UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.DC 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
Securities Exchange Act of 1934
Filed by the Registrant | ☒ | Filed by a Party other than the Registrant | ☐ |
Check the appropriate box:
☐ | Preliminary Proxy Statement | |||
☐ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |||
☒ | Definitive Proxy Statement | |||
☐ | Definitive Additional Materials | |||
☐ | Soliciting Material under §240.14a-12 |
fuboTV Inc.
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒ | No fee required | |||
☐ | ||||
paid previously with preliminary materials | ||||
☐ | Fee computed on table |
fuboTV Inc.
NOTICE & PROXY STATEMENT
Annual Meeting of Shareholders
June 9, 2022
12:00 p.m. (Eastern Time)
fuboTV Inc.
1290 Avenue of the Americas, 9th Floor, New York, NY 10104
April 27, 2022
To Our Shareholders:
You are cordially invited to attend the 2022 Annual Meeting of Shareholders of fuboTV Inc. at 12:00 p.m. Eastern Time, on Thursday, June 9, 2022, via live webcast.
The 2022 Annual Meeting of Shareholders will be a virtual meeting. We believe the virtual meeting technology provides expanded shareholder access while providing shareholders the same rights and opportunities to participate as they would have at an in-person meeting. During the virtual meeting, you may ask questions and will be able to vote your shares electronically. To participate in the Annual Meeting, you will need the 16-digit control number included on your Notice of Internet Availability of Proxy Materials or on your proxy card. We encourage you to allow ample time for online check-in, which will begin at 11:45 a.m. Eastern Time. Please note that there is no in-person annual meeting for you to attend.
The Notice of Meeting and Proxy Statement on the following pages describe the matters to be presented at the Annual Meeting.
Important Information for Holders of Common Stock:
Whether or not you attend the Annual Meeting, it is important that your shares be represented and voted at the Annual Meeting. Therefore, we urge you to promptly vote and submit your proxy by phone, via the Internet, or, if you received paper copies of these materials, by signing, dating, and returning the enclosed proxy card in the enclosed envelope, which requires no postage if mailed in the United States. If you have previously received our Notice of Internet Availability of Proxy Materials, then instructions regarding how you can vote are contained in that notice. If you have received a proxy card, then instructions regarding how you can vote are contained on the proxy card. You may also vote your shares online during the Annual Meeting even if you have previously submitted your proxy. Instructions on how to vote while participating in the meeting live via the Internet are provided in the accompanying proxy statement and posted at www.virtualshareholdermeeting.com/FUBO2022.
YOUR VOTE IS IMPORTANT
Thank you for your support.
Sincerely, | ||
David Gandler | Edgar Bronfman Jr. | |
Chief Executive Officer | Executive Chairman |
Notice of Annual Meeting of Shareholders
To Be Held Thursday, June 9, 2022
fuboTV Inc.
1290 Avenue of the Americas, 9th Floor, NEW YORK, NY 10104
The 2022 Annual Meeting of Shareholders (the “Annual Meeting”) of fuboTV Inc., a Florida corporation (the “Company” or “fuboTV”), will be held on Thursday, June 9, 2022, at 12:00 p.m. Eastern Time, via live webcast, for the following purposes:
● | To elect David Gandler, Edgar Bronfman Jr., Ignacio Figueras, Julie Haddon, Daniel Leff, Laura Onopchenko and Pär-Jörgen Pärson as directors to serve until the 2023 Annual Meeting of Shareholders; | |||
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require a sale of securities owned by shareholders that are deemed unsuitable for gaming regulatory purposes. |
We are pleased to invite you to the 2020 Annual Meeting of Shareholders of fuboTV Inc., orwill also transact such other business as may properly come before the Annual Meeting whichor any postponement or adjournment of the Annual Meeting.
Holders of record of our common stock at the close of business on April 14, 2022 are entitled to notice of and to vote at the Annual Meeting, or any postponement or adjournment of the Annual Meeting. A complete list of these shareholders will be held on December 14
It is important that your shares be represented regardless 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.
By Order of the Board of Directors, thank you for your support.
Gina Sheldon
Chief Legal Officer and Corporate Secretary
New York, New York
April 27, 2022
CONTENTS
1 | ||
Proposals | 1 | |
1 | ||
7 | ||
PROPOSAL 2 Ratification of Appointment of Independent Registered Public Accounting Firm | 10 | |
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS | 12 | |
13 | ||
PROPOSAL 3 APPROVAL, ON AN ADVISORY (NON-BINDING) BASIS, OF THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS (“SAY-ON-PAY VOTE”) | 13 | |
PROPOSAL 4 APPROVAL OF AN AMENDMENT TO THE ARTICLES THAT WOULD ALLOW THE COMPANY TO REDEEM OR REQUIRE A SALE OF SECURITIES OWNED BY SHAREHOLDERS THAT ARE DEEMED UNSUITABLE FOR GAMING REGULATORY PURPOSES | 14 | |
EXECUTIVE OFFICERS | 18 | |
CORPORATE GOVERNANCE | 18 | |
General | 18 | |
Board Composition | 18 | |
Director Independence | 18 | |
Director Candidates | 19 | |
Communications from Interested Parties | 19 | |
Board Leadership Structure and | 20 | |
COMPENSATION RISK ASSESSMENT | 21 | |
Code of Ethics | 21 | |
Anti-Hedging Policy | 21 | |
Attendance by |
at Meetings | 21 | |
21 | ||
Committees of the Board |
21 | |
25 | |
35 | |
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS | |
41 | |
41 | |
41 | |
fubotv’S ANNUAL REPORT ON FORM 10-K | 42 |
This proxy statement or the Proxy Statement, to our shareholders as of the close of business on November 13, 2020, or the Record Date, foris furnished in connection with the solicitation of proxies by ourthe Board of Directors which we refer(the “Board of Directors” or “Board”) of fuboTV Inc. (the “Company” or “fuboTV”) of proxies to asbe voted at our Board, for the Company’s Annual Meeting of Shareholders to be held on December 14, 2020,Thursday, June 9, 2022 (the “Annual Meeting”), at 12:00 p.m. Eastern Time. Time, via live webcast, and at any postponement or adjournment of the Annual Meeting.
Holders of record of shares of our common stock, $0.0001 par value (“Common Stock”), at the close of business on April 14, 2022 (the “Record Date”), will be entitled to notice of and to vote at the Annual Meeting and any postponement or adjournment of the Annual Meeting. As of the Record Date, there were 185,080,084 shares of Common Stock issued and outstanding and entitled to vote at the Annual Meeting. Each share of Common Stock is entitled to one vote on any matter presented to shareholders at the Annual Meeting.
This proxy statement and the Company’s Annual Report for the fiscal year ended December 31, 2021 (the “2021 Annual Report”) will be released on or about April 27, 2022 to our shareholders on the Record Date.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING TO BE HELD ON THURSDAY, JUNE 9, 2022:
This proxy statement and our 2021 Annual Report to Shareholders are available at http://www.proxyvote.com/.
The Annual Meeting will be held virtually only ata completely virtual meeting, which will be conducted via live webcast. You will be able to attend the following web address: https://www.issuerdirect.com/virtual-event/fubo.
At the Annual Meeting, our shareholders of recordwill be asked:
1. | To elect David Gandler, Edgar Bronfman Jr., Ignacio Figueras, Julie Haddon, Daniel Leff, Laura Onopchenko and Pär-Jörgen Pärson as directors to serve until the 2023 Annual Meeting of Shareholders; |
2. | To ratify the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022; |
3. | To approve, on an advisory (non-binding) basis, the compensation of our named executive officers; and |
4. | To approve an amendment to the Company’s Articles of Incorporation (the “Articles”) to permit the Company to redeem or require a sale of securities owned by shareholders that are deemed unsuitable for gaming regulatory purposes. |
We will also transact such other business as ofmay properly come before the close of business on the Record Date. Our proxy materials include the Notice of Annual Meeting or any postponement or adjournment of the Notice, this Proxy Statement, andAnnual Meeting. We know of no other business that will be presented at the Annual Meeting. If any other matter properly comes before the shareholders for a vote at the Annual Meeting, however, the proxy holders named on the Company’s proxy card whichwill vote your shares in accordance with their best judgment.
The Board recommends that you vote your shares as indicated below. If you return a properly completed proxy card, or vote your shares by telephone or the Internet, your shares of Common Stock will be voted on your behalf as you direct. If not otherwise specified, the shares of Common Stock represented by the proxies will be voted, and the Board of Directors recommends that you vote:
● | FOR the election of David Gandler, Edgar Bronfman Jr., Ignacio Figueras, Julie Haddon, Daniel Leff, Laura Onopchenko and Pär-Jörgen Pärson as directors; | |
● | FOR the ratification of the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022; | |
● | FOR the approval, on an advisory (non-binding) basis, of the compensation of our named executive officers; and | |
● | FOR the approval of an amendment to the Articles that would allow the Company to redeem or require a sale of securities owned by shareholders that are deemed unsuitable for gaming regulatory purposes. |
1 |
INFORMATION ABOUT THIS PROXY STATEMENT
Why you received this proxy statement. You are viewing or have received these proxy materials because fuboTV’s Board of Directors is soliciting your proxy to vote your shares at the Annual Meeting. This proxy statement includes information that we refer to collectively as the Proxy Materials. We intendare required to provide definitive copiesto you under the rules of ourthe Securities and Exchange Commission (“SEC”) and that is designed to assist you in voting your shares.
Notice of Internet Availability of Proxy Materials. As permitted by SEC rules, fuboTV is making this proxy statement and its 2021 Annual Report available to its shareholders electronically via the Internet. On or about April 27, 2022, we mailed to our shareholders on or about November 19, 2020. In addition to mailing oura Notice of Internet Availability of Proxy Materials we(the “Internet Notice”) containing instructions on how to access this proxy statement and our 2021 Annual Report and vote online. If you received an Internet Notice by mail, you will also provide access to our Proxy Materials overnot receive a printed copy of the proxy materials in the mail unless you specifically request one. Instead, the Internet at https://www.issuerdirect.com/virtual-event/fubo, by November 19, 2020. The Notice and the Proxy Statement instructinstructs you on how to access and review all of the important information contained in the Proxy Materials via the Internet.this proxy statement and 2021 Annual Report. The Internet Notice and the Proxy Statement also instructinstructs you on how you may submit your voteproxy over the Internet. If you received an Internet Notice by mail and would like to receive a printed copy of our proxy materials, you should follow the instructions for requesting such materials contained on the Internet toll-freeNotice.
Printed Copies of Our Proxy Materials. If you received printed copies of our proxy materials, then instructions regarding how you can vote are contained on the proxy card included in the materials.
Householding. The SEC’s rules permit us to deliver a single set of proxy materials to one address shared by two or more of our shareholders. This delivery method is referred to as “householding” and can result in significant cost savings. To take advantage of this opportunity, we have delivered only one set of proxy materials to multiple shareholders who share an address, unless we received contrary instructions from the impacted shareholders prior to the mailing date. We agree to deliver promptly, upon written or oral request, a separate copy of the proxy materials, as requested, to any shareholder at the shared address to which a single copy of those documents was delivered. If you prefer to receive separate copies of the proxy materials, contact Broadridge Financial Solutions, Inc. (“Broadridge”) at (866) 540-7095 or in writing at Broadridge, Householding Department, 51 Mercedes Way, Edgewood, New York 11717.
If you are currently a shareholder sharing an address with another shareholder and wish to receive only one set of proxy materials for your household, please contact Broadridge at the above phone number or address.
QUESTIONS AND ANSWERS ABOUT THE 2022 ANNUAL MEETING OF SHAREHOLDERS
WHO IS ENTITLED TO VOTE AT THE ANNUAL MEETING?
The Record Date for the Annual Meeting is April 14, 2022. You are entitled to vote at the Annual Meeting.
WHAT IS THE DIFFERENCE BETWEEN BEING A “RECORD HOLDER” AND HOLDING SHARES IN “STREET NAME”?
A record holder holds shares in his or her name. Shares held in “street name” means shares that are held in the name 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.a bank or broker on a person’s behalf.
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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 doAM I have?ENTITLED TO VOTE IF MY SHARES ARE HELD IN “STREET NAME”?” in this section for more information regarding the voting power of the shares of each class of our capital stock.
Yes. If your shares are held in a stock brokerage account or by a bank or other nominee,a brokerage firm, you are considered the “beneficial owner” of those shares held in “street name.” If your shares are held in street name. The Notice and the Proxy Materials have been forwardedname, these proxy materials are being provided to you by your broker, bank or other nominee who is considered,brokerage firm, along with respect to those shares, the shareholdera voting instruction card if you received printed copies of record.our proxy materials. As the beneficial owner, you have the right to direct your broker, bank or other nominee onbrokerage firm how to vote your shares, and the bank or brokerage firm is required to vote your shares in accordance with your instructions.
HOW MANY SHARES MUST BE PRESENT TO HOLD THE ANNUAL MEETING?
A quorum must be present at the Annual Meeting for any business to be conducted. The presence at the Annual Meeting, via live webcast or by proxy, of a majority of the outstanding shares entitled to vote on the Record Date will constitute a quorum.
WHO CAN ATTEND AND VOTE AT THE ANNUAL MEETING?
In order to allow greater attendance and participation, and to maintain a safe and healthy environment for our directors, management and shareholders, the Annual Meeting will be held entirely online. You will be able to attend the Annual Meeting online and submit your questions by visiting www.virtualshareholdermeeting.com/FUBO2022. You will also be able to vote your shares electronically at the Annual Meeting.
To participate and vote at the Annual Meeting, you will need the 16-digit control number included in your Internet Notice, on your proxy card or on the instructions that accompanied your proxy materials. The meeting webcast will begin promptly at 12:00 p.m., Eastern Time. We encourage you to access the meeting prior to the start time. Online check-in will begin at 11:45 a.m., Eastern Time, and you should allow ample time for the check-in procedures. If your shares are held in street name and you did not receive a 16-digit control number, you may gain access to and vote at the Annual Meeting by logging in to your bank or brokerage firm’s website and selecting the shareholder communications mailbox to access the meeting. The control number will automatically populate. Instructions should also be provided on the voting instruction card provided by your bank or brokerage firm. If you lose your 16-digit control number, you may join the Annual Meeting as a “Guest,” but you will not be able to vote, ask questions, or access the list of shareholders as of the Record Date.
WHAT IF DURING THE CHECK-IN TIME OR DURING THE ANNUAL MEETING I HAVE TECHNICAL DIFFICULTIES OR TROUBLE ACCESSING THE VIRTUAL MEETING?
We will have technicians ready to assist you with any technical difficulties you may have accessing the virtual meeting. If you encounter any difficulties accessing the virtual meeting during the check-in or meeting time, please call the technical support number that will be posted on the Virtual Shareholder Meeting login page.
WILL THERE BE A QUESTION AND ANSWER SESSION DURING THE ANNUAL MEETING?
As part of the Annual Meeting, we will hold a live Q&A session, during which we intend to answer appropriate questions submitted by shareholders during the meeting that are pertinent to the Company and the meeting matters. The Company will endeavor to answer as many questions submitted by shareholders as time permits. Only shareholders that have accessed the Annual Meeting as a shareholder (rather than a “Guest”) by following their instructionsthe procedures outlined above in “Who can attend and vote at the Annual Meeting?” will be permitted to submit questions during the Annual Meeting. Each shareholder is limited to no more than two questions. Questions should be succinct and only cover a single topic. We will not address questions that are, among other things:
● | irrelevant to the business of the Company or to the business of the Annual Meeting; | |
● | related to material non-public information of the Company, including the status or results of our business since our last Quarterly Report on Form 10-Q; | |
● | related to any pending, threatened or ongoing litigation; |
● | related to personal grievances; | |
● | derogatory references to individuals or that are otherwise in bad taste; | |
● | substantially repetitious of questions already made by another shareholder; | |
● | in excess of the two question limit; | |
● | in furtherance of the shareholder’s personal or business interests; or | |
● | out of order or not otherwise suitable for the conduct of the Annual Meeting as determined by the Chair or Corporate Secretary in their reasonable judgment. |
Additional information regarding the Q&A session will be available in the “Rules of Conduct” available on the Annual Meeting webpage for voting.
