As
filed with the Securities and Exchange Commission on March 5, 2024
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)
| Florida |
|
26-4330545 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
1290
Avenue of the Americas
New
York, NY 10104
(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.
1290
Avenue of the Americas
New
York, NY 10104
(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.
| |
|
Large
accelerated filer ☐ |
|
Accelerated
filer ☒ |
| |
|
Non-accelerated
filer ☐
|
|
Smaller
reporting company ☐ |
| |
|
|
|
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for comply
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
PROSPECTUS
FUBOTV,
INC.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Purchase
Contracts
Units
Common
Stock
and
86,667,030
Shares of Common Stock Issuable upon Conversion of Convertible Senior Secured Notes due 2029 Offered by the Selling Securityholders
We
may offer and sell the securities identified above, and the selling securityholders identified in this prospectus (who we refer to as
the “selling securityholders”) may offer and sell the shares of our common stock described below.
On
January 2, 2024, the selling securityholders identified in this prospectus (who we refer to as the “selling securityholders”)
exchanged $205,835,000 principal amount of our Convertible Senior Notes due 2026 for $177,506,000 in aggregate principal amount of our
Convertible Secured Notes due 2029 (the “Convertible Secured Notes due 2029”) pursuant to an exchange agreement among us
and the selling securityholders (the “Exchange Agreement”). The selling securityholders may use this prospectus from time
to time to sell shares of common stock acquired by the selling securityholders after the original date of filing of the registration
statement of which this prospectus forms a part (the “Registration Statement”), including up to 86,667,030 shares of our
common stock issuable upon conversion of the Convertible Secured Notes due 2029, in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the time of sale or at privately negotiated prices directly to purchasers.
We refer to such shares of common stock issuable upon conversion of the Convertible Secured Notes due 2029 in this prospectus as the
“underlying securities.”
Each
time we offer and sell securities, we will 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 the applicable prospectus supplement before you invest in
any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. In addition, the selling securityholders may
sell shares of our common stock from time to time, together or separately, in a number of different ways and at varying prices and in
different transactions. 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. The selling securityholders will be responsible for all underwriting
fees, discounts, selling commissions and stock transfer taxes, if any, incurred in connection with the sale of the securities by such
selling securityholders via this prospectus or any related prospectus supplement, if necessary. 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 the applicable prospectus supplement, if necessary, 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 the applicable prospectus supplement, IF ANY, 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 March 4, 2024, the last reported
sale price of our common stock on the New York Stock Exchange was $1.85 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 March 5, 2024.
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, as a “well-known
seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using
a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time and in
one or more offerings and the selling securityholders named herein and to be named in any supplement to this prospectus may, from time
to time, sell shares of common stock from time to time in one or more transactions as described in this prospectus. Each time that we
or the selling securityholders sell securities, we or the selling securityholders will, to the extent necessary, provide a prospectus
supplement to this prospectus that contains specific information about the securities being sold and the specific terms of such sale.
We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these
transactions. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus
with respect to that transaction. If there is any inconsistency between the information in this prospectus and the 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 the 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. We and 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 the 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, the 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.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements. We intend such forward-looking statements to be covered by the safe harbor provisions
for forward-looking statements contained in Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). All statements other than statements of historical facts contained in this prospectus may
be forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,”
“should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“targets,” “projects,” “contemplates,” “believes,” “estimates,” “forecasts,”
“predicts,” “potential” or “continue” or the negative of these terms or other similar expressions.
Forward-looking statements contained, or incorporated by reference, in this prospectus include, but are not limited to statements regarding
our future results of operations and financial position, anticipated cash requirements, industry and business trends, stock-based compensation,
revenue recognition, business strategy, plans and market growth, and our objectives for future operations, including related to investment
in our technologies and data capabilities, subscriber acquisition strategies, impacts of the dissolution of our gaming business, and
our international operations.
The
forward-looking statements in this prospectus are only predictions. We have based these forward-looking statements largely on our current
expectations and projections about future events and financial trends that we believe may affect our business, financial condition and
results of operations. Forward-looking statements involve known and unknown risks, uncertainties and other important factors that may
cause our actual results, performance or achievements to be materially different from any future results, performance or achievements
expressed or implied by the forward-looking statements, including, but not limited to, the risks factors discussed in 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. These risks are not exhaustive.
Moreover, we operate in a very competitive and rapidly changing environment, and new risks emerge from time to time. It is not possible
for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may
make. In light of these risks, uncertainties, and assumptions, the forward-looking events and circumstances discussed in this prospectus
may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements
and you should not place undue reliance on our forward-looking statements.
The
forward-looking statements in this prospectus are based upon information available to us as of the date of this prospectus, and while
we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements
should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information.
These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You
should read this prospectus and the documents that we reference and have filed as exhibits to this prospectus with the understanding
that our actual future results, performance and achievements may be materially different from what we expect. We qualify all of our forward-looking
statements by these cautionary statements. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking
statements contained in this prospectus, whether as a result of any new information, future events or otherwise.
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. Forms
of the indenture and other documents establishing the terms of the securities offered hereby 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, 2023, filed with the SEC on March 4, 2024. |
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● |
The
information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2022 from
our Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 1, 2023. |
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|
|
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● |
Our
Current Reports on Form
8-K filed with the SEC on January 2, 2024 (excluding Item 7.01) and March 5, 2024 (excluding Item 7.01). |
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|
|
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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
4.8 to our Annual Report on Form 10-K filed with the SEC on March 4, 2024 and any amendment or report filed with the SEC
for the purpose of updating the description. |
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, 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.
1290
avenue of the americas
new
york, ny 10104
(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, cable TV replacement product, offering subscribers access to tens of thousands of live sporting events annually,
alongside leading news and entertainment content, both live and on demand. Our platform, fuboTV, is designed to empower customers to
seamlessly access content through streaming devices and on SmartTVs, mobile phones, tablets, and computers.
We
were incorporated in 2009 as a Florida corporation under the name York Entertainment, Inc., and on August 10, 2020, our name was changed
to fuboTV Inc. FuboTV Media Inc. (f/k/a fuboTV Inc.) was incorporated in 2014 as a Delaware corporation. Our principal executive offices
are located at 1290 Avenue of the Americas, 9th Floor, New York, New York 10104, and our telephone number is (212) 672-0055. Our website
address is at https://fubo.tv. Information contained on, or that can be accessed through, our website is not incorporated by reference
into this Registration Statement, and you should not consider information on our website to be part of this Registration Statement.
RISK
FACTORS
Investment
in any securities offered or sold pursuant to this prospectus and the applicable prospectus supplement, if any, involves risks. Before
deciding whether to invest in our securities, 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 the applicable prospectus supplement, if any, and any applicable free writing prospectus.
The occurrence of any of these risks might cause you to lose all or part of your investment in the securities offered or sold hereby.
There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse
effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends
should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial
condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our securities to decline,
resulting in a loss of all or part of your investment. Please also carefully read the section entitled “Forward-Looking Statements”
included in 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.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement. The selling securityholders
will receive all of the proceeds from the sale, if any, of common stock issuable upon conversion of the Convertible Secured Notes due
2029. We will not receive any proceeds from these sales.
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.”
Our
authorized capital stock consists of:
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● |
800,000,000
shares of common stock, $0.0001 par value; and |
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|
|
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● |
50,000,000
shares of preferred stock, $0.0001 par value. |
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, subject to any restrictions contained in either the Florida Business Corporation
Act (the “FBCA”) or our articles of incorporation, as amended, may declare and pay distributions or share dividends. Dividends
may be paid in cash, in property or in shares of the Corporation’s capital stock.
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
In
connection with the issuance of the Convertible Secured Notes due 2029, we entered into a Registration Rights Agreement, dated January
2, 2024 (the “Registration Rights Agreement”) with the selling securityholders. Pursuant to the Registration Rights Agreement,
certain holders of our common stock are entitled to various rights with respect to the registration for public resale under the Securities
Act of shares of our common stock and the underlying securities held by or issuable to such holders (the “Registrable Securities”).
All of such Registrable Securities as of the date of this prospectus are being registered hereby, and as a result, such holders will
be able to trade these shares without restriction under the Securities Act upon the effectiveness of the Registration Statement. In the
event the selling securityholders acquire additional shares of common stock, or additional holders acquire Convertible Secured Notes
due 2029 convertible into shares of common stock, upon delivery by such selling securityholders or additional holders, as the case may
be, of completed questionnaires relating to any such acquisitions, we may be required to file one or more prospectus supplements to register
such shares and/or to identify such additional holders of Convertible Secured Notes due 2029.
Upon
receipt of a completed questionnaire from any such additional holder, we will, as promptly as practicable but in no event later than
the 15th day after receipt of such completed questionnaire, file any supplements to this prospectus or post-effective amendments to the
registration statement of which this prospectus is a part as may be necessary to permit such holder to be able to sell its common stock
or underlying securities held by such holder, subject to our right to suspend the use of this prospectus in accordance with the Registration
Rights Agreement and provided that we will not be obligated to file more than one such supplement or post-effective amendment in any
three-month period.
The
plan of distribution included this prospectus permits resales of the Registrable Securities by selling securityholders through brokers
and dealers. However, in no event may such resales take the form of an underwritten offering (as the term “underwritten public
offering” is commonly understood, which for clarity does not include a transaction that does not involve the purchase by such broker-dealer
of securities with a view to public resale thereby, but which transaction may be treated similarly to an underwritten public offering
in terms of the procedures to be followed thereby as a matter of law or customary practice) without our prior consent.
We
may, in accordance with the Registration Rights Agreement, suspend the availability of the registration statement of which this prospectus
is a part or the use of this prospectus or any related prospectus supplement during specified periods under certain circumstances relating
to pending corporate developments, filings with the SEC or any other event where the Company, acting in good faith and on the advice
of legal counsel, determines that the failure to publicly disclose material non-public information regarding such development, filing
or other event would cause the prospectus, as of its date, to contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading
and the Company has a bona fide business purpose for keeping such information confidential. We will provide a suspension notice to selling
securityholders in connection with each such suspension. Each selling securityholder has agreed, subject to certain exceptions, to hold
each such suspension notice, if any, that we deliver in confidence. No single suspension period can extend beyond 90 calendar days, and
the total number of calendar days in all suspension periods may not exceed an aggregate of 180 calendar days in any period of twelve
full calendar months.
Exclusive
Forum
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, 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. Our bylaws provide that, unless the Company consents in writing to the selection of an alternative forum, a state
court located within the State of Florida (or, if no state court located within the State of Florida has jurisdiction, a federal district
court in Florida) shall, to the fullest extent permitted by law, be the sole and exclusive forum for the following actions: (i) any derivative
action, suit or proceeding brought on behalf of the Company; (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary
duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders; (iii) any action,
suit or proceeding arising pursuant to any provision of the FBCA or the Company’s articles of incorporation or bylaws; and (iv)
any action asserting a claim against the Company or any director, officer or other employee of the Company governed by the internal affairs
doctrine, and further provides that the U.S. federal district courts shall be the exclusive forum for the resolution of any complaint
asserting a cause or causes of action arising under the Securities Act of 1933, as amended, including all causes of action asserted against
any defendant to such complaint.
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:
| 1. |
One hundred
or more shareholders; |
| 2. |
Its principal
place of business, its principal office, or substantial assets within Florida; and |
| 3. |
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. |
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
●
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
●
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.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus,
summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell
a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will
also indicate in the supplement to what extent the general terms and provisions described in this prospectus apply to a particular series
of debt securities.
We
may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities
described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise
specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one
or more series.
The
debt securities will be issued under an indenture between us and a trustee named in a prospectus supplement. We have summarized select
portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement and you should read the indenture for provisions that may be important to you. In the summary below, we have included references
to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not
defined herein have the meanings specified in the indenture.
As
used in this section only, “fuboTV,” “we,” “our” or “us” refer to fuboTV Inc. excluding
our subsidiaries, unless expressly stated or the context otherwise requires.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture.
(Section 2.2) The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series
(including any pricing supplement or term sheet).
