
1.
Grant of Options. Subject to
the terms and provisions of the Plan, the Administrator, at any
time and from time to time, may grant Options in such amounts as
the Administrator, in its sole discretion, will
determine.
2.
Option Agreement. Each Award of
an Option will be evidenced by an Award Agreement that will specify
the exercise price, the term of the Option, the number of Shares
subject to the Option, the exercise restrictions, if any,
applicable to the Option, and such other terms and conditions as
the Administrator, in its sole discretion, will
determine.
3.
Limitations. Each Option will
be designated in the Award Agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. Notwithstanding such
designation, however, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options
are exercisable for the first time by the Participant during any
calendar year (under all plans of the Company and any Parent or
Subsidiary) exceeds one hundred thousand dollars ($100,000), such
Options will be treated as Nonstatutory Stock Options. For purposes
of this Section 6(c), Incentive Stock Options will be taken into
account in the order in which they were granted, the Fair Market
Value of the Shares will be determined as of the time the Option
with respect to such Shares is granted, and the calculation will be
performed in accordance with Code Section 422 and Treasury
Regulations promulgated thereunder.
4.
Term of Option. The term of
each Option will be stated in the Award Agreement. In the case of
an Incentive Stock Option, the term will be no more than ten (10)
years from the date of grant thereof. In the case of an Incentive
Stock Option granted to a Participant who, at the time the
Incentive Stock Option is granted, owns stock representing more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary, the
term of the Incentive Stock Option will be five (5) years from the
date of grant or such shorter term as may be provided in the Award
Agreement.
1.
Exercise Price. The per Share
exercise price for the Shares to be issued pursuant to the exercise
of an Option will be determined by the Administrator, subject to
the following:
1.
In the case of an
Incentive Stock Option
1.
granted to an
Employee who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price will be no less than one
hundred ten percent (110%) of the Fair Market Value per Share (or
the fair market value per Share as determined in accordance with
Treas. Reg. 1.409A-1(b)(5)(iv)(A)) on the date of
grant.
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2.
granted to any
Employee other than an Employee described in paragraph (A)
immediately above, the per Share exercise price will be no less
than one hundred percent (100%) of the Fair Market Value per Share
on the date of grant.
2.
In the case of a
Nonstatutory Stock Option, the per Share exercise price will be no
less than one hundred percent (100%) of the Fair Market Value
per Share on the date of grant (or the fair market value per Share
as determined in accordance with Treas. Reg.
1.409A-1(b)(5)(iv)(A)).
3.
Notwithstanding the
foregoing provisions of this Section 6(e), Options may be
granted with a per Share exercise price of less than one hundred
percent (100%) of the Fair Market Value per Share on the date of
grant pursuant to a transaction described in, and in a manner
consistent with, Code Section 424(a).
2.
Waiting Period and Exercise
Dates. At the time an Option is granted, the Administrator
will fix the period within which the Option may be exercised and
will determine any conditions that must be satisfied before the
Option may be exercised.
3.
Form of Consideration. The
Administrator will determine the acceptable form of consideration
for exercising an Option, including the method of payment. In the
case of an Incentive Stock Option, the Administrator will determine
the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of: (1) cash; (2) check; (3)
promissory note; to the extent permitted by Applicable Laws; (4)
other Shares, provided that such Shares have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the
Shares as to which such Option will be exercised and provided
further that accepting such Shares will not result in any adverse
accounting consequences to the Company, as the Administrator
determines in its sole discretion; (5) consideration received by
the Company under a broker assisted (or other) cashless exercise
program (whether through a broker or otherwise) implemented by the
Company in connection with the Plan; (6) by net exercise; (7) such
other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws; or (8) any
combination of the foregoing methods of payment. In making its
determination as to the type of consideration to accept, the
Administrator will consider if acceptance of such consideration may
be reasonably expected to benefit the Company.
1.
Procedure for Exercise; Rights as a
Stockholder. Any Option granted hereunder will be
exercisable according to the terms of the Plan and at such times
and under such conditions as determined by the Administrator and
set forth in the Award Agreement. An Option may not be exercised
for a fraction of a Share.
An
Option will be deemed exercised when the Company receives:
(i) notice of exercise (in such form as the Administrator may
specify from time to time) from the person entitled to exercise the
Option, and (ii) full payment for the Shares with respect to
which the Option is exercised (together with applicable tax
withholding). Full payment may consist of any consideration and
method of payment authorized by the Administrator and permitted by
the Award Agreement and the Plan. Shares issued upon exercise of an
Option will be issued in the name of the Participant or, if
requested by the Participant, in the name of the Participant and
his or her spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder will exist
with respect to the Shares subject to an Option, notwithstanding
the exercise of the Option. The Company will issue (or cause to be
issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the Shares are issued, except as
provided in Section 15 of the Plan.
Exercising an
Option in any manner will decrease the number of Shares thereafter
available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is
exercised.
2.
Termination of Relationship as a
Service Provider. If a Participant ceases to be a Service
Provider, other than upon the Participant’s termination as
the result of the Participant’s death or Disability, the
Participant may exercise his or her Option within such period of
time as is specified in the Award Agreement to the extent that the
Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the
Award Agreement). In the absence of a specified time in the Award
Agreement, the Option will remain exercisable for three
(3) months following the Participant’s termination.
Unless otherwise provided by the Administrator, if on the date of
termination the Participant is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option
will revert to the Plan. If after termination the Participant does
not exercise his or her Option within the time specified by the
Administrator, the Option will terminate, and the Shares covered by
such Option will revert to the Plan.
3.
Disability of Participant. If a
Participant ceases to be a Service Provider as a result of the
Participant’s Disability, the Participant may exercise his or
her Option within such period of time as is specified in the Award
Agreement to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the term
of such Option as set forth in the Award Agreement). In the absence
of a specified time in the Award Agreement, the Option will remain
exercisable for twelve (12) months following the
Participant’s termination. Unless otherwise provided by the
Administrator, if on the date of termination the Participant is not
vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option will revert to the Plan. If after
termination the Participant does not exercise his or her Option
within the time specified herein, the Option will terminate, and
the Shares covered by such Option will revert to the
Plan.
4.
Death of Participant. If a
Participant dies while a Service Provider, the Option may be
exercised following the Participant’s death within such
period of time as is specified in the Award Agreement to the extent
that the Option is vested on the date of death (but in no event may
the option be exercised later than the expiration of the term of
such Option as set forth in the Award Agreement), by the
Participant’s designated beneficiary, provided such
beneficiary has been designated prior to Participant’s death
in a form acceptable to the Administrator. If no such beneficiary
has been designated by the Participant, then such Option may be
exercised by the personal representative of the Participant’s
estate or by the person(s) to whom the Option is transferred
pursuant to the Participant’s will or in accordance with the
laws of descent and distribution. In the absence of a specified
time in the Award Agreement, the Option will remain exercisable for
twelve (12) months following Participant’s death. Unless
otherwise provided by the Administrator, if at the time of death
Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option will
immediately revert to the Plan. If the Option is not so exercised
within the time specified herein, the Option will terminate, and
the Shares covered by such Option will revert to the
Plan.
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1.