WHAT IF A QUORUM IS NOT PRESENT AT THE ANNUAL MEETING?
If a quorum is not present at the scheduled time of the Annual Meeting, then either the person presiding over the meeting or the holders of a majority of the shares represented, and who would be entitled to vote at a meeting if a quorum were present, may adjourn the Annual Meeting.
WHAT DOES IT MEAN IF I RECEIVE MORE THAN ONE INTERNET NOTICE OR MORE THAN ONE SET OF PROXY MATERIALS?
It means that your shares are held in more than one account at the transfer agent and/or with banks or brokers. Please vote my shares?
HOW DO I VOTE?
Shareholders of Record
We recommend that shareholders vote by proxy even if they plan to participate in the online Annual Meeting and vote electronically. If you are a shareholder of record, you maythere are three ways to vote in oneby proxy:
● | by Internet—You can vote over the Internet at www.proxyvote.com by following the instructions on the Internet Notice or proxy card; | |
● | by Telephone—You can vote by telephone by calling 1-800-690-6903 and following the instructions on the proxy card; or | |
● | by Mail—You can vote by mail by signing, dating and mailing the proxy card, which you may have received by mail. |
Internet and telephone voting facilities for shareholders of the following ways:
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Beneficial Owners
If your shares are held in street name through a day, 7 days a week, until the meeting adjourns.
CAN I CHANGE MY VOTE AFTER I SUBMIT MY PROXY?
Yes.
If you are a registered shareholder, you may revoke your proxy or change your vote:
● | by submitting a duly executed proxy bearing a later date; | |
● | by granting a subsequent proxy through the Internet or telephone; | |
● | by giving written notice of revocation to the Corporate Secretary of fuboTV prior to the Annual Meeting; or | |
● | by attending and voting during the Annual Meeting live webcast. |
Your most recent proxy card or Internet or telephone proxy is the one that is counted. Your attendance at the Annual Meeting by itself will not revoke your proxy unless you give written notice of Series AA Preferred Stock outstanding and entitledrevocation to the Corporate Secretary before your proxy is voted or you vote at the Annual Meeting.
If your shares are held in street name, you may change or revoke your voting instructions by following the specific directions provided to you by your bank or broker, or you may vote at the Annual Meeting by following the procedures described above.
WHO WILL COUNT THE VOTES?
A representative of Broadridge, our inspector of election, will tabulate and certify the votes.
WHAT IF I DO NOT SPECIFY HOW MY SHARES ARE TO BE VOTED?
If you submit a proxy but do not indicate any voting instructions, the persons named as proxies will vote in accordance with the recommendations of the Board of Directors. The Board of Directors’ recommendations are indicated on page 1 of this proxy statement, as well as with the description of each proposal in this proxy statement.
WILL ANY OTHER BUSINESS BE CONDUCTED AT THE ANNUAL MEETING?
We know of no other business that will be presented at the Annual Meeting. If any other matter properly comes before the shareholders for a vote at the Annual Meeting, however, the proxy holders named on the Company’s proxy card will vote your shares in accordance with their best judgment.
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HOW MANY VOTES ARE REQUIRED FOR THE APPROVAL OF THE PROPOSALS TO BE VOTED UPON AND HOW WILL ABSTENTIONS AND BROKER NON-VOTES BE TREATED?
PROPOSAL | Votes Required | Effect of Votes Withheld / Abstentions and Broker Non-Votes | ||
PROPOSAL 1: ELECTION OF DIRECTORS | The plurality of the votes cast. This means that the seven nominees receiving the highest number of affirmative “FOR” votes will be elected as directors. | Votes withheld and broker non-votes will have no effect. | ||
PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM | The affirmative vote of the holders of a majority of the votes cast. | Abstentions will have no effect. We do not expect any broker non-votes on this proposal. | ||
PROPOSAL 3: APPROVAL, ON AN ADVISORY (NON-BINDING) BASIS, OF THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS | The affirmative vote of the holders of a majority of the votes cast. | Abstentions and broker non-votes will have no effect. | ||
PROPOSAL 4: APPROVAL OF AN AMENDMENT TO THE ARTICLES THAT WOULD ALLOW THE COMPANY TO REDEEM OR REQUIRE A SALE OF SECURITIES OWNED BY SHAREHOLDERS THAT ARE DEEMED UNSUITABLE FOR GAMING REGULATORY PURPOSES | The affirmative vote of the holders of a majority of the votes cast. | Abstentions and broker non-votes will have no effect. |
WHAT IS AN ABSTENTION AND HOW WILL VOTES WITHHELD AND ABSTENTIONS BE TREATED?
A “vote withheld,” in the case of the proposal regarding the election of directors, or an “abstention,” in the case of each other proposal before the Annual Meeting, represents a shareholder’s affirmative choice to decline to vote on a proposal. Votes withheld and abstentions are counted as present and entitled to vote for purposes of determining a quorum. Votes withheld have no effect on the election of directors. Abstentions have no effect on each other proposal before the Annual Meeting.
WHAT ARE BROKER NON-VOTES AND DO THEY COUNT FOR DETERMINING A QUORUM?
Generally, broker non-votes occur when shares held by a broker in “street name” for a beneficial owner are not voted with respect to a particular proposal because the broker (1) has not received voting instructions from the beneficial owner of the sharesand (2) lacks discretionary voting power to vote those shares. A broker 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, ifheld for 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”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 eachthe ratification of the proposals.
WHERE CAN I FIND THE VOTING RESULTS OF THE ANNUAL MEETING?
We plan to announce preliminary voting requirements for approval of the proposals at the Annual Meeting are as follows:
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PROPOSAL 1 Election of Directors
We currently have seven directors on our Board: David Gandler, Edgar Bronfman Jr., Ignacio Figueras, Julie Haddon, Daniel Leff, Laura Onopchenko and Pär-Jörgen Pärson. At the Annual Meeting, all seven directors are to be elected to hold office until the Annual Meeting of Shareholders to be held in 2023 and until each such director’s respective successor is duly elected and qualified or until each such director’s earlier death, resignation or removal.
If you submit a proxy but do not indicate any voting instructions, the persons named as proxies will vote thereon. “Plurality”the shares of Common Stock represented by the proxy for the election as directors the persons whose names and biographies appear below. In the event any of the nominees should become unable to serve or for good cause will not serve as a director, it is intended that votes will be cast for a substitute nominee designated by the Board of Directors or the Board may elect to reduce its size. The Board of Directors has no reason to believe that the nominees named below will be unable to serve if elected. Each of the nominees has consented to being named in this proxy statement and to serve if elected.
VOTE REQUIRED
The proposal regarding the election of directors requires the approval of a plurality of the votes cast. This 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 THE BOARD OF DIRECTORS
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.
DIRECTOR NOMINEES (SUBSEQUENT TERMS TO EXPIRE AT THE 2023 ANNUAL MEETING)
The nominees for election to the termsBoard of the Agreement and Plan of Merger and Reorganization, or the Merger Agreement, datedDirectors are as of March 19, 2020 by and among the Company, Merger Sub and fuboTV Sub, or the Merger.
Name | Age | Since | ||||||
Positions with fuboTV | ||||||||
David Gandler | April 2020 | Chief Executive Officer and Director | ||||||
Edgar Bronfman Jr. | May 2020 | Executive Chairman and Director | ||||||
Ignacio Figueras | August 2020 | Director | ||||||
Julie Haddon | 54 | March 2022 | Director | |||||
Daniel Leff | 53 | July 2020 | Director | |||||
Laura Onopchenko | 54 | September 2020 | Director | |||||
Pär-Jörgen Pärson | May 2020 | |||||||
Director | ||||||||
The principal occupations and business experience, for at least the Nominees for Election as Directors
DAVID GANDLER | Age 46 |
David Gandler
EDGAR BRONFMAN JR. | Age 66 |
Edgar Bronfman Jr. has served as our Executive Chairman and a member of our Board of Directors since May 2020. Since October 2017, Mr. Bronfman has served as Chairman of Waverley Capital LLC, a media-focused venture capital fund, 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. Since March 2021, Mr. Bronfman has served as the Chairman of the board of directors of Waverley Capital Acquisition Corp. 1, a special purpose acquisition company. Mr. Bronfman previously served on the boards of directors of IAC/InterActive Corp, a publicly-held operator of Internet businesses, from February 1998 to October 2019 and Accretive Health, Inc. (now known as R1 RCM Inc.), a healthcare management company, from October 2006 to 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 on the board of directors of Falcon Capital Acquisition Corp since 2020. Mr. Bronfman is Chairman of the Board of Endeavor Global, Inc., a member of the board of trustees of NYU Langone Health, 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. We believe Mr. Bronfman is qualified to serve on our Board based on 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.
IGNACIO FIGUERAS | Age 45 |
Ignacio “Nacho” Figueras has served on our Board of Directors since August 2020. Mr. Figueras is an award-winning Argentinian polo player, an entrepreneur, television personality, spokesperson, investor and philanthropist. Since 2004, Mr. Figueras has been the captain and co-owner of the Black Watch polo team and, since 2004, has been the owner of Cria 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. Further, in 2013, Mr. Figueras and Estudio Ramos co-founded the Figueras Design Group 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 Advisory board at Flow Water, a fast-growing premium wellness water brand in North America. From 2000 to 2019, Mr. Figueras served as a spokesperson for Ralph Lauren and Ralph Lauren fragrances. We believe Mr. Figueras is qualified to serve on our Board based on the valuable insight into the sports industry he brings from his first-hand experience as a world-class athlete in the United States and globally.
JULIE HADDON | Age 54 |
Julie Haddon has served on our Board of Directors since March 2022. Ms. Haddon is an owner of the Chicago Red Stars of the National Women’s Soccer League. Previously, from 2016 to 2021, Ms. Haddon was Senior Vice President of Global Brand and Consumer Marketing for the National Football League (“NFL”). While at the NFL, Ms. Haddon’s team developed the league’s Brand and Fan Engagement strategy for sports betting. She also founded and served as executive sponsor of NFL Pride, the league’s first-ever LGBTQ+ group, and was executive producer of the documentary, A Lifetime of Sundays, featuring four trailblazing women owners of the NFL. Prior to joining the NFL, Ms. Haddon spent two decades working in senior leadership roles, including at DreamWorks Animation which produced the franchise SHREK, where her team was the recipient of the first-ever Academy Award for an Animated Feature Film. She also led marketing at Fox/Disney’s Blue Sky Studios, and social media at eBay and Zynga. Ms. Haddon currently serves on the board of directors for TOCA Football, a soccer-focused technology, training and entertainment company, and as a senior advisor to Bettor Capital, a venture fund focused on sports betting and gaming innovation. Ms. Haddon also serves as a board advisor at NuArca Labs, a sports, athlete and ticketing NFT global platform. Ms. Haddon received a B.A. from Indiana University. We believe Ms. Haddon is qualified to serve on our Board based on a variety of factors, including her extensive experience in the sports and media industries. In addition, the Board considered that Ms. Haddon contributes to the gender and LGBTQ+ diversity of the Board.
DANIEL LEFF | Age 53 |
Dr. Daniel Leff has served on our Board of Directors since July 2020. Dr. Leff is Co-Founder of Waverley Capital, a media-focused venture capital fund, where he has served as Managing Partner since 2017. Dr. Leff also serves as a Managing Partner of Luminari Capital, a media-focused venture capital fund that he founded in 2013. Prior to co-founding Waverley Capital and Luminari Capital, Dr. Leff was a Partner with Globespan Capital Partners. Earlier in his career, Dr. Leff worked for Sevin Rosen Funds, Redpoint Ventures and held engineering, marketing and strategic investment positions with Intel Corporation. Since March 2021, Dr. Leff has served as Chief Executive Officer and director of Waverley Capital Acquisition Corp. 1, a special purpose acquisition company. Dr. Leff served on the board of directors of fuboTV Pre- Merger, from May 2015 to April 2020, and Roku, Inc., a publicly-traded media streaming company, from August 2011 to May 2018. In addition, Dr. Leff currently serves on the board of directors of multiple private media companies including CameralQ. Previously, Dr. Leff served on the board of directors of Wondery (sold to Amazon), a podcast network, from June 2019 to February 2021. Dr. Leff has also been an investor and/or director in various other 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), TheAthletic (sold to the NY Times) and Volley. Dr. Leff received his bachelor’s degree in Chemistry from The University of California, Berkeley (“UC Berkeley”), his Ph.D. in Physical Chemistry from the University of California, Los Angeles (“UCLA”) and his Master of Business Administration from The UCLA Anderson Graduate School of Management, where he was an Anderson Venture Fellow and where he currently serves on the Board of Advisors. We believe Dr. Leff is qualified to serve on our Board based on his decades of experience in investing and serving on the boards of both private and publicly-traded media companies, his insight into business strategy, leadership, and marketing in the industry and his service on the fuboTV Pre-Merger Board of Directors.
LAURA ONOPCHENKO | Age 54 |
Laura Onopchenko has served on our Board of Directors since September 2020. Ms. Onopchenko currently serves as Chief Financial Officer at Getaround, a carsharing company she joined in September 2020. Ms. Onopchenko previously served as Chief Financial Officer at NerdWallet, a website and app that provides financial guidance to more than 160 million consumers every year, from September 2017 to March 2020. Before NerdWallet, she was Vice President of Finance at DaVita Rx, the pharmacy division at DaVita, from February 2011 to July 2016. 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 received her bachelor’s degree in Economics from UC Berkeley and her Master of Business Administration from The Wharton School of the University of Pennsylvania. We believe Ms. Onopchenko is qualified to serve on our Board based on her experience with high-growth companies and her financial expertise. In addition, the Board considered that Ms. Onopchenko contributes to the gender diversity of the Board.
PÄR-JÖRGEN PÄRSON | Age 58 |
Pär-Jörgen Pärson
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PROPOSAL 2 Ratification of Appointment of Independent Registered Public Accounting Firm
Our Audit Committee has appointed KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022. Our Board has directed that this appointment be submitted to our shareholders for ratification. Although ratification of our appointment of KPMG LLP is not required, we value the opinions of our shareholders and his venture capital experience.
KPMG LLP also served as our independent registered public accounting firm for the fiscal year ended December 31, 2021. Neither the accounting firm nor any of its members has any direct or indirect financial interest in Certain Legal Proceedings
In the event that the appointment of KPMG LLP is not ratified by the shareholders, the Audit Committee will consider this fact when it appoints the independent auditors for the fiscal year ending December 31, 2023. Even if the appointment of KPMG LLP is ratified, the Audit Committee retains the discretion to appoint a different independent auditor at any time if it determines that such a change is in the interests of fuboTV.
Change in Independent Registered Public Accounting Firm
Engagement and Dismissal of Marcum LLP
On January 21, 2011, a Paris Trial Court found Edgar Bronfman, Jr.,March 1, 2019, the Board appointed Marcum LLP (“Marcum”) as our Executive Chairmanindependent registered accounting firm. On March 31, 2020, the Company dismissed Marcum LLP from its role as the Company’s independent registered public accounting firm, and Director, guiltyon March 31, 2020 the Company engaged Salberg & Company P.A. (“Salberg”) as its new independent registered public accounting firm. The change of a chargethe Company’s independent registered public accounting firm from Marcum to Salberg was approved unanimously by our Board. The report of insider tradingMarcum on trades that Mr. Bronfman made in Vivendi Universal stock. Mr. Bronfman appealed the conviction,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 May 2014, the Paris Courtsubsequent interim period through April 7, 2020, there were no disagreements with Marcum on any matters of Appeal affirmed the Paris Trial Court’s decision. Mr. Bronfman appealed the Paris Court of Appeal’s decisionaccounting principles or practices, financial statement disclosure or auditing scope and procedures which, if not resolved to the Appellate Court, which rejected his appealsatisfaction 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 2017. The final judgment, entered by7, 2020.