We
can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities,
at par, at a premium, or at a discount. (Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement
or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the
debt securities, if applicable:
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the
title and ranking of the debt securities (including the terms of any subordination provisions); |
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the
price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
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any
limit on the aggregate principal amount of the debt securities; |
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the
date or dates on which the principal of the securities of the series is payable; |
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the
rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from
which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the
interest payable on any interest payment date; |
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the
place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to
us in respect of the debt securities may be delivered; |
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the
period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any
obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions
upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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the
dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
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the
denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether
the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the
portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the
principal amount; |
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the
currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the
designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities
will be made; |
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if
payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other
than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments
will be determined; |
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the
manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
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any
provisions relating to any security provided for the debt securities; |
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any
addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the
debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the
debt securities; |
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any
addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any
depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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the
provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion
or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment
of the conversion or exchange price and provisions affecting conversion or exchange; |
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any
other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series,
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the
securities; and |
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whether
any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination,
if any, of such guarantees. (Section 2.2) |
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units,
or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or
a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific
terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
Transfer
and Exchange
Each
debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or
the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry
debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated
security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under
the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated
form.
Certificated
Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with
the terms of the indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities,
but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or
exchange. (Section 2.7)
You
may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated
debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the
trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global
Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on
behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We
will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities. (Article
IV)
No
Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders
of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation,
Merger and Sale of Assets
We
may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to
any person (a “successor person”) unless:
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we
are the surviving entity or the successor person (if other than fuboTV) is a corporation, partnership, trust or other entity organized
and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture; and |
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immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. |
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events
of Default
“Event
of Default” means with respect to any series of debt securities, any of the following:
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default
in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default
for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
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default
in the payment of principal of any security of that series at its maturity; |
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default
in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has
been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice from the trustee or fuboTV and the trustee receive written notice
from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain
voluntary or involuntary events of bankruptcy, insolvency or reorganization of fuboTV; |
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any
other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement.
(Section 6.1) |
No
Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain
Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our
subsidiaries outstanding from time to time.
We
will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such
Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what
action we are taking or propose to take in respect thereof. (Section 6.1)
If
an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee
or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing
to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued
and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events
of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on
all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the
trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities
of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders
of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events
of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating to any series
of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an Event of Default.
The
indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless
the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing
such duty or exercising such right or power. (Section 7.1(e)) Subject to certain rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the
debt securities of that series. (Section 6.12)
No
holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the
indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
| ● | that
holder has previously given to the trustee written notice of a continuing Event of Default
with respect to debt securities of that series; and |
| ● | the
holders of not less than 25% in principal amount of the outstanding debt securities of that
series have made written request, and offered indemnity or security satisfactory to the trustee,
to the trustee to institute the proceeding as trustee, and the trustee has not received from
the holders of not less than a majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and has failed to institute the
proceeding within 60 days. (Section 6.7) |
Notwithstanding
any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to
institute suit for the enforcement of payment. (Section 6.8)
The
indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. (Section 4.3) If a Default or Event of Default occurs and is continuing with respect to the securities of any series and
if it is known to a responsible officer of the trustee, the trustee shall mail to each Securityholder of the securities of that series
notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge
of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of
any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities
of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
(Section 7.5)
Modification
and Waiver
We
and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder
of any debt security:
| ● | to
cure any ambiguity, defect or inconsistency; |
| ● | to
comply with covenants in the indenture described above under the heading “Consolidation,
Merger and Sale of Assets”; |
| ● | to
provide for uncertificated securities in addition to or in place of certificated securities; |
| ● | to
add guarantees with respect to debt securities of any series or secure debt securities of
any series; |
| ● | to
surrender any of our rights or powers under the indenture; |
| ● | to
add covenants or events of default for the benefit of the holders of debt securities of any
series; |
| ● | to
comply with the applicable procedures of the applicable depositary; |
| ● | to
make any change that does not adversely affect the rights of any holder of debt securities; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of debt securities
of any series as permitted by the indenture; |
| ● | to
effect the appointment of a successor trustee with respect to the debt securities of any
series and to add to or change any of the provisions of the indenture to provide for or facilitate
administration by more than one trustee; or |
| ● | to
comply with requirements of the SEC in order to effect or maintain the qualification of the
indenture under the Trust Indenture Act. (Section 9.1) |
We
may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding
debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the
consent of the holders of each affected debt security then outstanding if that amendment will:
| ● | reduce
the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| ● | reduce
the rate of or extend the time for payment of interest (including default interest) on any
debt security; |
| ● | reduce
the principal of or premium on or change the fixed maturity of any debt security or reduce
the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation with respect to any series of debt securities; |
| ● | reduce
the principal amount of discount securities payable upon acceleration of maturity; |
| ● | waive
a default in the payment of the principal of, premium or interest on any debt security (except
a rescission of acceleration of the debt securities of any series by the holders of at least
a majority in aggregate principal amount of the then outstanding debt securities of that
series and a waiver of the payment default that resulted from such acceleration); |
| ● | make
the principal of or premium or interest on any debt security payable in currency other than
that stated in the debt security; |
| ● | make
any change to certain provisions of the indenture relating to, among other things, the right
of holders of debt securities to receive payment of the principal of, premium and interest
on those debt securities and to institute suit for the enforcement of any such payment and
to waivers or amendments; or |
| ● | waive
a redemption payment with respect to any debt security. (Section 9.3) |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2)
The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the
debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a
default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the acceleration. (Section 6.13)
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may
be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be
so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused
to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or
U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants
or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments
in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture
and those debt securities.
This
discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and
discharge had not occurred. (Section 8.3)
Defeasance
of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities,
upon compliance with certain conditions:
| ● | we
may omit to comply with the covenant described under the heading “Consolidation, Merger
and Sale of Assets” and certain other covenants set forth in the indenture, as well
as any additional covenants which may be set forth in the applicable prospectus supplement;
and |
| ● | any
omission to comply with those covenants will not constitute a Default or an Event of Default
with respect to the debt securities of that series (“covenant defeasance”). |
The
conditions include:
| ● | depositing
with the trustee money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. Dollars, government obligations of the government
that issued or caused to be issued such currency, that, through the payment of interest and
principal in accordance with their terms, will provide● money in an amount sufficient
in the opinion of a nationally recognized firm of independent public accountants or investment
bank to pay and discharge each installment of principal of, premium and interest on and any
mandatory sinking fund payments in respect of the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the indenture and those debt securities;
and |
| ● | delivering
to the trustee an opinion of counsel to the effect that the holders of the debt securities
of that series will not recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit and related covenant defeasance and will be subject to
United States federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit and related covenant defeasance had not
occurred. (Section 8.4) |
No
Personal Liability of Directors, Officers, Employees or Securityholders
None
of our past, present or future directors, officers, employees or securityholders, as such, will have any liability for any of our obligations
under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation.
By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration
for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities
laws, and it is the view of the SEC that such a waiver is against public policy.
Governing
Law
The
indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities,
will be governed by the laws of the State of New York.
The
indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to the indenture, the debt securities or the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated
thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the
State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance
of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The
indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable
statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit,
action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the
debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue
of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead
or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section 10.10).
DESCRIPTION
OF OTHER SECURITIES
We
will set forth in the applicable prospectus supplement a description of any warrants, purchase contracts or units issued by us that may
be offered and sold pursuant to this prospectus.
GLOBAL
SECURITIES
Book-Entry,
Delivery and Form
Unless
we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in
book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities
will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the
name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under
the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee
or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC
has advised us that it is:
| ● | a
limited-purpose trust company organized under the New York Banking Law; |
| ● | a
“banking organization” within the meaning of the New York Banking Law; |
| ● | a
member of the Federal Reserve System; |
| ● | a
“clearing corporation” within the meaning of the New York Uniform Commercial
Code; and |
| ● | a
“clearing agency” registered pursuant to the provisions of Section 17A of the
Exchange Act. |
DTC
holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants” accounts,
thereby eliminating the need for physical movement of securities certificates. “Direct participants’ in DTC include securities
brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing
Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear
through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and
its participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on
DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner,
is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written
confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details
of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they
purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants
acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the
global securities, except under the limited circumstances described below.
To
facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s
partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities
with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities.
DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants
to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping
account of their holdings on behalf of their customers.
So
long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the
depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus
supplement for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to
us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance
of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants
and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect
from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is
to determine by lot the amount of the interest of each direct participant in the securities of such series to be
redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC
will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights
of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified
in a listing attached to the omnibus proxy.
So
long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered
owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under
the limited circumstances described below and unless if otherwise provided in the description of the applicable securities herein or
in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled
to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated
party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory
to the applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt
of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records.
Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility
of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption
proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments
to the beneficial owners is the responsibility of direct and indirect participants.
Except
under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their
names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and
its participants to exercise any rights under the securities and the indenture.
The
laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those
laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC
may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice
to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be
printed and delivered.
As
noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership
interests in those securities. However, if:
| ● | DTC
notifies us that it is unwilling or unable to continue as a depositary for the global security
or securities representing such series of securities or if DTC ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to be registered and a successor
depositary is not appointed within 90 days of the notification to us or of our becoming aware
of DTC’s ceasing to be so registered, as the case may be; |
| ● | we
determine, in our sole discretion, not to have such securities represented by one or more
global securities; or |
| ● | an
Event of Default has occurred and is continuing with respect to such series of securities, |
we
will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial
interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for
securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions
will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the
global securities.
Euroclear
and Clearstream
If
so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A., which
we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,”
either directly if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream
or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’ securities
accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will
hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s books.
Clearstream
and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating
organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry
changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear
or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream,
on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any
beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems
may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market
transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected
through DTC in accordance with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S.
depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case
may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European
time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver
instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the
global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants
in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due
to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security
from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or
Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately
following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security
by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement
date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or
Clearstream following DTC’s settlement date.
Other
The
information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been
obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been
provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control
of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control
over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear
or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear
will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such
procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance
by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective
operations.
SELLING
SECURITYHOLDERS
We
issued the Convertible Secured Notes due 2029 on January 2, 2024 in a private placement pursuant to Section 4(a)(2) of the Securities
Act pursuant to the terms of the Exchange Agreement. We have the right to elect to settle conversions of the Convertible Secured Notes
due 2029 by paying or delivering, as applicable, cash, shares of our common stock or a combination of cash and shares of our common stock;
provided that we are not permitted to settle conversions with shares of our common stock in excess of the amount permitted by applicable
rules of the New York Stock Exchange. If the Convertible Secured Notes due 2029 are converted fully into shares of our common stock,
they will be converted into an aggregate of up to 86,667,030 shares of our common stock, which amount represents the maximum number of
shares issuable upon conversion of the Convertible Secured Notes due 2029 and assumes (x) the Requisite Stockholder Approval (as defined
in the indenture governing the Convertible Secured Notes due 2029) is obtained and (y) all future interest payments on the Convertible
Secured Notes due 2029 are paid in-kind. If either of these assumptions is not true, or if the
number of shares of common stock issuable upon conversion of the Convertible
Secured Notes due 2029 is adjusted
under the circumstances described in the indenture governing such notes, the number of shares of common stock issuable upon conversion
and the number of shares of common stock beneficially owned and sold by the selling securityholders pursuant to this prospectus may change
from that set forth in the table below.
In
the event the selling securityholders acquire additional shares of common stock, or additional holders acquire Convertible Secured Notes
due 2029 convertible into shares of common stock, upon delivery by such selling securityholders or additional holders, as the case may
be, of completed questionnaires relating to any such acquisitions, we may be required to file one or more prospectus supplements to register
such shares and/or to identify such additional holders of Convertible Secured Notes due 2029.
