As
filed with the Securities and Exchange Commission on December 8, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
FUBOTV
INC.
(Exact
name of registrant as specified in its charter)
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Florida
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26-4330545
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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1330
Avenue of the Americas
New
York, NY 10019
(212)
672-0055
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David
Gandler
Chief
Executive Officer
fuboTV
Inc.
1330
Avenue of the Americas
New
York, NY 10019
(212)
672-0055
(Address,
including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Gregory
P. Rodgers, Esq.
Latham
& Watkins LLP
1271
Avenue of the Americas
New
York, NY 10020
(212)
906-1200
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for comply
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
Title of each class of securities
to be registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price per Share(2)
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Proposed
Maximum
Aggregate Offering
Price(2)
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Amount of
Registration
Fee(3)
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Common Stock, $0.0001 par value
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5,690,669
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$
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17.02
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$
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96,855,186.38
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$
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8,978.48
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(1)
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This
registration statement registers 5,690,669 shares of common stock, $0.0001 par value per share (“common stock”), of FuboTV
Inc (the “registrant”). This registration statement also relates to an indeterminate number of additional shares of common
stock which may be issued with respect to such common stock by way of stock splits, stock dividends, reclassifications or similar
transactions.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended (the “Securities Act”), and based on the average high and low prices reported for the registrant’s common
stock on December 6, 2021 as reported on the New York Stock Exchange.
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(3)
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The
registration fee has been calculated in accordance with Rule 457(c) under the Securities Act based on the average high and low prices
reported for the registrant’s common stock on December 6, 2021 as reported on the New York Stock Exchange.
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The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does
it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, dated December 8, 2021.
PROSPECTUS
FUBOTV
INC.
5,690,669
Shares of Common Stock
Offered by the Selling Securityholders
The
selling securityholders may offer and sell up to 5,690,669 shares in the aggregate of common stock identified above. This prospectus
provides you with a general description of the securities. We will not receive any proceeds from the sale of our common stock by the
selling securityholders.
Each
time any of the selling securityholders offer and sell securities, such selling securityholders may provide a supplement to this prospectus
that contains specific information about the offering and the amounts, prices and terms of the securities. The supplement may also add,
update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and
any applicable prospectus supplement before you invest in any of our securities.
The
selling securityholders may offer and sell the securities described in this prospectus and any prospectus supplement from time to time,
together or separately, to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination
of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable
purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information
set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus”
and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and any applicable
prospectus supplement describing the method and terms of the offering of such securities.
Investing
in our securities involves risks. See the “Risk Factors” on page 5 of this prospectus and any similar section contained
in any applicable prospectus supplement concerning factors you should consider before investing in our securities.
Our
common stock is listed on the New York Stock Exchange under the symbol “FUBO.” On December 7, 2021, the last reported sale
price of our common stock on the New York Stock Exchange was $18.60 per share.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2021.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. By using a shelf registration statement, the selling securityholders may, from time to time, sell up to 5,690,669
shares of common stock from time to time in one or more offerings as described in this prospectus. In connection with the offer and sale
of securities by the selling securityholders, the selling securityholders may provide a prospectus supplement to this prospectus that
contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering.
If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement or free writing prospectus,
you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should
carefully read both this prospectus and any applicable prospectus supplement (and any applicable free writing prospectuses), together
with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
Neither
we, nor the selling securityholders, have authorized anyone to provide you with any information or to make any representations other
than those contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf
of us or to which we have referred you. We and the selling securityholders take no responsibility for, and can provide no assurance as
to the reliability of, any other information that others may give you. The selling securityholders will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus
and any applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information
appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by
reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry
statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe
these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified
this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus,
any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties
and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained
in this prospectus, any applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other
documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
When
we refer to “fuboTV,” “we,” “our,” “us” and the “Company” in this prospectus,
we mean fuboTV Inc. and its consolidated subsidiaries, unless otherwise specified. When we refer to “you,” we mean the potential
holders of the applicable series of securities.
WHERE
YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available
Information
We
file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information
statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our
web site address is www.fubotv.com. The information on our web site, however, is not, and should not be deemed to be, a part of this
prospectus.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the
information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Documents
establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated
by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries
and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents
for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s
website, as provided above.
Incorporation
by Reference
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently
filed document incorporated by reference modifies or replaces that statement.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been
filed with the SEC:
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Our
Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 25, 2021, as amended on March 29, 2021.
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The
information specifically incorporated by reference into our Annual Report on Form 10-K from our Definitive Proxy Statement on Schedule
14A, filed with the SEC on April 28, 2021.
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Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, June 30, 2021 and September 30, 2021, filed with the SEC on
May 13, 2021, August 11, 2021 and November 10, 2021, respectively.
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Our
Current Reports on Form 8-K filed with the SEC on January 28, 2021 (excluding information furnished pursuant to Item 2.02), February
2, 2021, March 3, 2021, March 12, 2021, March 23, 2021, June 28, 2021, July 2, 2021, July 16, 2021, August 13, 2021, November 5,
2021, November 9, 2021 (excluding information furnished pursuant to Items 2.02 and 7.01) and December 8, 2021 (exluding
information furnished pursuant to Item 7.01).