We provided Marcum with a copy of the Paris Court of Appeal, required Mr. Bronfman to pay a 2.5 million Euro finedisclosures made in connection with the conviction. Notwithstandingfiling of a Form 8-K on April 7, 2020 and requested that Marcum furnish a letter addressed to the Paris CourtSEC, as required by Item 304(a)(3) of Appeal’s decision, Mr. Bronfman continuesRegulation 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 believethe Form 8-K/A filed on April 14, 2020.
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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 his tradingterm is described in Vivendi Universal stockItem 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 (“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 proper. In electing Mr. Bronfmanapproved 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 SEC, as a directorrequired by Item 304(a)(3) of fuboTV,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 considered these proceedingsappointed 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 relatedthe 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 concluded that they(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 as its new independent registered public accounting firm. The change of the Company’s independent registered public accounting firm from Soldinger to KPMG LLP 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 raise any concerns about Mr. Bronfman’s qualificationcontain an adverse opinion or disclaimer of opinion and was not qualified or modified as to serve onuncertainty, audit scope or accounting principles. In connection with the Board.
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 Soldinger 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.
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Engagement of KPMG LLP
On September 21, 2020, the Audit Committee approved the appointment of KPMG LLP as our new independent directors must compriseregistered public accounting firm. On September 21, 2020, we entered into an engagement agreement with KPMG LLP 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 LLP 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 LLP 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).
VOTE REQUIRED
This proposal requires the approval of the affirmative vote of the holders of a majority of the votes cast. Abstentions will have no effect on this proposal. Because brokers have discretionary authority to vote on the ratification of the appointment of KPMG LLP, we do not expect any broker non-votes in connection with this proposal.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors unanimously recommends a listed company’s boardvote FOR the ratification of directors.the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022.
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
The Audit Committee has reviewed the audited consolidated financial statements of fuboTV Inc. (the “Company”) for the fiscal year ended December 31, 2021 and has discussed these financial statements with management and the Company’s independent registered public accounting firm. The Audit Committee has also received from, and discussed with, the Company’s independent registered public accounting firm various communications that such independent registered public accounting firm is required to provide to the Audit Committee, including the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (“PCAOB”) and the Securities and Exchange Commission.
The Company’s independent registered public accounting firm also provided the Audit Committee with a formal written statement required by PCAOB Rule 3526 (Communications with Audit Committees Concerning Independence) describing all relationships between the independent registered public accounting firm and the Company, including the disclosures required by the applicable requirements of the PCAOB regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence. In addition, the rulesAudit Committee discussed with the independent registered public accounting firm its independence from the Company.
Based on its discussions with management and the independent registered public accounting firm, and its review of the NYSE requirerepresentations and information provided by management and the independent registered public accounting firm, the Audit Committee recommended to the Board of Directors that subjectthe audited consolidated financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021.
Laura Onopchenko (Chair)
Daniel Leff
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INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FEES AND OTHER MATTERS
The following table summarizes the fees, in thousands, of KPMG LLP, our independent registered public accounting firm, that were billed or billable to specified exceptions,us for each member of a listed company’s audit, compensation and nominating and governance committees be independent. Under the rules of the NYSE, a directorlast two fiscal years for audit services and were billed or billable to us in each of the last two fiscal years for other services:
Fee Category | Fiscal 2021 | Fiscal 2020 | ||||||
Audit Fees | $ | 3,002 | $ | 1,288 | ||||
Audit-Related Fees | — | — | ||||||
Tax Fees | 679 | 106 | ||||||
All Other Fees | — | — | ||||||
Total Fees | $ | 3,681 | $ | 1,394 |
AUDIT FEES
Audit fees for 2021 and 2020 consisted of fees charged for services related to the annual audit of the Company’s consolidated financial statements, an audit of internal control (2021), quarterly reviews of the Company’s interim condensed consolidated financial statements and procedures related to the Company’s registration statement filings and securities offerings.
TAX FEES
Tax fees for 2021 and 2020 consisted of fees charged for tax compliance services, tax advice, including tax advice related to acquisitions, and services related to an analysis under Section 382 under the U.S. Internal Revenue Code of 1986, as amended.
AUDIT COMMITTEE PRE-APPROVAL POLICY AND PROCEDURES
Pursuant to the Audit Committee charter, 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 all non-audit and tax services to be performed by the independent auditor and any associated fees. At each Audit Committee meeting, the Audit Committee will only qualify asreview and generally pre-approve specific types of services and the ranges of fees that may be provided by the independent auditor. Specific pre-approval is required for all other non-audit and tax services by the Audit Committee or Audit Committee Chair on behalf of the Audit Committee. All services provided by our independent registered public accounting firm in 2020 and 2021 were approved in accordance with such pre-approval policies and consistent with SEC rules.
PROPOSAL 3 Approval, on an “independent director” if, inAdvisory (Non-Binding) Basis, of the opinionCompensation of that company’s boardour Named Executive Officers (“Say-on-Pay Vote”)
BACKGROUND
As required by Section 14A(a)(1) 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.
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, 2021. 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 2021 and beyond.
As an advisory approval, this proposal is not binding upon us or our Board of Directors. However, the Compensation Committee, which is responsible for the design and administration of our executive compensation program, values the opinions of our shareholders expressed through your vote on this proposal. The Board and Compensation Committee will consider the outcome of this vote in making future compensation decisions for our named executive officers. Accordingly, we ask our shareholders to vote “FOR” the following resolution at the Annual Meeting:
“RESOLVED, that the shareholders of fuboTV Inc. approve, on an advisory (non-binding) basis, the 2021 compensation of fuboTV Inc.’s named executive officers as described in the Summary Compensation Table and related compensation tables and narrative disclosure set forth in fuboTV Inc.’s Proxy Statement for the 2022 Annual Meeting of Shareholders.”
VOTE REQUIRED
This proposal requires the approval of the affirmative vote of the holders of a majority of the votes cast. Abstentions and broker non-votes will have no effect on this proposal.
At our 2020 Annual Meeting of Shareholders, the Company’s shareholders recommended, on an advisory basis, that the shareholder vote on the compensation of our named executive officers occur every year. In light of the foregoing recommendation, the Company has determined to hold a “Say-on-Pay” advisory vote every year. Accordingly, our next advisory Say-on-Pay vote (following the non-binding advisory vote at this Annual Meeting) is expected to occur at our 2023 Annual Meeting of Shareholders.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors unanimously recommends a vote FOR the resolution to approve, on an advisory (non-binding) basis, the compensation of our named executive officers for the fiscal year ended December 31, 2021, as described in the Summary Compensation Table and related compensation tables and narrative disclosure set forth in this proxy statement.
PROPOSAL 4 Approval of an Amendment to the Articles that Would Allow the Company to Redeem or Require a Sale of Securities Owned by Shareholders that are Deemed Unsuitable for Gaming Regulatory Purposes
The Board has unanimously adopted, approved and recommended to its shareholders the approval of an amendment to the Articles (the “Articles Amendment”) which, among other things, would require all Securities (as defined below) of the Company to be held subject to suitability standards, qualifications and requirements of the applicable gaming authorities that regulate the operation and conduct of the gaming-related businesses of the Company or any of its affiliates, and in accordance with the requirements of all applicable gaming laws. The Articles Amendment would allow the Company to elect (unless otherwise required by any gaming law or gaming authority) to redeem such unsuitable person’s Securities for the Redemption Price (as defined below) or require that such Securities be sold or disposed of to a third party. In either case, the Securities holder retains an opportunity to dispose of such Securities to an acceptable third party.
REASONS FOR THE PROPOSED AMENDMENT
Our current business and growth strategy focuses on the expansion of our online wagering operations. Our intent is to create a complementary revenue stream to our current business model, through the integration of gaming activities with our expansive live sports coverage, to create a flywheel that lifts engagement and retention, expands advertising revenue through increased viewership, and creates additional sales opportunities. In February 2021, we consummated the acquisition of Vigtory, Inc. (“Vigtory”), a sports betting and interactive gaming company, which we renamed Fubo Gaming Inc., and augmented our video technology platform with Vigtory’s sportsbook capabilities and pipeline of market access agreements. During the year ended December 31, 2021, we invested significant capital in gaming licensure expenses and dedicated substantial time and effort toward the launch of our business-to-consumer online and mobile sportsbook, Fubo Sportsbook. We currently hold active licenses in both Arizona and Iowa and have entered into market access agreements with third parties in over eight other states. As we continue to implement this strategic plan, we anticipate seeking gaming licenses in additional jurisdictions. We believe our ongoing expansion within the heavily regulated gaming industry necessitates certain precautionary measures to protect our ability to obtain and maintain gaming licenses and permits, consistent with those measures implemented by similarly situated gaming companies.
As an operator and provider of wagering and other gaming-related products and services, we are subject to various gaming laws and regulations in certain jurisdictions, including those in which we already operate. We anticipate that, as we expand our wagering and other gaming-related products and services, we will become subject to a variety of additional gaming laws and regulations in those jurisdictions in which we begin to operate. In many of such jurisdictions, we are or will be required to make certain filings with gaming regulatory authorities and obtain and maintain various licenses, permits, waivers, findings of suitability or other gaming regulatory approvals in order to conduct our business. Gaming regulatory authorities have broad discretion and can require any of our officers, directors or shareholders to make certain filings, be investigated, and/or be subject to a determination of suitability. Generally, in order to obtain and maintain such licenses, permits, waivers, findings of suitability, or other gaming regulatory approvals, none of the Company’s officers, directors or shareholders may be persons who are deemed unsuitable by a gaming regulatory authority. In the event that any of the Company’s officers, directors or shareholders are or may be deemed unsuitable by an applicable gaming regulatory authority, the Company may be unable to make all required gaming regulatory filings or may be denied a license, permit, waiver or other necessary gaming regulatory approval. Furthermore, any previously granted license, permit, waiver or other gaming regulatory approval that is required for the Company to conduct its business may be revoked, rescinded or terminated by any gaming regulatory authority.
Additionally, certain of our agreements with third parties include gaming regulatory covenants that require us to make certain filings and/or obtain and maintain requisite licenses, permits, waivers or other approvals required to conduct our business. These agreements may provide such third parties with a right to terminate or seek other remedies against us in an event that we are unable to refrain from having unsuitable shareholders. As we continue to expand our operations and involvement in the gaming industry, we anticipate that future contractual agreements and third parties may also require similar regulatory covenants with which we must comply.
It is prevalent practice for corporations with gaming operations to require compliance by their shareholders with applicable licensure obligations. Many corporations engaged in gaming, or that are merely engaged in business with entities in the gaming industry, include similar provisions to the Articles Amendment in their organizational documents. These provisions are designed to provide gaming corporations with the means and flexibility to prevent an unsuitable shareholder from continuing to hold securities in a manner that would put at risk gaming licenses and ensure that management’s attention will not be diverted from the business’ needs or strategic plans.
Likewise, this Articles Amendment will substantially increase our ability to ensure compliance with gaming laws and regulations, and protect ourselves against encountering problems with gaming authorities, by providing the Company with the ability to redeem or require the sale of Securities accumulated by a holder who is deemed unsuitable or unqualified. The Board believes that this flexibility to efficiently safeguard our current and future gaming-related products and services, and ensure compliance with our third party contractual obligations, is in the best interests of the Company and its shareholders. Additionally, should the Company so elect to redeem a shareholder’s Securities at the then fair market value (as determined as set forth below), the Articles Amendment also provides the unsuitable shareholder with the discretion, prior to the date of redemption, to instead dispose of such Securities privately or in an open market transaction.
PROPOSED AMENDMENT TO ARTICLES
The form of the proposed Articles Amendment is attached hereto as Appendix A and the following description of the proposed Articles Amendment is qualified in its entirety by reference to Appendix A.
Effects on Disqualified Holder
The proposed Articles Amendment provides the Company with the right, but not the obligation, to redeem or require the disposal of the Securities, or a portion thereof held by a person who has been determined to be a disqualified holder upon terms further described below. For the purposes hereof, “Securities” shall mean all shares of capital stock, bonds, notes, convertible debentures, warrants or other instruments that represent or are exchangeable or exercisable for, or convertible into, a share in the equity of the Company, debt owed by the Company, or the Exchange Act,right to acquire any of the foregoing.
A “Disqualified Holder” is any person that owns or controls any Securities: (i) who is requested or required pursuant to any gaming law to appear before, or submit to the jurisdiction of, or file an application with, or provide information to, any gaming authority and either refuses to do so or otherwise fails to comply with such request or requirement within a reasonable period of time or as and when requested, (ii) who has withdrawn or requested the withdrawal of a pending application for any gaming license from any gaming authority in anticipation of such person being denied such gaming license or receiving such gaming license subject to materially burdensome or unacceptable terms or conditions, (iii) who is determined or shall have been determined by any gaming authority to be unsuitable or unqualified to own or control any interest in any person engaged in gaming activities in a gaming jurisdiction or to be connected or affiliated with a person engaged in gaming activities in a gaming jurisdiction, (iv) whose ownership or control of securities may cause or result, in the judgment of the Board, in the failure of the Company or any of its affiliates to obtain, maintain, retain, renew or qualify for a gaming license, or in the imposition of any materially burdensome or unacceptable terms or conditions on any gaming license, or (v) who, in the sole discretion of the Board, is deemed to have acquired or disposed of, directly or indirectly, in one or more transactions, 5% (or such other greater or lesser threshold, or additional threshold or thresholds, as may be established by a gaming authority from time to time) or more of any class or series of outstanding Securities without providing advance written notice to the Company and receiving the advance approval of the gaming authorities, to the extent required under the applicable gaming laws.
If any person that owns or controls Securities is determined to be a Disqualified Holder, then the Company may give notice to such person that they are deemed a Disqualified Holder, which shall be deemed effective on the date given (the “Notice Date”), and elect in its sole discretion (unless otherwise required by any gaming law or gaming authority):
● | to redeem any or all such Securities on the date specified in such notice (the “Redemption Date”), which date may not be less than 30 days after the Notice Date (unless an earlier time is required by any gaming authority or any gaming law), at a price equal to the Redemption Price; or | |
● | to require such Disqualified Holder to sell or otherwise dispose of such Securities (or, if applicable, a portion thereof, to enable the Company to then determine in its sole discretion that such person would no longer be deemed a Disqualified Holder) within the 30-day period commencing on the Notice Date (or an earlier time if so required by any gaming authority or any gaming law) in a manner satisfactory to the Board in its sole discretion and, to the extent such purchaser or transferee is readily identifiable, to a purchaser or transferee that the Board determines in good faith (following consultation with reputable outside gaming regulatory counsel) is not a Disqualified Holder. |
If the Company should elect to redeem such Securities, the Disqualified Holder shall be permitted to consummate an “Alternate Private Transaction,” meaning that such person may dispose of their Securities (or, if applicable, a portion thereof, to enable the Company to then determine in its sole discretion that such person would no longer be deemed a Disqualified Holder) in a manner satisfactory to the Board in its sole discretion, prior to the Redemption Date and to a purchaser or transferee that, to the extent such person is readily identifiable, the Board determines in good faith (following consultation with reputable outside gaming regulatory counsel) is not a Disqualified Holder.