Grant of Stock Appreciation
Rights. Subject to the terms and conditions of the Plan, a
Stock Appreciation Right may be granted to Service Providers of the
Company or a Subsidiary at any time and from time to time as will
be determined by the Administrator, in its sole
discretion.
2.
Number of Shares. The
Administrator will have complete discretion to determine the number
of Shares subject to any Award of Stock Appreciation
Rights.
3.
Exercise Price and Other Terms.
The per Share exercise price for the Shares that will determine the
amount of the payment to be received upon exercise of a Stock
Appreciation Right as set forth in Section 7(f) will be determined
by the Administrator and will be no less than one hundred percent
(100%) of the Fair Market Value per Share on the date of grant.
Otherwise, the Administrator, subject to the provisions of the
Plan, will have complete discretion to determine the terms and
conditions of Stock Appreciation Rights granted under the
Plan.
4.
Stock Appreciation Right
Agreement. Each Stock Appreciation Right grant will be
evidenced by an Award Agreement that will specify the exercise
price, the term of the Stock Appreciation Right, the conditions of
exercise, and such other terms and conditions as the Administrator,
in its sole discretion, will determine.
5.
Expiration of Stock Appreciation
Rights. A Stock Appreciation Right granted under the Plan
will expire upon the date determined by the Administrator, in its
sole discretion, and set forth in the Award Agreement.
Notwithstanding the foregoing, the rules of Section 6(d) relating
to the maximum term and Section 6(f) relating to exercise also will
apply to Stock Appreciation Rights.
1.
The difference
between the Fair Market Value of a Share on the date of exercise
over the exercise price; times
2.
The number of
Shares with respect to which the Stock Appreciation Right is
exercised.
At the
discretion of the Administrator, the payment upon Stock
Appreciation Right exercise may be in cash, in Shares of equivalent
value, or in some combination thereof.
1.
Grant of Restricted Stock.
Subject to the terms and provisions of the Plan, the Administrator,
at any time and from time to time, may grant Shares of Restricted
Stock to Service Providers in such amounts as the Administrator, in
its sole discretion, will determine.
2.
Restricted Stock Agreement.
Each Award of Restricted Stock will be evidenced by an Award
Agreement that will specify the Period of Restriction, the number
of Shares granted, and such other terms and conditions as the
Administrator, in its sole discretion, will determine. Unless the
Administrator determines otherwise, the Company as escrow agent
will hold Shares of Restricted Stock until the restrictions on such
Shares have lapsed.
3.
Transferability. Except as
provided in this Section 8 or as the Administrator determines,
Shares of Restricted Stock may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of
the applicable Period of Restriction.
4.
Other Restrictions. The
Administrator, in its sole discretion, may impose such other
restrictions on Shares of Restricted Stock as it may deem advisable
or appropriate.
5.
Removal of Restrictions. Except
as otherwise provided in this Section 8, Shares of Restricted Stock
covered by each Restricted Stock grant made under the Plan will be
released from escrow as soon as practicable after the last day of
the Period of Restriction or at such other time as the
Administrator may determine. The Administrator, in its discretion,
may accelerate the time at which any restrictions will lapse or be
removed.
6.
Voting Rights. During the
Period of Restriction, Service Providers holding Shares of
Restricted Stock granted hereunder may exercise full voting rights
with respect to those Shares, unless the Administrator determines
otherwise.
7.
Dividends and Other
Distributions. During the Period of Restriction, Service
Providers holding Shares of Restricted Stock will be entitled to
receive all dividends and other distributions paid with respect to
such Shares, unless the Administrator provides otherwise. If any
such dividends or distributions are paid in Shares, the Shares will
be subject to the same restrictions on transferability and
forfeitability as the Shares of Restricted Stock with respect to
which they were paid.
8.
Return of Restricted Stock to
Company. On the date set forth in the Award Agreement, the
Restricted Stock for which restrictions have not lapsed will revert
to the Company and again will become available for grant under the
Plan.
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1.
Grant.
Restricted Stock Units may be granted at any time and from time to
time as determined by the Administrator. After the Administrator
determines that it will grant Restricted Stock Units under the
Plan, it will advise the Participant in an Award Agreement of the
terms, conditions, and restrictions related to the grant, including
the number of Restricted Stock Units.
2.
Vesting Criteria and
Other Terms. The Administrator
will set vesting criteria in its discretion, which, depending on
the extent to which the criteria are met, will determine the number
of Restricted Stock Units that will be paid out to the Participant.
The Administrator may set vesting criteria based upon the
achievement of Company-wide, divisional, business unit, or
individual goals (including, but not limited to, continued
employment or service), applicable federal or state securities
laws, or any other basis determined by the Administrator in its
discretion.
3.
Earning Restricted
Stock Units. Upon meeting the
applicable vesting criteria, the Participant will be entitled to
receive a payout as determined by the Administrator.
Notwithstanding the foregoing, at any time after the grant of
Restricted Stock Units, the Administrator, in its sole discretion,
may reduce or waive any vesting criteria that must be met to
receive a payout.
4.
Form and Timing of
Payment. Payment of earned
Restricted Stock Units will be made as soon as practicable after
the date(s) determined by the Administrator and set forth in the
Award Agreement which shall establish exemption or comply
with all requirements of Code Section 409A. The Administrator, in its sole discretion, may
settle earned Restricted Stock Units in cash, Shares, or a
combination of both.
5.
Cancellation.
On the date set forth in the Award Agreement, all unearned
Restricted Stock Units will be forfeited to the
Company.
10.
Performance Units and Performance
Shares.
1.
Grant of Performance
Units/Shares. Performance Units and Performance Shares may
be granted to Service Providers at any time and from time to time,
as will be determined by the Administrator, in its sole discretion.
The Administrator will have complete discretion in determining the
number of Performance Units and Performance Shares granted to each
Participant.
2.
Value of Performance
Units/Shares. Each Performance Unit will have an initial
value that is established by the Administrator on or before the
date of grant. Each Performance Share will have an initial value
equal to the Fair Market Value of a Share on the date of
grant.
3.
Performance Objectives and Other
Terms. The Administrator will set performance objectives or
other vesting provisions (including, without limitation, continued
status as a Service Provider) in its discretion which,
depending on the extent to which they are met, will determine the
number or value of Performance Units/Shares that will be paid out
to the Service Providers. The time period during which the
performance objectives or other vesting provisions must be met will
be called the “Performance Period.” Each Award of
Performance Units/Shares will be evidenced by an Award Agreement
that will specify the Performance Period, and such other terms and
conditions as the Administrator, in its sole discretion, will
determine. The Administrator may set performance objectives based
upon the achievement of Company-wide, divisional, business unit or
individual goals (including, but not
limited to, continued employment or service), applicable
federal or state securities laws, or any other basis determined by
the Administrator in its discretion.
4.
Earning of Performance
Units/Shares. After the applicable Performance Period has
ended, the holder of Performance Units/Shares will be entitled to
receive a payout of the number of Performance Units/Shares earned
by the Participant over the Performance Period, to be determined as
a function of the extent to which the corresponding performance
objectives or other vesting provisions have been achieved. After
the grant of a Performance Unit/Share, the Administrator, in its
sole discretion, may reduce or waive any performance objectives or
other vesting provisions for such Performance
Unit/Share.
