As filed with the United States Securities and Exchange Commission on May 10, 2021.

Registration No. 333-253136

 

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

AMENDMENT NO. 3 TO

FORM S-4

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

FOREST ROAD ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

 

 

Delaware   6770   85-3222090
(State or Other Jurisdiction of
Incorporation or Organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification No.)

1177 Avenue of the Americas, 5th Floor

New York, New York 10036

Telephone: (917) 310-3772

(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)

 

Keith L. Horn

Chief Executive Officer

1177 Avenue of the Americas, 5th Floor

New York, New York 10036

(917) 310-3772

(Name, address, including zip code and telephone number, including area code, of agent for service)

 

Copies to:

 

Douglas S. Ellenoff, Esq.
Stuart Neuhauser, Esq.
Joshua N. Englard, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
(212) 370-1300
 

Monica J. Shilling, P.C.

Michael Considine, P.C.

Kirkland & Ellis LLP

2049 Century Park East

Suite 3700

Los Angeles, California 90067

(310) 552-4200

 

Justin G. Hamill

Steven B. Stokdyk

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

(212) 906-1200

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after (i) this registration statement is declared effective and (ii) upon completion of the applicable transactions described in the enclosed proxy statement/prospectus.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, 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, 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(d) 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:  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting 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 complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended (“Securities Act”), or until the Registration Statement shall become effective on such date as the SEC, acting pursuant to Section 8(a), may determine.

CALCULATION OF REGISTRATION FEE

 

 

Title of each class of

securities to be registered (1)

 

Amount to be

Registered

 

Proposed Maximum

Offering Price
Per Share

 

Proposed Maximum

Aggregate

Offering Price

 

Amount of

Registration Fee

Class A Common Stock, par value $0.0001 per share (2)

  115,241,553   $0.27 (3)   $31,115,219   — (4)

Class X Common Stock, par value $0.0001 per share (5)

  141,176,708   $0.27 (3)   $38,117,711   $3,440

Shares underlying Warrants to purchase shares of Class A Common Stock (6)(7)

  3,978,582   $10.745 (8)   $42,749,864   $4,664

Shares underlying Options to purchase shares of Class A Common Stock (7)(8)

  34,785,453   $10.745 (8)   $373,769,692   $40,778

TOTAL

  295,182,296       $485,752,487 (3)   $48,883 (3)(9)

 

 

(1)

Pursuant to Rule 416(a), there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from share splits, share dividends or similar transactions.

(2)

Represents (i) 101,709,590 shares of Class A Common Stock to be issued by Forest Road Acquisition Corp. (“Forest Road”) to the holders of certain common units of The Beachbody Company Group, LLC (“Beachbody”) and (ii) up to 13,531,963 shares of Class A Common Stock to be issued by Forest Road to holders of units of Myx Fitness Holdings, LLC.

(3)

Beachbody is a private company and no market exists for its securities. In accordance with Rule 457(f)(2) and (3), the registration fee payable is calculated on the basis of the book value of the Beachbody equity securities of $0.27 as of September 30, 2020, less $37.7 million cash payable in connection with the Transaction. Accordingly, the Proposed Maximum Aggregate Offering Price with respect to the shares acquired by Forest Road in exchange for the Class A Common Stock and Class X Common Stock is an aggregate $31,532,930. As a result, the Total Proposed Maximum Aggregate Offering Price that is the basis of the registration fee calculation is $448,052,487.

(4)

Combined fee in line below.

(5)

Represents shares of Class X Common Stock to be issued by Forest Road to holders of certain common units of Beachbody.

(6)

Represents shares underlying Warrants to be issued by Forest Road to holders of Beachbody warrants issued, outstanding and unexercised immediately prior to the Closing.

(7)

Pursuant to Rules 457(c) and 457(f)(1) promulgated under the Securities Act and solely for the purpose of calculating the registration fee, based on the average of the high and low trading prices of Forest Road Class A common stock on February 8, 2021 as reported by the New York Stock Exchange (within five business days prior to the date of this Registration Statement).