Commencing on the Notice Date (or such earlier date on which any gaming authority serves notice of its determination of unsuitability or disqualification of the Disqualified Holder on the Company), the Disqualified Holder shall not be entitled to receive payments of dividends or interest upon any Securities owned by such Disqualified Holder, or exercise, directly or indirectly, any voting or other rights conferred by the Securities upon the holders thereof.
The “Redemption Price” of any Securities, unless otherwise required by any gaming authority, will be the price equal to the average closing sale price of such Securities as reported for composite transactions in securities listed on the principal trading market on which such Securities are then listed or admitted for trading during the 30 trading days preceding the Notice Date, or, if such Securities are not so listed or traded, the fair value of the Securities as determined by the Board in good faith and in consideration of such records of the Company and information, opinions, reports or statements presented to the Board by any of the Company’s officers, employees or financial advisors, or committees of the Board (including, without limitation, information, opinions, reports or statements regarding any discount for lack of marketability or otherwise), as the Board deems, in its sole discretion, to be relevant and pertinent to such determination.
The Redemption Price may be paid in cash, by unsecured promissory note, or a combination thereof, as required by any applicable gaming authority and, if not so required, as the Company elects in its sole discretion. If all or any portion of the Redemption Price is to be paid by promissory note, the Company shall tender to the Disqualified Holder a promissory note in the principal amount of the Redemption Price, or portion thereof, to be paid thereby, it being understood that in no case shall such promissory note be directly or indirectly convertible into shares of the Company’s capital stock. Any promissory note shall contain such terms and conditions as the Board determines necessary or advisable, including without limitation, subordination provisions, to comply with any law or regulation then applicable to the Company or its affiliates or to prevent a default under any indebtedness of the Company or any affiliate of the Company. Any promissory will have a term of no more than ten years and will bear interest at the rate of 2% per year. After all of the requisite Securities have been redeemed, such Securities shall no longer be deemed to be outstanding, the Disqualified Holder shall cease to be a shareholder or Securities holder with respect to such Securities and all rights of such Disqualified Holder therein, other than the right to receive the Redemption Price, shall cease.
Effects on the Company
If we exercise our right to redeem Securities from a Disqualified Holder, (i) we will be required to fund the redemption payment, which may be substantial in amount, from our existing cash resources, the incurrence of indebtedness in the form of a promissory note issued to the Disqualified Holder or other sources of liquidity and (ii) the number of Securities outstanding will be reduced by the number of Securities redeemed. Alternatively, the proposed Articles Amendment permits us to require, or in the case of a redemption permits a Disqualified Holder to elect, a sale or disposal of such Securities to a third party. However, we cannot provide any assurance that either a redemption or third-party sale will adequately address the concerns of any gaming regulatory authorities or enable us to make all required gaming regulatory filings or obtain and maintain all licenses, permits or other gaming regulatory approvals that are required to conduct our business. Additionally, we may not be able to prevent a Disqualified Holder from acquiring or reacquiring Securities.
Notwithstanding the adoption of the proposed Articles Amendment, we may not be able to exercise our redemption rights in full or at all. We may be subject to contractual restrictions on our ability to redeem Securities. For example, agreements governing any of our future indebtedness may limit our ability to make redemptions. In the event such restrictions prohibit us from exercising our redemption rights in part or in full, we would not be able to exercise our redemption rights absent a waiver of the restrictions by the parties to such agreements, which we may not be able to obtain on acceptable terms or at all. In addition to contractual restrictions on our ability to redeem Securities, we may also be subject to contractual restrictions on the incurrence of additional indebtedness to finance a redemption, which could prohibit us from issuing a promissory note to finance a redemption.
VOTE REQUIRED
This proposal requires the approval of the affirmative vote of the holders of a majority of the votes cast. Abstentions and broker non-votes will not be counted as votes “FOR” or “AGAINST” the proposal.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors unanimously recommends a vote FOR the approval of an amendment to the Articles.
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The following table identifies our current executive officers:
Name | Age | Position | ||
David Gandler1 | 46 | Chief Executive Officer and Director | ||
Edgar Bronfman Jr.2 | 66 | Executive Chairman and Director | ||
John Janedis3 | 51 | Chief Financial Officer | ||
Alberto Horihuela Suarez4 | 34 | Chief Growth Officer |
1 | See biography on page 7 of this proxy statement. |
2 | See biography on page 8 of this proxy statement. |
3 | John Janedis has served as our Chief Financial Officer since February 2022. Prior to joining the Company, Mr. Janedis served as Managing Director, Senior Equity Research Analyst at Wolfe Research, LLC, a sell-side research firm, from March 2020 through January 2022, specializing in the media, cable and telecommunications industries. Prior to that, he was Senior Vice President, Capital Markets, Treasurer and Investor Relations at TEGNA Inc., a media company, from December 2018 to March 2020. Prior to this role, Mr. Janedis served as Managing Director, Senior Equity Research Analyst at each of Jefferies LLC from 2014 to 2018, UBS Securities from 2010 to 2014 and Wells Fargo Securities from 2006 to 2010. Mr. Janedis received his bachelor’s degree in Economics and Master of Business Administration from New York University. |
4 | Alberto Horihuela Suarez has served as Chief Growth Officer since November 2021, after previously serving as our Chief Marketing Officer since April 2020. Mr. Horihuela was a co-founder of fuboTV Pre-Merger, serving as the Company’s Chief Marketing Officer since June 2014. Prior to joining fuboTV Pre-Merger, Mr. Horihuela co-founded and served as the Chief Executive Officer of Primerad Network, a video ad network for Hispanics in the U.S., from June 2013 to May 2015. Additionally, Mr. Horihuela served as the Head of Latin America at DramaFever, a video streaming service acquired in 2016 by Warner Bros. Entertainment Inc., from November 2012 to June 2014. Mr. Horihuela received his bachelor’s degree in Economics from the University of Chicago. |
Our Board of Directors has adopted Corporate Governance Guidelines, a Code of Business Conduct and Ethics and charters for our Nominating and Corporate Governance Committee, Audit Committee and Compensation Committee to assist the Board in the exercise of its responsibilities and to serve as a framework for the effective governance of fuboTV. You can access our current committee charters, our Corporate Governance Guidelines and our Code of Business Conduct and Ethics in the Governance section of the Company’s website at http://ir.fubo.tv, or by writing to our Corporate Secretary at our offices at 1290 Avenue of the Americas, 9th Floor, New York, NY 10104.
As provided in our amended and restated bylaws (the “Bylaws”), our Board of Directors shall consist of such number of directors as determined from time to time by resolution adopted by the Board of Directors. Our Board of Directors currently consists of seven members: David Gandler, Edgar Bronfman Jr., Ignacio Figueras, Julie Haddon, Daniel Leff, Laura Onopchenko and Pär-Jörgen Pärson. Pursuant to the Bylaws, 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. Any additional directorships resulting from an increase in the number of directors may be filled by the affirmative vote of a majority of the remaining directors.
Our Board of Directors has undertaken a review of the independence of our directors and considered whether any director has a material relationship with us that could compromise that director’s ability to exercise independent judgment in carrying out that director’s responsibilities. Our Board of Directors has affirmatively determined that each of Messrs. Leff and Pärson and Mses. Haddon and Onopchenko is an “independent director,” as defined under the rules of the NYSE. To be considered independent for purposes of Rule 10A-3 and underNew York Stock Exchange (“NYSE”). In addition, 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.
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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.”
To facilitate the search process for director candidates, the Nominating and Corporate Governance Committee may solicit our current directors and executives for the names of potentially qualified candidates or may ask directors and executives to pursue their own business contacts for the names of potentially qualified candidates. The Nominating and Corporate Governance Committee may also consult with outside advisors or retain search firms to assist in the search for qualified candidates, or consider director candidates recommended by our shareholders. Once potential candidates are identified, the Nominating and Corporate Governance Committee, among other things, reviews the backgrounds of those candidates, conducts candidate interviews, evaluates candidates’ independence from us and potential conflicts of interest and determines if candidates meet the qualifications desired qualifications, expertiseby the committee of candidates for election as director. Julie Haddon was initially recommended to serve on our Board by Egon Zehnder, an executive search firm.
In accordance with our Corporate Governance Guidelines, in evaluating the suitability of individual candidates, the Nominating and characteristics sought of Board members, which assessment may includeCorporate Governance Committee will consider 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 and other time commitments,commitments. Our Corporate Governance Guidelines provide that the Board evaluates each individual in the context of the membership of the Board as a whole, with the objective of maintaining a Board that can best perpetuate the success of the business and represent shareholder interests through the exercise of sound judgment using its diversity of backgrounds and experiences in various areas. Although the Board does not have a formal diversity policy with respect to the evaluation of director candidates, in its evaluation of director candidates, the Nominating and Corporate Governance Committee will consider factors including, without limitation, 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;
The Nominating and the commitment of time and energy necessary to diligently carry out those responsibilities.
Communications from Interested Parties
Anyone who would like to communicate with, or otherwise make his or her concerns known directly to, the Company’s non-management directors may do so by addressing such communications or concerns to the care of the Chief Legal Officer at legal@fubo.tv or by mail at the principal executive office of the Company at 1290 Avenue of the Americas, 9th Floor, New York, NY 10104, who will forward such communications to the appropriate party.
The Chief Legal Officer, in consultation with appropriate directors as necessary, reviews all incoming communications and screens for communications that are solicitous, relate to matters of a personal nature not relevant for the Company’s shareholders to act on or for the Board to consider or are of a type that render them improper or irrelevant to the functioning of the Board or the Company. If appropriate, the Company’s Chief Legal Officer will route such communications to the appropriate director(s) or, if none is specified, to the Chairperson of the Board. The Company’s Chief Legal Officer may decide in the exercise of his or her judgment whether a response to any communication is necessary.
This communications policy does not apply to communications to independent directors from officers or directors of the Company who are shareholders or to shareholder proposals submitted pursuant to Rule 14a-8 under the Exchange Act.
The Board does not have a policy on whether or not the roles of the Chief Executive Officer and Chairperson should be separate or, if they are to be separate, whether the Chairperson 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 serving as our Executive Chairman and Chairman of the Board. We believe that the separation of the Chairman and Chief Executive Officer positions is appropriate at this time and suits the talents, expertise and experience that each of Mr. Gandler and Mr. Bronfman bring to the Company. In addition, we believe that the separation of the positions of Chairman and Chief Executive Officer, coupled with independent leadership on each our of Board committees, reinforces the independence of the Board from management, creates an environment that encourages objective oversight of management’s performance and enhances the effectiveness of the Board as a whole. We believe that we, like many U.S. companies, are well-served by a flexible leadership structure. Our Board of Directors will continue to consider whether the positions of Chairperson of the Board and Chief Executive Officer should be separated or combined at any given time as part of our succession planning process.
Our Corporate Governance Guidelines provide that whenever our Chairperson of the Board does not qualify as an independent director, the independent directors may appoint a lead independent director (“Lead Independent Director”). Our Corporate Governance Guidelines provide that if appointed, the Lead Independent Director’s responsibilities include, but are not limited to: calling separate meetings of the independent directors, determining the agenda and serving as chairperson of meetings of independent directors, reporting to the Chief Executive Officer and the Chairperson of the Board regarding feedback from executive sessions, serving as spokesperson for the Company as requested and performing such other responsibilities that may be designated by a majority of the independent directors from time to time. We currently do not have a Lead Independent Director.
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 committeesOur Board of Directors focuses on our general risk management strategy, the Board, as disclosed inmost significant risks facing us, including risks relating to the descriptionsCompany’s credit, liquidity and operations, and oversees the implementation of each of the committees above and in the charters of each of the committees.risk mitigation strategies by management. The audit committeeAudit Committee primarily oversees management’s process for identifying, monitoring and addressing enterprise risks and the adequacy and effectiveness of the Company’s policiesaccounting and practices regarding information technology risk managementfinancial reporting processes and internal controls related to cybersecurity.and the Company’s compliance with applicable law. The compensation committeeCompensation Committee considers the risks associated with our compensation policies and practices, with respectand the Nominating and Corporate Governance Committee oversees risks relating to all employees.our corporate governance practices and structure. 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'sBoard’s allocation of risk oversight responsibility may change from time to time based on the evolving needs of the Company. Our Board of Directors is also apprised of particular risk management matters in connection with its general oversight and approval of corporate matters and significant transactions. The Board does not believe that its role in the oversight of our risks affects the Board’s leadership structure.
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The compensation committeeCompensation Committee periodically reviews the Company’s general compensation strategy and reviewsto determine whether 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 Companyencourage excessive risk-taking and to evaluateevaluates compensation policies and practices that could mitigate such risks. In addition, our compensation committeeCompensation Committee has from time to time 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.
We have adopted a Code of Business Conduct and Ethics which establishes the standardsthat applies to all of ethical conduct applicable to allour 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 overprincipal executive officer, principal financial reporting, corporate opportunities and confidentiality requirements.officer, principal accounting officer or controller, or persons performing similar functions. Our Code of Business Conduct and Ethics is available onin the Investor RelationsGovernance section of the Company’s website at http://ir.fubo.tv. We intend to discloseexpect that any amendments to the code, or any waivers of its requirements, that are required to be disclosed by SEC or NYSE rules will be disclosed on our websitewebsite.
Our Board of Directors has adopted an Insider Trading Compliance Policy, which applies to all directors, officers, employees, consultants, contractors, agents and other service providers of the extent requiredCompany, and any entities which such persons control. The policy prohibits such persons from purchasing certain financial instruments, including prepaid variable forward contracts, equity swaps, collars, and exchange funds, or otherwise engaging in transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s equity securities.
Attendance by SEC applicable rulesMembers of the Board of Directors at Meetings
There were 16 meetings of the Board of Directors during the fiscal year ended December 31, 2021. During the fiscal year ended December 31, 2021, each director attended at least 75% of the aggregate of (i) all meetings of the Board of Directors and regulations. The inclusion(ii) all meetings of the committees on which the director served during the period in which he or she served as a director.
Currently, we do not maintain a formal policy regarding director attendance at annual meetings of shareholders; however, pursuant to 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.
During executive sessions of non-management 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. In addition, only the independent directors, without the non-employee directors who are not independent, meet on a periodic basis in executive sessions. During these executive sessions of the independent directors, Laura Onopchenko, the Chair of our Audit Committee, presides over the meeting.
Our Board has adopted corporate governance guidelines,established three standing committees—Audit, Compensation and Nominating and Corporate Governance—each of which assistsoperates under a written charter that has been approved by our Board.
The members of each of the Board committees are set forth in the exercisefollowing chart.