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Our
Registration Statement on Form 8-A12B filed with the SEC on October 2, 2020.
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The
description of the Company’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934, as amended,
filed as Exhibit 4.5 to our Annual Report on Form 10-K filed with the SEC on March 25, 2021 and any amendment or report filed with
the SEC for the purpose of updating the description.
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All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, which we refer to as the “Exchange Act” in this prospectus, prior to the termination of this offering, including
all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the
registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference
into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You
may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following
address:
fubotv
inc.
1330
avenue of the americas
new
york, ny 10019
(212)
672-0055
Exhibits
to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or
any accompanying prospectus supplement.
THE
COMPANY
We
are a sports-first, live TV streaming company, offering subscribers access to tens of thousands of live sporting events annually as well
as leading news and entertainment content. Our platform, fuboTV, allows customers to access content through streaming devices and on
SmartTVs, mobile phones, tablets, and computers. We offer subscribers a live TV streaming service with the option to purchase incremental
features that include additional content or enhanced functionality best suited to their preferences. Our base plan includes a broad mix
of channels, including top 50 Nielsen-ranked networks, across sports, news, and entertainment.
We
were incorporated in 2009 as a Florida corporation under the name York Entertainment, Inc. We changed our name to FaceBank Group, Inc.
on September 30, 2019. On August 10, 2020, our name was changed to fuboTV Inc. fuboTV Sub was incorporated in 2014 as a Delaware corporation.
Our principal executive offices are located at 1330 Avenue of the Americas, New York, New York 10010, and our telephone number is (212)
672-0055.
RISK
FACTORS
Investment
in any securities offered pursuant to this prospectus and any applicable prospectus supplement involves risks. You should carefully consider
the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form
10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, as updated
by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement
and any applicable free writing prospectus before acquiring any of such securities. The occurrence of any of these risks might cause
you to lose all or part of your investment in the offered securities.
USE
OF PROCEEDS
We
will not receive any of the proceeds from the sale of common stock being offered by any of the selling securityholders.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is not complete and may not contain all the information you should consider before investing
in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our articles of incorporation,
which has been publicly filed with the SEC. See “Where You Can Find More Information; Incorporation by Reference.”
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Our
authorized capital stock consists of:
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400,000,000
shares of common stock, $0.0001 par value; and
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50,000,000
shares of preferred stock, $0.0001 par value.
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Common
Stock
Each
share of our common stock is generally entitled to one vote for each share on all matters submitted to a vote of the shareholders, including
the election of directors, but is generally not entitled to vote on any matter for which the vote is reserved to a class of preferred
stock pursuant to the designation for that preferred stock.
Our
common stock is listed on the New York Stock Exchange under the symbol “FUBO.”
Rights
and Preferences
Holders
of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable
to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any series of preferred stock currently outstanding or which we may designate and issue in
the future.
Fully
Paid and Nonassessable
All
of our outstanding shares of common stock are fully paid and nonassessable.
Transfer
Agent
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
Dividend
Our
bylaws, as amended, provide that the board of directors may authorize, and the Company may make, distributions (which would include dividends)
to its shareholders subject to restrictions by our articles of incorporation, as amended, and certain additional limitations as described
below. Specifically, no distribution may be made if, after giving it effect, (a) the Company would not be able to pay its debts as they
become due in the usual course of business; or (b) the Company’s total assets would be less than the sum of its total liabilities
plus (unless our articles of incorporation permit otherwise) the amount that would be needed, if the Company were to be dissolved at
the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior
to those receiving the distribution.
We
may also issue shares as share dividends, which may be issued pro rata and without consideration to our shareholders or to the shareholders
of one or more classes or series. Shares of one class or series may not be issued as a share dividend in respect of shares of another
class or series unless (a) our articles of incorporation, as amended, so authorize; (b) a majority of the votes entitled to be cast by
the class or series to be issued approves the issue; or (c) there are no outstanding shares of the class or series to be issued.
Preferred
Stock
Under
the terms of our articles of incorporation, our board of directors is authorized to determine the rights and preferences of any undesignated
shares of preferred stock in one or more series without shareholder approval. Our board of directors has the discretion to determine
the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, of each series of preferred stock.
The
purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays
associated with a shareholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third-party
to acquire, or could discourage a third-party from seeking to acquire, a majority of our outstanding voting stock. We have no present
plans to issue any shares of preferred stock.
Registration
Rights
As
of the date of the registration statement of which this prospectus forms a part, holders of 6,313,737 shares of our common stock (“Registrable
Securities”) are entitled to various rights with respect to the registration of such shares for public resale under the Securities
Act, pursuant to agreements by and among us and certain shareholders. All of such Registrable Securities have been registered or are
being registered hereby, and as a result, such holders will be able to trade these shares without restriction under the Securities Act
following the effectiveness of the registration statement of which this prospectus forms a part.
Exclusive
Forum
The
Florida Business Corporation Act (the “FBCA”) provides that a corporation’s articles of incorporation or bylaws may
require that any or all internal corporate claims be brought exclusively in any specified court or courts of the State of Florida and,
if so specified, in any additional courts in Florida or in any other jurisdictions with which the corporation has a reasonable relationship.