(8)

Represents shares underlying Options to be issued by Forest Road to holders of Beachbody options (vested and unvested) issued, outstanding and unexercised immediately prior to the Closing.

(9)

Previously paid.

 

 

 


EXPLANATORY NOTE

This Amendment No. 3 to the Registration Statement on Form S-4 (File No. 333-253136) is being filed solely to amend Item 21 of Part II thereof and to file certain exhibits to the Registration Statement. This Amendment No. 3 does not modify any provision of the proxy statement/prospectus contained in Part I. Accordingly, the proxy statement/prospectus has been omitted.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 20. Indemnification of Directors and Officers.

The Registrant’s amended and restated certificate of incorporation provides that its directors, officers, employees and agents are entitled to be indemnified by the Registrant to the fullest extent permitted by Section 145 of the Delaware General Corporation Law (“DGCL”). Section 145 of the DGCL concerning indemnification of officers, directors, employees and agents is set forth below.

Section 145. Indemnification of officers, directors, employees and agents; insurance.

 

  (a)

A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

 

  (b)

A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

  (c)

To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

  (d)

Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director

 

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  or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

 

  (e)

Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former officers and directors or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

 

  (f)

The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.

 

  (g)

A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.

 

  (h)

For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.

 

  (i)

For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.

 

  (j)

The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to

 

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  be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

  (k)

The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any by law, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the SEC, 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 of expenses incurred or paid by a director, officer or controlling person in a 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 the 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.

In accordance with Section 102(b)(7) of the DGCL, the Registrant’s amended and restated certificate of incorporation, provides that no director shall be personally liable to the Registrant or any of its stockholders for monetary damages resulting from breaches of their fiduciary duty as directors, except to the extent such limitation on or exemption from liability is not permitted under the DGCL. The effect of this provision on the Registrant’s amended and restated certificate of incorporation is to eliminate the Registrant’s rights and those of the stockholders (through stockholders’ derivative suits on the Registrant’s behalf) to recover monetary damages against a director for breach of the fiduciary duty of care as a director, including breaches resulting from negligent or grossly negligent behavior, except, as restricted by Section 102(b)(7) of the DGCL. However, this provision does not limit or eliminate the Registrant’s rights or the rights of any stockholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s duty of care.

If the DGCL is amended to authorize corporate action further eliminating or limiting the liability of directors, then, in accordance with the Registrant’s amended and restated certificate of incorporation, the liability of the Registrant’s directors to it or its stockholders will be eliminated or limited to the fullest extent authorized by the DGCL, as so amended. Any repeal or amendment of provisions of the Registrant’s amended and restated certificate of incorporation limiting or eliminating the liability of directors, whether by its stockholders or by changes in law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits the Registrant to further limit or eliminate the liability of directors on a retroactive basis.

The Registrant’s amended and restated certificate of incorporation provides that it will, to the fullest extent authorized or permitted by applicable law, indemnify its current and former officers and directors, as well as those persons who, while directors or officers of its corporation, are or were serving as directors, officers, employees or agents of another entity, trust or other enterprise, including service with respect to an employee benefit plan, in connection with any threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, against all expense, liability and loss (including, without limitation, attorney’s fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by any such person in connection with any such proceeding.

Notwithstanding the foregoing, a person eligible for indemnification pursuant to the Registrant’s amended and restated certificate of incorporation will be indemnified by the Registrant in connection with a proceeding initiated by such person only if such proceeding was authorized by the Registrant’s board of directors, except for proceedings to enforce rights to indemnification.

 

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The right to indemnification which is conferred by the Registrant’s amended and restated certificate of incorporation is a contract right that includes the right to be paid by the Registrant the expenses incurred in defending or otherwise participating in any proceeding referenced above in advance of its final disposition, provided, however, that if the DGCL requires, an advancement of expenses incurred by the Registrant’s officer or director (solely in the capacity as an officer or director of its corporation) will be made only upon delivery to the Registrant of an undertaking, by or on behalf of such officer or director, to repay all amounts so advanced if it is ultimately determined that such person is not entitled to be indemnified for such expenses under the Registrant’s amended and restated certificate of incorporation or otherwise.