Director | Audit | Compensation | Nominating and Corporate Governance | |||
David Gandler | ||||||
Edgar Bronfman Jr. | ||||||
Ignacio Figueras | ||||||
Julie Haddon* | X | |||||
Daniel Leff* | X | X | Chair | |||
Laura Onopchenko* | Chair | |||||
Pär-Jörgen Pärson* | Chair | X |
* | Independent director |
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Audit Committee
Our Audit Committee’s duties and responsibilities are to, among other things:
● | appoint and oversee the work of the independent registered public accounting firm engaged by us 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 financial statements and quarterly unaudited financial statements and our internal controls; | |
● | discuss with management the Company’s procedures with respect to the presentation of the Company’s financial 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; | |
● | oversee the design, implementation and performance of our internal audit function; | |
● | set hiring policies with regard to the hiring of employees or former employees of our independent registered public accounting firm; | |
● | periodically review our policies and procedures for reviewing and approving or ratifying “related person transactions”, and review and oversee all related person transactions; | |
● | adopt and oversee procedures for the receipt, retention and treatment of complaints we receive regarding accounting, internal accounting controls or auditing matters; | |
● | review any significant legal, compliance or regulatory matters that have arisen or that may have a material impact on our business, financial statements or compliance policies; | |
● | 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; | |
● | review and discuss with management, including the Company’s internal audit function and the Company’s independent auditor, guidelines and policies to identify, monitor, and address enterprise risks, including discussion of the Company’s major financial and cybersecurity 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; | |
● | 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 periodically 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. |
The members of its responsibilities.the Audit Committee are Ms. Haddon, Dr. Leff and Ms. Onopchenko, with Ms. Onopchenko serving as chair. Our corporate governance guidelines are availableBoard of Directors has affirmatively determined that Ms. Haddon, Dr. Leff and Ms. Onopchenko each meet the definition of “independent director” for purposes of serving on the Investor RelationsAudit Committee under Rule 10A-3 of the Exchange Act and the NYSE rules. Each member of our Audit Committee also meets the financial literacy requirements of NYSE rules. In addition, our Board of Directors has determined that Dr. Leff and Ms. Onopchenko each qualify as an “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K. Our Board of Directors has adopted an Audit Committee Charter, which is available in the Governance section of the Company’s website located at http://ir.fubo.tv.
The Audit Committee met eight times during the fiscal year ended December 31, 2021.
Compensation Committee
Our Compensation Committee’s duties and responsibilities are to, among other things:
● | review and approve the corporate goals and objectives applicable to the compensation of our Chief Executive Officer (the “CEO”), evaluate at least annually the CEO’s performance in light thereof, and, based on this evaluation, set the compensation level of the CEO; | |
● | oversee an evaluation of the executive officers other than the CEO and, after considering such evaluation, review and approve, or recommend for approval to the Board, the compensation of such executive officers; | |
● | review, approve, amend and administer the Company’s employee benefit and compensation 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 in accordance with procedures and guidelines as may be established by the Board; | |
● | review at least annually and discuss with management 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 recommend to the Board 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 compensation discussion and analysis that we may be required to include in SEC filings, including this proxy statement, from time to time; | |
● | conduct and present to the Board an annual self-performance evaluation of the committee; and | |
● | review periodically the adequacy of the committee’s charter and recommend any proposed changes to the Board for approval. |
The Compensation Committee Interlocksmay delegate its authority under the Compensation Committee charter in accordance with applicable laws and Insider Participation
The compensation committeeCompensation Committee considers recommendations from our Chief Executive Officer regarding the compensation of our executive officers other than himself. Under its charter, our compensation committeeCompensation Committee has the right to retain or obtain the advice of compensation consultants, independent legal counsel and other advisers. The compensation committeeCompensation Committee periodically engages Compensia, an outside consultant to advise on compensation-related matters.
The Compensation Committee consists of Dr. Leff and Mr. Pärson, with Mr. Pärson serving as chair. Our Board of Directors has determined that Dr. Leff and Mr. Pärson meet the definition of “independent director” for purposes of serving on the compensation committee under the NYSE rules, including the heightened independence standards for members of a compensation committee, and are “non-employee directors” as defined in Rule 16b-3 of the dateExchange Act. Our Board of this Proxy Statement, fuboTV’sDirectors has adopted a Compensation Committee Charter, which is available in the Governance section of the Company’s website located at http://ir.fubo.tv.
The Compensation Committee met four times during the fiscal year ended December 31, 2021.
Nominating and Corporate Governance Committee
Our Nominating and Corporate 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; | |
● | make recommendations to the Board regarding the current composition, organization and governance of the Board and its committees; | |
● | identify individuals qualified to become Board members based on the criteria included in the Corporate Governance Guidelines; | |
● | evaluate 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; | |
● | consider 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; | |
● | develop and review periodically the policies and procedures for considering nominees recommended by shareholders for election to the Board; |
● | consider 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; | |
● | evaluate and recommend termination of membership of individual directors for cause or for other appropriate reasons; | |
● | evaluate the “independence” of directors and director nominees against the independence requirements of NYSE, applicable rules and regulations of the SEC and other applicable laws; | |
● | recommend 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 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 periodically 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 annual evaluation of the Board and its committees; | |
● | 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; | |
● | engage independent legal counsel, search firms, and other advisors as it determines necessary to carry out its duties, 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 periodically the adequacy of the committee’s charter and recommend any proposed changes to the Board for approval. |
Our Nominating and Corporate Governance Committee consists of Dr. Leff and Mr. Pärson, with Dr. Leff serving as chair. Our Board of Directors has affirmatively determined that Dr. Leff and Mr. Pärson each meet the definition of “independent director” under the NYSE rules. Our Board of Directors has adopted a Nominating and Corporate Governance Committee Charter, which is available in the Governance section of the Company’s website located at http://ir.fubo.tv.
The Nominating and Corporate Governance Committee met four times during the fiscal year ended December 31, 2021.
EXECUTIVE AND DIRECTOR COMPENSATION
This section discusses the material components of the executive compensation program for our executive officers includedwho are named in the following individuals:
● | David Gandler, our Chief Executive Officer; | |||
Edgar Bronfman Jr., our Executive Chairman; and | ||||
Alberto Horihuela Suarez, | our Chief |
This discussion may contain forward-looking statements that are based on our current plans, considerations, expectations and determinations regarding future compensation programs.
Information regarding Edgar Bronfman, Jr.
Summary Compensation Table
The following table sets forth information concerning the compensation of our named executive officers for the years ended December 31, 2021 and David Gandler, each of whom also serves as a director, isDecember 31, 2020. The amounts set forth above under “Directorsin the “Stock Awards” and Corporate Governance.”
Name and Principal Position | Year | Salary ($)(1) | Bonus ($) | Stock Awards($)(2) | Option Awards ($)(3) | All Other Compensation ($)(4) | Total | ||||||||||||||||||||
David Gandler | 2021 | 520,833 | 500,000 | — | 5,432,006 | 27,058 | 6,479,897 | ||||||||||||||||||||
Chief Executive Officer | 2020 | 470,000 | 265,068 | — | 20,937,563 | 21,891 | 21,694,522 | ||||||||||||||||||||
Edgar Bronfman Jr. | 2021 | 95,000 | — | — | 19,213,821 | — | 19,308,821 | ||||||||||||||||||||
Executive Chairman | 2020 | 84,098 | — | — | 20,858,046 | — | 20,942,144 | ||||||||||||||||||||
Alberto Horihuela Suarez Chief Growth Officer | 2021 | 359,772 | 126,000 | 64,352,998 | — | 27,058 | 64,865,828 |
(1) | Represents actual base salaries paid to Messrs. Gandler and Horihuela and cash retainer fees paid to Mr. Bronfman in connection with his service as our Executive Chairman. |
(2) | Represents the grant date fair value of restricted stock unit awards granted to Mr. Horihuela in 2021. In accordance with SEC rules, this column reflects the aggregate grant date fair value of the awards granted to Mr. Horihuela computed in accordance with Financial Accounting Standards, Standard Board Accounting Codification Topic 718 for stock-based compensation transactions (ASC 718). Assumptions used in the calculation of these amounts are included in Note 15 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 1, 2022. This amount does not reflect the actual economic value that will be realized by Mr. Horihuela upon the vesting of the awards or the sale of the Common Stock underlying such awards. The full grant date fair value of such restricted stock unit awards, assuming achievement of all performance metrics at the maximum level, is $64,352,998. |
(3) | Represents the grant date fair value of option awards granted in the applicable fiscal year. In accordance with SEC rules, this column reflects the aggregate grant date fair value of the awards granted to the named executive officers computed in accordance with ASC 718. Assumptions used in the calculation of these amounts are included in Note 15 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 1, 2022. This amount does not reflect the actual economic value that will be realized by the named executive officers upon the exercise of the awards or the sale of the Common Stock underlying such awards. |
With respect to the stock option awarded to Mr. Gandler in October 2020, the vesting of which is performance-based, the vesting is tied to a series of five one-year performance measure periods and may be earned over five years, with 20% of the total award eligible to be earned each year (commencing with 2021) based on the Board’s evaluation of the Company’s performance for such year. The performance objectives for each year have been pre-determined by the Board. SEC rules require presentation that is consistent with ASC 718. In accordance with SEC rules and ASC 718, due to the vesting terms applicable to the stock options granted to Mr. Gandler in October 2020, no grant date for ASC 718 purposes occurred for any portion of Mr. Gandler’s October 2020 stock option award in 2020 and 2021, and no value is reported in the table above for such award for 2020. Because the portion of the performance-based option eligible to be earned for 2021 was deemed probable of achievement, the Company recognized $5,432,006 of stock-based compensation expense, which is included in the table above for 2021. Since the number of shares to be earned on each determination date (subsequent to the Company’s calendar year-end) is subject to the discretion of the Board, the compensation expense is adjusted each reporting period for changes in fair value prorated for the portion of the requisite service period rendered and based on the number of shares expected to be earned. | |
(4) | Represents health insurance premiums paid by the Company on behalf of Messrs. Gandler and Horihuela. |
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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
Elements 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.
For the year ended December 31, 2019,2021, the compensation for our “namednamed executive officers other than Mr. Bronfman generally consisted of base salary, cash bonuses and/or equity awards. These elements (and the amounts of compensation and benefits under each element) were selected because we believe they are necessary to help us attract and retain executive talent which is fundamental to our success. We have engaged Compensia, an independent national compensation consulting firm, from time to time to provide executive compensation advisory services, help evaluate our compensation philosophy and objectives, and provide guidance in administering our compensation programs.
The compensation for the year ended December 31, 2021 for our Executive Chairman Mr. Bronfman consisted of the option grant described in more detail below, an annual cash retainer in accordance with our outside director compensation policy and the ability to receive annual restricted stock unit awards pursuant to our outside director compensation policy. See “Director Compensation” below.
Below is a more detailed summary of the current executive compensation program as it relates to our named executive officers.
Base Salaries
The named executive officers receive a base salary to compensate them for the services they provide to our company. The base salary payable to each named executive officer is intended to provide a fixed component of compensation reflecting the executive’s skill set, experience, role and responsibilities.
The annual base salary in effect for Mr. Gandler in 2021 was $500,000, which was increased to $550,000 effective July 29, 2021. The annual base salary in effect for Horihuela in 2021 was $320,000, which was increased to $400,000 effective July 1, 2021.
2021 Bonuses
Pursuant to his employment agreement, Mr. Gandler had an established target annual bonus amount of $500,000 for 2021. For 2021, Mr. Horihuela did not have a stated target bonus amount.
The actual annual cash bonuses paid to Messrs. Gandler and Horihuela in 2021 are set forth in the Summary Compensation Table. Mr. Bronfman was not eligible for an annual bonus.
Equity Compensation
We maintain the fuboTV Inc. 2020 Equity Incentive Plan (the “2020 Plan”). The 2020 Plan provides our employees (including the named executive officers) and other eligible service providers the opportunity to participate in the equity appreciation of our business and incentivize them to work towards the long-term performance goals of the company. We believe that such awards function as a compelling incentive and retention tool.
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David Gandler October 2020 Performance-Based Stock Option
On October 8, 2020 we awarded Mr. Gandler a stock option under the 2020 Plan to purchase 4,100,000 shares of our Common Stock with an exercise price per share of $10.00. The option will vest and become exercisable with respect to the underlying shares upon the attainment of pre-determined targets over a five-year period tied to stock price, revenue, gross margin, an increase of the number of subscribers, the launch of new markets and, commencing in 2023, creation of new revenue streams, and the Board will review attainment of such goals annually from 2021 through 2025 to determine if any vesting is warranted. As a condition to receiving this grant, Mr. Gandler and his affiliates and transferees agreed 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.
For 2021, the performance metrics and corresponding objectives for Mr. Gandler’s stock option consisted of: revenue of $400.0 million; subscribers of 600,000; one new market launch; Adjusted Contribution Margin (“ACM”) of 12.5%; and stock price performance of 200% of the IPO price during the last 30 trading days of year. The Board determined the revenue, subscriber and new markets objectives were exceeded for 2021 based on the Company’s achievement of $638 million in revenue, 1.3 million subscribers, and launch of multiple new markets, including through the acquisitions of Molotov and Edisn in France and India, respectively, and the launch of Fubo Sportsbook in two states. The 2021 objectives for stock price performance and ACM were not achieved. In light of the Company’s performance with respect to the revenue, subscriber and new markets objectives, as well as the Company’s strong stock price performance for substantially all of 2021 (trading above $20.00 for 215 days during 2021), and Mr. Gandler’s leadership of the Company towards each of these achievements, the Board determined that 20% of Mr. Gandler’s stock option would vest on February 20, 2022.
The equity awards granted to Mr. Gandler are subject to accelerated vesting under the terms of his employment agreement, as described below under “—Named Executive Officer Employment Arrangements.”
Edgar Bronfman Jr. April 2021 Performance-Based Stock Option
On April 19, 2021, our Board, upon the recommendation of our Compensation Committee, approved an option grant to Mr. Bronfman to purchase 1,375,000 shares of our Common Stock to be granted effective May 19, 2021, with an exercise price per share of $19.59, reflecting the average closing price per share of our Common Stock for the 30-calendar-day-period beginning on April 20, 2021 and ending on May 19, 2021. The option was granted under the 2020 Plan and has a term of seven years measured from the grant date. The option vests and becomes exercisable as follows:
● | with respect to one-third of the underlying shares on the later of (i) the first anniversary of the grant date and (ii) the date on which the average per-share closing price of our Common Stock over any ten consecutive trading days first exceeds 120% of the option’s per-share exercise price (the “Tranche 1 Target”); | |
● | with respect to one-third of the underlying shares on the later of (i) the second anniversary of the grant date and (ii) the date on which the average per-share closing price over any ten consecutive trading days first exceeds 120% of the Tranche 1 Target (the “Tranche 2 Target”); and | |
● | with respect to the remaining one-third of the underlying shares on the later of (i) the third anniversary of the grant date and (ii) the date on which the average per-share closing price over any ten consecutive trading days first exceeds 120% of the Tranche 2 Target. |
In accordance with the terms of the option agreement, in the event of Mr. Bronfman’s good leaver termination (as such term is defined in Item 402(m)(2) of Regulation S-K, are:
Name | Year | Salary ($) | 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 |
During the minimum bonus,year ended December 31, 2021, the bonus will be determined based on the achievement of certain performance objectivesTranche 1 Target and Tranche 2 Target were each met and therefore one-third of the Company as established byunderlying shares will vest and become exercisable on each of May 19, 2022 and 2023, respectively.
Alberto Horihuela November 2021 Restricted Stock Unit Awards
On November 3, 2021, our Board, upon the compensation committee.
On November 3, 2021, our Board, upon the recommendation of our Compensation Committee, approved an award of restricted stock units covering 500,000 shares of our Common Stock to Mr. Horihuela (the “Horihuela LTIP Award”). The Horihuela LTIP Award was granted under the 2020 Plan and without increasing Mr. Textor’s rights under any other provisionvests up to twenty percent (20%) for each of 2021, 2022, 2023, 2024, and 2025 upon the attainment each such year of pre-determined revenue and subscriber targets. To remain eligible to vest in a particular tranche of the Textor Employment Agreement, excluding any bonus payments not yet paid)Horihuela LTIP Award, Mr. Horihuela must remain in continuous service with the Company through the date on which the Compensation Committee determines the actual number of termination;
For 2021, the revenue, subscriber and new market objectives for purposes of controlMr. Horihuela’s awards were the same as established for purposes of Mr. Gandler’s award described above. In February 2022, our Compensation Committee determined that the revenue and subscriber targets were satisfied with respect to both of the Company,Horiheula RSU Award and the Horihuela LTIP Award, and that the objective of launching a material diminution bynew market was achieved with respect to the Company of compensation and benefits (taken as a whole) provided to Mr. Textor immediately prior to a Change of Control;
Other Elements of Compensation
We maintain a tax-qualified 401(k) retirement plan for all U.S. employees. Under our 401(k) plan, employees may elect to Mr. Textordefer up to all eligible compensation, subject to applicable annual Code limits. We intend for our 401(k) plan to qualify 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 280GSection 401(a) and 501(a) of the Code suchso that the payment or benefit would be subjectcontributions by employees to an excise tax under section 4999our 401(k) plan, and income earned on those contributions, are not taxable to employees until withdrawn from our 401(k) plan.