5.
Form and Timing of Payment of
Performance Units/Shares. Payment of earned Performance
Units/Shares will be made as soon as practicable after the
expiration of the applicable Performance Period or at such other
time as may be specified in the Award Agreement which shall
establish exemption or comply with all requirements of Code Section
409A. The Administrator, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash, in Shares (which have
an aggregate Fair Market Value equal to the value of the earned
Performance Units/Shares at the close of the applicable Performance
Period) or in a combination thereof.
6.
Cancellation of Performance
Units/Shares. On the date set forth in the Award Agreement,
all unearned or unvested Performance Units/Shares will be forfeited
to the Company, and again will be available for grant under the
Plan.
11.
Outside Director Limitations.
No Outside Director may be granted, in any Fiscal Year, Awards with
a grant date fair value (determined in accordance with U.S.
generally accepted accounting principles) of more than $750,000,
increased to $1,500,000 in connection with his or her initial
service. Any Awards granted to an individual while he or she was an
Employee, or while he or she was a Consultant but not an Outside
Director, will not count for purposes of the limitations under this
Section 11.
A-8
12.
Compliance With Code
Section 409A. Awards will be designed and operated in
such a manner that they are either exempt from the application of,
or comply with, the requirements of Code Section 409A such
that the grant, payment, settlement or deferral will not be subject
to the additional tax or interest applicable under Code
Section 409A, except as otherwise determined in the sole
discretion of the Administrator. The Plan and each Award Agreement
under the Plan is intended to meet the requirements of Code
Section 409A and will be construed and interpreted in
accordance with such intent, except as otherwise determined in the
sole discretion of the Administrator. To the extent that an Award
or payment, or the settlement or deferral thereof, is subject to
Code Section 409A the Award will be granted, paid, settled or
deferred in a manner that will meet the requirements of Code
Section 409A, such that the grant, payment, settlement or
deferral will not be subject to the additional tax or interest
applicable under Code Section 409A. In no event will the
Company have any obligation under the terms of this Plan to
reimburse a Participant for any taxes or other costs that may be
imposed on Participant as a result of Section 409A.
13.
Leaves of Absence/Transfer Between
Locations. Unless the
Administrator provides otherwise, vesting of Awards granted
hereunder will be suspended during any unpaid leave of absence. A
Participant will not cease to be an Employee in the case of
(i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the
Company, its Parent, or any Subsidiary. For purposes of Incentive
Stock Options, no such leave may exceed three (3) months, unless
reemployment upon expiration of such leave is guaranteed by statute
or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, then six (6) months
following the first (1st)
day of such leave, any Incentive Stock Option held by the
Participant will cease to be treated as an Incentive Stock Option
and will be treated for tax purposes as a Nonstatutory Stock
Option.
14.
Limited Transferability of
Awards.
Unless
determined otherwise by the Administrator, Awards may not be sold,
pledged, assigned, hypothecated, or otherwise transferred in any
manner other than by will or by the laws of descent and
distribution, and may be exercised, during the lifetime of the
Participant, only by the Participant. If the Administrator makes an
Award transferable, such Award will contain such additional terms
and conditions as the Administrator deems appropriate.
1.
Adjustments.
In the event that any dividend or other distribution (whether in
the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Shares or other securities of the Company, or other
change in the corporate structure of the Company affecting the
Shares occurs, the Administrator, in order to prevent diminution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan, will adjust the number and class of
shares of stock that may be delivered under the Plan and/or the
number, class, and price of shares of stock covered by each
outstanding Award, and the numerical Share limits of Section
3.
2.
Dissolution or Liquidation. In
the event of the proposed dissolution or liquidation of the
Company, the Administrator will notify each Participant as soon as
practicable prior to the effective date of such proposed
transaction. To the extent it has not been previously exercised, an
Award will terminate immediately prior to the consummation of such
proposed action.
3.
Change in Control. In the event of a merger of the Company with or
into another corporation or other entity or a Change in Control,
each outstanding Award will be treated as the Administrator
determines (subject to the provisions of the following paragraph)
without a Participant’s consent, including, without
limitation, that (i) Awards will be assumed, or substantially
equivalent awards will be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof) with appropriate
adjustments as to the number and kind of shares and prices; (ii)
upon written notice to a Participant, that the Participant’s
Awards will terminate upon or immediately prior to the consummation
of such merger or Change in Control; (iii) outstanding Awards
will vest and become exercisable, realizable, or payable, or
restrictions applicable to an Award will lapse, in whole or in part
prior to or upon consummation of such merger or Change in Control,
and, to the extent the Administrator determines, terminate upon or
immediately prior to the effectiveness of such merger or Change in
Control; (iv) (A) the termination of an Award in exchange for an
amount of cash and/or property, if any, equal to the amount that
would have been attained upon the exercise of such Award or
realization of the Participant’s rights as of the date of the
occurrence of the transaction (and, for the avoidance of doubt, if
as of the date of the occurrence of the transaction the
Administrator determines in good faith that no amount would have
been attained upon the exercise of such Award or realization of the
Participant’s rights, then such Award may be terminated by
the Company without payment), or (B) the replacement of such
Award with other rights or property selected by the Administrator
in its sole discretion; or (v) any combination of the foregoing. In
taking any of the actions permitted under this subsection
15(c), the
Administrator will not be obligated to treat all Awards, all Awards
held by a Participant, or all Awards of the same type,
similarly.
In
the event that the successor corporation does not assume or
substitute for the Award (or portion thereof), the Participant will
fully vest in and have the right to exercise all of his or her
outstanding Options and Stock Appreciation Rights, including Shares
as to which such Awards would not otherwise be vested or
exercisable, all restrictions on Restricted Stock and Restricted
Stock Units will lapse, and, with respect to Awards with
performance-based vesting, all performance goals or other vesting
criteria will be deemed achieved at one hundred percent (100%) of
target levels and all other terms and conditions met, in all cases,
unless specifically provided otherwise under the applicable Award
Agreement or other written agreement between the Participant and
the Company or any of its Subsidiaries or Parents, as applicable.
In addition, if an Option or Stock Appreciation Right is not
assumed or substituted in the event of a merger or Change in
Control, the Administrator will notify the Participant in writing
or electronically that the Option or Stock Appreciation Right will
be exercisable for a period of time determined by the Administrator
in its sole discretion, and the Option or Stock Appreciation Right
will terminate upon the expiration of such period.
For the purposes of this subsection
15(c) and
subsection 15(d),
an Award will be considered assumed if, following the merger or
Change in Control, the Award confers the right to purchase or
receive, for each Share subject to the Award immediately prior to
the merger or Change in Control, the consideration (whether stock,
cash, or other securities or property) received in the
merger or Change in Control by holders
of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such
consideration received in the merger or Change in Control is not
solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of
an Option or Stock Appreciation Right or upon the payout of a
Restricted Stock Unit, Performance Unit, or Performance Share, for
each Share subject to such Award, to be solely common stock of the
successor corporation or its Parent equal in fair market value to
the per share consideration received by holders of Common Stock in
the merger or Change in Control.