The rights to indemnification and advancement of expenses will not be deemed exclusive of any other rights which any person covered by the Registrant’s amended and restated certificate of incorporation may have or hereafter acquire under law, the Registrant’s amended and restated certificate of incorporation, the Registrant’s bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.

Any repeal or amendment of provisions of the Registrant’s amended and restated certificate of incorporation affecting indemnification rights, whether by the Registrant’s stockholders or by changes in law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits the Registrant to provide broader indemnification rights on a retroactive basis, and will not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision. The Registrant’s amended and restated certificate of incorporation permits it, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other that those specifically covered by the Registrant’s amended and restated certificate of incorporation.

The Registrant’s bylaws include provisions relating to the advancement of expenses and indemnification rights consistent with those set forth in the Registrant’s amended and restated certificate of incorporation. In addition, the Registrant’s bylaws provide for a right of indemnity to bring a suit in the event a claim for indemnification or advancement of expenses is not paid in full by the Registrant within a specified period of time. The Registrant’s bylaws also permit it to purchase and maintain insurance, at its expense, to protect the Registrant and/or any director, officer, employee or agent of the Registrant’s corporation or another entity, trust or other enterprise against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the DGCL.

Any repeal or amendment of provisions of the Registrant’s bylaws affecting indemnification rights, whether by the Registrant’s board of directors, stockholders or by changes in applicable law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits the Registrant to provide broader indemnification rights on a retroactive basis, and will not in any way diminish or adversely affect any right or protection existing thereunder with respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

The Registrant has entered into indemnification agreements with each of its officers and directors. These agreements require the Registrant to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the Registrant, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.

 

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Item 21. Exhibits and Financial Statements Schedules.

 

Exhibit
Number

  

Description of Exhibit

    2.1†**    Agreement and Plan of Merger, dated as of February 9, 2021, by and among Forest Road Acquisition Corp., BB Merger Sub, Inc., Myx Merger Sub, LLC, The Beachbody Company Group, LLC, And Myx Fitness Holdings, LLC. (attached as Annex A-1 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
    3.1**    Form of Amended and Restated Certificate of Incorporation of The Beachbody Company, Inc. (included as  Annex B-1 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
    3.2**    Form of Amended and Restated Bylaws of The Beachbody Company, Inc. (included as Annex B-2 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
    4.1**    Warrant Agreement, dated November  24, 2020, by and between Forest Road Acquisition Corp. and Continental Stock Transfer & Trust Company, as warrant agent. (incorporated by reference to Exhibit 4.1 to Forest Road Acquisition Corp.’s Current Report on Form 8-K, filed on December 1, 2020).
    5.1*    Legal opinion of Ellenoff Grossman & Schole LLP.
    8.1*    Tax opinion of Ellenoff Grossman & Schole LLP.
  10.1**    Form of Subscription Agreement (attached as Annex E to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.2**    Sponsor Agreement, dated as of February 9, 2021, by and among Forest Road Acquisition Corp., Forest Road Acquisition Sponsor LLC and The Beachbody Company Group, LLC (attached as  Annex A-2 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.3**    Member Support Agreement, dated as of February 9, 2021, by and among Forest Road Acquisition Corp., The Beachbody Company Group, LLC and certain equityholders of The Beachbody Company Group, LLC set forth therein (attached as Annex A-3 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.4**    Myx Support Agreement, dated as of February 9, 2021, by and among Forest Road Acquisition Corp., Myx Fitness Holdings, LLC, The Beachbody Company Group, LLC and certain equityholders of Myx Fitness Holdings, LLC set forth therein (attached as Annex A-4 to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.5**    Form of Amended and Restated Registration Rights Agreement (included as Annex F to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.6#**    Form of The Beachbody Company, Inc. 2021 Incentive Award Plan (included as Annex C to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.7#**    Form of The Beachbody Company, Inc. Employee Stock Purchase Plan (included as Annex D to the proxy statement/consent solicitation statement/prospectus which forms part of this Registration Statement).
  10.8**    Administrative Support Agreement, dated November  24, 2020, by and between Forest Road Acquisition Corp. and The Forest Road Company, LLC (incorporated by reference to Exhibit 10.5 to Forest Road Acquisition Corp.’s Current Report on Form 8-K, filed on December 1, 2020).