All of the Code, the Textor Employment Agreement provides that the Company will payour full-time employees are eligible 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 taxparticipate in our health and any federal, statewelfare plans, including medical, dental and local incomevision benefits and employment taxlife insurance commuter benefits. Messrs. Gandler and Horihuela participate in these plans 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.
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Outstanding Equity Awards at Fiscal Year-End
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.
Option Awards | Stock Awards | |||||||||||||||||||||||||||
Name | Grant Date | Number of Securities Underlying Unexercised Options (#) Exercisable | Number of Securities Underlying Unexercised Options (#) Unexercisable | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(1) | ||||||||||||||||||||
David Gandler | 4/1/2020 | 2,019,440 | 2,827,218 | (2) | — | 8.124 | 3/31/2030 | — | — | |||||||||||||||||||
David Gandler | 10/8/2020 | — | — | 4,100,000 | (3) | 10.00 | 9/20/2025 | — | — | |||||||||||||||||||
David Gandler | 5/31/2018 | 781,853 | 90,914 | (4) | — | 1.99 | 5/31/2028 | — | — | |||||||||||||||||||
David Gandler | 8/4/2016 | 776,675 | (5) | — | — | 0.49 | 8/3/2026 | — | — | |||||||||||||||||||
David Gandler | 9/21/2015 | 209,024 | (6) | — | — | 0.22 | 9/20/2025 | — | — | |||||||||||||||||||
Edgar Bronfman Jr. | 5/19/2021 | — | — | 1,375,000 | (7) | 19.59 | 5/18/2028 | — | — | |||||||||||||||||||
Edgar Bronfman Jr. | 4/29/2020 | 1,875,000 | (8) | — | — | 8.76 | 4/29/2027 | — | — | |||||||||||||||||||
Edgar Bronfman Jr. | 6/8/2020 | 1,203,297 | (8) | — | — | 11.15 | 4/29/2027 | — | — | |||||||||||||||||||
Alberto Horihuela | 9/21/2015 | 28,212 | — | — | 0.22 | 9/20/2025 | — | — | ||||||||||||||||||||
Alberto Horihuela | 8/4/2016 | 310,668 | — | — | 0.49 | 8/3/2026 | — | — | ||||||||||||||||||||
Alberto Horihuela | 5/31/2018 | 260,617 | (9) | 30,305 | — | 1.99 | 5/30/2028 | — | — | |||||||||||||||||||
Alberto Horihuela | 8/6/2020 | 66,666 | (10) | 133,334 | — | 9.98 | 8/5/2030 | — | — | |||||||||||||||||||
Alberto Horihuela | 11/3/2021 | — | — | — | — | — | 1,400,000 | (11) | 21,728,000 | |||||||||||||||||||
Alberto Horihuela | 11/3/2021 | — | — | — | — | — | 500,000 | (12) | 7,760,000 |
(1) | Calculated based on the closing price per share of the Company’s Common Stock on December 31, 2021 ($15.52). | |
(2) | The option vests and becomes exercisable with respect to 1/48 of the shares in successive equal monthly installments measured from the grant date, subject to Mr. Gandler’s continuation in employment or service with the Company through each such applicable date. In addition, the employment agreement with Mr. Gandler provides for accelerated vesting under certain circumstances. For additional discussion, please see “—Named Executive Officer Employment Arrangements” below. |
(3) | The option vests and becomes exercisable with respect to the underlying shares upon the attainment of pre-determined targets over a five-year period tied to stock price, revenue, gross margin, an increase of the number of subscribers, the launch of new markets and, commencing in 2023, creation of new revenue streams, and the Board will review attainment of such goals annually from 2021 through 2025 to determine if any vesting is warranted. | |
(4) | The option vests and become exercisable with respect to 25% of the underlying shares upon the first anniversary of the grant date and with respect to the balance of the shares in 36 successive equal monthly installments thereafter, subject to Mr. Gandler’s continuation in employment or service with the Company through each such date. In addition, the employment agreement with Mr. Gandler provides for accelerated vesting under certain circumstances. For additional discussion, please see “—Named Executive Officer Employment Arrangements” below. | |
(5) | The option vested with respect to the shares in 48 successive equal monthly installments measured from the vesting commencement date of July 1, 2016, subject to Mr. Gandler’s continuation in employment or service with the Company through each such date. | |
(6) | The option vested with respect to 25% of the underlying shares upon the first anniversary of the vesting commencement date of August 15, 2015, and with respect to the balance of the shares in 36 successive equal monthly installments thereafter, subject to Mr. Gandler’s continuation in employment or service with the Company through each such date. | |
(7) | The option vests and becomes exercisable as follows: (i) with respect to one-third of the underlying shares on the later of the first anniversary of the grant date and the attainment of a pre-determined stock price milestone; (ii) with respect to one-third of the underlying shares on the later of the second anniversary of the grant date and the attainment of a pre-determined stock price milestone; and (iii) with respect to the remaining one-third of the underlying shares on the later of the third anniversary of the grant date and the attainment of a pre-determined stock price milestone; in each case subject to Mr. Bronfman’s continued service through the applicable vesting date. | |
(8) | The options granted to Mr. Bronfman were each scheduled to vest and become exercisable in four successive equal annual installments from the grant date or, if earlier, upon the achievement of four separate pre-determined stock price milestones ($12.00, $16.00, $20.00 and $24.00). Both of these awards vested and became exercisable in full during 2020 upon attainment of the pre-determined stock price milestones. | |
(9) | The option vests with respect to 25% of the underlying shares upon the first anniversary of the vesting commencement date of May 31, 2018, and with respect to the balance of the shares in 36 successive equal monthly installments thereafter, subject to Mr. Horihuela’s continuation in employment or service with the Company through each such date. | |
(10) | The option vests with respect to 25% of the underlying shares upon the first anniversary of the vesting commencement date of August 6, 2020, and with respect to the balance of the shares in 36 successive equal monthly installments thereafter, subject to Mr. Horihuela’s continuation in employment or service with the Company through each such date. The option is subject to accelerated vesting in the event Mr. Horihuela’s service with the Company terminates other than for cause or for good reason within 12 months following a change in control. | |
(11) | The restricted stock units vest up to twenty percent (20%) for each of 2021, 2022, 2023, 2024, and 2025 upon the attainment each such year of pre-determined revenue targets, subscriber targets, and the launching of new markets (and, with respect to 2023, upon the creation of one or more new revenue streams). To remain eligible to vest in a given portion of the award, Mr. Horihuela must remain in continuous service with the Company through the date on which the Compensation Committee determines the actual number of restricted stock units that vest for a given calendar year and through any subsequent vesting date as determined by the Compensation Committee. The restricted stock unit award is subject to accelerated vesting in the event Mr. Horihuela’s service with the Company terminates other than for cause or for good reason within 12 months following a change in control. |
(12) | The restricted stock units vest up to twenty percent (20%) for each of 2021, 2022, 2023, 2024, and 2025 upon the attainment each such year of pre-determined revenue and subscriber targets. To remain eligible to vest in a given portion of the award, Mr. Horihuela must remain in continuous service with the Company through the date on which the Compensation Committee determines the actual number of restricted stock units that vest for a given calendar year and through any subsequent vesting date as determined by the Compensation Committee. The restricted stock unit award is subject to accelerated vesting in the event Mr. Horihuela’s service with the Company terminates other than for cause or for good reason within 12 months following a change in control. |
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.
David Gandler
On October 8, 2020, the Company entered into a newan 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(the “Gandler 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.Agreement”). Mr. Gandler is the Company’s Chief Executive Officer and a member of the Board. UnderIn accordance with the terms of the Gandler Employment Agreement, Mr. Gandler will receivereceives an annual base salary of $500,000 and, beginning with the 2021 fiscal year, is eligible for an annual bonus of $500,000 subject to the achievement of certain performance objectives. For the 2020 fiscalThe Gandler Employment Agreement initially expires on October 8, 2023 and will automatically extend in one 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,increments thereafter, subject to advance written notice provided by either party of its election not to extend the achievement of certain performance objectives. agreement.
If Mr. Gandler’s employment is terminated by the Company outside of the Change“change of in Control Periodcontrol period” (as defined in the Gandler Employment Agree)below) other than for Causecause (as defined in the Gandler Employment Agree), death or disability, he will be eligible to receive severance payments equal to 12 months of his then-current base salary and benefitsreimbursement of healthcare continuation coverage.payments for up to twelve months. If during the Changechange in Control Period,control period, (i) the Company terminates his employment with the Company other than for Cause (as defined in the Gandler Employment Agree),cause, death or disability, or (ii) Mr. Gandler resigns for Good Reasongood reason (as defined in the Gandler Employment Agreement), in additionhe will be eligible to the severance amounts previously described, Mr. Gandler shall be entitledreceive a lump-sum cash payment equal to one year of his then-current base salary, a lump-sum cash payment equal to his then-current target bonus, reimbursement of healthcare continuation payments for up to one year and full accelerationaccelerated vesting of his outstanding time-based equity awards and payment of his annual bonus.awards. 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.Gandler. Pursuant to the Amendment,this 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. (the “Bronfman Letter Agreement”), 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.
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Alberto Horihuela
On January 21, 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.
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.”
Outside Director Compensation Policy
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 stockCommon 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,restricted stock units, 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 componentsInitial awards are made in the form 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 award of either an option to purchase shares of Common Stock or restricted stock unit awardunits, in each case with a Value (as defined in the policy)value 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;shareholders; 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. Asshareholders and is continuing as a result. Mr. Pärson is the only non-employee director who will be eligible for anfollowing the annual meeting. Each annual award atwill vest in full on the Annual Meeting.
The cash and equity components of our compensation policy for non-employee directors received additional compensation for their services as a director.
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 (excluding Committee Chair) | ||||||||
Audit Committee | $ | 10,000 | ||||||
Compensation Committee | $ | 7,500 | ||||||
Nominating and Corporate Governance Committee | $ | 5,000 |
Director Compensation Table
The following table sets forth information concerning the compensation paid (in respectreceived by our directors for the year ended December 31, 2021. Messrs. Gandler and Bronfman, each of whom serves on our Board service)but also serves as an executive officer, are named executive officers for 2021 and their compensation for 2021 is discussed in the Summary Compensation Table and accompanying narrative above.
Name | Fees Earned or Paid in Cash ($) | Stock Awards ($)(1) | Option Awards ($)(1) | All other compensation ($) | Total ($) | |||||||||||||||
Henry Ahn | 62,500 | 197,248 | — | — | 259,748 | |||||||||||||||
Ignacio Figueras | 45,000 | 197,248 | — | — | 242,248 | |||||||||||||||
Daniel Leff | 65,000 | 712,405 | — | — | 777,405 | |||||||||||||||
Laura Onopchenko | 69,000 | 197,248 | — | — | 266,248 | |||||||||||||||
Par-Jorgen Pärson | 66,000 | 197,248 | — | — | 263,248 |
(1) | Represents the grant date fair value of stock awards granted in 2021. In accordance with SEC rules, this column reflects the aggregate fair value of the awards granted to the non-employee directors computed as of the applicable grant date in accordance with ASC 718. Assumptions used in the calculation of these amounts are included in Note 15 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 1, 2022. This amount does not reflect the actual economic value that will be realized by the non-employee directors upon the vesting of the awards or the sale of the Common Stock underlying such awards. |
The table below shows the aggregate number of shares of our Common Stock underlying outstanding stock options (exercisable and unexercisable) and unvested restricted stock unit awards held as of December 31, 2021 by each non-employee director who was serving as of December 31, 2021.
Name | Outstanding Restricted Stock Units at Fiscal Year End (#) | Outstanding Options at Fiscal Year End (#) | ||||||
Henry Ahn | 7,675 | 66,330 | ||||||
Ignacio Figueras | 28,334 | 66,132 | ||||||
Daniel Leff | 18,167 | 65,540 | ||||||
Laura Onopchenko | 7,675 | 68,608 | ||||||
Par-Jorgen Pärson | 7,675 | 67,176 |
Equity Compensation Plan Information
The table below sets forth the number of securities to be issued upon exercise of outstanding options, warrants and rights, and securities available for future issuance, under our equity compensation plans as of December 31, 2021.
Plan Category: | Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights | Weighted-Average Exercise Price of Outstanding Options, Warrants, and Rights | Number of Securities Available for Future Issuance under Equity Compensation Plans (excludes securities reflected in first column) (4) | |||||||||
Equity compensation plans approved by security holders (1) | 14,216,787 | (2) | $ | 6.40 | (3) | 10,436,701 | ||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||
Total (5) | 14,216,787 | (2) | $ | 6.40 | (3) | 10,436,701 |
(1) Consists of the 2015 Equity Incentive Plan (the “2015 Plan”) and the 2020 Equity Incentive Plan (the “2020 Plan”).
(2) Consists of 4,163,659 outstanding options to purchase Common Stock under the 2015 Plan, 7,256,836 outstanding options to purchase Common Stock and 2,796,292 restricted stock units under the 2020 Plan.
(3) As of December 31, 2021, the weighted-average exercise price of outstanding options under the 2015 Plan was $1.34, the weighted-average exercise price of outstanding options under the 2020 Plan was $9.34.
(4) Includes 10,436,701 shares available for future issuance under the 2020 Plan.
(5) In connection with the Company’s acquisition of Vigtory Inc., the Company assumed the Vigtory Inc. 2020 Equity Compensation Plan, as amended (the “Vigtory Plan”) and the outstanding awards thereunder. No shares remain available for grant under the Vigtory Plan at December 31, 2021 (see Note 15 to our directorsconsolidated financial statements included in fiscalour Annual Report on Form 10-K for the year 2019 whoended December 31, 2021, which was filed with the SEC on March 1, 2022), and therefore, the outstanding awards under such plans are not reported in the table. As of December 31, 2021, there were not named executive officers.
Item 5—RatificationSecurity Ownership of Form of Indemnification Agreement.” The Indemnification AgreementCertain Beneficial Owners 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 DirectorsManagement.”
The following table sets forth certain information with respect to the beneficial ownership of our capital stockCommon Stock for:
● | each person known by us to beneficially own more than 5% of our Common Stock; | |
● | each of our directors; | |
● | each of our named executive officers; and | |
● | all of our executive officers and directors as a group. |
The number of shares beneficially owned by each shareholder as of October 26, 2020, referred to as the “Beneficial Ownership Date”, by:
Unless otherwise indicated, the footnotesaddress of each beneficial owner listed below is c/o fuboTV Inc. 1290 Avenue of the Americas, 9th Floor, New York, NY 10104. We believe, based on information provided to this table and subject to applicable community property laws,us, that each person named inof the tableshareholders listed below 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.
