Item 5. Other Information
Item 5. Other Information
(a)
2023 Employment Inducement Equity Incentive Plan
On August 7, 2023, the Board approved the adoption of the 2023 Employment Inducement Equity Incentive Plan (the “2023 Inducement Plan”), which was adopted without shareholder approval pursuant to Rule 303A.08 of the NYSE Listed Company Manual. The 2023 Inducement Plan provides for the grant of equity-based awards, including nonstatutory stock options, stock appreciation rights, restricted stock, restricted stock units, performance units and performance shares, and its terms are substantially similar to the Company’s 2020 Equity Incentive Plan, as amended and restated, including with respect to treatment of equity awards in the event of a merger or “Change in Control” as defined under the 2023 Inducement Plan, but with such other terms and conditions intended to comply with the NYSE inducement award exception or to comply with the NYSE acquisition and merger exception. In accordance with Rule 303A.08 of the NYSE Listed Company Manual, awards under the 2023 Inducement Plan may only be made as an inducement material to the individuals’ entry into employment with the Company, or, to the extent permitted by Rule 303A.08 of the NYSE Listed Company Manual, in connection with a merger or acquisition. The Board has reserved an initial total of 3,000,000 shares of the Company’s common stock for issuance under the 2023 Inducement Plan.
The foregoing description of the 2023 Inducement Plan is not complete and is qualified in its entirety by reference to the full text of the 2023 Inducement Plan, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Executive Severance Plan
Our Board and the Compensation Committee of our Board approved the adoption of the Company’s Executive Severance Plan (the “Executive Severance Plan”), effective as of August 7, 2023. The Executive Severance Plan will be administered by the Compensation Committee of the Board, which has designated the following executives as eligible to participate in the Executive Severance Plan, subject to their execution of a participation agreement: Alberto Horihuela Suarez, Chief Operating Officer; John Janedis, Chief Financial Officer; Michael Berkley, Chief Product Officer; and Gina DeGioia Sheldon, Chief Legal Officer. The Executive Severance Plan provides that if the employment of a participating executive is terminated by the Company without cause, or if participating executive resigns for good reason, the executive will be eligible to receive the following payments and benefits: (i) continued payment of the officer’s base salary for a period of twelve months; (ii) a lump sum payment of any unpaid annual bonus (if any) earned with respect to the prior, completed fiscal year, (iii) a lump sum payment equal to the executive’s target annual bonus for the year in which the termination occurs, prorated for the portion of the year the executive was employed prior to termination, and (iv) reimbursement for the cost of COBRA premiums for a period of twelve months.
The Executive Severance Plan provides that if the employment of participating executive is terminated by the Company without cause, or if a participating executive resigns for good reason, within 24 months following a change of control, then in lieu of the payments described above, the executive will be eligible to receive: (i) a lump sum payment equal to 1.5 times the sum of the officers base salary plus target annual bonus, (ii) a lump sum payment of any unpaid annual bonus (if any) earned with respect to the prior, completed fiscal year, (iii) a lump sum payment equal to the executive’s target annual bonus for the year in which the termination occurs, prorated for the portion of the year the executive was employed prior to termination, and (iv) reimbursement for the cost of COBRA premiums for a period of eighteen months and (v) accelerated vesting of all unvested equity or equity-based awards held by the executive that are time-vesting awards.
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Any severance payments or benefits under the Executive Severance Plan will be subject to a Section 280G “best net” cutback in which such payments or benefits will be reduced only to the extent it results in a greater payment, net of taxes, to the participant.
All payments and benefits under the Executive Severance Plan are contingent upon the executive’s non-revocation of a release of claims in favor of the Company and continued compliance with restrictive covenants, including confidentiality, a 12 month post-termination employee nonsolicitation covenant and a nondisparagement covenant.
(b) None.
(c) On June 21, 2023 , Alberto Horihuela Suarez , the Company's Chief Operating Officer , adopted a Rule 10b5-1 trading arrangement that is intended to satisfy the affirmative defense of Rule 10b5-1(c) for the sale of up to 2,100,000 shares of the Company’s common stock until December 31, 2025.
On June 21, 2023 , John Janedis , the Company's Chief Financial Officer , adopted a Rule 10b5-1 trading arrangement that is intended to satisfy the affirmative defense of Rule 10b5-1(c) for the sale of up to 108,934 shares of the Company’s common stock until June 21, 2024.
Item 6. Exhibits
Exhibit
Number Description Incorporated by Reference Furnished/Filed
Herewith
Form File No. Exhibit Filing Date
2.1 Agreement and Plan of Merger and Reorganization dated as of March 19, 2020 by and among FaceBank Group, Inc., fuboTV Acquisition Corp. and fuboTV, Inc.