 

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  10.9**    Private Placement Warrant Purchase Agreement, dated November  24, 2020, by and between Forest Road Acquisition Corp. and The Forest Road Company, LLC (incorporated by reference to Exhibit 10.4 to Forest Road Acquisition Corp.’s Current Report on Form  8-K, filed on December 1, 2020).
  10.10*    Offer of Employment Letter, dated January 20, 2017, by and between The Beachbody Company Group, LLC and Robert Gifford.
  10.11*    Form of Non-Employee Director Compensation Program
  10.12*    Warrant Agreement, dated September 18, 2020, by and between The Beachbody Company Group, LLC and Akron Supplement, LLC.
  10.13*    Warrant Agreement, dated September 18, 2020, by and between The Beachbody Company Group, LLC and Schwarzenegger Blind Trust.
  23.1**    Consent of WithumSmith+Brown, PC, independent registered public accounting firm of Forest Road Acquisition Corp.
  23.2**    Consent of Ernst & Young LLP, independent registered public accounting firm of The Beachbody Company Group, LLC.
  23.3*    Consent of Ellenoff Grossman & Schole LLP (included in Exhibit 5.1).
  23.4*    Consent of Ellenoff Grossman & Schole LLP (included in Exhibit 8.1).
  23.5**    Consent of WithumSmith+Brown, PC, independent registered public accounting firm of Myx Fitness Holdings, LLC.
  24.1**    Power of Attorney (included on signature page to the initial filing of this registration statement).
  99.1*    Form of Proxy Card.
  99.2**    Consent of Kevin Mayer
  99.3**    Consent of Mary Conlin
101.INS**    XBRL Instance Document.
101.SCH**    XBRL Taxonomy Extension Schema Document.
101.CAL**    XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF**    XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB**    XBRL Taxonomy Extension Label Linkbase Document.
101.PRE**    XBRL Taxonomy Extension Presentation Linkbase Document.

 

*

Filed herein.

**

Previously filed.

#

Indicates a management contract or compensatory plan or agreement.

Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

§

Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6).

 

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Item 22. Undertakings

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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

  (iii)

To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this 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.

 

  (4)

That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.

 

  (5)

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, 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

 

II-7


  (iv)

Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

  (6)

That, prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this Registration Statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the Registrant undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.

 

  (7)

That every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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.

 

  (8)

To respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of this Registration Statement through the date of responding to the request.

 

  (9)

To supply by means of a post-effective amendment all information concerning this transaction, and the company being acquired involved therein, that was not the subject of and included in this Registration Statement when it became effective.

 

  (10)

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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.

 

II-8


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on May 10, 2021.

 

FOREST ROAD ACQUISITION CORP.
By:   /s/ Keith L. Horn
 

Name: Keith L. Horn

 

Title: Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement, as amended has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

/s/ Keith L. Horn

Keith L. Horn

 

Chief Executive Officer, Secretary and Director

(Principal Executive Officer)

  May 10, 2021

*

Zachary Tarica

 

Chairperson of the Board of Directors and Chief Investment Officer

  May 10, 2021

*

Idan Shani

 

Chief Operating Officer

  May 10, 2021

*

Salil Mehta

 

Chief Financial Officer

(Principal Financial and Accounting Officer)

  May 10, 2021

*

Thomas Staggs

 

Director and Chairperson of the Strategic Advisory Committee

  May 10, 2021

*

Peter Schlessel

 

Director

  May 10, 2021

*

Martin Luther King III

 

Director

  May 10, 2021

*

Teresa Miles Walsh

 

Director

  May 10, 2021

*

Sheila A. Stamps

 

Director

  May 10, 2021

*/s/ Keith L. Horn

Keith L. Horn

   
Attorney-In-Fact    

 

II-9

Exhibit 5.1

ELLENOFF GROSSMAN & SCHOLE LLP

1345 AVENUE OF THE AMERICAS

NEW YORK, NEW YORK 10105

TELEPHONE: (212) 370-1300

FACSIMILE: (212) 370-7889

www.egsllp.com

May 10, 2021

Forest Road Acquisition Corp.