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 | 8,108,882 | (7) | 12.01% | - | - | 8.70% | |
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) | 20,335,835 | (15) | 27.44% | 3,965,448 | 12.35% | 21.21% | |
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% |
Number of Shares Beneficially Owned | Percentage of Shares Beneficially Owned | |||||||
5% or Greater Beneficial Owners | ||||||||
The Vanguard Group(1) | 11,684,267 | 6.3 | % | |||||
BlackRock, Inc.(2) | 9,812,364 | 5.3 | % | |||||
Named Executive Officers and Directors | ||||||||
David Gandler(3) | 7,664,369 | 4.0 | % | |||||
Edgar Bronfman Jr.(4) | 8,166,351 | 4.3 | % | |||||
Pär-Jörgen Pärson(5) | 58,057 | * | ||||||
Daniel Leff(6) | 4,578,472 | 2.5 | % | |||||
Julie Haddon | - | - | ||||||
Ignacio Figueras(7) | 133,089 | * | ||||||
Laura Onopchenko(8) | 45,790 | * | ||||||
Alberto Horihuela Suarez(9) | 1,915,320 | 1.0 | % | |||||
All executive officers and directors as a group (9 persons)(10) | 18,044,195 | 9.3 | % |
* | Represents beneficial ownership of less than 1%. |
(1) | Based solely on a Schedule 13G/A filed with the SEC on February 10, 2022. According to the filing, The Vanguard Group has shared voting power with regard to 243,592 shares of Common Stock, sole dispositive power with respect to 11,366,049 shares of Common Stock, shared dispositive power with respect to 318,218 shares of Common Stock and aggregate beneficial ownership of 11,684,267 shares of Common Stock. The address for The Vanguard Group is 100 Vanguard Blvd., Malvern, PA 19355. |
(2) | Based solely on a Schedule 13G filed with the SEC on February 4, 2022. BlackRock, Inc. has sole voting power with regard to 9,604,859 shares of Common Stock, sole dispositive power with respect to 9,812,364 shares of Common Stock and aggregate beneficial ownership of 9,812,364 shares of Common Stock. The address for BlackRock, Inc. is 55 East 52nd Street, New York, NY 10055. |
(3) | Represents 5,148,039 shares of Common Stock issuable pursuant to options held directly by Mr. Gandler exercisable within 60 days of April 14, 2022 and 1,276,564 shares of Common Stock held by Mr. Gandler in his individual capacity. Also includes (i) 653,255 shares held directly by David Gandler & Yuriy Boykivttees Diana Gandler 2020 Family Irrevocable Trust U/A Dtd 09-30-20, (ii) 293,256 shares held directly by Yuriy Boykiv Trustee Chloe Gandler 2020 Irrevocable Trust U/A Dtd 09-30-20, and (iii) 293,255 shares held directly by Yuriy Boykiv Trustee Forest Gandler 2020 Irrevocable Trust U/A Dtd 09-30-20. Mr. Gandler has voting and investment power over the shares held by each of the foregoing trusts. |
(4) | Represents (i) 3,536,630 shares of Common Stock issuable pursuant to options held directly by Mr. Bronfman exercisable within 60 days of April 14, 2022, (ii) 45,680 shares of Common Stock held by Mr. Bronfman in his individual capacity and (iii) 63,788 shares of Common Stock held by the Edgar Bronfman Family EMBT. Also represents (i) 1,348,228 shares of Common Stock held directly by Waverley Capital, LP (“Waverley Capital”), (ii) 2,573,732 shares of Common Stock held directly by Luminari Capital, L.P. (“Luminari Capital”) and (iii) 598,293 shares of Common Stock held directly by WL fuboTV, LP (“WL fuboTV”). 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, 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 Section 16 under the Exchange Act or for any other purposes. The general partner of Luminari Capital is Luminari Capital Partners, LLC. Mr. Bronfman has an assignee interest in Luminari Capital Partners, LLC. Dr. Leff, as managing member of Luminari Capital Partners, LLC, may be deemed to have shared voting and investment power with respect to these securities. Each of Mr. Bronfman, Dr. Leff and Luminari 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 Section 16 or for any other purposes. The general partner of WL fuboTV is WL fuboTV GP, LLC. Mr. Bronfman and Dr. Leff, as managing members of WL fuboTV GP, LLC, may be deemed to have shared voting and investment power with respect to these shares. Each of Mr. Bronfman, Dr. Leff and WL fuboTV GP, 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 Section 16 or for any other purposes. The address for Luminari Capital, Waverley Capital and WL fuboTV is 535 Ramona Street, Suite #8, Palo Alto, CA 94301. |
(5) | Represents (i) 50,382 shares of Common Stock issuable pursuant to options held directly by Mr. Pärson exercisable within 60 days of April 14, 2022 and (ii) 7,675 shares of Common Stock issuable pursuant to restricted stock units held directly by Mr. Pärson that vest within 60 days of April 14, 2022. |
(6) | Represents (i) 40,052 shares of Common Stock issuable pursuant to options held directly by Dr. Leff exercisable within 60 days of April 14, 2022 and (ii) 18,167 restricted stock units held directly by Dr. Leff that vest within 60 days of April 14, 2022. Also represents (i) 1,348,228 shares of Common Stock held directly by Waverley Capital, (ii) 2,573,732 shares of Common Stock held directly by Luminari Capital and (iii) 598,293 shares of Common Stock held directly by WL fuboTV. The general partner of Waverley Capital is Waverley Capital Partners, LLC. Mr. Bronfman and Dr. 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, 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 Section 16 under the Exchange Act or for any other purposes. The general partner of Luminari Capital is Luminari Capital Partners, LLC. Mr. Bronfman has an assignee interest in Luminari Capital Partners, LLC. Dr. Leff, as managing member of Luminari Capital Partners, LLC, may be deemed to have shared voting and investment power with respect to these securities. Each of Mr. Bronfman, Dr. Leff and Luminari 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 Section 16 or for any other purposes. The general partner of WL fuboTV is WL fuboTV GP, LLC. Mr. Bronfman and Dr. Leff, as managing members of WL fuboTV GP, LLC, may be deemed to have shared voting and investment power with respect to these shares. Each of Mr. Bronfman, Dr. Leff and WL fuboTV GP, 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 Section 16 or for any other purposes. The address for Luminari Capital, Waverley Capital and WL fuboTV is 535 Ramona Street, Suite #8, Palo Alto, CA 94301. |
(7) | Represents (i) 40,414 shares of Common Stock issuable pursuant to an option held directly by Mr. Figueras exercisable within 60 days of April 14, 2022, (ii) 36,009 restricted stock units held directly by Mr. Figueras that vest within 60 days of April 14, 2022 and (iii) 56,666 shares of Common Stock held by Mr. Figueras in his individual capacity. |
(8) | Represents (i) 38,115 shares of Common Stock issuable pursuant to an option held directly by Ms. Onopchenko exercisable within 60 days of April 14, 2022 and (ii) 7,675 restricted stock units held directly by Ms. Onopchenko that vest within 60 days of April 14, 2022. |
(9) | Represents (i) 721,468 shares of Common Stock issuable pursuant to options held directly by Mr. Horihuela exercisable within 60 days of April 14, 2022 and (ii) 1,193,852 shares of Common Stock held by Mr. Horihuela in his individual capacity. |
(10) | Represents an aggregate of (i) 9,575,100 shares issuable pursuant to outstanding options exercisable within 60 days of April 14, 2022, (ii) 69,526 restricted stock units that vest within 60 days of April 14, 2022, and (iii) 12,919,822 shares of Common Stock beneficially owned by nine individuals, including the Company’s executive officers and directors. |
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Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act andrequires our directors, officers (as defined under Rule 16a-1(f) under the rules of the SEC thereunder require our executive officers, directorsExchange Act) and certain shareholders who beneficially own more than 10% of a registeredany class of the Company’sour equity securities registered pursuant to Section 12 of the Exchange Act (collectively, the “Reporting Persons”) to file reportsinitial statements of beneficial ownership of securities and statements of changes in beneficial ownership of securities with respect to our common stockequity securities with the SEC and the New York Stock Exchange.
Our Policy Regarding Related Person Transactions with Related Persons
Our Board of Directors recognizes the review, approval or ratification offact that transactions with related parties. When such transactions arose prior to August 6, 2020, they were referred to our Board for consideration and approval.
Under the policy, our audit committee has the primary responsibilityAudit Committee is primarily responsible for reviewingdeveloping and approving or disapprovingimplementing processes and procedures to obtain information regarding related party transactions. A related person transaction referspersons with respect 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.
In determining whether to approve or ratify a related person transaction, the audit committeeAudit Committee (or the chairperson of the audit committee,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; whether the extenttransaction is inconsistent with the interests of the related person’s interest in the transaction; whether there are business reasons for us to enter into the related person transaction;our company and its shareholders; 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 sizeextent 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, taking into account the conflicts of interest 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 ratificationcorporate opportunity provisions of the related person transaction is in our best interests.Code of Business Conduct and Ethics. Any member of the audit committeeAudit Committee who has an interest in the transaction under discussion will recuse himself or herself from any discussion or vote of the audit committeeAudit Committee on the transaction creating the conflict, except that such director must provide all material information concerning such transaction to the audit committeeAudit Committee as requested. The audit committeeAudit Committee shall update the Board with respect to any related person transactions as part of its regular updates to the Board regarding audit committeeAudit Committee activities.
Transactions and Relationships with Directors, Officers and 5% Shareholders
In addition to the compensation arrangements, including employment, termination of employment and change in control arrangements, describeddiscussed in “Executivethe section “Executive and Director Compensation,” the following are certain transactions, arrangements and “Directors and Corporate Governance—Compensation of Non-Employee Directors,” in which:
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Consulting Agreement between fuboTV Inc. and Ignacio Figueras
In November 2020 we entered into a direct or indirect material interest.
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 |
Separation and $60.0 for the threeSettlement Agreement with Former Executive Chairman and nine months ended September 30, 2020, respectively. There were no affiliate distribution fees for the three and nine months ended September 30, 2019.
Our former Executive Chairman and director, Mr.Chief Executive Officer, Alexander Bafer, who served as our Chief Executive Officer until August 8, 2018 and as a member of our Board until July 31, 2020, advanced an unsecured, non-interest-bearing loan. As ofWe entered into a Separation and Settlement Agreement and Release (the “Bafer Release”) with Mr. Bafer effective August 1, 2020. Pursuant to the executionterms of the Bafer Release, we are obligated to pay Mr. Bafer a total of $500,000, payable in equal monthly installments, over the Company’sfirst 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, and pursuant to the Bafer Release, our obligations under the loan are deemed to have been satisfied. The amounts due to John Textor, Head of Studio
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Consulting Agreement between Pulse Evolution Corporation 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 “HC Marketing, LLC
Executive Compensation.”
In April 2018, fuboTV pre-MergerMarch 2021, we entered into a senior secured term loan, or the Term Loan, with AMC Networks Ventures, LLC, a holder of greater than five percent of our Series AA Preferred Stock. The Term Loan has a principal amount of $25.0 million, bearing interest equal to LIBOR (London Interbank Offered Rate) plus 5.25% per annumconsulting agreement (the “PEC/HC Consulting Agreement”), by and with scheduled principal payments beginning in 2020. We recorded the Term Loan at its fair value of $23.8 million in connection with its acquisition of fuboTV Pre-Merger on April 1, 2020between PEC and made principal repayments of $2.5 million during the nine months ended September 30, 2020. As of September 30, 2020, the outstanding balance of the Term Loan is $22.5 million.
Separation and Settlement Agreement and Release between fuboTV, Inc. and Jordan Fiksenbaum
In March 2021, we entered into a Separation and Settlement Agreement (the “Separation Agreement”), by and between the Company and FaceBank, Inc. agreedJordan Fiksenbaum. Prior to work directly with Mr. Mayweather to research, capture and analyze photographic, filmed and mathematical representationsthe Separation Agreement, Jordan Fiksenbaum served as President of the face and body of Mr. Mayweather in orderCompany. Pursuant 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).
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.
Our articles of incorporationArticles and bylaws, each as amended,the Bylaws 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.
Pursuant to Section 607.0831 of 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 to take or not to take action, or any failure to act regarding corporate management or policytake any action, as a director 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 circumstance under which the transaction at issue is one 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 or intentional 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,the Articles or the Bylaws 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 bylawsThe 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 incorporationthe Articles and bylaws, each as amended.the Bylaws. 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 incorporationthe Articles and our bylaws, each as amended,the Bylaws 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.
Shareholders who intend to have a proposal considered for inclusion in our proxy materials for presentation at our 2023 Annual Meeting of Shareholders pursuant to Rule 14a-8 under the Exchange Act must submit the proposal to our Corporate Secretary at our offices at 1290 Avenue of the Americas, 9th Floor, New York, NY 10104 in writing not later than December 28, 2022, if such proposal is no pending litigation or proceeding involving oneto be considered for inclusion in our 2023 proxy materials.
Pursuant to the Bylaws, shareholders who wish to submit a proposal (including a director nomination) that is not to be included in the proxy materials for the 2023 Annual Meeting must do so not later than the close of business on March 11, 2023 nor earlier than the close of business on February 9, 2023. However, if the date of our current directors2023 Annual Meeting of Shareholders is not held between May 10, 2023 and August 8, 2023, to be timely, notice by the shareholder must be received (A) not earlier than the close of business on the 120th day prior to the 2023 Annual Meeting of Shareholders and (B) not later than the close of business on the later of the 90th day prior to the 2023 Annual Meeting of Shareholders or executive officers asthe 10th day following the day on which public announcement of the date of the 2023 Annual Meeting of Shareholders is first made. You are also advised to review the Bylaws, which indemnificationcontain additional requirements about advance notice of shareholder proposals and director nominations.
In addition to satisfying the foregoing requirements under the Bylaws, to comply with the universal proxy rules, shareholders who intend to solicit proxies in support of director nominees other than our nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act no later than April 10, 2023.
Our Board of Directors is required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
The accompanying proxy is solicited by and on behalf of shareholder abstention or a broker non-vote)our Board of Directors, whose Notice of Annual Meeting is attached to this proxy statement, and the entire cost of our solicitation will be borne by us. In addition to the use of mail, proxies may be solicited by personal interview, telephone, e-mail and facsimile by our directors, officers and other employees who will not be countedspecially compensated for these services. We will also request that brokers, nominees, custodians and other fiduciaries forward soliciting materials to the beneficial owners of shares held by the brokers, nominees, custodians and other fiduciaries. We will reimburse these persons for their reasonable expenses in such nominee’s favorconnection with these activities.
We intend to file a proxy statement 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.
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Executive Compensationfubotv’S ANNUAL REPORT ON FORM 10-K” section
A copy of this Proxy Statement for additional detailsfuboTV’s Annual Report on the Company’s executive compensationForm 10-K for the fiscal year ended December 31, 2019. The “Executive Compensation” section2021, including financial statements and schedules but not including exhibits, as filed with the SEC, will be sent to any shareholder of this Proxy Statement also includes informationrecord on the processes our compensation committee is using to determine the structure and amountsApril 14, 2022 without charge, upon written request addressed to:
fuboTV Inc.
Attention: Corporate Secretary
1290 Avenue of the compensationAmericas, 9th Floor
New York, NY 10104
A reasonable fee will be charged for copies of executive officers in fiscal year 2020 and beyond.
WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, WE URGE YOU TO VOTE YOUR SHARES VIA THE TOLL-FREE TELEPHONE NUMBER OR OVER THE INTERNET, AS DESCRIBED IN THIS PROXY STATEMENT. IF YOU RECEIVED A COPY OF THE PROXY CARD BY MAIL, YOU MAY SIGN, DATE AND MAIL THE PROXY CARD IN THE ENCLOSED RETURN ENVELOPE. PROMPTLY VOTING YOUR SHARES WILL ENSURE THE PRESENCE OF A QUORUM AT THE ANNUAL MEETING AND WILL SAVE US THE EXPENSE OF FURTHER SOLICITATION.
By Order 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.
Edgar Bronfman Jr.(3)
Executive Chairman
New York, New York
April 27, 2022
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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.