Our articles of incorporation and bylaws, each as amended, do not provide any such exclusive forum provisions, but the Certificates of
Designation related to certain current classes of preferred stock do so provide.
Anti-Takeover
Provisions
The
FBCA contains certain provisions which may affect the ability of a party to acquire control of the Company.
Control
Share Acquisition Statute
The
control share acquisition statute, Section 607.0902 of the FBCA, generally provides that in the event that a person acquires voting shares
of the Company which would have 20% or more of the voting power of all of the shares of the Company, such acquired shares have only such
voting rights as are accorded the shares before the control-share acquisition only to the extent granted by resolution approved by the
shareholders of the Company (excluding shares held by the person acquiring the control shares or any officers of the Company or any employees
who are also directors of the Company).
Certain
acquisitions of shares are exempt from these rules, including, without limitation, shares acquired pursuant to the laws of intestate
succession or pursuant to a gift or testamentary transfer, pursuant to a merger or share exchange effected in compliance with the FBCA
if the Company is a party to the agreement or pursuant to an acquisition of shares of the Company if the acquisition has been approved
by the board of directors of the Company before the acquisition.
A
Florida corporation may provide in articles or bylaws that the corporation is not subject to these provisions, but our articles of incorporation
and bylaws, each as amended, do not currently exempt the Company from these provisions. Absent such an exclusion, these provisions of
the FBCA generally apply to any Florida corporation which has:
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1.
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One
hundred or more shareholders;
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2.
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Its
principal place of business, its principal office, or substantial assets within Florida; and
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3.
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Either
(i) more than 10% of its shareholders resident in Florida; (ii) more than 10% of its shares owned by residents of Florida; or (iii)
one thousand shareholders resident in Florida.
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The
control share acquisition statute may have the effect of discouraging or preventing certain change of control or takeover transactions
involving the Company
Affiliated
Transactions Statute
The
affiliated transactions statute, Section 607.0901 of the FBCA, covers certain affiliated transactions, and provides that the Company
may not engage in certain mergers, consolidations or sales of stock, dispositions or certain other transactions with any “interested
shareholder” for a period of three years following the time that such shareholder became an interested shareholder, unless:
●
Prior to the time that such shareholder became an interested shareholder, the board of directors of the Company approved either the affiliated
transaction or the transaction which resulted in the shareholder becoming an interested shareholder; or
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Upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder
owned at least 85% of the voting shares of the Company outstanding at the time the transaction commenced; or
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At or subsequent to the time that such shareholder became an interested shareholder, the affiliated transaction is approved by the board
of directors and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of at
least two-thirds of the outstanding voting shares which are not owned by the interested shareholder.
“Interested
shareholders” are generally defined as any person who is the beneficial owner of more than 15% of the outstanding voting shares
of the Company.
Notwithstanding
the above, the voting requirements set forth above do not apply to a particular affiliated transaction if one or more conditions are
met, including, but not limited to, the following: if the affiliated transaction has been approved by a majority of the disinterested
directors of the Company; if the interested shareholder has been the beneficial owner of at least 80% of the Company’s outstanding
voting shares for at least three years preceding the announcement date; or if the consideration to be paid to the holders of each class
or series of voting shares in the affiliated transaction meets certain minimum conditions.
The
provisions of this section of the FBCA would not apply to the Company if the Company’s original articles of incorporation contained
a provision electing not to be governed by this section of the FBCA, or the Company had adopted an amendment to its articles of incorporation
in compliance with the FBCA expressly electing not to be governed by this section of the FBCA. The Company’s original articles
of incorporation did contain such an election not to be governed by these provisions, and thus these provisions do not currently apply
to the Company.
SELLING
SECURITYHOLDERS
This
prospectus also relates to the possible resale by certain of our shareholders, who we refer to in this prospectus as the “selling
securityholders,” of up to 5,690,669 shares of our common stock that were issued and outstanding prior to the original date of
filing of the registration statement of which this prospectus forms a part. The selling securityholders originally acquired the shares
of our common stock included in this prospectus in a private placement in connection with the Company’s acquisition of Molotov
SAS in December 2021.
The
table below sets forth information regarding the beneficial ownership of our common stock by the selling securityholders. The information
regarding the selling securityholders’ beneficial ownership after the sales made pursuant to this prospectus assumes that all of
the common stock subject to sale pursuant to this prospectus will have been sold and that the selling securityholders do not acquire
any additional shares. Information in the table below, with respect to beneficial ownership, has been furnished by the selling securityholders.
Information
concerning the selling securityholders may change from time to time and any changed information will be set forth in supplements to this
prospectus, if and when necessary. The selling securityholders may offer all, some or none of our common stock. We cannot advise you
as to whether the selling securityholders will in fact sell any or all of such shares of common stock. In addition, the selling securityholders
listed in the table below may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any
time and from time to time, shares of our common stock in transactions exempt from the registration requirements of the Securities Act,
after the date on which they provided the information set forth in the table below.