1177 Avenue of the Americas, 5th Floor

New York, New York 10036

 

Re:

Registration Statement on Form S-4 (File No. 333-253136)

Ladies and Gentlemen:

We have acted as special counsel to Forest Road Acquisition Corp., a Delaware corporation (the “Company”), in connection with the transactions contemplated by the Agreement and Plan of Merger, dated as of February 9, 2021 (the “Merger Agreement”), by and among the Company, BB Merger Sub, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“BB Merger Sub”), MFH Merger Sub, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Myx Merger Sub”), The Beachbody Company Group, LLC, a Delaware limited liability company (“Beachbody”), and Myx Fitness Holdings, LLC, a Delaware limited liability company (“Myx”). The transactions contemplated by the Merger Agreement include the merger of Myx Merger Sub with and into Myx, the merger of BB Merger Sub with and into BB (with BB being the surviving entity and continuing as a wholly-owned subsidiary of the Company (the “Surviving BB Entity”) and the merger of the Surviving BB Entity with and into the Company (following which the Surviving BB Entity shall cease to exist and the Company shall continue as the surviving entity (collectively, the “Mergers”). As a result of the Mergers, among other things, all of the outstanding equity interests of Beachbody and Myx will be cancelled in exchange for rights to receive shares of common stock (or, in the case of outstanding options and warrants of Beachbody, options and warrants, as applicable, to purchase shares of common stock of the Company) and, in the case of certain equity holders of Myx, cash, up to an aggregate limit set forth in the Merger Agreement, in each case in accordance with the terms of the Merger Agreement. In connection with the closing of the transactions contemplated by the Merger Agreement (the “Closing”), the Company will be renamed “The Beachbody Company, Inc.”

This opinion is being rendered at the request of the Company in connection with the registration by the Company under the above-referenced Registration Statement (together with all amendments thereto as of the date hereof, the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of (i) shares of Class A common stock of the Company, par value $0.0001 per share (the “Class A Common Stock”), (ii) shares of Class X common stock of the Company, par value $0.0001 per share (the “Class X Common Stock”), (iii) shares of Class A Common Stock underlying warrants (the “Warrants”) to purchase shares of Class A Common Stock (the “Warrant Shares”) and (iv) shares of Class A Common Stock underlying options (the “Options”) to purchase shares of Class A Common Stock (the “Option Shares,” and together with the Class A Common Stock, the Class X Common Stock and the Warrant Shares, the “Securities”).

We have examined such documents and considered such legal matters as we have deemed necessary and relevant as the basis for the opinions hereinafter set forth below. These documents included, without limitation, (i) the Registration Statement; (ii) the form of Amended and Restated Certificate of Incorporation of the Company to be effective upon the Closing (the “Certificate of Incorporation”), (iii) the form of Amended and Restated Bylaws of the Company to be effective upon the Closing, (iv) the proposed terms of the Warrants set forth in the Merger Agreement and (v) the proposed terms of the Options set forth in the Merger Agreement.


With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced or certified copies, and the authenticity of the originals of those latter documents.

As to all questions of fact material to these opinions, we have, to the extent deemed appropriate, relied upon certain representations of certain officers and employees of the Company.