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Notwithstanding
anything in this Section 15(c)
to the contrary, an Award that vests, is earned or paid-out upon
the satisfaction of one or more performance goals will not be
considered assumed if the Company or its successor modifies any of
such performance goals without the Participant’s
consent, in all cases, unless
specifically provided otherwise under the applicable Award
Agreement or other written agreement between the Participant and
the Company or any of its Subsidiaries or Parents, as
applicable; provided, however, a modification to such
performance goals only to reflect the successor corporation’s
post-Change in Control corporate structure will not be deemed to
invalidate an otherwise valid Award assumption.
Notwithstanding
anything in this Section 15(c)
to the contrary, and unless otherwise provided in an Award
Agreement, if an Award that vests, is earned or paid-out under an
Award Agreement is subject to Code Section 409A and if the change
in control definition contained in the Award Agreement does not
comply with the definition of “change of control” for
purposes of a distribution under Code Section 409A, then any
payment of an amount that is otherwise accelerated under this
Section will be delayed until the earliest time that such payment
would be permissible under Code Section 409A without triggering any
penalties applicable under Code Section 409A.
4.
Outside Director Awards.
In the event of a Change in Control,
with respect to Awards granted to an Outside Director, the Outside
Directors will fully vest in and have the right to exercise Options
and/or Stock Appreciation Rights as to all of the Shares underlying
such Award, including those Shares which would not otherwise be
vested or exercisable, all restrictions on Restricted Stock and
Restricted Stock Units will lapse, and, with respect to Awards with
performance-based vesting, all performance goals or other vesting
criteria will be deemed achieved at one hundred percent (100%) of
target levels and all other terms and conditions met, unless
specifically provided otherwise under the applicable Award
Agreement or other written agreement between the Participant and
the Company or any of its Subsidiaries or Parents, as
applicable.
16.
Tax Withholding.
1.
Withholding Requirements. Prior
to the delivery of any Shares or cash pursuant to an Award (or
exercise thereof) or such earlier time as any tax withholding
obligation is due, the Company will have the power and the right to
deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state, local,
non-U.S. or other taxes (including the Participant’s FICA
obligation) required to be withheld with respect to such Award (or
exercise thereof).
2.
Withholding Arrangements. The
Administrator, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may permit a
Participant to satisfy such tax withholding obligation, in whole or
in part by such methods as the Administrator shall determine,
including, without limitation, (i) paying cash, (ii) electing
to have the Company withhold otherwise deliverable cash or Shares
having a fair market value equal to the minimum statutory amount
required to be withheld or such greater amount as the Administrator
may determine if such amount would not have adverse accounting
consequences, as the Administrator determines in its sole
discretion, (iii) delivering to the Company already-owned Shares
having a fair market value equal to the minimum statutory amount
required to be withheld or such greater amount as the Administrator
may determine, in each case, provided the delivery of such Shares
will not result in any adverse accounting consequences, as the
Administrator determines in its sole discretion, (iv) selling a sufficient number of Shares
otherwise deliverable to the Participant through such means as the
Administrator may determine in its sole discretion (whether through
a broker or otherwise) equal to the amount required to be withheld,
or (v) any combination of the foregoing methods of payment. The
amount of the withholding requirement will be deemed to include any
amount which the Administrator agrees may be withheld at the time
the election is made, not to exceed the amount determined by using
the maximum federal, state or local marginal income tax rates
applicable to the Participant with respect to the Award on the date
that the amount of tax to be withheld is to be determined or
such greater amount as the Administrator may determine if such
amount would not have adverse accounting consequences, as the
Administrator determines in its sole discretion. The fair market value of the Shares to be
withheld or delivered will be determined as of the date that the
taxes are required to be withheld.
17.
No Effect on
Employment or Service. Neither
the Plan nor any Award will confer upon a Participant any right
with respect to continuing the Participant’s relationship as
a Service Provider with the Company or its Subsidiaries or Parents,
as applicable, nor will they interfere in any way with the
Participant’s right or the right of the Company and its
Subsidiaries or Parents, as applicable to terminate such
relationship at any time, with or without cause, to the extent
permitted by Applicable Laws.
18.
Date of Grant. The date of
grant of an Award will be, for all purposes, the date on which the
Administrator makes the determination granting such Award, or such
other later date as is determined by the Administrator. Notice of
the determination will be provided to each Participant within a
reasonable time after the date of such grant.
19.
Term of Plan. The Plan will
become effective upon its adoption by the Board. It will continue
in effect for a term of ten (10) years from the date adopted
by the Board, unless terminated earlier under Section
20 of the
Plan.
1.
Amendment and Termination. The
Administrator may at any time amend, alter, suspend or terminate
the Plan.
2.
Stockholder Approval. The
Company will obtain stockholder approval of any Plan amendment to
the extent necessary and desirable to comply with Applicable
Laws.
3.
Effect of Amendment or
Termination. No amendment, alteration, suspension or
termination of the Plan will impair the rights of any Participant,
unless mutually agreed otherwise between the Participant and the
Administrator, which agreement must be in writing and signed by the
Participant and the Company. Termination of the Plan will not
affect the Administrator’s ability to exercise the powers
granted to it hereunder with respect to Awards granted under the
Plan prior to the date of such termination.
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21.
Conditions Upon Issuance of
Shares.
1.
Legal Compliance. Shares will
not be issued pursuant to the exercise of an Award unless the
exercise of such Award and the issuance and delivery of such Shares
will comply with Applicable Laws and will be further subject to the
approval of counsel for the Company with respect to such
compliance.
2.
Investment Representations. As
a condition to the exercise of an Award, the Company may require
the person exercising such Award to represent and warrant at the
time of any such exercise that the Shares are being purchased only
for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the
Company, such a representation is required.
22.
Inability to Obtain Authority.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction or to complete or comply with
the requirements of any registration or other qualification of the
Shares under any state, federal or non-U.S. law or under the rules
and regulations of the Securities and Exchange Commission, the
stock exchange on which Shares of the same class are then listed,
or any other governmental or regulatory body, which authority,
registration, qualification or rule compliance is deemed by the
Company’s counsel to be necessary or advisable for the
issuance and sale of any Shares hereunder, will relieve the Company
of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority, registration,
qualification or rule compliance will not have been
obtained.
23.
Stockholder Approval. The Plan
will be presented for approval by the stockholders of the Company
within twelve (12) months after the date the Plan is adopted by the
Board. Such stockholder approval will be obtained in the manner and
to the degree required under Applicable Laws. No Option granted
under the Plan may be treated as an Incentive Stock Option is the
Plan is not approved by stockholders of the Company within twelve
(12) months after the date the Plan is adopted by the
Board.
24.
Forfeiture
Events.
1.
All Awards under
the Plan will be subject to recoupment under any clawback policy
that the Company is required to adopt pursuant to the listing
standards of any national securities exchange or association on
which the Company’s securities are listed or as is otherwise
required by the Dodd-Frank Wall Street Reform and Consumer
Protection Act or other Applicable Laws. In addition, the
Administrator may impose such other clawback, recovery or
recoupment provisions in an Award Agreement as the Administrator
determines necessary or appropriate, including but not limited to a
reacquisition right regarding previously acquired Shares or other
cash or property. Unless this Section 24 is specifically mentioned
and waived in an Award Agreement or other document, no recovery of
compensation under a clawback policy or otherwise will be an event
that triggers or contributes to any right of a Participant to
resign for “good reason” or “constructive
termination” (or similar term) under any agreement with the
Company or a Subsidiary or Parent of the Company.