To
our knowledge, each person named in the table has sole voting and investment power with respect to all of the securities shown as beneficially
owned by such person, except as otherwise set forth in the notes to the table. The number of securities shown represents the number of
securities the person “beneficially owns,” as determined by the rules of the SEC. The SEC has defined “beneficial”
ownership of a security to mean the possession, directly or indirectly, of voting power and/or investment power. A security holder is
also deemed to be, as of any date, the beneficial owner of all securities that such security holder has the right to acquire within 60
days after that date through (1) the exercise of any option, warrant or right, (2) the conversion of a security, (3) the power to revoke
a trust, discretionary account or similar arrangement, or (4) the automatic termination of a trust, discretionary account or similar
arrangement.
The
percentages in the table below reflect beneficial ownership immediately prior to the date of this prospectus and immediately after the
resale of all shares subject to resale pursuant to this prospectus as determined in accordance with Rule 13d-3 under the Exchange Act
and are based on 153,858,200 shares of our common stock outstanding as of November 30, 2021, after giving effect
to (i) the issuance of 464,700 shares of common stock in connection with the closing of the Company’s acquisition of Edisn.ai in
December 2021 and (ii) the issuance of the 5,690,669 shares of common stock registered hereby in connection with the closing of the Company’s
acquisition of Molotov SAS in December 2021.
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Amount
and Nature of Beneficial Ownership
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Immediately
Prior to this Prospectus
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Number
of Shares
Subject to
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Immediately
After Resale of All Shares Subject to Resale Pursuant to this Prospectus**
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Selling
Securityholders
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Shares
Owned(1)
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Percentage
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Resale
Pursuant to this Prospectus(1)
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Shares
Owned
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Percentage
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Entities
affiliated with Eurazeo Investment Manager (2)
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2,807,784
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1.8
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%
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|
|
2,807,784
|
|
|
|
—
|
|
|
|
—
|
|
|
NJJ
Holding (3)
|
|
|
2,257,618
|
|
|
|
1.5
|
%
|
|
|
2,257,618
|
|
|
|
—
|
|
|
|
—
|
|
|
All
Other Selling Stockholders (4)
|
|
|
851,513
|
|
|
|
*
|
|
|
|
625,267
|
|
|
|
226,246
|
|
|
|
*
|
|
|
*
|
Indicates
beneficial ownership of less than 1%.
|
|
**
|
Assumes
that the selling securityholders will sell all of their common stock subject to resale pursuant to this prospectus. There is no assurance
that the selling securityholders will resell all or any of their common stock. After the completion of this offering none of the
selling securityholders will hold one percent or more of our common stock assuming that all of the selling securityholders resell
all of their common shares subject to resale pursuant to this prospectus.
|
|
|
|
|
(1)
|
Includes
637,402 shares of common stock held by an escrow agent as partial security for indemnity obligations and purchase price adjustments
pursuant to the terms of a share purchase agreement, and related escrow agreement, in each case entered into in connection
with the Company’s acquisition of Molotov SAS in December 2021. Such shares shall be released from escrow to the selling securityholders,
net of any shares forfeited to satisfy any indemnity obligations or purchase price adjustments, on June 6, 2023. Such shares
are not saleable hereunder prior to such release.
|
|
|
|
|
(2)
|
Consists
of (i) 1,131,719 shares of common stock held by Idinvest Digital Fund II, including 116,194 shares of common stock subject
to the escrow conditions set forth in footnote (1), (ii) 206,558 shares of common stock held by Idinvest Expansion 2017, including
21,210 shares of common stock subject to the escrow conditions set forth in footnote (1), (iii) 381,593 shares of common stock held
by Idinvest Innov FRR France, including 39,177 shares of common stock subject to the escrow conditions set forth in footnote (1),
(iv) 57,362 shares of common stock held by Idinvest Patrimoine, including 5,890 shares of common stock subject to the escrow conditions
set forth in footnote (1), (v) 68,661 shares of common stock held by Idinvest Patrimoine 2015, including 7,049 shares of common stock
subject to the escrow conditions set forth in footnote (1), (vi) 191,450 shares of common stock held by Idinvest Patrimoine N°
3, including 19,657 shares of common stock subject to the escrow conditions set forth in footnote (1), (vii) 149,728 shares of common
stock held by Idinvest Patrimoine N° 4, including 15,373 shares of common stock subject to the escrow conditions set forth in
footnote (1), (viii) 109,160 shares of common stock held by Idinvest Patrimoine N° 5, including 11,207 shares of common
stock subject to the escrow conditions set forth in footnote (1), (ix) 194,398 shares of common stock held by Idinvest Patrimoine
N° 6, including 19,958 shares of common stock subject to the escrow conditions set forth in footnote (1), (x) 56,458 shares of
common stock held by Objectif Innovation Patrimoine N° 6, including 5,797 shares of common stock subject to the escrow
conditions set forth in footnote (1), (xi) 59,797 shares of common stock held by Objectiv Innovation Patrimoine N° 7, including
6,140 shares of common stock subject to the escrow conditions set forth in footnote (1), (xii) 119,470 shares of common stock held
by Objectif Innovation Patrimoine N° 8, including 12,266 shares of common stock subject to the escrow conditions set forth
in footnote (1) and (xiii) 81,430 shares of common stock held by Objectif Innovation Patrimoine N° 9, including
8,360 shares of common stock subject to the escrow conditions set forth in footnote (1). The foregoing entities are collectively
referred to as the Idinvest Funds. As the management company of the Idinvest Funds, Eurazeo Investment Manager – EIM (“EIM”),
shares dispositive power and has shared voting power over all of the shares held by the Idinvest Funds. 98% of EIM’s
share capital is held by LH GP and all of the share capital of LH GP is held by Eurazeo SE, a French company listed on Euronext
Paris. All powers with respect to the voting and disposition of the shares owned by the Idinvest Funds and managed by EIM
are maintained by an investment committee of EIM. Because of the powers vested in the investment committee and its composition,
neither LH GP nor Eurazeo SE are able to exercise control over the composition of, or decisions made by the investment committee
and, as a result, such persons are not able to control voting, investment or disposition decisions concerning the shares owned by
the Idinvest Funds.