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 sell all, some or none of our common stock, and our registration of
the shares of common stock issuable upon conversion of the Convertible Secured Notes due 2029 does not necessarily mean that any selling
securityholder will sell all or any of such 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 underlying securities subject to resale pursuant to this prospectus as determined in accordance with Rule 13d-3 under the
Exchange Act and are based on 299,502,862 shares of our common stock outstanding as of February 29, 2024 and assumes conversion of all
of the Convertible Secured Notes due 2029 into 86,667,030 shares of our common stock.
| | |
Amount and Nature of Beneficial Ownership | |
| | |
Immediately Prior to this Prospectus | | |
Number of Shares of Common Stock Issuable Upon Conversion of Convertible Secured Notes due 2029 and Subject to Resale Pursuant | | |
Immediately After Resale of All Shares Subject to Resale Pursuant to this Prospectus* | |
| Selling
Securityholders | |
Shares
Owned | | |
Percentage | | |
to
this Prospectus(2)(3) | | |
Shares
Owned (2)(3) | | |
Percentage(2)(3) | |
| Mudrick Capital Management, L.P.(1) | |
| - | | |
| - | | |
| 86,667,030 | | |
| - | | |
| 0.0 | % |
|
* |
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 the sale of all of the common
stock subject to resale pursuant to this prospectus by the selling securityholders, none of the selling securityholders will hold
one percent or more of our common stock.
|
| (1)
|
The
shares of common stock issuable upon conversion of the Convertible Secured Notes due 2029 are held by Mudrick Distressed Opportunity
Fund Global, L.P., Boston Patriot Batterymarch ST LLC, Mudrick Distressed Opportunity Drawdown Fund II, L.P., Blackwell Partners
LLC - Series A, Mudrick CAV Master, LP, Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P., Mudrick Distressed Opportunity
SIF Master Fund, L.P. and Mudrick Distressed Opportunity Drawdown Fund II SC, L.P. The principal business address for each selling
securityholder is c/o Mudrick Capital Management, LP, 527 Madison Avenue, 6th Floor New York, NY 10022. Jason Mudrick is the founder,
general partner and Chief Investment Officer of Mudrick Capital Management, L.P. Mr. Mudrick, through Mudrick Capital Management,
L.P., is responsible for the voting and investment decisions relating to such shares of common stock. |
(2) |
The
selling securityholders have not informed us, and we do not know, when or in what amounts the selling securityholders may sell the
shares of common stock or underlying securities owned by the selling securityholders. |
(3) |
For
purposes of this table, we have assumed a conversion rate of 260.6474 shares of common stock
for each $1,000 in principal amount of the Convertible Secured Notes due 2029;
however, this conversion rate is subject to adjustment upon the occurrence of certain specified events as set forth in the indenture
governing the Convertible Secured Notes due 2029. In addition, we have assumed that
all conversions of the Convertible Secured Notes due 2029 are settled in shares of our common stock, and that all future interest
payments on the Convertible Secured Notes due 2029 are paid in-kind. If any of the foregoing
assumptions is not true, the number of shares of common stock issuable upon conversion of the Convertible Secured Notes due 2029
may decrease. |
Except
for the transactions referred to herein and in documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act (including the entry into the Exchange Agreement and the Registration Rights Agreement), the selling securityholders do
not have, and within the last three years has not had, any position, office or other material relationship (legal or otherwise) with
us or any of our subsidiaries other than as a holder of our securities.
PLAN
OF DISTRIBUTION
We
or any of the selling securityholders may sell shares
of common stock from time to time:
| ● | through
underwriters, dealers and agents who may receive compensation in the form of underwriting
discounts, concessions or commissions from the selling securityholders and/or the purchasers
of the shares of common stock for whom they may act as agent; provided that in no event shall
any resales by the selling securityholders take the form of an underwritten offering (as
the term “underwritten public offering” is commonly understood, which for clarity
does not include a transaction that does not involve the purchase by such broker-dealer of
securities with a view to public resale thereby, but which transaction may be treated similarly
to an underwritten public offering in terms of the procedures to be followed thereby as a
matter of law or customary practice) without our prior consent; |
| ● | directly
to one or more purchasers; |
| ● | through
an electronic communication network, a “dark pool” or any similar market venue; |
| ● | through
privately negotiated transactions; |
| ● | through
ordinary brokerage transactions or transactions in which a broker solicits purchases; |
| ● | through
one or more block transactions; |
| ● | through
the writing of options; or |
| ● | through
a combination of any of these methods of sale. |
We
will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation
in the applicable prospectus supplement, if and when necessary.
LEGAL
MATTERS
Latham
& Watkins LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of
fuboTV Inc. 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 Holland & Knight LLP. 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 the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of fuboTV Inc. as of December 31, 2023 and 2022, and for each of the years in the
three-year period ended December 31, 2023, and management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2023, 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.
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 | |
$ | (1) | |
| Printing expenses | |
$ | (1) (2) | |
| Legal fees and expenses | |
$ | (1) (2) | |
| Accounting fees and expenses | |
$ | (1) (2) | |
| Transfer agent fees and expenses | |
$ | (1) (2) | |
| Trustee fees and expenses | |
$ | (1) (2) | |
| Miscellaneous | |
$ | (1)
(2) | |
| Total | |
$ | (1)
(2) | |
| (1) | Pursuant
to Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, or the Securities
Act, the SEC registration fee will be paid at the time of any particular offering of securities
under the registration statement, and is therefore not currently determinable. |
| (2) | 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 to take or not to take action, or any failure to take any action
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 any of the following: (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 circumstance under
which the transaction at issue is one 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 intentional 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, except as otherwise provided in Section 607.0859 (as described below), and not in limitation of indemnification
allowed under Section 607.0858 of the FBCA (regarding variation by corporate action), a corporation may indemnify an individual who is
a party to any proceeding because the individual is or was a director or officer of the corporation against liability incurred in the
proceeding 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 and hold harmless, to the fullest extent permitted by the FBCA and any other applicable
law, in each case, as it presently exists or may hereafter be amended, any director or officer of the Company who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative,
is or was a director or officer of the Company or, while serving as a director or officer of the Company, is or was serving at the Company’s
request as a director, officer, employee or agent of another corporation or of a partnership (a “covered person”), joint
venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and
loss suffered and expenses (including attorneys’ fees, judgments, fines ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise
provided in our bylaws, the Company shall be required to indemnify a person in connection with a Proceeding initiated by such person
only if the Proceeding was authorized in the specific case by the Board.
Our
bylaws also provide that the Company shall have the power to indemnify and hold harmless, to the fullest extent permitted by the FBCA
and any other applicable law, in each case, as it presently exists or may hereafter be amended, any employee or agent of the Company
who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she,
or a person for whom he or she is the legal representative, is or was an employee or agent of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another corporation or of a limited liability company, partnership,
joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability
and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
The
bylaws further provide that the Company shall, to the fullest extent not prohibited by the FBCA or any other applicable law, in each
case, as it presently exists or may hereafter be amended, pay the expenses (including attorneys’ fees) incurred by any covered
person, and may pay the expenses incurred by any employee or agent of the Company, in defending any Proceeding in advance of its final
disposition; provided, however, that such payment of expenses in advance of the final disposition of the Proceeding shall be made only
upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not
entitled to be indemnified under the bylaws or otherwise. The indemnification and advancement of expenses provided pursuant to the bylaws
are not exclusive of any other rights that a covered person may have or hereafter acquire under any statute, provision of our articles
of incorporation, the bylaws, agreement, vote of shareholders or disinterested directors or otherwise. Indemnification and advancement
of expenses as provided in the bylaws shall continue notwithstanding that the person has ceased to be a director or officer of the Company
and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
The
Company’s obligation under the bylaws, if any, to indemnify or advance expenses to any person who was or is serving at its request
as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust, enterprise
or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other
corporation, limited liability company, partnership, joint venture, trust, enterprise or non-profit enterprise.
Under
the bylaws, the Company may 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 Corporation’s request as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust enterprise or non-profit entity, against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Company would
have the power to indemnify him or her against such liability under the provisions of the FBCA or any other applicable law. 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.
Exhibit
Number |
|
Description |
| |
|
| 1.1* |
|
Form
of Underwriting Agreement. |
| |
|
| 3.1(a) |
|
Articles of Incorporation dated February 20, 2009 (incorporated by reference to the Company’s 10-K). |
| |
|
| 3.1(b) |
|
Articles of Amendment to Articles of Incorporation dated October 5, 2010 (incorporated by reference to the Company’s 10-K). |
| |
|
| 3.1(c) |
|
Articles of Amendment to Articles of Incorporation dated December 31, 2014 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 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). |
| |
|
|
| 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). |
| |
|
|
| 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). |
| |
|
|
| 3.1(p) |
|
Articles of Amendment to Articles of Incorporation dated May 11, 2017 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(q) |
|
Articles of Amendment to Articles of Incorporation dated February 12, 2018 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(r) |
|
Articles of Amendment to Articles of Incorporation dated January 29, 2019 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(s) |
|
Articles of Amendment to Articles of Incorporation dated July 12, 2019 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(t) |
|
Articles of Amendment to Articles of Incorporation dated August 10, 2020 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(u) |
|
Articles of Amendment to Articles of Incorporation dated September 29, 2020 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(v) |
|
Articles of Amendment to Articles of Incorporation dated June 9, 2022 (incorporated by reference to the Company’s 10-K). |
| |
|
|
| 3.1(w) |
|
Articles of Amendment to Articles of Incorporation dated June 15, 2023 (incorporated by reference to the Company’s 10-Q). |
| |
|
|
| 3.2(a) |
|
Amended and Restated Bylaws of the registrant dated March 1, 2022 (incorporated by reference to the Company’s 8-K). |
| |
|
|
| 4.1 |
|
Form of Common Stock Certificate (incorporated by reference to the Company’s 10-K). |
| |
|
| 4.2 |
|
Form of Indenture. |
| |
|
| 4.3* |
|
Form
of Note. |
| |
|
| 4.4* |
|
Form
of Warrant. |
| |
|
| 4.5* |
|
Form
of Warrant Agreement. |
| |
|
| 4.6* |
|
Form
of Purchase Contract Agreement. |
| |
|
| 4.7* |
|
Form
of Unit Agreement. |
| |
|
|
| 4.8 |
|
Indenture, dated as of January 2, 2024, among fuboTV Inc., the Guarantors and U.S. Bank Trust Company, National Association, as trustee and collateral agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-39590) filed with the SEC on January 2, 2024). |
| |
|
|
| 4.9 |
|
Form of certificate representing the Convertible Senior Secured Notes due 2029 (incorporated by reference to Exhibit A to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-39590) filed with the SEC on January 2, 2024). |
| 4.10 |
|
Exchange Agreement, dated as of December 29, 2023, between fuboTV Inc. and certain affiliates and related funds of Mudrick Capital Management, L.P. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-39590) filed with the SEC on January 2, 2024).
|
| 4.11 |
|
Registration Rights Agreement, dated as of January 2, 2024, between fuboTV Inc. and certain affiliates and related funds of Mudrick Capital Management, L.P. (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K (File No. 001-39590) filed with the SEC on January 2, 2024). |
| |
|
| 5.1 |
|
Opinion of Holland & Knight LLP. |
| |
|
| 5.2 |
|
Opinion of Latham & Watkins LLP. |
| |
|
|
| 23.1 |
|
Consent of Holland & Knight LLP (included in Exhibit 5.1). |
| |
|
|
| 23.2 |
|
Consent of Latham & Watkins LLP (included in Exhibit 5.2). |
| |
|
|
| 23.3 |
|
Consent of KPMG LLP, independent registered public accounting firm. |
| |
|
| 24.1 |
|
Powers of Attorney (incorporated by reference to the signature page hereto). |
| |
|
| 25.1 |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.2 above. |
| |
|
|
| 107.1 |
|
Filing Fee Table. |
|
* |
To
be filed by amendment or incorporated by reference in connection with the offering of the securities. |
(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; 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 March 5, 2024.
| |
FUBOTV INC. |
| |
|
|
| |
By: |
/s/
David Gandler |
| |
|
David Gandler |
| |
|
Chief Executive Officer
(Principal Executive Officer) |
POWER
OF ATTORNEY
Each
of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Gina Sheldon and John Janedis,
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 |
|
TITLE |
|
DATE |
| |
|
|
|
|
|
/s/ David Gandler
David Gandler |
|
Chief Executive Officer and Director (principal executive officer) |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ John Janedis
John Janedis |
|
Chief Financial Officer (principal financial officer and principal accounting officer) |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Edgar Bronfman, Jr.