In addition to the foregoing, for the purpose of rendering our opinions as expressed herein, we have assumed that:

1. The Certificate of Incorporation, in the form thereof filed with the Commission as an annex to the Registration Statement, without alteration or amendment (other than identifying the appropriate date and completing the number of shares authorized for issuance thereunder, as applicable), will be duly authorized and executed and thereafter be duly filed with the Secretary of State of the State of Delaware (the “DE Secretary of State”), in accordance with Section 103 of the DGCL, that no other certificate or document has been, or prior to the filing of the Certificate of Incorporation will be, filed by or in respect of the Company with the DE Secretary of State and that the Company will pay all fees and other charges required to be paid in connection with the filing of the Certificate of Incorporation; and

2. At and prior to the time of the issuance and delivery of any Securities by the Company pursuant to the Registration Statement, (i) the Registration Statement has been declared effective and no stop order suspending the effectiveness of the Registration Statement has been issued, (ii) the business combination and transactions contemplated by the Merger Agreement and the Registration Statement will be consummated in accordance with the terms of the documents pertaining thereto, without any waiver or breach of any material terms or provisions thereof, and that such transactions will have been effective under applicable law and (iii) the stockholders of the Company will have approved the Merger Agreement and the other proposals set forth in the proxy statement/prospectus included in the Registration Statement, which are to be presented and voted upon at the meeting as set forth in the proxy statement/prospectus included in the Registration Statement.

Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that:

1. Class A Common Stock. Upon the effectiveness of the Registration Statement, and when issued in the manner and on the terms described in the Registration Statement, the Merger Agreement and the Certificate of Incorporation, the shares of Class A Common Stock will be validly issued, fully paid and non-assessable.

2. Class X Common Stock. Upon the effectiveness of the Registration Statement, and when issued on the terms described in the Registration Statement, the Merger Agreement and the Certificate of Incorporation, the shares of Class X Common Stock will be validly issued, fully paid and non-assessable.

3. Warrant Shares. Upon the effectiveness of the Registration Statement, and when issued in the manner and on the terms described in the Registration Statement, the Merger Agreement, the Certificate of Incorporation and the form(s) of the Warrants agreed to by the Company, the Warrant Shares will be validly issued, fully paid and non-assessable.

4. Option Shares. Upon the effectiveness of the Registration Statement, and when issued in the manner and on the terms described in the Registration Statement, the Merger Agreement, the Certificate of Incorporation and the form(s) of the Options agreed to by the Company, the Option Shares will be validly issued, fully paid and non-assessable.

Our opinion herein is expressed solely with respect to the Delaware General Corporation Law of the State of Delaware. Our opinion is based on these laws as in effect on the date hereof and as of the effective date of the Registration Statement, and we assume no obligation to revise or supplement this opinion after the effective date of the Registration Statement should the law be changed by legislative action, judicial decision, or otherwise. We express no opinion as to whether the laws of any other jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any other federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.


We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, to the use of our name as your counsel and to all references made to us in the Registration Statement and in the proxy statement/prospectus forming a part thereof. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.

 

Very truly yours,

/s/ ELLENOFF GROSSMAN & SCHOLE LLP

 

ELLENOFF GROSSMAN & SCHOLE LLP

Exhibit 8.1

ELLENOFF GROSSMAN & SCHOLE LLP

1345 AVENUE OF THE AMERICAS

NEW YORK, NEW YORK 10105

TELEPHONE: (212) 370-1300

FACSIMILE: (212) 370-7889

www.egsllp.com

May 10, 2021

Forest Road Acquisition Corp.

1177 Avenue of the Americas

5th Floor

New York, New York 10036

Ladies and Gentlemen:

We have acted as counsel to Forest Road Acquisition Corp., a Delaware corporation, in connection with the transactions described in the Registration Statement on Form S-4 (File No. 333-253136), originally filed with the Securities and Exchange Commission on February 16, 2021 and as amended through the date hereof (the “Registration Statement”), of which this exhibit is a part. All section references, unless otherwise indicated, are to the United States Internal Revenue Code of 1986, as amended (the “Code”). Capitalized terms not defined herein have the meanings set forth in the Registration Statement.

In preparing this opinion, we have examined and relied upon the Registration Statement and such other documents as we have deemed necessary or appropriate in order to enable us to render this opinion. In our examination of documents, we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures, and the legal capacity of signatories. We have also assumed that the transactions described in the Registration Statement will be consummated in accordance with the description in the Registration Statement.