|
|
|
|
|
(3)
|
Includes
231,766 shares of common stock subject to the escrow conditions set forth in footnote (1). NJJ Holding, an entity wholly-owned
by Mr. Xavier Niel, holds voting and investment power over the shares.
|
|
|
|
|
(4)
|
Represents
shares held by three selling stockholders not listed above, including 117,359 shares of common stock subject to the escrow conditions
set forth in footnote (1), who as a group, owned less than 1% of the outstanding common stock as of November 30, 2021.
|
PLAN
OF DISTRIBUTION
The
selling securityholders may from time to time offer some or all of the shares of common stock covered by this prospectus. To the extent
required, this prospectus may be amended and supplemented from time to time to describe a specific plan of distribution. The selling
securityholders will not pay any of the costs, expenses and fees in connection with the registration of the shares covered by this prospectus,
but they will pay any and all underwriting discounts, selling commissions and similar charges attributable to sales of the shares. We
will not receive any proceeds from the sale of the shares of our common stock covered hereby. The selling securityholders may sell some
or all of the shares of common stock covered by this prospectus from time to time or may decide not to sell any of the shares of common
stock covered by this prospectus. The selling securityholders will act independently of us in making decisions with respect to the timing,
manner and size of each sale. Such sales may be made on one or more exchanges or in the over-the-counter market or otherwise, at prices
and under terms then prevailing or at prices related to the then-current market price or in negotiated transactions. The selling securityholders
may dispose of their shares by one or more of, or a combination of, the following methods:
|
|
●
|
distributions
to members, partners, stockholders or other equityholders of the selling securityholders;
|
|
|
|
|
|
|
●
|
purchases
by a broker-dealer as principal and resale by such broker-dealer for its own account pursuant to this prospectus;
|
|
|
|
|
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
|
|
|
|
|
|
|
●
|
block
trades in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
|
|
|
|
|
●
|
an
over-the-counter distribution in accordance with the rules of the New York Stock Exchange;
|
|
|
|
|
|
|
●
|
through
trading plans entered into by a selling securityholder pursuant to Rule 10b5-1 under the Exchange Act, that are in place at the time
of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of their
securities on the basis of parameters described in such trading plans;
|
|
|
|
|
|
|
●
|
to
or through underwriters or broker-dealers;
|
|
|
|
|
|
|
●
|
in
“at the market” offerings, as defined in Rule 415 under the Securities Act, at negotiated prices, at prices prevailing
at the time of sale or at prices related to such prevailing market prices, including sales made directly on a national securities
exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents;
|
|
|
|
|
|
|
●
|
in
privately negotiated transactions;
|
|
|
|
|
|
|
●
|
in
options transactions;
|
|
|
|
|
|
|
●
|
through
a combination of any of the above methods of sale; or
|
|
|
|
|
|
|
●
|
any
other method permitted pursuant to applicable law.
|
In
addition, any shares that qualify for sale pursuant to Rule 144 promulgated under the Securities Act, or Rule 144, may be sold under
Rule 144 rather than pursuant to this prospectus. A selling securityholder that is an entity may elect to make an in-kind distribution
of common stock to its members, partners, stockholders or other equityholders pursuant to the registration statement of which this prospectus
forms a part by delivering a prospectus. To the extent that such members, partners, stockholders or other equityholders are not affiliates
of ours, such members, partners, stockholders or other equityholders would thereby receive freely tradable shares of common stock pursuant
to a distribution pursuant to the registration statement of which this prospectus forms a part.
To
the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. In
connection with distributions of the shares or otherwise, the selling securityholders may enter into hedging transactions with broker-dealers
or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short
sales of shares of common stock in the course of hedging the positions they assume with selling securityholders. The selling securityholders
may also sell shares of common stock short and redeliver the shares to close out such short positions. The selling securityholders may
also enter into option or other transactions with broker-dealers or other financial institutions that require the delivery to such broker-dealer
or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). The selling securityholders may also pledge
shares to a broker-dealer or other financial institution, and, upon a default, such broker-dealer or other financial institution, may
effect sales of the pledged shares pursuant to this prospectus (as supplemented or amended to reflect such transaction).
A
selling securityholder may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by any selling securityholder or borrowed from any selling securityholder or others
to settle those sales or to close out any related open borrowings of stock, and may use securities received from any selling securityholder
in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will
be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, any selling
securityholder may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities
short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in
our securities or in connection with a concurrent offering of other securities.