Edgar Bronfman, Jr. |
|
Executive Chairman and Director |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Daniel Leff
Daniel Leff |
|
Director |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Neil Glat
Neil Glat |
|
Director |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Ignacio Figueras
Ignacio Figueras |
|
Director |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Julie Haddon
Julie Haddon |
|
Director |
|
March 5, 2024 |
| |
|
|
|
|
|
/s/ Laura Onopchenko
Laura Onopchenko |
|
Director |
|
March 5, 2024 |
Exhibit
4.2
FUBOTV
INC.
INDENTURE
Dated
as of ___________, 20___
U.S.
Bank Trust Company, National Association
Trustee
TABLE
OF CONTENTS
| |
|
Page |
| |
|
|
| ARTICLE
I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section
1.1. |
Definitions. |
1 |
| Section
1.2. |
Other
Definitions. |
4 |
| Section
1.3. |
Incorporation
by Reference of Trust Indenture Act. |
4 |
| Section
1.4. |
Rules
of Construction. |
5 |
| |
|
|
| ARTICLE
II. THE SECURITIES |
5 |
| Section
2.1. |
Issuable
in Series. |
5 |
| Section
2.2. |
Establishment
of Terms of Series of Securities. |
6 |
| Section
2.3. |
Execution
and Authentication. |
8 |
| Section
2.4. |
Registrar,
Paying Agent and Notice Agent. |
9 |
| Section
2.5. |
Paying
Agent to Hold Money in Trust. |
10 |
| Section
2.6. |
Holder
Lists. |
10 |
| Section
2.7. |
Transfer
and Exchange. |
10 |
| Section
2.8. |
Mutilated,
Destroyed, Lost and Stolen Securities. |
11 |
| Section
2.9. |
Outstanding
Securities. |
12 |
| Section
2.10. |
Treasury
Securities. |
12 |
| Section
2.11. |
Temporary
Securities. |
12 |
| Section
2.12. |
Cancellation. |
13 |
| Section
2.13. |
Defaulted
Interest. |
13 |
| Section
2.14. |
Global
Securities. |
13 |
| Section
2.15. |
CUSIP
Numbers. |
15 |
| |
|
|
| ARTICLE
III. REDEMPTION |
15 |
| Section
3.1. |
Notice
to Trustee. |
15 |
| Section
3.2. |
Selection
of Securities to be Redeemed. |
16 |
| Section
3.3. |
Notice
of Redemption. |
16 |
| Section
3.4. |
Effect
of Notice of Redemption. |
17 |
| Section
3.5. |
Deposit
of Redemption Price. |
17 |
| Section
3.6. |
Securities
Redeemed in Part. |
17 |
| |
|
|
| ARTICLE
IV. COVENANTS |
17 |
| Section
4.1. |
Payment
of Principal and Interest. |
17 |
| Section
4.2. |
SEC
Reports. |
18 |
| Section
4.3. |
Compliance
Certificate. |
18 |
| Section
4.4. |
Stay,
Extension and Usury Laws. |
18 |
| |
|
|
| ARTICLE
V. SUCCESSORS |
19 |
| Section
5.1. |
When
Company May Merge, Etc. |
19 |
| Section
5.2. |
Successor
Corporation Substituted. |
19 |
| |
|
|
| ARTICLE
VI. DEFAULTS AND REMEDIES |
20 |
| Section
6.1. |
Events
of Default. |
20 |
| Section
6.2. |
Acceleration
of Maturity; Rescission and Annulment. |
21 |
| Section
6.3. |
Collection
of Indebtedness and Suits for Enforcement by Trustee. |
21 |
| Section
6.4. |
Trustee
May File Proofs of Claim. |
22 |
| Section
6.5. |
Trustee
May Enforce Claims Without Possession of Securities. |
23 |
| Section
6.6. |
Application
of Money Collected. |
23 |
| Section
6.7. |
Limitation
on Suits. |
23 |
| Section
6.8. |
Unconditional
Right of Holders to Receive Principal and Interest. |
24 |
| Section
6.9. |
Restoration
of Rights and Remedies. |
24 |
| Section
6.10. |
Rights
and Remedies Cumulative. |
24 |
| Section
6.11. |
Delay
or Omission Not Waiver. |
25 |
| Section
6.12. |
Control
by Holders. |
25 |
| Section
6.13. |
Waiver
of Past Defaults. |
25 |
| Section
6.14. |
Undertaking
for Costs. |
26 |
| |
|
|
| ARTICLE
VII. TRUSTEE |
26 |
| Section
7.1. |
Duties
of Trustee. |
26 |
| Section
7.2. |
Rights
of Trustee. |
27 |
| Section
7.3. |
Individual
Rights of Trustee. |
28 |
| Section
7.4. |
Trustee’s
Disclaimer. |
29 |
| Section
7.5. |
Notice
of Defaults. |
29 |
| Section
7.6. |
Reports
by Trustee to Holders. |
29 |
| Section
7.7. |
Compensation
and Indemnity. |
29 |
| Section
7.8. |
Replacement
of Trustee. |
30 |
| Section
7.9. |
Successor
Trustee by Merger, Etc. |
31 |
| Section
7.10. |
Eligibility;
Disqualification. |
31 |
| Section
7.11. |
Preferential
Collection of Claims Against Company. |
31 |
| |
|
|
| ARTICLE
VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
32 |
| Section
8.1. |
Satisfaction
and Discharge of Indenture. |
32 |
| Section
8.2. |
Application
of Trust Funds; Indemnification. |
33 |
| Section
8.3. |
Legal
Defeasance of Securities of any Series. |
33 |
| Section
8.4. |
Covenant
Defeasance. |
35 |
| Section
8.5. |
Repayment
to Company. |
36 |
| Section
8.6. |
Reinstatement. |
36 |
| |
|
|
| ARTICLE
IX. AMENDMENTS AND WAIVERS |
36 |
| Section
9.1. |
Without
Consent of Holders. |
36 |
| Section
9.2. |
With
Consent of Holders. |
37 |
| Section
9.3. |
Limitations. |
38 |
| Section
9.4. |
Compliance
with Trust Indenture Act. |
38 |
| Section
9.5. |
Revocation
and Effect of Consents. |
38 |
| Section
9.6. |
Notation
on or Exchange of Securities. |
39 |
| Section
9.7. |
Trustee
Protected. |
39 |
| |
|
|
| ARTICLE
X. MISCELLANEOUS |
39 |
| Section
10.1. |
Trust
Indenture Act Controls. |
39 |
| Section
10.2. |
Notices. |
39 |
| Section
10.3. |
Communication
by Holders with Other Holders. |
41 |
| Section
10.4. |
Certificate
and Opinion as to Conditions Precedent. |
41 |
| Section
10.5. |
Statements
Required in Certificate or Opinion. |
41 |
| Section
10.6. |
Rules
by Trustee and Agents. |
42 |
| Section
10.7. |
Legal
Holidays. |
42 |
| Section
10.8. |
No
Recourse Against Others. |
42 |
| Section
10.9. |
Counterparts. |
42 |
| Section
10.10. |
Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction. |
43 |
| Section
10.11. |
No
Adverse Interpretation of Other Agreements. |
43 |
| Section
10.12. |
Successors. |
43 |
| Section
10.13. |
Severability. |
44 |
| Section
10.14. |
Table
of Contents, Headings, Etc. |
44 |
| Section
10.15. |
Securities
in a Foreign Currency. |
44 |
| Section
10.16. |
Judgment
Currency. |
44 |
| Section
10.17. |
Force
Majeure. |
45 |
| Section
10.18. |
U.S.A.
Patriot Act. |
45 |
| |
|
|
| ARTICLE
XI. SINKING FUNDS |
45 |
| Section
11.1. |
Applicability
of Article. |
45 |
| Section
11.2. |
Satisfaction
of Sinking Fund Payments with Securities. |
46 |
| Section
11.3. |
Redemption
of Securities for Sinking Fund. |
46 |
FUBOTV
INC.
Reconciliation
and tie between Trust Indenture Act of 1939 and
Indenture, dated as of ____________, 20__
| §
310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not
Applicable |
| (a)(4) |
|
Not
Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| §
311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not
Applicable |
| §
312(a) |
|
2.6 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| §
313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| §
314(a) |
|
4.2,
10.5 |
| (b) |
|
Not
Applicable |
| (c)(1) |
|
10.4 |
| (c)(2) |
|
10.4 |
| (c)(3) |
|
Not
Applicable |
| (d) |
|
Not
Applicable |
| (e) |
|
10.5 |
| (f) |
|
Not
Applicable |
| §
315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| §
316(a) |
|
2.10 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| §
317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.5 |
| §
318(a) |
|
10.1 |
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
Indenture
dated as of __________, 20__ between FUBOTV INC., a company incorporated under the laws of Florida (“Company”), and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association (“Trustee”).
Each
party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued
under this Indenture.
ARTICLE
I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section
1.1. Definitions.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such
specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Notice Agent.
“Board
of Directors” means the board of directors of the Company or any duly authorized committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted
by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
“Business
Day” means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection with any
payment, the place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital
Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company
Order” means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time its corporate trust business related to this
Indenture shall be principally administered.
“Default”
means any event which is, or after notice, passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount
Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign
Government Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct
obligations of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which
obligations its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect as of the date of determination.
“Global
Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established
pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and
registered in the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary and any Vice President of the Company.
“Officer’s
Certificate” means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion
of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company. The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, the Security.
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated and
delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated
Maturity” when used with respect to any Security, means the date specified in such Security as the fixed date on which the
principal of such Security or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power
of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person
who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S.
Government Obligations” means securities which are direct obligations of, or guaranteed by, the United States of America for
the payment of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof
and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depositary receipt.
Section
1.2. Other Definitions.
| TERM |
|
DEFINED
IN SECTION |
| |
|
|
| “Agent
Member” |
|
2.14.6 |
| “Bankruptcy
Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Event
of Default” |
|
6.1 |
| “Judgment
Currency” |
|
10.16 |
| “mandatory
sinking fund payment” |
|
11.1 |
| “New
York Banking Day” |
|
10.16 |
| “Notice
Agent” |
|
2.4 |
| “optional
sinking fund payment” |
|
11.1 |
| “Paying
Agent” |
|
2.4 |
| “Registrar” |
|
2.4 |
| “Required
Currency” |
|
10.16 |
| “Specified
Courts” |
|
10.10 |
| “successor
person” |
|
5.1 |
Section
1.3. Incorporation by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All
other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section
1.4. Rules of Construction.
Unless
the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions;
(f) in the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including,” and the words “to” and “until” each mean “to
but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
ARTICLE
II.
THE SECURITIES
Section
2.1. Issuable in Series.
The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may
be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner
provided in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof
pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board
Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted
under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that
all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section
2.2. Establishment of Terms of Series of Securities.
At
or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case
of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2
through 2.2.23) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental
indenture hereto or Officer’s Certificate:
2.2.1. the title (which shall distinguish the Securities of that particular Series from the Securities
of any other Series) and ranking (including the terms of any subordination provisions) of the Series;
2.2.2. the price or prices (expressed as a percentage of the principal amount thereof) at which the
Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial
index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue,
the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable
on any interest payment date;
2.2.6. the place or places where the principal of and interest, if any, on the Securities of the Series
shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered, and the method of such
payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price or prices at which and the terms
and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant
to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices at which the Securities of the Series will
be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which the Securities of the Series shall be issuable;
2.2.11. the forms of the Securities of the Series and whether the Securities will be issuable as Global
Securities;
2.2.12. if other than the principal amount thereof, the portion of the principal amount of the Securities
of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign
Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing
such composite currency;
2.2.14. the designation of the currency, currencies or currency units in which payment of the principal
of and interest, if any, on the Securities of the Series will be made;
2.2.15. if payments of principal of or interest, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which
the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of or interest, if any, on the Securities
of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by
reference to a commodity, commodity index, stock exchange index or financial index;
2.2.17. the provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any addition to, deletion of or change in the Events of Default which applies to any Securities
of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to, deletion of or change in the covenants applicable to Securities of the Series;
2.2.20. any Depositaries, interest rate calculation agents, exchange rate calculation agents or other
agents with respect to Securities of such Series if other than those appointed herein;
2.2.21. the provisions, if any, relating to conversion or exchange of any Securities of such Series,
including if applicable, the conversion or exchange price, the conversion or exchange period, provisions as to whether conversion or
exchange will be mandatory, at the option of the Holders thereof or at the option of the Company, the events requiring an adjustment
of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed;
2.2.22. any other terms of the Series (which may supplement, modify or delete any provision of this
Indenture insofar as it applies to such Series), including any terms that may be required under applicable law or regulations or advisable
in connection with the marketing of Securities of that Series; and
2.2.23. whether any of the Company’s direct or indirect Subsidiaries will guarantee the Securities
of that Series, including the terms of subordination, if any, of such guarantees.