In rendering this opinion, we have assumed without investigation or verification that the facts and statements set forth in the Registration Statement are true, correct and complete in all material respects; that any representation in any of the documents referred to therein that is made “to the best of the knowledge and belief” (or similar qualification) of any person or party is true, correct and complete without such qualification; and that, as to all matters for which a person or entity has represented that such person or entity is not a party to, does not have, or is not aware of, any plan, intention, understanding or agreement, there is no such plan, intention, understanding or agreement. Any inaccuracy in, or breach of, any of the aforementioned statements, representations or assumptions could adversely affect our opinion.

Our opinion is based on existing provisions of the Code, Treasury Regulations, judicial decisions, and rulings and other pronouncements of the Internal Revenue Service as in effect on the date of this opinion, all of which are subject to change (possibly with retroactive effect) or reinterpretation. No assurances can be given that a change in the law on which our opinion is based or the interpretation thereof will not occur or that such change will not affect the opinion expressed herein. We undertake no responsibility to advise of any such developments in the law.


Based on our examination of the foregoing items and subject to the limitations, qualifications, assumptions and caveats set forth herein, we confirm that the statements in the Registration Statement under the heading “Certain United States Federal Income Tax Considerations of the Redemption” and subject to the limitations, qualifications assumptions and caveats described therein, insofar as they relate to matters of U.S. federal income tax law, constitute our opinion of the material U.S. federal income tax consequences set forth therein.

No opinion is expressed as to any matter not discussed herein.

We hereby consent to the use of our name under the heading “Legal Matters” in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement.

 

Very truly yours,
/s/ ELLENOFF GROSSMAN & SCHOLE LLP
ELLENOFF GROSSMAN & SCHOLE LLP

Exhibit 10.10

 

LOGO

3301 Exposition Blvd., Third Floor

Santa Monica, California 90404

January 20, 2017

Robert Gifford

30956 La Mer Lane

Laguna Niguel, California 92677

Re: Offer of Employment with Beachbody, LLC (REVISED) Dear Robert:

On behalf of Beachbody, LLC (“Beachbody”), we are pleased to offer you the position of President and Chief Operating Officer of Beachbody, reporting directly to the Chief Executive Officer. This letter highlights the essential terms of your employment, which will become effective once you have accepted this offer and begun employment, in accordance with the terms herein. You will work from our Santa Monica and El Segundo offices, and it would be desirable for your start date to be March 2, 2017. Should you find this date inconvenient, please contact me so we can arrange a mutually agreeable date.

Salary: Your annual base salary will be $550,000 per year, less deductions and withholdings required by law, and will be paid on the same payroll schedule as Beachbody’s other employees are paid (currently biweekly). Your base salary will be prorated for any year in which you are employed for less than a full calendar year. This is an exempt position under federal and state law.

Bonus: You will also be eligible for an annual performance bonus target of 50% of your above-stated base salary, prorated for the period of time you work in 2017 (less deductions and withholdings required by law), with a maximum bonus of 75% with a minimum guaranteed 2017 bonus of $50,000. All aspects of any bonus shall be subject to the terms of Beachbody’s annual incentive bonus plan. Specifically and without limitation, bonuses are only payable provided you are employed by Beachbody at the time it pays bonuses to its other C- level executives. Within the first 30 days of employment, you will also receive a commencement sign-on bonus of $25,000 less all applicable taxes. You expressly understand and agree that if you separate from the Company either through a voluntary resignation or are terminated “for cause” within the first 12 months of your employment, you will repay to company within thirty (30) days of your last day of employment a daily prorated portion of the commencement of employment bonus.

Equity compensation: Upon commencement of your employment, you will be granted non-qualified options to purchase 500,000 of Beachbody’s Common Units at Fair Market Value per Common Unit. The options will be granted pursuant to and will be subject to the terms of the Beachbody, LLC 2013 Equity Compensation Plan (the “Plan”), and to the terms of a non-qualified stock option agreement which is pursuant to and subject to the Plan. Options vest annually over five years (in equal installments of 20% each over five years) on your anniversary date, with the first anniversary being 12 months after the actual date of the grant. All vesting ceases upon any termination of your employment.