8-K 000-55353 2.1 03/23/2020
3.1(a) Articles of Incorporation dated February 20, 2009
S-1 333-176093 3.1(i) 08/05/2011
3.1(b) Articles of Amendment to Articles of Incorporation dated October 5, 2010
S-1 333-176093 3.1(ii) 08/05/2011
3.1(c) Articles of Amendment to Articles of Incorporation dated December 31, 2014
10-K 000-55353 3.1(iii) 03/31/2015
3.1(d) Articles of Amendment to Articles of Incorporation dated January 11, 2016
8-K 000-55353 3.1 01/29/2016
3.1(e) Certificate of Designation of Series A Preferred Stock dated June 23, 2016
8-K 000-55353 4.1 06/28/2016
3.1(f) Certificate of Designation of Series B Preferred Stock dated June 23, 2016
8-K 000-55353 4.2 06/28/2016
3.1(g) Certificate of Designation of Series C Preferred Stock dated July 21, 2016
8-K 000-55353 4.1 07/26/2016
3.1(h) Second Amended Certificate of Designation of Series C Preferred Stock dated March 3, 2017
8-K 000-55353 3.1 03/06/2017
3.1(i) Articles of Amendment to Articles of Incorporation dated October 17, 2017
8-K 000-55353 3.1 12/05/2017
3.1(j) Certificate of Designation of Preferences and Rights of Series X Convertible Preferred Stock dated August 3, 2018
8-K 000-55353 3.1 08/06/2018
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3.1(k) Articles of Amendment to Articles of Incorporation dated September 9, 2019
8-K 000-55353 3.1 09/11/2019
3.1(l) Articles of Amendment to Articles of Incorporation dated March 16, 2020
8-K 000-55353 3.1 03/23/2020
3.1(m) Certificate of Designation of Series AA Convertible Preferred Stock dated March 20, 2020
8-K 000-55353 3.2 03/23/2020
3.1(n) Articles of Amendment to Articles of Incorporation dated September 29, 2016
10-Q 000-55353 3.1(n) 07/06/2020
3.1(o) Articles of Amendment to Articles of Incorporation dated January 9, 2017
10-Q 000-55353 3.1(o) 07/06/2020
3.1(p) Articles of Amendment to Articles of Incorporation dated May 11, 2017
10-Q 000-55353 3.1(p) 07/06/2020
3.1(q) Articles of Amendment to Articles of Incorporation dated February 12, 2018
10-Q 000-55353 3.1(q) 07/06/2020
3.1(r) Articles of Amendment to Articles of Incorporation dated January 29, 2019
10-Q 000-55353 3.1(r) 07/06/2020
3.1(s) Articles of Amendment to Articles of Incorporation dated July 12, 2019
10-Q 000-55353 3.1(s) 07/06/2020
3.1(t) Articles of Amendment to Articles of Incorporation dated August 10, 2020
8-K 000-55353 3.1 08/13/2020
3.1(u) Articles of Amendment to Articles of Incorporation dated September 29, 2020
S-1 333-249783 3.1(u) 10/30/2020
3.1(v) Articles of Amendment to Articles of Incorporation dated June 9, 2022
S-3 333-266557 3.1(v) 08/05/2022
3.1(w) Articles of Amendment to Articles of Incorporation dated June 15, 2023
*
3.2 Amended and Restated Bylaws of the Company, dated March 1, 2022
8-K 001-39590 3.1 03/02/2022
4.1 Form of Common Stock Certificate
10-K 001-39590 4.1 03/25/2021
4.2 Form of Common Stock Purchase Warrant in connection with the private placement between May 11, 2020 and June 8, 2020
10-Q 000-55353 4.5 07/06/2020
4.3 Indenture, dated as of February 2, 2021, by and between fuboTV Inc. and U.S. Bank National Association, as Trustee
8-K 001-39590 4.1 02/02/2021
4.4 Form of Note, representing fuboTV Inc.’s 3.25% Convertible Senior Notes due 2026 (included in Exhibit 4.3)
8-K 001-39590 4.2 02/02/2021
10.1 fuboTV Inc. 2023 Employment Inducement Equity Incentive Plan
*
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10.2 Form of Restricted Stock Unit Award Agreement to the fuboTV Inc. 2023 Employment Inducement Equity Incentive Plan (standard)
*
10.3 Form of Restricted Stock Unit Award Agreement to the fuboTV Inc. 2023 Employment Inducement Equity Incentive Plan (key employee)
*
10.4 Form of Stock Option Award Agreement to the fuboTV Inc. 2023 Employment Inducement Equity Incentive Plan
*
10.5 fuboTV Inc. 2020 Equity Incentive Plan, as amended and restated
8-K 001-39590 10.1 06/20/2023
10.6 Form of Performance Restricted Stock Unit Award Agreement to the fuboTV Inc. 2020 Equity Incentive Plan, as amended
8-K 001-39590 10.2 05/08/2023
10.7 Employment Agreement by and between fuboTV Inc. and David Gandler, dated May 4, 2023.
8-K 001-39590 10.1 05/08/2023
31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a).
*
31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a).
*
32.1 Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350.
*
101.INS Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
101.SCH Inline XBRL Taxonomy Extension Schema Document
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document
104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
* Filed herewith.
** Furnished herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
FUBOTV INC.
Date: August 7, 2023
By: /s/ David Gandler
David Gandler
Chief Executive Officer (Principal Executive Officer)
FUBOTV INC.
Date: August 7, 2023
By: /s/ John Janedis
John Janedis
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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