All
Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred
to above.
Section
2.3. Execution and Authentication.
An
Officer shall sign the Securities for the Company by manual, facsimile or electronic signature.
If
an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A
Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this Indenture.
The
Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the
Board Resolution, supplemental indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each
Security shall be dated the date of its authentication.
The
aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount
for such Series set forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to
Section 2.2, except as provided in Section 2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities
of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series,
(b) an Officer’s Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4
and 10.5.
The
Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised
by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith determines that such action may
expose the Trustee to personal liability.
The
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section
2.4. Registrar, Paying Agent and Notice Agent.
The
Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant
to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice
Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange.
The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar,
Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent
or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee as the Notice Agent
shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the
Company.
The
Company may also from time to time designate one or more co-registrars, additional paying agents or additional notice agents and may
from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to
Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent.
The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional
paying agent; and the term “Notice Agent” includes any additional notice agent. The Company or any of its Affiliates
may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying
Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. The rights, powers,
duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and the Agents shall
only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section
2.5. Paying Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Holders of any Series of Securities or the Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Series of Securities and will notify the Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities
all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and
have no liability with respect to payments or disbursements (including to the Holders) until they have confirmed receipt of funds sufficient
to make the relevant payment. No money held by an Agent needs to be segregated except as is required by law.
Section
2.6. Holder Lists.
If
it is serving as Registrar, the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names
and addresses of Holders of each Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a request made under TIA § 312(b).
Section
2.7. Transfer and Exchange.
Where
Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for
an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s
request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein),
but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither
the Company nor the Registrar shall be required (a) to issue, register the transfer of or exchange Securities of any Series for the period
beginning at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series
selected for redemption and ending at the close of business on the day such notice is sent, (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section
2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If
any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If
there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute
and upon receipt of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In
case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon
the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every
new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that Series duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
2.9. Outstanding Securities.
The
Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions
hereof and those described in this Section as not outstanding.
If
a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
If
the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities
of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease
to be outstanding and interest on them ceases to accrue.
The
Company may purchase or otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security
does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In
determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section
2.10. Treasury Securities.
In
determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be
so disregarded.
Section
2.11. Temporary Securities.
Until
definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a
Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of
a Company Order shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities.
Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section
2.12. Cancellation.
The
Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention
requirements of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request
of the Company. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section
2.13. Defaulted Interest.
If
the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date.
The Company shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the
Trustee and to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to
be paid. The Company may pay defaulted interest in any other lawful manner.
Section
2.14. Global Securities.
2.14.1.
Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether
the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such
Global Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section
2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for
Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary
registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the
Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except
as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
None
of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including
any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by
the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None
of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or
a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in any Security or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the
payment of any amount, under or with respect to such Security.
2.14.3. Legends. Any Global Security issued hereunder shall bear a legend in substantially the
following form:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In
addition, so long as the Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name
of DTC or its nominee shall bear a legend in substantially the following form:
“UNLESS
THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4.
Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5.
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6.
Agent Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered
Holders shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section
2.15. CUSIP Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE
III.
REDEMPTION
Section
3.1. Notice to Trustee.
The
Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided
for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the
redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give the notice at least 15 days
before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section
3.2. Selection of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected as follows:
(a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities
are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange, if
any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems
fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject,
in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall be selected
from Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities of the Series
that have denominations larger than $1,000 may be selected for redemption. Securities of the Series and portions of them it selected
for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and the authorized integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that
Series called for redemption. Neither the Trustee nor the Paying Agent shall be liable for any selection made by it in accordance with
this paragraph (including the procedures of the Depositary).
Section
3.3. Notice of Redemption.
Unless
otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at
least 15 days but not more than 60 days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically,
in accordance with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The
notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) if any Securities are being redeemed in part, the portion of the principal amount of such Securities
to be redeemed and that, after the redemption date and upon surrender of such Security, a new Security or Securities in principal amount
equal to the unredeemed portion of the original Security shall be issued in the name of the Holder thereof upon cancellation of the original
Security;
(e) that Securities of the Series called for redemption must be surrendered to the Paying Agent
to collect the redemption price;
(f) that interest on Securities of the Series called for redemption ceases to accrue on and after
the redemption date unless the Company defaults in the deposit of the redemption price;
(g) the “CUSIP” number, if any; and
(h) any other information as may be required by the terms of the particular Series or the Securities
of a Series being redeemed.
At
the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided,
however, that the Company has delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior
to the notice date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to
be stated in such notice and the form of such notice.
Section
3.4. Effect of Notice of Redemption.
Once
notice of redemption is sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption
date and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.
Section
3.5. Deposit of Redemption Price.
On
or before 11:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to
pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section
3.6. Securities Redeemed in Part.
Upon
surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE
IV.
COVENANTS
Section
4.1. Payment of Principal and Interest.
The
Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal
of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before
11:00 a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay
the principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section
4.2. SEC Reports.
To
the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it files them with
the SEC copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents
filed with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes
of this Section 4.2.
Delivery
of reports, information and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s
receipt of the foregoing shall not constitute constructive or actual notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of the covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officer’s Certificates). All such reports, information or documents referred to in this Section
4.2 that the Company files with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted
to Holders at the time such reports, information or documents are filed via the EDGAR system (or any successor system).
Section
4.3. Compliance Certificate.
To
the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such
certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section
4.4. Stay, Extension and Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law has been enacted.
ARTICLE
V.
SUCCESSORS
Section
5.1. When Company May Merge, Etc.
The
Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and
assets to, any person (a “successor person”) unless:
(a) the Company is the surviving entity or the successor person (if other than the Company) is
a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and
expressly assumes by supplemental indenture the Company’s obligations on the Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default or Event of Default, shall have
occurred and be continuing.
The
Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding
the above, any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither
an Officer’s Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section
5.2. Successor Corporation Substituted.
Upon
any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company
in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or
to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein;
provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease)
shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE
VI.
DEFAULTS AND REMEDIES
Section
6.1. Events of Default.
“Event
of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless in
the establishing Board Resolution, supplemental indenture or Officer’s Certificate it is provided that such Series shall not have
the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that Series when it becomes due and
payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company
with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such period);
(b) default in the payment of principal of any Security of that Series at its Maturity;
(c) default in the performance or breach of any covenant or warranty of the Company in this Indenture
(other than defaults pursuant to paragraph (a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture
solely for the benefit of a Series of Securities other than that Series), which default continues uncured for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due;
(e) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and
the order or decree remains unstayed and in effect for 60 days; or
(f) any other Event of Default provided with respect to Securities of that Series, which is specified
in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The
term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The
term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The
Company will provide the Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence
of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and
what action the Company is taking or proposes to take in respect thereof.
Section
6.2. Acceleration of Maturity; Rescission and Annulment.
If
an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount
of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount
(or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At
any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount
of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal
and interest, if any, of Securities of that Series which have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 6.13.
No
such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section
6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if:
(a) default is made in the payment of any interest on any Security when such interest becomes due
and payable and such default continues for a period of 30 days,
(b) default is made in the payment of principal of any Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment, if any, when and as due by the
terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If
an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee, subject to Article VII hereof,
may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section
6.4. Trustee May File Proofs of Claim.
In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same,
and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 7.7.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section
6.5. Trustee May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been recovered.
Section
6.6. Application of Money Collected.
Any
money or property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money or property on account of principal or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To
the Company.
Section
6.7. Limitation on Suits.
No
Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
it
being understood, intended and expressly covenanted by the Holder of every Security with every other Holder and the Trustee that no one
or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders of the applicable Series.
Section
6.8. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed
in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section
6.9. Restoration of Rights and Remedies.
If
the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section
6.10. Rights and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section
6.11. Delay or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section
6.12. Control by Holders.
The
Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent
with such direction,
(c) subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability, and
(d) prior to taking any action as directed under this Section 6.12, the Trustee shall be entitled
to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction.
Section
6.13. Waiver of Past Defaults.
The
Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all
the Securities of such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and
its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section
6.14. Undertaking for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders, holding in the aggregate more than 10% in principal amount of the
outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed in such Security (or,
in the case of redemption, on the redemption date).
ARTICLE
VII.
TRUSTEE
Section
7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
will be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph
(a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in performing such duty or exercising
such right or power.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee
may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent
required by law.
(g) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise
incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if adequate
indemnity against such risk is not assured to the Trustee in its satisfaction.
(h) The Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee
when acting in any other capacity hereunder shall be entitled to the protections and immunities as are set forth in this Article VII.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including
its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture.
Section
7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting or refraining from acting upon any
document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance
on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence
of any agent appointed with due care. No Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible
for any act or omission by any Depositary.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default
is received by a Responsible Officer at the Corporate Trust Office of the Trustee, and such notice references the Securities generally
or the Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee be liable to any person for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised
of the likelihood of such loss or damage.
(j) The permissive right of the Trustee to take the actions permitted by this Indenture shall not
be construed as an obligation or duty to do so.
(k) The Trustee will not be required to give any bond or surety in respect of the execution of
this Indenture or otherwise.
Section
7.3. Individual Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company
or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
The Trustee is also subject to Sections 7.10 and 7.11.
Section
7.4. Trustee’s Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities. The Trustee shall not be accountable
for the Company’s use of the proceeds from the Securities and shall not be responsible for any statement in the Securities other
than its certificate of authentication.
Section
7.5. Notice of Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall send to each Holder of the Securities of that Series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders of that Series. The Trustee will not be deemed to have notice or be charged
with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible Officer, and such
notice references the applicable Series of Securities and this Indenture and states on its face that a Default or Event of Default has
occurred.
Section
7.6. Reports by Trustee to Holders.
Within
60 days after May 15, commencing May 15 [_____], the Trustee shall transmit by mail to all Holders, as their names and addresses
appear on the register kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent
required under, TIA § 313.
A
copy of each report at the time of its mailing to Holders of any Series shall be filed with the SEC and each national securities exchange
on which the Securities of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series
are listed on any national securities exchange.
Section
7.7. Compensation and Indemnity.
The
Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and expenses of the Trustee’s agents and counsel.
The
Company shall indemnify each of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost,
expense or liability, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred
by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder, unless and to the extent that the Company is materially prejudiced thereby. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which
consent will not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents
of the Trustee.
The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through willful misconduct or negligence, as determined by a final decision of a court
of competent jurisdiction.
To
secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities
of that Series.
When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.
Section
7.8. Replacement of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section.
The
Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date
of the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of
one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If
a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities
of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for
in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture.
A successor Trustee shall send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights,
powers and duties under this Indenture prior to such replacement.
Section
7.9. Successor Trustee by Merger, Etc.
Any
organization or entity into which the Trustee may be merged or converted or with which it may be consolidated, or any organization or
entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding
to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such organization or entity shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
Section
7.10. Eligibility; Disqualification.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have
a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA § 310(b).
Section
7.11. Preferential Collection of Claims Against Company.
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE
VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section
8.1. Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Order be discharged with respect to the Securities of any Series and cease to be of further effect as to
all Securities of such Series (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall
execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and
the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust an amount of money or U.S. Government Obligations, which amount shall be sufficient for the purpose of paying and discharging
each installment of principal (including mandatory sinking fund payments or analogous payments) of and interest on all the Securities
of such Series on the dates such installments of principal or interest are due;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to the satisfaction and discharge contemplated by this Section have
been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5, and
(z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith shall
survive.