2.
The Administrator
may specify in an Award Agreement that the Participant’s
rights, payments, and benefits with respect to an Award will be
subject to reduction, cancellation, forfeiture, or recoupment upon
the occurrence of specified events, in addition to any otherwise
applicable vesting or performance conditions of an Award. Such
events may include, but will not be limited to, termination of such
Participant’s status as Service Provider for cause or any
specified action or inaction by a Participant, whether before or
after such termination of service, that would constitute cause for
termination of such Participant’s status as a Service
Provider.
A-11
APPENDIX B
FORM OF INDEMNIFICATION AGREEMENT
FUBOTV INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this “Agreement”) is
dated as of [DATE], and is between fuboTV Inc., a Florida
corporation (the “Company”), and
[INDEMNITEE] (“Indemnitee”).
RECITALS
A. Indemnitee’s
service to the Company substantially benefits the
Company.
B. Individuals
are reluctant to serve as directors or officers of corporations or
in certain other capacities unless they are provided with adequate
protection through insurance or indemnification against the risks
of claims and actions against them arising out of such
service.
C. Indemnitee
does not regard the protection currently provided by applicable
law, the Company’s governing documents and any insurance as
adequate under the present circumstances, and Indemnitee may not be
willing to serve as a director or officer without additional
protection.
D. In
order to induce Indemnitee to continue to provide services to the
Company, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses
on behalf of, Indemnitee as permitted by applicable
law.
E. This
Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s articles of
incorporation and bylaws, and any resolutions adopted pursuant
thereto, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or
abrogate any rights of Indemnitee thereunder.
The
parties therefore agree as follows:
(a) A “Change in
Control” shall be deemed to occur upon the earliest to
occur after the date of this Agreement of any of the following
events:
(i) Acquisition of Stock by Third Party.
Any Person (as defined below) becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the
Company representing twenty-five percent (25%) or more of the
combined voting power of the Company’s then outstanding
securities;provided, that any acquisition
that occurs as a result of the Merger Agreement that has been
approved by a majority of the Company’s board of directors
shall be excluded from the definition of Change in
Control;
(ii) Change in Board Composition. During any
period of two consecutive years (not including any period prior to
the execution of this Agreement), individuals who at the beginning
of such period constitute the Company’s board of directors,
and any new directors (other than a director designated by a person
who has entered into an agreement with the Company to effect a
transaction described in Sections 1(a)(i), 1(a)(iii) or
1(a)(iv)) whose election by the board of directors or nomination
for election by the Company’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the
members of the Company’s board of directors;provided, that changes in the
composition of the Company’s board of directors as a result
of the transactions contemplated by the Merger Agreement shall be
excluded from the definition of Change in Control;
B-1
(iii) Corporate Transactions. The effective
date of a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior
to such merger or consolidation continuingto represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined voting power
of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power
to elect at least a majority of the board of directors or other
governing body of such surviving entity;
(iv) Liquidation. The approval by the
stockholders of the Company of a complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets;
and
(v) Other Events. Any other event of a
nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934, as amended, whether or not the
Company is then subject to such reporting requirement.
For
purposes of this Section 1(a), the following terms shall have
the following meanings:
(1) “Person” shall
have the meaning as set forth in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended;provided, however, that
“Person” shall
exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the
Company.
(2) “Beneficial
Owner” shall have the meaning given to such term in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended; provided, however,
that “Beneficial
Owner” shall exclude any Person otherwise becoming a
Beneficial Owner by reason of (i) the stockholders of the
Company approving a merger of the Company with another entity or
(ii) the Company’s board of directors approving a sale
of securities by the Company to such Person.
(b) “Corporate
Status” describes the status of a person who is or was
a director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of the Company or any other
Enterprise.
(c) “Disinterested
Director” means a director of the Company who is not
and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee and who meets the
definition of a “qualified director” as set forth in
Section 6.07.0143 of the FBCA.
(d) “Enterprise”
means the Company and any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, trustee, general partner,
managing member, officer, employee, agent or
fiduciary.
(e) “Expenses”
include all reasonable and actually incurred attorneys’ fees,
retainers, court costs, transcript costs, fees and costs of
experts, witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding.
Expenses also include (i) Expenses incurred in connection with
any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to
any cost bond, supersedeas bond or other appeal bond or their
equivalent, and (ii) for purposes of Section 12(d),
Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the
Company. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(f) “FBCA” means
the Florida Business Corporation Act.
(g) “Independent
Counsel” means a law firm, or a partner or member of a
law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent (i) the Company or Indemnitee in any matter
material to either such party (other than as Independent Counsel
with respect to matters concerning Indemnitee under this Agreement,
or other indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(h) “Proceeding”
means any threatened, pending or completed action, suit,
arbitration, mediation, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or proceeding,
whether brought in the right of the Company or otherwise and
whether of a civil, criminal, administrative or investigative
nature, including any appeal therefrom and including without
limitation any such Proceeding pending as of the date of this
Agreement, in which Indemnitee was, is or will be involved as a
party, a potential party, a non-party witness or otherwise by
reason of (i) the fact that Indemnitee is or was a director or
officer of the Company, (ii) any action taken by Indemnitee or
any action or inaction on Indemnitee’s part while acting as a
director or officer of the Company, or (iii) the fact that he
or she is or was serving at the request of the Company as a
director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of the Company or any other
Enterprise, in each case whether or not serving in such capacity at
the time any liability or Expense is incurred for which
indemnification or advancement of expenses can be provided under
this Agreement.
(i) Reference to
“other
enterprises” shall include employee benefit plans;
references to “fines” shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; references to “serving at the request of
the Company” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on,
or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to in this
Agreement.
(j) “Merger
Agreement” means the Agreement and Plan of Merger and
Reorganization by and among fuboTV Inc., a Florida corporation
(f/k/a FaceBank Group, Inc.), fuboTV Acquisition Corp. and fuboTV
Media Inc., a Delaware corporation (f/k/a fuboTV Inc.), dated as of
March 19, 2020.
B-2
2. Indemnity in Third-Party Proceedings.
The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 2 if Indemnitee is, or is
threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 2, Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on his or her behalf in connection with
such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had
no reasonable cause to believe that his or her conduct was
unlawful.
3. Indemnity in Proceedings by or in the Right of
the Company. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with such Proceeding
or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification
for Expenses shall be made under this Section 3 in respect of
any claim, issue or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction to be liable to the
Company, unless and only to the extent that the or any court in
which the Proceeding was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Expenses as such court shall
deem proper.
4. Indemnification for Expenses of a Party Who is
Wholly or Partly Successful. To the extent that Indemnitee
is a party to or a participant in and is successful (on the merits
or otherwise) in defense of any Proceeding or any claim, issue or
matter therein, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. For purposes of
this section, the termination of any claim, issue or matter in such
a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or
matter.
5. Indemnification for Expenses of a
Witness. To the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party, Indemnitee shall be indemnified to the
extent permitted by applicable law against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.