In
effecting sales, broker-dealers or agents engaged by the selling securityholders may arrange for other broker-dealers to participate.
Broker-dealers or agents may receive commissions, discounts or concessions from the selling securityholders in amounts to be negotiated
immediately prior to the sale.
In
offering the shares covered by this prospectus, the selling securityholders and any broker-dealers who execute sales for the selling
securityholders may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales.
Any profits realized by the selling securityholders and the compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions.
In
order to comply with the securities laws of certain states, if applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the shares may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
We
have advised the selling securityholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of
shares in the market and to the activities of the selling securityholders and their affiliates. In addition, we will make copies of this
prospectus available to the selling securityholders for the purpose of satisfying the prospectus delivery requirements of the Securities
Act. The selling securityholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
At
the time a particular offer of shares is made, if required, a prospectus supplement will be distributed that will set forth the number
of shares being offered and the terms of the offering, including the name of any underwriter, dealer or agent, the purchase price paid
by any underwriter, any discount, commission and other item constituting compensation, any discount, commission or concession allowed
or reallowed or paid to any dealer, and the proposed selling price to the public.
LEGAL
MATTERS
Certain
legal matters with respect to the validity of shares of our capital stock and certain other legal matters relating to Florida law will
be passed upon for us by Anthony L.G., PLLC. Additional legal matters may be passed upon for us, the selling securityholders or any underwriters,
dealers or agents, by counsel that we will name in any applicable prospectus supplement.
EXPERTS
The
consolidated financial statements appearing in our Annual Report (Form 10-K) for the year ended December 31, 2019, have been audited
by L J Soldinger Associates, LLC, independent registered public accounting firm, as set forth in its reports thereon. Such financial
statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting
and auditing.
The
consolidated financial statements of fuboTV Inc. as of December 31, 2020, and for the year then ended, have been incorporated by reference
herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing. To the extent that KPMG LLP audits and reports on financial statements
of fuboTV Inc. issued at future dates, and consents to the use of its report thereon, such financial statements also will be incorporated
by reference in the registration statement in reliance upon its report and said authority.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities
being registered hereby.
|
SEC registration fee
|
|
$
|
8,979
|
|
|
FINRA filing fee
|
|
$
|
(1
|
)
|
|
The New York Stock Exchange supplemental listing fee
|
|
$
|
(1
|
)
|
|
Printing expenses
|
|
$
|
(1
|
)
|
|
Legal fees and expenses
|
|
$
|
(1
|
)
|
|
Accounting fees and expenses
|
|
$
|
(1
|
)
|
|
Blue Sky, qualification fees and expenses
|
|
$
|
(1
|
)
|
|
Transfer agent fees and expenses
|
|
$
|
(1
|
)
|
|
Miscellaneous
|
|
$
|
(1
|
)
|
|
Total
|
|
$
|
(1
|
)
|
|
(1)
|
These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
|
Item
15. Indemnification of Directors and Officers
Under
Section 607.0831 of the Florida Business Corporation Act (the “FBCA”), a director is not personally liable for monetary damages
to the corporation or any other person for any statement, vote, decision, or failure to act regarding corporate management or policy
unless (1) the director breached or failed to perform his or her duties as a director and (2) the director’s breach of, or failure
to perform, those duties constitutes: (a) 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; (b) a transaction from which the director
derived an improper personal benefit, either directly or indirectly; (c) a circumstance under which the liability provisions of Section
607.0834 of the FBCA are applicable (relating to liability for unlawful distributions); (d) in a proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the
corporation, or willful misconduct; or (e) 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. A judgment or other final adjudication against a director in any criminal proceeding
for a violation of the criminal law estops that director from contesting the fact that his or her breach, or failure to perform, constitutes
a violation of the criminal law; but does not estop the director from establishing that he or she had reasonable cause to believe that
his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful.
Under
Section 607.0851 of the FBCA, a corporation generally has the power to indemnify any person who was or is a party to any proceeding because
the individual is or was a director or officer of the corporation if (a) the director or officer acted in good faith; (b) the director
or officer acted in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation; and (c)
in the case of any criminal proceeding, the director or officer had no reasonable cause to believe his or her conduct was unlawful. The
termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the director or officer did not meet the relevant standard of conduct described in this section
of the FBCA. Unless ordered by a court, a corporation may not indemnify a director or an officer in connection with a proceeding by or
in the right of the corporation except for expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors,
the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, where such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation.
For
purposes of the indemnification provisions of the FBCA, “director” or “officer” means an individual who is or
was a director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at
the corporation’s request as a director or officer, manager, partner, trustee, employee, or agent of another domestic or foreign
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or another enterprise or entity and
the terms include, unless the context otherwise requires, the estate, heirs, executors, administrators, and personal representatives
of a director or officer.
Section
607.0852 of the FBCA provides that a corporation must indemnify an individual who is or was a director or officer who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the individual was a party because he or she is or was a director
or officer of the corporation against expenses incurred by the individual in connection with the proceeding.