Section
8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect
of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled
thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination
of this Indenture) against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S.
Government Obligations or Foreign Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion
of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose
for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall
not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section
8.3. Legal Defeasance of Securities of any Series.
Unless
this Section 8.3 is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the
date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive, from the trust funds described
in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities
of such Series on the Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s
obligations in connection therewith;
provided
that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to be deposited (except as provided
in Section 8.2(c)) with the Trustee as trust funds specifically pledged as security for and dedicated solely to the benefit of the Holders
of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations
or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date
of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal
of and interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e) such deposit will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling
or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject
to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officer’s Certificate stating that
the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
and
(i) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been
complied with.
Section
8.4. Covenant Defeasance.
Unless
this Section 8.4 is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit
to comply with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and
5.1 and, unless otherwise specified therein, any additional covenants specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified
in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant
to Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby;
provided that the following conditions shall have been satisfied:
(a) with reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably
deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities
of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case of Securities of such Series
denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment
of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund
payments or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest
are due;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel to the effect that the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(e) The Company shall have delivered to the Trustee an Officer’s Certificate stating the
deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
and
(f) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section
have been complied with.
Section
8.5. Repayment to Company.
Subject
to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property law designates another person.
Section
8.6. Reinstatement.
If
the Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section
8.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such
Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section
8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Company has made any payment of principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE
IX.
AMENDMENTS AND WAIVERS
Section
9.1. Without Consent of Holders.
The
Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to surrender any of the Company’s rights or powers under this Indenture;
(f) to add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to comply with the applicable procedures of the applicable depositary;
(h) to make any change that does not adversely affect the rights of any Holder;
(i) to provide for the issuance of and establish the form and terms and conditions of Securities
of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or
(k) to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA.
Section
9.2. With Consent of Holders.
Subject
to Section 9.3, the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least
a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders
of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision
of this Indenture or the Securities with respect to such Series.
It
shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture
or waiver under this section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or waiver.
Section
9.3. Limitations.
Without
the consent of each Holder affected, an amendment or waiver may not:
(a) reduce the principal amount of Securities whose Holders must consent to an amendment, supplement
or waiver;
(b) reduce the rate of or extend the time for payment of interest (including default interest)
on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or reduce the amount of,
or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon acceleration of the maturity
thereof;
(e) waive a Default or Event of Default in the payment of the principal of or interest, if any,
on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal
amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);
(f) make the principal of or interest, if any, on any Security payable in any currency other than
that stated in the Security;
(g) make any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive a redemption payment with respect to any Security, provided that such redemption is made
at the Company’s option.
Section
9.4. Compliance with Trust Indenture Act.
Every
amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
Section
9.5. Revocation and Effect of Consents.
Until
an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the
supplemental indenture or the date the waiver becomes effective.
Any
amendment or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
The
Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the second immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action,
whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than
120 days after such record date.
Section
9.6. Notation on or Exchange of Securities.
The
Company or the Trustee may, but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security
of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate
upon receipt of a Company Order in accordance with Section 2.3 new Securities of that Series that reflect the amendment or waiver.
Section
9.7. Trustee Protected.
In
executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, upon request, an Officer’s Certificate and/or
an Opinion of Counsel complying with Sections 10.4 and 10.5 and (subject to Section 7.1) shall be fully protected in relying upon such
Officer’s Certificate and/or Opinion of Counsel. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s
Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its
rights, duties, liabilities or immunities under this Indenture.
ARTICLE
X.
MISCELLANEOUS
Section
10.1. Trust Indenture Act Controls.
If
any provision of this Indenture limits, qualifies or conflicts with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
Section
10.2. Notices.
Any
notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in
writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight
air courier guaranteeing next day delivery, to the others’ address:
if
to the Company:
fuboTV
Inc.
1290
Avenue of the Americas
New
York, NY 10104
Attention:
Chief Legal Officer
Telephone:
(212) 672-0055
with
a copy to:
Latham
& Watkins LLP
1271
Avenue of the Americas
New
York, NY 10020
Attention:
Gregory P. Rodgers
Telephone:
(212) 906-2918
if
to the Trustee:
U.S.
Bank Trust Company, National Association
1
California Street, Suite 1000
San
Francisco, CA 94111
Attention:
D. Jason
Telephone:
(415) 677-3622
with
a copy to:
Shipman
& Goodwin LLP
One
Constitution Plaza
Hartford, CT 06103
Attention:
Nathan Z. Plotkin
Telephone:
(860) 251-5320
The
Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any
notice or communication to a Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address
shown on the register kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication
to a Holder of any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If
a notice or communication is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or
not the Holder receives it.
If
the Company sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
Notwithstanding
any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including
any notice of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to
the Depositary for such Security (or its designee) pursuant to the customary procedures of such Depositary.
Section
10.3. Communication by Holders with Other Holders.
Holders
of any Series may communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their
rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section
10.4. Certificate and Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.
Section
10.5. Statements Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, such person has made such examination or investigation
as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Section
10.6. Rules by Trustee and Agents.
The
Trustee may make reasonable rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section
10.7. Legal Holidays.
If
a payment date for any payment made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day,
and no interest shall accrue for the intervening period.
Section
10.8. No Recourse Against Others.
A
director, officer, employee or stockholder (past or present), as such, of the Company shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Securities.
Section
10.9. Counterparts.
This
Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies
of this Indenture and of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf”
or “.tif”) shall be deemed to be their original signatures for all purposes.
Unless
otherwise provided herein or in any other Securities, the words “execute”, “execution”, “signed”
and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture,
any Securities or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall
be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to
the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions
Act.
Section
10.10. Governing Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS
INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any
legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted
in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each
case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to
the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders
(by their acceptance of the Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any
such suit, action or other proceeding has been brought in an inconvenient forum.
Section
10.11. No Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section
10.12. Successors.
All
agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section
10.13. Severability.
In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section
10.14. Table of Contents, Headings, Etc.
The
Table of Contents, Cross Reference Table, headings of the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section
10.15. Securities in a Foreign Currency.
Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section
2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one
currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such
action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular Series
of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered
pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall be at the spot rate
for the purchase of the designated currency as published in The Financial Times in the “Currency Rates” section (or, if The
Financial Times is no longer published, or if such information is no longer available in The Financial Times, such source as may be selected
in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.
All
decisions and determinations provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted
by law, be conclusive for all purposes and irrevocably binding upon the Trustee and all Holders.
Section
10.16. Judgment Currency.
The
Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any
Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the City
of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result
in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing,
“New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in the City of New York on which
banking institutions are authorized or required by law, regulation or executive order to close.
Section
10.17. Force Majeure.
In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health
emergencies, or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware)
services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
Section
10.18. U.S.A. Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and
record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.
The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee
to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE
XI.
SINKING FUNDS
Section
11.1. Applicability of Article.
The
provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by
the terms of such Securities pursuant to Section 2.2, except as otherwise permitted or required by any form of Security of such Series
issued pursuant to this Indenture.
The
minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory
sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption
of Securities of any Series as provided for by the terms of the Securities of such Series.
Section
11.2. Satisfaction of Sinking Fund Payments with Securities.
The
Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant
to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other
than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series
to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of
the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except
upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to
time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying
Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount
equal to the cash payment required to be released to the Company.
Section
11.3. Redemption of Securities for Sinking Fund.
Not
less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in
respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will
deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that
Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the
optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate
or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Securities
to be redeemed upon such sinking fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send
or cause to be sent a notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided
in and in accordance with Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 3.4, 3.5 and 3.6.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
fuboTV Inc. |
| |
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|
| |
By:
|
|
| |
Name: |
|
| |
Its: |
|
| |
U.S.
Bank Trust Company, National
Association, as Trustee |
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By: |
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Name: |
|
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Its: |
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Exhibit
5.1
200
South Orange Avenue, Suite 2600 | Orlando, FL 32801 | T 407.425.8500 | F 407.244.5288
Holland
& Knight LLP | www.hklaw.com |
March
5, 2024
fuboTV
Inc.
1290
Avenue of the Americas
New
York, New York 10104
| |
Re: |
fuboTV
Inc. – Registration Statement on Form S-3 |
Ladies
and Gentlemen:
We
have acted as special local counsel to fuboTV Inc., a Florida corporation (the “Company”), in connection with the Registration
Statement on Form S-3 (the “Registration Statement”) filed or to be filed on or about the date hereof with the Securities
and Exchange Commission (the “Commission”) in connection with the registration pursuant to the Securities Act of 1933, as
amended (the “Act”), of (i) the offer and sale by the Company from time to time, pursuant to Rule 415 under the Act, of shares
of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), shares of the Company’s preferred
stock, $0.0001 par value per share (the “Preferred Stock”), the Company’s debt securities (the “Debt Securities”),
warrants for the purchase of Debt Securities, Common Stock or Preferred Stock (the “Warrants”), purchase contracts for the
purchase or sale of debt or equity securities issued by the Company (“Purchase Contracts”), and units consisting of any combination
of the Common Stock, Preferred Stock, Debt Securities, Warrants and/or Purchase Contracts (the “Units”), and (ii) the offer
and sale by certain selling securityholders of the Company identified in the Registration Statement (who we refer to as the “selling
securityholders”) from time to time, pursuant to Rule 415 of the Act, of shares of the Company’s Common Stock acquired
by the selling securityholders after the original date of filing of the Registration Statement, including 86,667,030 shares of Common
Stock issuable upon conversion of the Company’s Convertible Senior Secured Notes due 2029 (the “Convertible Secured Notes”
and such shares of Common Stock issuable upon conversion of the Convertible Secured Notes, the “Conversion Shares”), issued
pursuant to an indenture, dated January 2, 2024, by and between the Company and U.S. Bank Trust Company, National Association, as trustee
(the “Indenture”). The Common Stock, the Preferred Stock, the Debt Securities, the Warrants, the Purchase Contracts, the
Units and the Conversion Shares are collectively referred to herein as the “Offered Securities” and
each an “Offered Security.”
The
Offered Securities may be offered and sold by the Company or selling securityholders, as applicable, from time to time as set forth in
the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”) and the supplements
to the Prospectus (the “Prospectus Supplements”).
fuboTV
Inc.
March
5, 2024
Page
2
In
connection with this opinion letter, we have examined originals or copies, certified to our satisfaction, of: (i) the Registration Statement;
(ii) the Prospectus; (iii) the Indenture and form of global Convertible Secured Note; (iv) the Articles of Incorporation of the Company,
as amended to date and currently in effect; (v) the Amended and Restated Bylaws of the Company, as currently in effect; and (vi) certain
resolutions of the Company’s Board of Directors (the “Board”) relating to the Offered Securities and related matters,
including the authorization and reservation of the Conversion Shares. We also examined originals or copies, certified to our satisfaction,
of such corporate records of the Company, certificates of public officials and representatives of the Company and other documents as
we deemed necessary to deliver the opinions expressed below. In such examination, we have assumed, without inquiry or other investigation,
(i) the legal capacity of each natural person executing the agreements described herein; (ii) the authenticity and completeness of all
documents submitted to us as originals; (iii) the genuineness of all signatures; (iv) the conformity to the authentic originals of all
documents submitted to us as copies; (v) the truth, accuracy and completeness of the information, representations and warranties contained
in the records, documents, instruments and certificates we have reviewed; (vi) that each certificate or copy of a public record furnished
by public officials is authentic, accurate and complete; (vii) that there have been no undisclosed modifications of any provision of
any document reviewed by us in connection with the rendering of this opinion letter and no undisclosed prior waiver of any right or remedy
contained in any of the documents; (viii) the conformity of all Convertible Secured Notes to the form of global Convertible Secured Note
that is an exhibit to the Indenture; and (ix) that each transaction complies with all tests of good faith, fairness and conscionability
required by law. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto,
other than the Company, had or will have the power, corporate, trust or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate, trust or other, and execution and delivery by such parties
of such documents and that such documents constitute valid and binding obligations of such parties.