(a) Notwithstanding
any limitation in Sections 2, 3 or 4, the Company shall
indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against
all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with the Proceeding or any claim, issue or
matter therein.
(b) For purposes of
Section 6(a), the meaning of the phrase “to the fullest extent
permitted by applicable law” shall include, but not be
limited to:
(i) the fullest extent
permitted by the provision of the FBCA that authorizes or
contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the
FBCA; and
(ii) the fullest extent
authorized or permitted by any amendments to or replacements of the
FBCA adopted after the date of this Agreement that increase the
extent to which a corporation may indemnify its officers and
directors.
7. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity in
connection with any Proceeding (or any part of any
Proceeding):
(a) for which payment
has actually been made to or on behalf of Indemnitee under any
statute, insurance policy, indemnity provision, vote or otherwise,
except with respect to any excess beyond the amount
paid;
(b) for an
accounting or disgorgement of profits pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of federal, state or local statutory
law or common law, if Indemnitee is held liable therefor (including
pursuant to any settlement arrangements);
(c) for any
reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company,
as required in each case under the Securities Exchange Act of 1934,
as amended (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Sarbanes-Oxley Act), if
Indemnitee is held liable therefor (including pursuant to any
settlement arrangements);
(d) initiated by
Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees, agents or other indemnitees, unless
(i) the Company’s board of directors authorized the
Proceeding (or the relevant part of the Proceeding) prior to its
initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company
under applicable law, (iii) otherwise authorized in
Section 12(d) or (iv) otherwise required by applicable
law; or
(e) if prohibited by
applicable law.
B-3
8. Advances of Expenses. The Company shall
advance the Expenses incurred by Indemnitee in connection with any
Proceeding prior to its final disposition, and such advancement
shall be made as soon as reasonably practicable, but in any event
no later than 90 days, after the receipt by the Company of a
written statement or statements requesting such advances from time
to time (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in
connection with legal services, any references to legal work
performed or to expenditure made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice). Advances shall be unsecured and
interest free and made without regard to Indemnitee’s ability
to repay such advances. Indemnitee hereby undertakes to repay any
advance to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company. This
Section 8 shall not apply to the extent advancement is
prohibited by law and shall not apply to any Proceeding (or any
part of any Proceeding) for which indemnity is not permitted under
this Agreement, but shall apply to any Proceeding (or any part of
any Proceeding) referenced in Section 7(b) or 7(c) prior to a
determination that Indemnitee is not entitled to be indemnified by
the Company.
9. Procedures
for Notification and Defense of Claim.
(a) Indemnitee shall
notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of
Expenses as soon as reasonably practicable following the receipt by
Indemnitee of notice thereof. The written notification to the
Company shall include, in reasonable detail, a description of the
nature of the Proceeding and the facts underlying the Proceeding.
The failure by Indemnitee to notify the Company will not relieve
the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in
so notifying the Company shall not constitute a waiver by
Indemnitee of any rights, except to the extent that such failure or
delay materially prejudices the Company.
(b) If, at the time of
the receipt of a notice of a Proceeding pursuant to the terms
hereof, the Company has directors’ and officers’
liability insurance in effect that may be applicable to the
Proceeding, the Company shall give prompt notice of the
commencement of the Proceeding to the insurers in accordance with
the procedures set forth in the applicable policies. The Company
shall thereafter take all commercially-reasonable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such
policies.
(c) In the event the
Company may be obligated to make any indemnity in connection with a
Proceeding, the Company shall be entitled to assume the defense of
such Proceeding with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, conditioned or delayed, upon
the delivery to Indemnitee of written notice of its election to do
so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee for any fees or expenses
of counsel subsequently incurred by Indemnitee with respect to the
same Proceeding. Notwithstanding the Company’s assumption of
the defense of any such Proceeding, the Company shall be obligated
to pay the fees and expenses of Indemnitee’s separate counsel
to the extent (i) the employment of separate counsel by
Indemnitee is authorized by the Company, (ii) counsel for the
Company or Indemnitee shall have reasonably concluded that there is
a conflict of interest between the Company and Indemnitee in the
conduct of any such defense such that Indemnitee needs to be
separately represented, (iii) the Company is not financially
or legally able to perform its indemnification obligations or
(iv) the Company shall not have retained, or shall not
continue to retain, counsel to defend such Proceeding. The Company
shall have the right to conduct such defense as it sees fit in its
sole discretion. Regardless of any provision in this Agreement,
Indemnitee shall have the right to employ counsel in any Proceeding
at Indemnitee’s personal expense. The Company shall not be entitled, without the
consent of Indemnitee, to assume the defense of any claim brought
by or in the right of the Company.
(d) Indemnitee shall
give the Company such information and cooperation in connection
with the Proceeding as may be reasonably appropriate.
(e) The Company shall
not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior
written consent, which shall not be unreasonably withheld,
conditioned or delayed.
(f) The Company shall
not settle any Proceeding (or any part thereof) in a manner that
imposes any penalty or liability on Indemnitee without
Indemnitee’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed.
(a) To obtain
indemnification, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and as is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final
disposition of the Proceeding. Any delay in providing the request
will not relieve the Company from its obligations under this
Agreement, except to the extent such failure is
prejudicial.
(b) Upon written
request by Indemnitee for indemnification pursuant to
Section 10(a), a determination with respect to
Indemnitee’s entitlement thereto shall be made in the
specific case (i) if a Change in Control shall have occurred,
by Independent Counsel in a written opinion to the Company’s
board of directors, a copy of which shall be delivered to
Indemnitee or (ii) if a Change in Control shall not have
occurred, (A) by a majority vote of two or more of the
Disinterested Directors, even though less than a quorum of the
Company’s board of directors, (B) by a committee of two
or more of the Disinterested Directors designated by a majority
vote of the Disinterested Directors, even though less than a quorum
of the Company’s board of directors, (C) if there are
less than two Disinterested Directors or, if such Disinterested
Directors so direct, by Independent Counsel in a written opinion to
the Company’s board of directors, a copy of which shall be
delivered to Indemnitee or (D) if so directed by the
Company’s board of directors, by the stockholders of the
Company. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten
days after such determination. Indemnitee shall cooperate with the
person, persons or entity making the determination with respect to
Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance
request any documentation or information that is not privileged or
otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’
fees and disbursements) actually and reasonably incurred by
Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company, to the
extent permitted by applicable law.
B-4
(c) In the event
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 10(b), the
Independent Counsel shall be selected as provided in this
Section 10(c). If a Change in Control shall not have occurred,
the Independent Counsel shall be selected by the Company’s
board of directors, and the Company shall give written notice to
Indemnitee advising him or her of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the
Company’s board of directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to
the Company advising it of the identity of the Independent Counsel
so selected. In either event, Indemnitee or the Company, as the
case may be, may, within ten days after such written notice of
selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such
selection;provided,
however, that such
objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section 1 of
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as
Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court has determined that such objection is without merit. If,
within 20 days after the later of (i) submission by Indemnitee
of a written request for indemnification pursuant to
Section 10(a) hereof and (ii) the final disposition of
the Proceeding, the parties have not agreed upon an Independent
Counsel, either the Company or Indemnitee may petition a court of
competent jurisdiction for resolution of any objection which shall
have been made by the Company or Indemnitee to the other’s
selection of Independent Counsel and for the appointment as
Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with
respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 10(b)
hereof. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 12(a) of this Agreement, the
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
(d) The Company agrees
to pay the reasonable fees and expenses of any Independent
Counsel.