Purposes of the Plan. The purposes of this Plan are:
1. The name of the Corporation is fuboTV Inc.
2. These Articles of Amendment were duly adopted and bylaws,approved by the Board of Directors of the Corporation on March 31, 2022 and by the Corporation’s shareholders by a vote thereof at a meeting of the Corporation’s shareholders on June 9, 2022. The number of votes cast for the Articles of Amendment by the shareholders at the meeting in the manner required by the Florida Business Corporation Act and the Articles of Incorporation of the Corporation was sufficient for approval.
3. Article V of the Articles of Incorporation shall be amended and restated in its entirety to read as follows:
Article V – CAPITAL STOCK
The maximum number of shares that this Corporation shall be authorized to issue and have outstanding at any resolutions adopted pursuant thereto,one time shall be (i) four hundred million (400,000,000) shares of common stock, par value $0.0001 per share (the “Common Stock”), and this Agreement(ii) fifty million (50,000,000) shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”), the rights and preferences of which may be determined by the Board of Directors of the Corporation (the “Board of Directors” or “Board”), including whether the shares of any series of Preferred Stock shall not be deemed a substitute therefor, nor shall this Agreement be deemedsubject to limit, diminish or abrogateredemption by the Corporation (in addition to any rights of Indemnitee thereunder.
4. A new Article XI of the Articles of Incorporation shall be inserted to read as follows:
ARTICLE XI – COMPLIANCE WITH GAMING LAWS
To enable the earliest to occur after the date of this Agreement ofCorporation or any of its Affiliated Companies (as such term is hereinafter defined) thereof to secure and maintain in good standing all Gaming Licenses (as such term is hereinafter defined), the following events:
(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;
(a) | “Affiliate” means a Person who, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, a specified Person. | |||||||||||
(b) | “Affiliated Companies” mean those partnerships, corporations, limited liability companies, trusts or other entities that are Affiliates of the Corporation, including, without limitation, subsidiaries, holding companies and intermediary companies (as those and similar terms are defined in the Gaming Laws of the applicable Gaming Jurisdictions) that are registered or licensed under applicable Gaming Laws. |
(c) | “Control” (and derivatives thereof) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or the disposition of any Securities, whether through ownership of voting securities or by agreement, contract, agency or other manner. | ||||||||||
(d) | |||||||||||
(e) | “Gaming” or “Gaming Activities” means the conduct or operation of gaming and gambling activities, including, without limitation, casino gaming, sports wagering or race book wagering (including without limitation, advance-deposit wagering), or the use of gaming devices, equipment and supplies in the operation of a casino, gambling simulcasting facility, card club or other similar enterprise (including, without limitation, slot machines, gaming tables, cards, dice, gaming chips, player tracking systems, cashless wagering systems, mobile gaming systems, inter-casino linked systems and related and associated equipment, supplies and systems). | ||||||||||
(f) | “Gaming Authority” means any international, national, foreign, domestic, federal, state, provincial, regional, local, tribal, municipal or other regulatory or licensing body, instrumentality, department, commission, division, bureau, authority, board, official, tribunal or agency with authority over or responsibility for the regulation of Gaming within any Gaming Jurisdiction. | ||||||||||
(g) | “Gaming Jurisdiction” means all jurisdictions, domestic and foreign, and their political subdivisions, in which Gaming Activities are lawfully conducted. | ||||||||||
(h) | “Gaming Law” means any federal, state, provincial, local, international, tribal or foreign law, statute, order, rule, regulation, decree, ordinance or interpretation from time to time pursuant to which any Gaming Authority possesses or asserts from time to time regulatory or licensing authority over the ownership, operation, management or conduct of Gaming and related activities. |
(i) | “Gaming Licenses” means all licenses, contracts, franchises, permits, registrations, findings of suitability, exemptions, waivers, certifications, approvals, orders, resolutions, authorizations, qualifications, determinations, franchises, consents, concessions, entitlements and other regulatory approvals related to the ownership, control, conduct or operation of Gaming Activities now or hereafter engaged in by the Corporation or any of its Affiliated Companies within or without the United States of America or the Ownership or Control by any Person of any Interest of any of the foregoing entities that engages in, or is an applicant for a license, permit or authorization to engage in, Gaming Activities. | ||||||
(j) | “Interest” means shares of capital stock, bonds, notes or other securities of an entity or any other interest or financial or other stake in an entity, including, without limitation, the Securities. | ||||||
(k) | “Own” or “Ownership” (and derivatives thereof) means (i) ownership of record and/or (ii) “beneficial ownership” as defined in Rule 13d-3 promulgated by the United States Securities and Exchange Commission (as now or hereafter amended), as applicable. | ||||||
(l) | “Person” means an individual, partnership, corporation, limited liability company, trust or any other entity. | ||||||
(m) |
“Securities” means any shares of |
Section 2. Compliance and Disqualified Holders. All Securities shall be held subject to all applicable Gaming Laws and the suitability standards, qualifications and requirements of the Gaming Authorities that regulate the operation and conduct of the businesses of the Corporation or any of its Affiliated Companies and in accordance with the requirements of all applicable Gaming Laws. Any Person that Owns or Controls Securities shall comply with all applicable Gaming Laws. If any Person that Owns or Controls Securities is determined to be a Disqualified Holder, then, if the Corporation so elects in its sole discretion (unless otherwise required by any Gaming Law or Gaming Authority):
(a) | such Person shall sell or otherwise dispose of such Securities or other interest in the Corporation (or, if applicable, a portion thereof, to enable the Corporation to then determine in its sole discretion that such Person would no longer be deemed a Disqualified Holder) within the 30-day period commencing on the date the Corporation gives such Person notice of such Person being deemed a Disqualified Holder and requiring such disposition (or an earlier time if so required by any Gaming Authority or any Gaming Law) in a manner satisfactory to the Board in its sole discretion and, to the extent such purchaser or transferee is readily identifiable, to a purchaser or transferee that the Board determines in good faith (following consultation with reputable outside gaming regulatory counsel) is not a Disqualified Holder; or |
(b) | the Corporation may redeem any or all such Securities on the date specified in the notice given by the Corporation to such Person, which date may not be less than 30 days after notice is given (unless an earlier time is required by any Gaming Authority or any Gaming Law), at a price equal to the Redemption Price; provided that a Disqualified Holder shall be permitted, during the period commencing on the date of such notice and ending on the Redemption Date (as such term is hereinafter defined), to effect and close a disposition of such Securities (or, if applicable, a portion thereof, to enable the Corporation to then determine in its sole discretion that such Person would no longer be deemed a Disqualified Holder) in a manner satisfactory to the Board in its sole discretion (the “Alternate Private Transaction”), to a purchaser or transferee that, to the extent such Person is readily identifiable, the Board determines in good faith (following consultation with reputable outside gaming regulatory counsel) is not a Disqualified Holder; it being agreed, as applicable, that in the event that the Board fails to make a determination in good faith that a proposed readily identifiable purchaser or transferee is not an Disqualified Holder, pursuant to Section 2(a) or Section 2(b) of this ARTICLE XI, within fifteen (15) days from the date on which the Corporation was presented in writing with the identity of such Person and materials reasonably sufficient to make such determination, then the Disqualified Holder shall be entitled to consummate such sale, disposal or Alternate Private Transaction with such Person. |
Section 3. Notices.
(a) | Notice to a Disqualified Holder under Section 2(a) or (b) of this ARTICLE XI shall be in writing and shall be deemed given when delivered by personal delivery or by overnight courier or first-class mail, postage prepaid, to the Disqualified Holder’s address as shown on the Corporation’s books and records, or by any other reasonable means and shall be deemed effective on the date given (the “Notice Date”). Failure of the Corporation to provide such notice to a Disqualified Holder after making reasonable efforts to do so shall not preclude the Corporation from exercising its rights under this ARTICLE XI. In the case of Section 2(a) of this ARTICLE XI, such notice shall specify the number and type of Securities that are required, in the Corporation’s sole discretion, to be disposed of. | |
If the Corporation intends to redeem Securities in accordance with Section 2(b) of this ARTICLE XI, the notice shall specify (i) the number and type of Securities to be redeemed (the “Subject Shares”), (ii) the number and type of Securities that would be required, in the Corporation’s sole discretion, to be disposed of in an Alternate Private Transaction, (iii) the date and time when such redemption will be consummated (the “Redemption Date”), which date in no event will be earlier than 30 days after the date of such notice (unless an earlier time is required by any Gaming Authority or any Gaming Law), and (iv) the Redemption Price (it being sufficient for the purposes of this ARTICLE XI for the Corporation to indicate generally that the Redemption Price will be determined in accordance with Section 5 of this ARTICLE XI). If the Corporation gives the notice provided for by the preceding sentence, such notice shall be deemed to constitute a binding agreement on the part of the Corporation to redeem, and on the part of the Person notified to sell, the Securities referred to in such notice in accordance with this ARTICLE XI, unless such Person shall consummate an Alternate Private Transaction in accordance with this ARTICLE XI. |
Any notice required or permitted by the provisions of this ARTICLE XI may also be given via electronic communication in compliance with the provisions of the Florida Business Corporation Act, and will be deemed sent upon such electronic transmission. |
Section 4. No Rights of Disqualified Holders. Commencing on the Notice Date (or such earlier date on which any Gaming Authority serves notice of its determination of unsuitability or disqualification of the Disqualified Holder on the Corporation), the Disqualified Holder shall not be entitled to receive payments of dividends or interest upon any Securities Owned by such Disqualified Holder, or exercise, directly or indirectly, any voting or other rights conferred by the Securities upon the holders thereof.
Section 5. Payment of Redemption Price; Effect of Redemption. The Redemption Price may be paid in cash, by unsecured promissory note, or a combination thereof, as required by any applicable Gaming Authority and, if not so required, as the Corporation elects in its sole discretion. If all or any portion of the Redemption Price is to be paid by promissory note, the Corporation shall tender to the Disqualified Holder a promissory note in the principal amount of the Redemption Price, or portion thereof, to be paid thereby, it being understood that in no case shall such promissory note be directly or indirectly convertible into shares of the Corporation’s capital stock. Any promissory note shall contain such terms and conditions as the Board determines necessary or advisable, including without limitation, subordination provisions, to comply with any law or regulation then applicable to the Corporation or any Affiliated Company or to prevent a default under, breach of, event of default under or acceleration of any loan, promissory note, mortgage, indenture, line of credit, or other debt or financing agreement of the Corporation or any Affiliated Company. Subject to the foregoing, the principal amount of the promissory note together with any unpaid interest shall be due and payable no later than the tenth anniversary of delivery of the promissory note and interest on the unpaid principal thereof shall be payable annually in arrears at the rate of 2% per annum. After all of the Subject Shares have been redeemed (either with cash or the issuance of a promissory note as set forth above), such Subject Shares shall no longer be deemed to be outstanding, the Disqualified Holder shall cease to be a stockholder/Securities holder with respect to such Subject Shares and all rights of such Disqualified Holder therein (without limiting the effect of Section 4 of this ARTICLE XI), other than the right to receive the Redemption Price, shall cease.
Section 6. Appeal of Gaming Authority Determination. The operation of this ARTICLE XI shall not be stayed by an appeal from a determination of any Gaming Authority.
Section 7. Determination by Board. The Board shall have the power to determine, on the basis of information known to the Board after reasonable inquiry, all questions arising under this ARTICLE XI, including, without limitation, (a) whether a Person is a Disqualified Holder, (b) whether a Disqualified Holder has disposed of Securities pursuant to Section 2(a) or Section 2(b) of this ARTICLE XI, as applicable, (c) the amount of Securities held directly or indirectly by any Person and (d) the amount of Securities that are required to be disposed of to enable the Corporation to then determine that such Person would no longer be deemed a Disqualified Holder, if applicable. Any such determination shall be binding and conclusive on all such Persons.
Section 8. Indemnification. A Disqualified Holder shall indemnify and hold harmless the Corporation and its Affiliated Companies from, against and for any and all losses, costs, and expenses, including attorneys’ fees, incurred by the Corporation and/or its Affiliated Companies as a result of, or arising out of, directly or indirectly, such Disqualified Holder’s continuing to Own or Control any Securities after the relevant Notice Date, the neglect, refusal or other failure by such Disqualified Holder to comply with the provisions of this ARTICLE XI, or failure of such Disqualified Holder to divest itself of the Securities as and when required by any Gaming Authority or this ARTICLE XI.
Section 9. Equitable Relief. The Corporation shall be entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this ARTICLE XI, and each holder of Securities shall be deemed to have acknowledged, by acquiring such Securities, that the failure to comply with this ARTICLE XI will expose the Corporation to irreparable injury for which there is no adequate remedy at law and that the Corporation is entitled to injunctive or other equitable relief to enforce the provisions of this ARTICLE XI.
Section 10. Non-exclusivity of Rights. The rights of the Corporation pursuant to this ARTICLE XI shall not be exclusive of any other rights the Corporation or any of its Affiliated Companies may have or hereafter acquire under any agreement, provision of the bylaws of the Corporation or such Affiliated Company or otherwise. Nothing in this ARTICLE XI shall be construed to: (i) relieve any Disqualified Holder (or any Affiliate thereof) from any fiduciary obligation imposed by law, (ii) prohibit or affect any contractual arrangement which the Corporation may make from time to time with any holder of Securities to purchase all or any part of any other securities held by such holder or (iii) be in derogation of any action, past or future, which has been or may be taken by the Board or any holder of Securities with respect to the subject matter of this ARTICLE XI.
Section 11. Further Actions. Nothing contained in this ARTICLE XI shall limit the authority of the Corporation to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Corporation or its Affiliated Companies from the denial or threatened denial or loss or threatened loss of any Gaming License held by the Corporation or any of its Affiliated Companies. Without limiting the generality of the foregoing, the Board may conform any provisions of this ARTICLE XI to the extent necessary to make such provisions consistent with applicable laws, including Gaming Laws. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind Bylaws, regulations, and procedures of the Corporation not inconsistent with the express provisions of this ARTICLE XI for the purpose of determining whether any Person is a Disqualified Holder and for the orderly application, administration and implementation of the provisions of this ARTICLE XI. Such procedures and regulations shall be kept on file with the Secretary of the Corporation, the secretary (or equivalent) of its Affiliated Companies and with the transfer agent, if any, of the Corporation and any Affiliated Companies, and shall be made available for inspection, upon request, or mailed to any holder of Securities. The Board shall have exclusive authority and power to administer this ARTICLE XI and to exercise all rights and powers specifically granted to the Board or the Corporation, or as may be necessary or advisable in the administration of this ARTICLE XI. All such actions which are done or made by the Board in good faith shall be final, conclusive and binding on the Corporation and all other Persons. Notwithstanding the foregoing, the Board may delegate all or any portion of its duties and powers under this ARTICLE XI to a committee of the Board as it deems necessary or advisable.
Section 12. Severability. If any provision of this ARTICLE XI or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this ARTICLE XI.
Section 13. Termination and Waivers. Except as may be required by any applicable law or by a Gaming Authority, the Board may waive any of the rights of the Corporation or any restrictions contained in this ARTICLE XI in any instance in which the Board determines that a waiver would be in the best interests of the Corporation. The Board may terminate any rights of the Corporation or restrictions set forth in this ARTICLE XI to the extent that the Board determines that any such termination is in the best interests of the Corporation. Except as may be required by a Gaming Authority, nothing in this ARTICLE XI shall be deemed or construed to require the Corporation to redeem or repurchase any Securities Owned or Controlled by a Disqualified Holder.
5. That these Articles of Amendment shall become effective upon filing, in accordance with the applicable provisions of the Florida Business Corporation Act.
IN WITNESS WHEREOF, the undersigned duly authorized officer of the Corporation has executed these Articles of Amendment as of this _____ day of _____, 2022.
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A-7 | ||||||||||