We
have also assumed that: (i) prior to the delivery of any Offered Security, the Board (or a duly established and authorized committee
thereof) shall have duly established the terms of such Offered Security and duly authorized the issuance and sale of such Offered Security
and such authorization shall not have been modified or rescinded; (ii) the Registration Statement, and any amendments thereto (including
post-effective amendments), will have become effective and such effectiveness shall not have been terminated or rescinded; (iii) a Prospectus
Supplement will have been prepared and filed with the Commission describing the Offered Securities offered thereby; (iv) all Offered
Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration
Statement and the appropriate Prospectus Supplement; (v) a definitive purchase, underwriting or similar agreement with respect to any
Offered Securities will have been duly authorized and validly executed and delivered by the Company or a selling securityholder, as applicable,
and the other parties thereto; (vi) after the issuance of any shares of Common Stock, the total number of issued shares of Common Stock,
together with the total number of shares of Common Stock reserved for issuance upon the exercise, exchange or conversion, as the case
may be, of any exercisable, exchangeable or convertible security, as the case may be, then outstanding, will not exceed the total number
of authorized shares of Common Stock under the Company’s Articles of Incorporation; (vii) after the issuance of any shares of Preferred
Stock, the total number of issued shares of Preferred Stock, together with the total number of shares of Preferred Stock reserved for
issuance upon the exercise, exchange or conversion, as the case may be, of any exercisable, exchangeable or convertible security, as
the case may be, then outstanding, will not exceed the total number of authorized shares of Preferred Stock under the Company’s
Articles of Incorporation; and (viii) in connection with any issuance of Conversion Shares upon the conversion of the Convertible Secured
Notes (x) the Requisite Stockholder Approval (as defined in the Indenture) was obtained and (y) all future interest payments on the Convertible
Secured Notes are paid in-kind, in each case from time to time in one or more offerings.
fuboTV
Inc.
March
5, 2024
Page
3
Based
on such examination and subject to the foregoing assumptions, exceptions, qualifications and limitations, we express the following opinions:
1.
The Company has been incorporated under the Florida Business Corporation Act and its status is active based solely on a Certificate of
Status of the Company dated March 5, 2024 and issued by the Secretary of State of Florida.
2. The
Company has the corporate power and authority to execute, deliver and perform its obligations under the Debt Securities, the Warrants,
the Purchase Contracts and the Units.
3. With
respect to the Common Stock, when (i) the Board (or a duly established and authorized committee thereof) has taken all necessary corporate
action to approve the issuance and sale of the Common Stock, the terms of the offering thereof and related matters, (ii) such shares
of Common Stock have been duly issued and delivered in accordance with the provisions of any applicable convertible or exchangeable security,
definitive purchase, underwriting or other agreement binding on the Company and the terms approved by the Board (or a duly established
and authorized committee thereof) and (iii) the Company has received payment of the cash or other lawful consideration provided to be
paid for the Common Stock, then the shares of Common Stock will be validly issued, fully paid and nonassessable.
4. With
respect to the Preferred Stock, when (i) the Board (or a duly established and authorized committee thereof) has taken all necessary corporate
action to approve the issuance and sale of the Preferred Stock, the terms of the offering thereof and related matters, (ii) such shares
of Preferred Stock have been duly issued and delivered in accordance with the provisions of any applicable convertible or exchangeable
security, definitive purchase, underwriting or other agreement binding on the Company and the terms approved by the Board (or a duly
established and authorized committee thereof) and (iii) the Company has received payment of the cash or other lawful consideration provided
to be paid for the Preferred Stock, then the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
fuboTV
Inc.
March
5, 2024
Page
4
5.
The Conversion Shares have been duly and validly
authorized by all necessary corporate action and reserved for issuance upon conversion of the Convertible Secured Notes, pursuant to
the respective terms and conditions of the Convertible Secured Notes and Indenture and, upon conversion of the Convertible Secured Notes,
in accordance with the respective terms and conditions of the Convertible Secured Notes and Indenture, will be validly issued, fully
paid and nonassessable.
The
laws covered by the opinions expressed herein are limited to the laws of the State of Florida (the “Applicable Law”).
The
Offered Securities may be issued from time to time on a delayed or continuous basis, and this opinion letter is limited to the laws,
including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.
Our opinions are limited to the matters stated herein, and no opinion is to be implied or inferred beyond the matters stated herein.
This opinion letter speaks only as of its date. We undertake no obligation to advise the addressees (or any other third party) of changes
in law or fact that occur after the date of this opinion, even though the change may affect the legal analysis, a legal conclusion or
an informational confirmation in this opinion.
Notwithstanding
anything to the contrary herein, the recipient hereof, by acceptance of this opinion letter, acknowledges and agrees that (i) any claim
in connection with this opinion letter and the opinions expressed herein shall be asserted against Holland & Knight LLP, as the signer
of this opinion letter and shall not be asserted against any of its partners, attorneys, or other employees, and (ii) with respect to
any of the affairs of the Company, including, without limitation, the transactions in connection with the Offered Securities, the recipient
has not looked to or relied upon any representation, warranty, statement or information provided by Holland & Knight LLP, whether
orally or in writing, except as expressly set forth in this opinion letter with and subject to the assumptions and qualifications set
forth herein.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and further consent to the reference
to our name under the caption “Legal Matters” in the Prospectus. In giving such consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
|
Very
truly yours, |
| |
|
|
HOLLAND &
KNIGHT LLP |
Exhibit
5.2
 |
1271
Avenue of the Americas
New
York, New York 10020-1401
Tel:
+1.212.906.1200 Fax: +1.212.751.4864
www.lw.com
|
| |
FIRM
/ AFFILIATE OFFICES |
March
5, 2024
fuboTV
Inc.
1290
Avenue of the Americas
New York, NY 10104
|
Austin
Beijing
Boston
Brussels
Century
City
Chicago
Dubai
Düsseldorf
Frankfurt
Hamburg
Hong
Kong
Houston
London
Los
Angeles
Madrid |
Milan
Munich
New
York
Orange
County
Paris
Riyadh
San
Diego
San
Francisco
Seoul
Silicon
Valley
Singapore
Tel
Aviv
Tokyo
Washington,
D.C. |
| Re: |
Registration
Statement on Form S-3 |
To
the addressees set forth above:
We
have acted as special counsel to fuboTV Inc., a Florida corporation (the “Company”), in connection with its
filing on the date hereof with the Securities and Exchange Commission (the “Commission”) of a registration
statement on Form S-3 (as amended, the “Registration Statement”), including a base prospectus (the “Base
Prospectus”), which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement,
together with the Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”),
relating to the registration (a) for issue and sale by the Company of (i) shares of the Company’s common stock, $0.0001 par value
per share (the “Common Stock”), (ii) shares of one or more series of the Company’s preferred stock, $0.0001
par value per share, (iii) one or more series of the Company’s debt securities (collectively, “Debt Securities”)
to be issued under an indenture to be entered into between the Company, as issuer, and U.S. Bank Trust Company, National Association,
as trustee (a form of which is included as Exhibit 4.2 to the Registration Statement) and one or more board resolutions, supplements
thereto or officer’s certificates thereunder (such indenture, together with the applicable board resolution, supplement or officer’s
certificate pertaining to the applicable series of Debt Securities, the “Applicable Indenture”), warrants (“Warrants”),
purchase contracts (“Purchase Contracts”), and units (“Units”) and (b) of (i) shares
of Common Stock and (ii) up to 86,667,030 shares of Common Stock issuable upon conversion of the Company’s Convertible
Senior Secured Notes due 2029, issued pursuant to an indenture, dated January 2, 2024, by and between the Company and U.S. Bank Trust
Company, National Association, as trustee, each to be resold from time to time by certain securityholders of the Company. The Debt Securities,
Warrants, Purchase Contracts and Units are referred to herein collectively as the “Securities.”
This
opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed
herein as to any matter pertaining to the contents of the Registration Statement or related applicable Prospectus, other than as expressly
stated herein with respect to the issue of the Securities.
March
5, 2024
Page
2
As
such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter.
With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters
without having independently verified such factual matters. We are opining herein as to the internal laws of the State of New York, and
we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to
any matters of municipal law or the laws of any local agencies within any state.
Subject
to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:
| 1. | When
the Applicable Indenture has been duly authorized, executed and delivered by all necessary
corporate action of the Company, and when the specific terms of a particular series of Debt
Securities have been duly established in accordance with the terms of the Applicable Indenture
and authorized by all necessary corporate action of the Company, and such Debt Securities
have been duly executed, authenticated, issued and delivered against payment therefor in
accordance with the terms of the Applicable Indenture and in the manner contemplated by the
applicable Prospectus and by such corporate action, such Debt Securities will be the legally
valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms. |
| 2. | When
the applicable warrant agreement has been duly authorized, executed and delivered by all
necessary corporate action of the Company, and when the specific terms of a particular issuance
of Warrants have been duly established in accordance with the terms of the applicable warrant
agreement and authorized by all necessary corporate action of the Company, and such Warrants
have been duly executed, authenticated, issued and delivered against payment therefor in
accordance with the terms of the applicable warrant agreement and in the manner contemplated
by the applicable Prospectus and by such corporate action (assuming the securities issuable
upon exercise of such Warrants have been duly authorized and reserved for issuance by all
necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms. |
| | |
| 3. | When
the applicable purchase contract agreement has been duly authorized, executed and delivered
by all necessary corporate action of the Company, and when the specific terms of a particular
issue of Purchase Contracts have been duly authorized in accordance with the terms of the
applicable purchase contract agreement and authorized by all necessary corporate action of
the Company, and such Purchase Contracts have been duly executed, authenticated, issued and
delivered against payment therefor in accordance with the terms of the applicable purchase
contract agreement and in the manner contemplated by the applicable Prospectus and by such
corporate action (assuming the securities issuable under such Purchase Contracts have been
duly authorized and reserved for issuance by all necessary corporate action), such Purchase
Contracts will be the legally valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms. |
March
5, 2024
Page
3
| 4. | When
the applicable unit agreement has been duly authorized, executed and delivered by all necessary
corporate action of the Company, and when the specific terms of a particular issuance of
Units have been duly authorized in accordance with the terms of the applicable unit agreement
and authorized by all necessary corporate action of the Company, and such Units have been
duly executed, authenticated, issued and delivered against payment therefor in accordance
with the terms of the applicable unit agreement and in the manner contemplated by the applicable
Prospectus and by such corporate action (assuming the securities issuable upon exercise of
such Units have been duly authorized and reserved for issuance by all necessary corporate
action), such Units will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. Our
opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether
considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
(b) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding
is brought; and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification
of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We
express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums
or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing
law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the
payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration
of any Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned
interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers
of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial
by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election
or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants
of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer
of any right or property, (n) any provision to the extent it requires that a claim with respect to a security denominated in other than
U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to
the extent applicable law otherwise provides, and (o) the severability, if invalid, of provisions to the foregoing effect. |
With
your consent, we have assumed (a) that each of the Debt Securities, Warrants, Purchase Contracts and Units and the Applicable Indenture,
warrant agreements, purchase contract agreements and unit agreements governing such Securities (collectively, the “Documents”)
will be governed by the internal laws of the State of New York, (b) that each of the Documents has been or will be duly authorized, executed
and delivered by the parties thereto, (c) that each of the Documents constitutes or will constitute legally valid and binding obligations
of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms, and (d) that
the status of each of the Documents as legally valid and binding obligations of the parties will not be affected by any (i) breaches
of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or
(iii) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings
with, governmental authorities.
This
opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely
upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement
and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.” In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
| |
Sincerely,
|
| |
|
| |
Latham & Watkins LLP |
Exhibit
23.3
Consent
of Independent Registered Public Accounting Firm
We
consent to the use of our reports dated March 4, 2024, with respect to the consolidated financial statements of fuboTV Inc., and
the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our firm under
the heading “Experts” in the prospectus.
New
York, New York
March
5, 2024
Exhibit
25.1
securities
and exchange commission
Washington,
D.C. 20549
FORM
T-1
Statement
of Eligibility Under
The
Trust Indenture Act of 1939 of a
Corporation
Designated to Act as Trustee
Check
if an Application to Determine Eligibility of
a
Trustee Pursuant to Section 305(b)(2) ☐
U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact
name of Trustee as specified in its charter)
91-1821036
I.R.S.
Employer Identification No.