11. Presumptions
and Effect of Certain Proceedings.
(a) In making a
determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination
shall, to the fullest extent not prohibited by law, presume that
Indemnitee is entitled to indemnification under this Agreement, and
the Company shall, to the fullest extent not prohibited by law,
have the burden of proof to overcome that presumption.
(b) The termination of
any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of
itself create a presumption that Indemnitee did not act in good
faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that his or her conduct was unlawful.
(c) Neither the
knowledge, actions nor failure to act of any other director,
officer, agent or employee of the Enterprise shall be imputed to
Indemnitee for purposes of determining the right to indemnification
under this Agreement.
(a) Subject to
Section 12(e), in the event that (i) a determination is
made pursuant to Section 10 of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement,
(ii) advancement of Expenses is not timely made pursuant to
Section 8 or 12(d) of this Agreement, (iii) no
determination of entitlement to indemnification shall have been
made pursuant to Section 10 of this Agreement within 90 days
after the later of the receipt by the Company of the request for
indemnification or the final disposition of the Proceeding,
(iv) payment of indemnification pursuant to this Agreement is
not made (A) within ten days after a determination has been
made that Indemnitee is entitled to indemnification or
(B) with respect to indemnification pursuant to
Sections 4, 5 and 12(d) of this Agreement, within 30 days
after receipt by the Company of a written request therefor, or
(v) the Company or any other person or entity takes or
threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Indemnitee the
benefits provided or intended to be provided to Indemnitee
hereunder, Indemnitee shall be entitled to an adjudication by a
court of competent jurisdiction of his or her entitlement to such
indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration
with respect to his or her entitlement to such indemnification or
advancement of Expenses, to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding
seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this
Section 12(a);provided,
however, that the foregoing clause shall not apply in
respect of a proceeding brought by Indemnitee to enforce his or her
rights under Section 4 of this Agreement. The Company shall
not oppose Indemnitee’s right to seek any such adjudication
or award in arbitration in accordance with this
Agreement.
(b) Neither
(i) the failure of the Company, its board of directors, any
committee or subgroup of the board of directors, Independent
Counsel or stockholders to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
(ii) an actual determination by the Company, its board of
directors, any committee or subgroup of the board of directors,
Independent Counsel or stockholders that Indemnitee has not met the
applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.
In the event that a determination shall have been made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 12 shall be conducted in
all respects as a de novo
trial, or arbitration, on the merits, and Indemnitee shall not be
prejudiced by reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this
Section 12, the Company shall, to the fullest extent not
prohibited by law, have the burden of proving Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case
may be.
(c) To the fullest
extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 12 that the procedures and
presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any
such arbitrator that the Company is bound by all the provisions of
this Agreement. If a determination shall have been made pursuant to
Section 10 of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination
in any judicial proceeding or arbitration commenced pursuant to
this Section 12, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to
make Indemnitee’s statements not materially misleading, in
connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable
law.
B-5
(d) To the extent
not prohibited by law, the Company shall indemnify Indemnitee
against all Expenses that are incurred by Indemnitee in connection
with any action for indemnification or advancement of Expenses from
the Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the
Company to the extent Indemnitee is
successful in such action, and, if requested by Indemnitee,
shall (as soon as reasonably practicable, but in any event no later
than 90 days, after receipt by the Company of a written request
therefor) advance such Expenses to Indemnitee, subject to the
provisions of Section 8.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification shall be required to be made prior
to the final disposition of the Proceeding.
13. Contribution.
To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee, the Company, in lieu of indemnifying Indemnitee, shall
contribute to the amounts incurred by Indemnitee, whether for
Expenses, judgments, fines or amounts paid or to be paid in
settlement, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of
such Proceeding in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the events
and transactions giving rise to such Proceeding; and (ii) the
relative fault of Indemnitee and the Company (and its other
directors, officers, employees and agents) in connection with such
events and transactions.
14. Non-exclusivity.
The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, the Company’s articles of
incorporation or bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. To the extent that a change
in Florida law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be
afforded currently under the Company’s articles of
incorporation and bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change, subject to the
restrictions expressly set forth herein or therein. Except as
expressly set forth herein, no right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. Except as expressly set forth
herein, the assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other right or remedy.
15. No
Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise
actually received payment for such amounts under any insurance
policy, contract, agreement or otherwise.
16. Insurance.
To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, trustees,
general partners, managing members, officers, employees, agents or
fiduciaries of the Company or any other Enterprise, Indemnitee
shall be covered by such policy or policies to the same extent as
the most favorably-insured persons under such policy or policies in
a comparable position.
17. Subrogation.
In the event of any payment under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company
to bring suit to enforce such rights.
18. Services
to the Company. Indemnitee agrees to serve as a director or
officer of the Company or, at the request of the Company, as a
director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of another Enterprise, for so long as
Indemnitee is duly elected or appointed or until Indemnitee tenders
his or her resignation or is removed from such position. Indemnitee
may at any time and for any reason resign from such position
(subject to any other contractual obligation or any obligation
imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in such
position. This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries or any Enterprise)
and Indemnitee. Indemnitee specifically acknowledges that any
employment with the Company (or any of its subsidiaries or any
Enterprise) is at will, and Indemnitee may be discharged at any
time for any reason, with or without cause, with or without notice,
except as may be otherwise expressly provided in any executed,
written employment contract between Indemnitee and the Company (or
any of its subsidiaries or any Enterprise), any existing formal
severance policies adopted by the Company’s board of
directors or, with respect to service as a director or officer of
the Company, the Company’s articles of incorporation or
bylaws or the FBCA. No such document shall be subject to any oral
modification thereof.
19. Duration.
This Agreement shall continue until and terminate upon the later of
(a) ten years after the date that Indemnitee shall have ceased
to serve as a director or officer of the Company or as a director,
trustee, general partner, managing member, officer, employee, agent
or fiduciary of any other Enterprise, as applicable; or
(b) one year after the final termination of any Proceeding,
including any appeal, then pending in respect of which Indemnitee
is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 12 of this Agreement relating thereto.
20. Successors.
This Agreement shall be binding upon the Company and its successors
and assigns, including any direct or indirect successor, by
purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Company, and
shall inure to the benefit of Indemnitee and Indemnitee’s
heirs, executors and administrators. The Company shall require and
cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, by written agreement,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform if no such succession had taken place. The Company shall
require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by
written agreement, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had
taken place.
B-6
21. Severability;
Limitation. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to do or fail to do
any act in violation of applicable law. All obligations of the
Company hereunder shall be subject to any limitations in, and any
requirements of, the FBCA as it may be in place at the applicable
time. The Company’s inability, pursuant to court order or
other applicable law, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. If any
provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each
portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (ii) such provision or
provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the
intent of the parties hereto; and (iii) to the fullest extent
possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested thereby.
22. Enforcement.
The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director or officer of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director or officer of the
Company.
23. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect
to the subject matter hereof;provided, however, that this Agreement is a
supplement to and in furtherance of the Company’s articles of
incorporation and bylaws and applicable law.
24. Modification
and Waiver. No supplement, modification or amendment to this
Agreement shall be binding unless executed in writing by the
parties hereto. No amendment, alteration or repeal of this
Agreement shall adversely affect any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such
Indemnitee in his or her Corporate Status prior to such amendment,
alteration or repeal. No waiver of any of the provisions of this
Agreement shall constitute or be deemed a waiver of any other
provision of this Agreement nor shall any waiver constitute a
continuing waiver.
25. Notices.
All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, sent by facsimile or electronic
mail or otherwise delivered by hand, messenger or courier service
addressed:
(a) if to Indemnitee,
to Indemnitee’s address, facsimile number or electronic mail
address as shown on the signature page of this Agreement or in the
Company’s records, as may be updated in accordance with the
provisions hereof; or
(b) if to the Company,
to the attention of the Chief Executive Officer or Chief Financial
Officer of the Company at 5550 Glades Road, Suite 500, Boca Raton,
FL 33431, or at such other current address as the Company shall
have furnished to Indemnitee, with a copy (which shall not
constitute notice) to Loeb & Loeb LLP Attn: Angela Dowd, 345
Park Avenue, New York, NY 10154.
Each
such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given (i) if
delivered by hand, messenger or courier service, when delivered (or
if sent via a
nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after
deposit with the courier), (ii) if sent via mail, at the earlier of its receipt
or five days after the same has been deposited in a
regularly-maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid, or (iii) if
sent via facsimile, upon
confirmation of facsimile transfer or, if sent via electronic mail, upon confirmation
of delivery when directed to the relevant electronic mail address,
if sent during normal business hours of the recipient, or if not
sent during normal business hours of the recipient, then on the
recipient’s next business day.
26. Applicable
Law and Consent to Jurisdiction. This Agreement and the
legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Florida, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to
Section 12(a) of this Agreement, the Company and Indemnitee
hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this
Agreement shall be brought only in the courts of the State of
Florida or the United States District Courts located in the State
of Florida (the “Selected Courts”), and not in any
other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Selected Courts for purposes of any
action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not
otherwise subject to service of process in the State of Florida,
the Company’s registered agent, as registered with the
Florida Secretary of State, as its agent in the State of Florida as
such party’s agent for acceptance of legal process in
connection with any such action or proceeding against such party
with the same legal force and validity as if served upon such party
personally within the State of Florida, (iv) waive any
objection to the laying of venue of any such action or proceeding
in the Selected Courts, and (v) waive, and agree not to plead
or to make, any claim that any such action or proceeding brought in
the Selected Courts has been brought in an improper or inconvenient
forum.
27. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. This
Agreement may also be executed and delivered by facsimile signature
and in counterparts, each of which shall for all purposes be deemed
to be an original but all of which together shall constitute one
and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to
evidence the existence of this Agreement.
28. Captions.
The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
(signature
page follows)
B-7
The
parties are signing this Indemnification Agreement as of the date
stated in the introductory sentence.
FUBOTV
INC.
_________________________________________
(Signature)
_________________________________________
(Print
name)
_________________________________________
(Title)
[INDEMNITEE]
_________________________________________
(Signature)
_________________________________________
(Print
name)
_________________________________________
(Street
address)
_________________________________________
(City,
State and ZIP)
B-8
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FUBOTV INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF
DIRECTORS
ANNUAL
MEETING OF SHAREHOLDERS – DECEMBER 14, 2020 AT 12:00 PM
ET
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CONTROL ID:
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REQUEST ID:
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The undersigned shareholder of fubo TV, Inc., a
Florida corporation (hereby appoint each of David Gandler, Simone
Nardi and Gina Sheldon (a “Proxy”) as proxies,
each
with full power of substitution, on behalf and in the name of the undersigned, to
represent the undersigned at the 2020 annual meeting of
Stockholders of the Company, to be held on December 14, 2020 at
12:00 p.m. Eastern Time online at
www.isuerdirect.com/virtual-event/fubo, and at any adjournment or
postponement thereof, and to vote all shares of the Company that
the undersigned would be entitled to vote if then and there
personally present, on the matters set forth on the reverse side,
and all such other business as may properly come before the
meeting, and at any adjournment or postponement
thereof.
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(CONTINUED AND TO BE SIGNED ON REVERSE SIDE.)
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VOTING INSTRUCTIONS
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If you vote by phone or internet, please DO NOT mail your proxy
card.
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MAIL:
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Please
mark, sign, date, and return this Proxy Card promptly using the
enclosed envelope.
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INTERNET:
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https://www.iproxydirect.com/FUBO
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PHONE:
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1-866-752-VOTE(8683)
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ANNUAL MEETING OF THE SHAREHOLDERS OFFUBOTV INC.
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PLEASE COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED
ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN
HERE: ☒
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PROXY
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
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Proposal
1
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FOR
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WITHHOLD
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Election
of Directors:
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David
Gandler
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Edgar
Bronfman, Jr.
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☐
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CONTROL ID:
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Pär-Jörgen Pärson
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☐
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☐
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REQUEST ID:
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Daniel
Leff
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☐
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Henry
Ahn
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☐
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☐
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Ignacio
Figueras
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☐
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Laura
Onopchenko
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☐
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☐
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Proposal
2
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FOR
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AGAINST
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ABSTAIN
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To
approve, on an advisory basis, the compensation of our named
executive officers for fiscal year 2019.
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☐
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Proposal
3
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ONE
YEAR
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TWO YEARS
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THREE
YEARS
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ABSTAIN
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To
approve, on an advisory basis, the frequency of future shareholder
advisory votes on the compensation of our named executive
officers.
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Proposal
4
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FOR
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AGAINST
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ABSTAIN
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To
approve the ability of the Company to grant incentive stock options
under the 2020 Equity Incentive Plan, or the 2020 Plan, and an
amendment to the 2020 Plan to increase its share reserve
(collectively referred to as the 2020 Plan Proposal).
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Proposal
5
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FOR
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AGAINST
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ABSTAIN
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To ratify a form of
indemnification agreement for use with our directors and
officers.
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Proposal
6
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FOR
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AGAINST
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ABSTAIN
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To ratify the
approval of KPMG LLP as the independent registered public
accounting firm for the Company for the fiscal year ending December
31, 2020.
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☐
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☐
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☐
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MARK
“X” HERE IF YOU PLAN TO ATTEND THE MEETING:
☐
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MARK HERE FOR ADDRESS CHANGE ☐ New
Address (if applicable):
____________________________
____________________________
____________________________
IMPORTANT: Please sign exactly as your name or names appear
on this Proxy. When shares are held jointly, each holder should
sign. When signing as executor, administrator, attorney, trustee or
guardian, please give full title as such. If the signer is a
corporation, please sign full corporate name by duly authorized
officer, giving full title as such. If signer is a partnership,
please sign in partnership name by authorized
person.
Dated:
________________________, 2020
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(Print Name of
Shareholder and/or Joint Tenant)
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(Signature of
Shareholder)
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(Second Signature
if held jointly)
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