Section
607.0853 of the FBCA provides that a corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse
expenses incurred in connection with the proceeding by an individual who is a party to the proceeding because that individual is or was
a director or an officer if the director or officer delivers to the corporation a signed written undertaking of the director or officer
to repay any funds advanced if (a) the director or officer is not entitled to mandatory indemnification under Section 607.0852; and (b)
it is ultimately determined under Section 607.0854 or Section 607.0855 (as described below) that the director or officer has not met
the relevant standard of conduct described in Section 607.0851 or the director or officer is not entitled to indemnification under Section
607.0859 (as described below).
Section
607.0854 of the FBCA provides that, unless the corporation’s articles of incorporation provide otherwise, notwithstanding the failure
of a corporation to provide indemnification, and despite any contrary determination of the board of directors or of the shareholders
in the specific case, a director or officer of the corporation who is a party to a proceeding because he or she is or was a director
or officer may apply for indemnification or an advance for expenses, or both, to a court having jurisdiction over the corporation which
is conducting the proceeding, or to a circuit court of competent jurisdiction. Our articles of incorporation do not provide any such
exclusion. After receipt of an application and after giving any notice it considers necessary, the court may order indemnification or
advancement of expenses upon certain determinations of the court.
Section
607.0855 of the FBCA provides that, unless ordered by a court under Section 607.0854, a corporation may not indemnify a director or officer
under Section 607.0851 unless authorized for a specific proceeding after a determination has been made that indemnification is permissible
because the director or officer has met the relevant standard of conduct set forth in Section 607.0851.
Section
607.0857 of the FBCA provides that a corporation has the power to purchase and maintain insurance on behalf of and for the benefit of
an individual who is entitled to indemnification as set forth therein, and Section 607.0858 of the FBCA provides that the indemnification
provided pursuant to Section 607.0851 and Section 607.0852, and the advancement of expenses provided pursuant to Section 607.0853 are
not exclusive. A corporation may, by a provision in its articles of incorporation, bylaws or any agreement, or by vote of shareholders
or disinterested directors, or otherwise, obligate itself in advance of the act or omission giving rise to a proceeding to provide any
other or further indemnification or advancement of expenses to any of its directors or officers.
Section
607.0859 of the FBCA provides that, unless ordered by a court under provisions of Section 607.0854 of the FBCA, a corporation may not
indemnify a director or officer under Section 607.0851 or Section 607.0858 or advance expenses to a director or officer under Section
607.0853 or Section 607.0858 if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and constitute: (a) willful or intentional misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding
by or in the right of a shareholder; (b) a transaction in which a director or officer derived an improper personal benefit; (c) a violation
of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; or (d) in the case of a director, a circumstance under which the liability provisions
of Section 607.0834 are applicable (relating to unlawful distributions).
Our
articles of incorporation provide that we shall indemnify any present or former officer or director, or person exercising powers and
duties of an officer or a director, to the fullest extent now or hereafter permitted by law.
Our
bylaws provide that the Company shall indemnify any person who was or is a party to any proceeding (other than an action by, or in the
right of, the Company), by reason of the fact that he is or was a director, officer, employee, or agent of the Company or is or was serving
at the request of the Company as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise against liability incurred in connection with such proceeding, including any appeal thereof, if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Company
or, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Our
bylaws also provide that the Company shall indemnify any person, who was or is a party to any proceeding by or in the right of the Company
to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Company or
is or was serving at the request of the Company as a director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors,
the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such indemnification will be authorized if such person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification
shall be made under this provision in respect of any claim, issue, or matter as to which such person has been adjudged to be liable unless,
and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine
upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem proper.
To
the extent that a director, officer, employee, or agent of the Company has been successful on the merits or otherwise in defense of any
proceeding referred to above, or in defense of any claim, issue, or matter therein, our bylaws require the Company to indemnify that
person against expenses actually and reasonably incurred by him in connection therewith.
Any
indemnification under such authority, unless pursuant to a determination by a court, shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in the applicable provisions of our bylaws. Such determination shall
be made: (i) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such proceeding;
(ii) if such a quorum is not obtainable or, even if obtainable, by majority vote of a committee duly designated by the board of directors
(in which directors who are parties may participate) consisting solely of two or more directors not at the time parties to the proceeding;
(iii) by independent legal counsel selected in accordance with the bylaws; or (iv) by the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such proceeding or, if no such quorum is obtainable, by a majority vote of shareholders
who were not parties to such proceeding.
The
bylaws further provide that expenses incurred by an officer or director in defending a civil or criminal proceeding shall be paid by
the Company in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if he is ultimately found not to be entitled to indemnification by the Company. Expenses incurred by other
employees and agents shall be paid in advance upon such terms or conditions that the board of directors deems appropriate. The indemnification
and advancement of expenses provided pursuant to the bylaws are not exclusive, and the Company may make any other or further indemnification
or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding
such office. Indemnification and advancement of expenses as provided in the bylaws shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified.
The
bylaws state that if the Company fails to provide indemnification, and despite any contrary determination of the board or of the shareholders
in the specific case, a director, officer, employee, or agent of the Company who is or was a party to a proceeding may apply for indemnification
or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement
of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that:
(i) the director, officer, employee, or agent is entitled to mandatory indemnification under the bylaws, in which case the court shall
also order the Company to pay the director reasonable expenses incurred in obtaining court-ordered indemnification or advancement of
expenses; (ii) the director, officer, employee, or agent is entitled to indemnification or advancement of expenses, or both, by virtue
of the exercise by the Company of its power pursuant to the bylaws; or (iii) the director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of
whether such person met the standard of conduct set forth in the relevant bylaw provisions.