800
Nicollet Mall
Minneapolis,
Minnesota |
|
55402 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
David
A. Jason
U.S.
Bank Trust Company, National Association
1
California Street
Suite
1000
San
Francisco, CA 94111
(415)
677-3622
(Name,
address and telephone number of agent for service)
FUBOTV
INC.
(Issuer
with respect to the Securities)
| Florida |
|
26-4330545 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
1290
Avenue of the Americas
New
York, NY |
|
10104 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
Debt
Securities
(Title
of the Indenture Securities)
FORM
T-1
| Item 1. |
GENERAL INFORMATION. Furnish the following
information as to the Trustee. |
| a) | Name
and address of each examining or supervising authority to which it is subject. |
Comptroller
of the Currency
Washington,
D.C.
|
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
| Item
2. |
AFFILIATIONS
WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items
3-15 |
Items
3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for
which the Trustee acts as Trustee. |
| Item
16. |
LIST
OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| |
1.
|
A
copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| |
|
|
| |
2.
|
A
copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| |
|
|
| |
3.
|
A
copy of the authorization of the Trustee to exercise corporate trust powers, included as Exhibit 2. |
| |
|
|
| |
4.
|
A
copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| |
|
|
| |
5. |
A
copy of each Indenture referred to in Item 4. Not applicable. |
| |
|
|
| |
6. |
The
consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| |
|
|
| |
7. |
Report
of Condition of the Trustee as of December 31, 2023, published pursuant to law or the requirements of its supervising or examining
authority, attached as Exhibit 7. |
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility
and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of San Francisco, State of
California on the 4th of March, 2024.
| |
By: |
/s/
David A. Jason |
| |
|
David
A. Jason |
| |
|
Vice
President |
Exhibit
1
ARTICLES
OF ASSOCIATION OF
U.
S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For
the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned
enter into the following Articles of Association:
FIRST.
The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND.
The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association
will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not
expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD.
The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number
to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority
of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or
of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to
the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company
may be used.
Any
vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders.
The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors
selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors
resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his
or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary
or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of
the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any
annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association
or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH.
There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before
the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each
year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
Association
is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors,
or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases,
at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In
all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares
he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed
among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled
to one vote for each share of stock held by him or her.
A
director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which
resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A
director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose
or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for
qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or
her under cumulative voting is voted against his or her removal.
FIFTH.
The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars
($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United
States. The Association shall have only one class of capital stock.
No
holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription
to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock
of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors,
in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers
of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If
no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless
otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments
to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and
(2)
each shareholder shall be entitled to one vote per share.
Unless
otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class,
on any matters requiring shareholder approval.
Unless
otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the
close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a
record date be more than 70 days before the meeting.
The
Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval
of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval
of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities,
or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH.
The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board
and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’
meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required
to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized
by the board of directors in accordance with the Bylaws.
The
board of directors shall have the power to:
| (1) |
Define
the duties of the officers, employees, and agents of the Association. |
| |
|
| (2) |
Delegate
the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| |
|
| (3) |
Fix
the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with
applicable law. |
| |
|
| (4) |
Dismiss
officers and employees. |
| |
|
| (5) |
Require
bonds from officers and employees and to fix the penalty thereof. |
| |
|
| (6) |
Ratify
written policies authorized by the Association’s management or committees of the board. |
| |
|
| (7) |
Regulate
the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict
the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise
or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) |
Manage
and administer the business and affairs of the Association. |
| |
|
| (9) |
Adopt
initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of
the Association. |
| |
|
| (10) |
Amend
or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| |
|
| (11) |
Make
contracts. |
| |
|
| (12) |
Generally
perform all acts that are legal for a board of directors to perform. |
SEVENTH.
The board of directors shall have the power to change the location of the main office to any authorized branch within the limits
of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock
of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency,
to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits.
The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other
location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH.
The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH.
The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of
the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United
States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH.
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law,
and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and
services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of
directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
In
witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit
4
U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE
I
Meetings
of Shareholders
Section
1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper
business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less
than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office
of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable
law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors
is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice
thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work
a forfeiture or dissolution of the Association.
Section
1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any
purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders
owning at least ten percent of the outstanding stock.
Every
such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days
prior notice stating the purpose of the meeting.
Section
1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section
1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be
valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section
1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days
before the date of such meeting, unless otherwise determined by the Board.
Section
1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum
at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time,
and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted
to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section
1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of
Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters
voted upon by shareholders at all annual and special meetings of shareholders.
Section
1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section
1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead
be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State
of Delaware.
ARTICLE
II
Directors
Section
2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section
2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected
and qualified, or until their earlier resignation or removal.
Section
2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon
it by the Articles of Association, the Bylaws and by law.
Section
2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor
more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist
of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof,
in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the
Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors,
and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors,
when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors
last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company
that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest
in his or her own right and meet any minimum threshold ownership required by applicable law.
Section
2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing
such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as
practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If,
at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum
is obtained.
Section
2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate
and deem suitable.
Section
2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman
of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting
of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished
by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone)
before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a
statement of the business to be transacted at, or the purpose of, any such meeting.
Section
2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when
otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned
without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established,
any act by a majority of those directors present and voting shall be the act of the Board.
Section
2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by
a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section
2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee
by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting
can hear each other and such participation shall constitute presence in person at such meeting.
Section
2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill
such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE
III
Committees
Section
3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on
an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs
of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may
be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in
no respect be delegated or diminished.
Section
3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal
or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will
be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association
shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu
of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The
Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust
audit committee:
(1)
Must not include any officers of the Association or an affiliate who participate significantly in the administration of the
Association’s fiduciary activities; and
(2)
Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and
control the fiduciary activities of the Association.
Section
3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which
shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or
otherwise when the Board is not meeting.
Section
3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight
of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities.
The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee
shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying
the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its
activities to the Board.
Section
3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors,
for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or
responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President
may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such
powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President,
any such committee shall at all times be subject to the direction and control of the Board.
Section
3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of
the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken
or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory
board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions
or authority.
ARTICLE
IV
Officers
Section
4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the
Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers,
as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to
time may be conferred upon or assigned by the Board.
Section
4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the
President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws.
The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section
4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned
by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting
of the Board in the absence of both the Chairman and President.
Section
4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the
Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these
Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the
keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall
have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by
these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or
more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section
4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any
officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to
transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several
offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized
officer. Any person may hold two offices.
Section
4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors
are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to
the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE
V
Stock
Section
5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock
shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be
signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the
books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming
a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such
shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of
the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the
work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent
transfers.
ARTICLE
VI
Corporate
Seal
Section
6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient
or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President,
the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE
VII
Miscellaneous
Provisions
Section
7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed,
acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by
any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the
Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association
or Bylaws.
Section
7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings
of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the
purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section
7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section
7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does
not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which
corporate fiduciaries may invest under law.
Section
7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage
prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address
of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except
where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to
the event for which notice is given.
ARTICLE
VIII
Indemnification
Section
8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as
permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase
and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association
shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding
to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R.
§ 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated
party, as defined at 12 U.S.C. § 1813(u).
Section
8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12
U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable
and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any
indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. §
1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in
accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE
IX
Bylaws:
Interpretation and Amendment
Section
9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered,
amended, or repealed, at any regular or special meeting of the Board.
Section
9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association,
and shall be open for inspection to all shareholders during Association hours.
ARTICLE
X
Miscellaneous
Provisions
Section
10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the
thirty-first day of December following.
Section
10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing
law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety
and soundness.
***
(February
8, 2021)
Exhibit
6
CONSENT
In
accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby
consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Dated:
March 5th, 2024
| |
By: |
/s/
David A. Jason |
| |
|
David
A. Jason |
| |
|
Vice
President |
Exhibit
7
U.S.
Bank Trust Company, National Association
Statement
of Financial Condition
as
of 12/31/2023
($000’s)
| | |
12/31/2023 | |
| Assets | |
| | |
| Cash and Balances Due From | |
$ | 1,171,838 | |
| Depository Institutions | |
| | |
| Securities | |
| 4,441 | |
| Federal Funds | |
| 0 | |
| Loans & Lease Financing Receivables | |
| 0 | |
| Fixed Assets | |
| 1,409 | |
| Intangible Assets | |
| 578,492 | |
| Other Assets | |
| 218,268 | |
| Total Assets | |
$ | 1,974,448 | |
| | |
| | |
| Liabilities | |
| | |
| Deposits | |
$ | 0 | |
| Fed Funds | |
| 0 | |
| Treasury Demand Notes | |
| 0 | |
| Trading Liabilities | |
| 0 | |
| Other Borrowed Money | |
| 0 | |
| Acceptances | |
| 0 | |
| Subordinated Notes and Debentures | |
| 0 | |
| Other Liabilities | |
| 255,900 | |
| Total Liabilities | |
$ | 255,900 | |
| | |
| | |
| Equity | |
| | |
| Common and Preferred Stock | |
| 200 | |
| Surplus | |
| 1,171,635 | |
| Undivided Profits | |
| 546,713 | |
| Minority Interest in Subsidiaries | |
| 0 | |
| Total Equity Capital | |
$ | 1,718,548 | |
| | |
| | |
| Total Liabilities and Equity Capital | |
$ | 1,974,448 | |
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
fuboTV
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security Type | |
Security
Class Title | |
Fee Calculation
or Carry
Forward Rule | |
Amount Registered | | |
Proposed Maximum Offering Price per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | | |
Carry Forward Form Type | | |
Carry Forward File Number | | |
Carry Forward Initial Effective Date | | |
Filing Fee Previously Paid In Connection with Unsold Securities to
be Carried Forward | |
| Newly Registered Securities |
| Fees to be Paid | |
Equity | |
Common stock, par value $0.0001 per share | |
Rule 456(b) and 457(r) | |
| (1)(2) | | |
| (1)(2) | | |
| (1)(2) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| | |
Equity | |
Preferred stock, par value $0.0001 per share | |
Rule 456(b) and 457(r) | |
| (1)(2) | | |
| (1)(2) | | |
| (1)(2) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| | |
Debt | |
Debt Securities | |
Rule 456(b) and 457(r) | |
| (1) | | |
| (1) | | |
| (1) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Warrants(4) | |
Rule 456(b) and 457(r) | |
| (1) | | |
| (1) | | |
| (1) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Purchase Contracts | |
Rule 456(b) and 457(r) | |
| (1) | | |
| (1) | | |
| (1) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Units(5) | |
Rule 456(b) and 457(r) | |
| (1) | | |
| (1) | | |
| (1) | | |
| (3) | | |
| (3) | | |
| | | |
| | | |
| | | |
| | |
| Fees Previously Paid | |
— | |
— | |
— | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| | | |
| | | |
| | | |
| | |
| Carry Forward Securities |
| Carry Forward Securities | |
— | |
— | |
— | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
| | |
| |
Total Offering Amounts | |
| |
| | | |
| | | |
| — | | |
| | | |
| — | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
Total Fees Previously Paid | |
| |
| | | |
| | | |
| | | |
| | | |
| — | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
Total Fee Offsets | |
| |
| | | |
| | | |
| | | |
| | | |
| — | | |
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Net Fee Due | |
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| (1) |
An
unspecified number of securities or aggregate principal amount, as applicable, is being registered as may from time to time be offered
at unspecified prices and, in addition, an unspecified number of additional shares of common stock is being registered as may be
issued from time to time upon conversion of any debt securities that are convertible into common stock or pursuant to any anti-dilution
adjustments with respect to any such convertible debt securities. |
| (2) |
Includes
rights to acquire common stock or preferred stock of the registrant under any shareholder rights plan then in effect, if applicable
under the terms of any such plan. |
| (3) |
In
accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the
entire registration fee. |
| (4) |
Warrants
covered by this registration statement cover shares of common stock, shares of preferred stock and/or debt securities in one or more
series. |
| (5) |
Each
unit may be issued under one or more unit agreements and will represent an interest in one or more securities registered hereby,
including shares of common stock, shares of preferred stock, debt securities or warrants. |
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