Under
the bylaws, the Company has the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Company or is or was serving at the request of the Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity
or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability under the
bylaws. We have purchased and intend to maintain insurance on behalf of any person who is or was a director or officer against any loss
arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
We
have entered into indemnification agreements with our directors, executive officers and others, in addition to indemnification provided
for in our bylaws, and we intend to enter into indemnification agreements with any new directors and executive officers in the future.
Item
16. Exhibits
|
3.1(d)
|
|
Articles of Amendment to Articles of Incorporation dated January 11, 2016 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(e)
|
|
Certificate of Designation of Series A Preferred Stock dated June 23, 2016 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(f)
|
|
Certificate of Designation of Series B Preferred Stock dated June 23, 2016 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(g)
|
|
Certificate of Designation of Series C Preferred Stock dated July 21, 2016 (incorporated by reference to the Company’s 10-K).
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|
|
|
|
|
3.1(h)
|
|
Second Amended Certificate of Designation of Series C Preferred Stock dated March 3, 2017 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(i)
|
|
Articles of Amendment to Articles of Incorporation dated October 17, 2017 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(j)
|
|
Certificate of Designation of Preferences and Rights of Series X Convertible Preferred Stock dated August 3, 2018 (incorporated by reference to the Company’s 10-K).
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|
|
|
|
|
3.1(k)
|
|
Articles of Amendment to Articles of Incorporation dated September 9, 2019 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(l)
|
|
Articles of Amendment to Articles of Incorporation dated March 16, 2020 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(m)
|
|
Certificate of Designation of Series AA Convertible Preferred Stock dated March 20, 2020 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(n)
|
|
Articles of Amendment to Articles of Incorporation dated September 29, 2016 (incorporated by reference to the Company’s 10-K).
|
|
|
|
|
|
3.1(o)
|
|
Articles of Amendment to Articles of Incorporation dated January 9, 2017 (incorporated by reference to the Company’s 10-K).
|
|
|
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3.1(p)
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|
Articles of Amendment to Articles of Incorporation dated May 11, 2017 (incorporated by reference to the Company’s 10-K).
|
|
|
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3.1(q)
|
|
Articles of Amendment to Articles of Incorporation dated February 12, 2018 (incorporated by reference to the Company’s 10-K).
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|
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3.1(r)
|
|
Articles of Amendment to Articles of Incorporation dated January 29, 2019 (incorporated by reference to the Company’s 10-K).
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3.1(s)
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|
Articles of Amendment to Articles of Incorporation dated July 12, 2019 (incorporated by reference to the Company’s 10-K).
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|
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3.1(t)
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|
Articles of Amendment to Articles of Incorporation dated August 10, 2020 (incorporated by reference to the Company’s 10-K).
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|
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|
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|
3.1(u)
|
|
Articles of Amendment to Articles of Incorporation dated September 29, 2020 (incorporated by reference to the Company’s 10-K).
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3.2(a)
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|
Bylaws of the registrant (incorporated by reference to the Company’s 10-K).
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*
|
To
be filed by amendment or incorporated by reference in connection with the offering of the securities.
|
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
(j)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations
prescribed by the SEC under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, on December 8, 2021.
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FUBOTV
INC.
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By:
|
/s/
David Gandler
|
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David
Gandler
|
|
|
|
Chief
Executive Officer (Principal Executive Officer)
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POWER
OF ATTORNEY
Each
of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Gina Sheldon and Simone Nardi and
each of them singly (with full power to each of them to act alone), as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him or her and in his or her name, place and stead, and in any and
all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration statement and any
other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, and to file
the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware
and applicable federal securities laws.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons
on behalf of the registrant in the capacities and on the dates indicated.
|
SIGNATURE
|
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TITLE
|
|
DATE
|
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|
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/s/
David Gandler
|
|
Chief
Executive Officer and Director
|
|
December
8, 2021
|
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David
Gandler
|
|
(principal
executive officer)
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|
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/s/
Simone Nardi
|
|
Chief
Financial Officer (principal financial
|
|
December
8, 2021
|
|
Simone
Nardi
|
|
officer and principal accounting officer)
|
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|
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/s/
Edgar Bronfman, Jr.
|
|
Executive
Chairman and Director
|
|
December
8, 2021
|
|
Edgar
Bronfman, Jr.
|
|
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|
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|
|
/s/
Daniel Leff
|
|
Director
|
|
December
8, 2021
|
|
Daniel
Leff
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/s/
Pär-Jörgen Pärson
|
|
Director
|
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December
8, 2021
|
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Pär-Jörgen
Pärson
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/s/
Ignacio Figueras
|
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Director
|
|
December
8, 2021
|
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Ignacio
Figueras
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/s/
Henry Ahn
|
|
Director
|
|
December
8, 2021
|
|
Henry
Ahn
|
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/s/
Laura Onopchenko
|
|
Director
|
|
December
8, 2021
|
|
Laura
Onopchenko
|
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