 


Robert Gifford

January 20, 2017

Page 2

 

Car allowance: You will receive an annual car allowance of $12,000, to be paid monthly as part of payroll, which will be treated as wages subject to normal taxes and other withholdings. Our expectation is that this allowance is sufficient to cover both (a) the monthly costs of owning and maintaining a vehicle, and (b) any business-related automobile travel expenses. Therefore, any other automobile-related expenditure, including but not limited to gas mileage, maintenance or insurance, whether for business travel or not, requires pre- approval by me or by Beachbody’s Chief People Officer, Helene Klein.

Health Insurance and 401(k) Benefits: You will be eligible for healthcare insurance (medical, dental, vision) subject to the terms of Beachbody’s benefits plans. Beachbody will pay 100% of the healthcare insurance costs for you and your family. The terms and conditions of these benefits plans are set forth in the Beachbody Employee Guide and in the summary plan descriptions attached. You also will be eligible for retirement benefits comparable to other employees of Beachbody at your level, subject to the terms of Beachbody’s benefits plans and programs relating to these benefits. Currently, Beachbody offers a 401(k) savings plan with a 50% match (up to 6% of eligible salary), subject to the terms and conditions of the plan.

Severance: If your employment is terminated during the first two years following your employment start date by Beachbody without Cause, Beachbody will continue to pay you for a period of twelve months following the termination of your employment, as severance pay, at the rate of your then-current base salary, and forthe same twelve-month period will continue to make its normal contribution to your monthly health insurance premiums, through COBRA, provided you elect COBRA, at your then-current coverage levels. Any payments due to you as severance pay shall be paid to you in equal installments in accordance with Beachbody’s normal payroll practices, and any such severance payments or COBRA payments will be conditioned upon your execution of Beachbody’s standard general release of all claims against Beachbody and related entities and persons. The first installment of the severance and COBRA payments provided here will be made not later than the second regularly scheduled payroll date which follows the date on which the release has been signed and becomes irrevocable.

For purposes hereof, the term “Cause” shall mean: (i) your misconduct or intentional actions that adversely affects or threatens to adversely affect Beachbody or its reputation in any material respect as determined in good faith by the CEO or Chairman of the Board of Beachbody; (ii) breach of your duty of loyalty to Beachbody; (iii) acts or threats of violence in any manner affecting Beachbody’s reputation or otherwise connected to your employment in any way; (iv) alcohol or substance abuse; (v) wrongful destruction of Beachbody property; (vi) theft, bribery or other illegal acts, or your indictment for the same, other than for minor traffic offenses; (vii) any act of fraud or personal dishonesty which relates to or involves Beachbody in any material way, including misrepresentation on your employment application or other materials provided in the course of seeking employment at Beachbody; (viii) unauthorized disclosure of confidential information of Beachbody; or (ix) material violation of any written policy of Beachbody; or (x) gross negligence of, or gross incompetence in, the performance of your duties for Beachbody as determined by a majority of votes from the Beachbody, LLC Board of Directors.

Notwithstanding any other provision of this letter, including the compensation and severance payment provision set forth above, your employment with Beachbody, as with that of our other employees, will be “at- will,” permitting you or Beachbody to terminate the employment relationship at any time, for any lawful reason, with or without cause or prior notice. Your at-will status can only be modified in an express writing signed by both you and our CEO. By your signature on this letter, you acknowledge, understand and agree that the employment relationship is at-will.


Robert Gifford

January 20, 2017

Page 3

 

Expense Reimbursement: Beachbody shall reimburse you for all reasonable business expenses upon the presentation of properly itemized charges together with appropriate documentation in accordance with Beachbody’s policies and procedures now in force or as such policies and procedures may be modified with respect to all senior executive officers.

Other: Beachbody shall maintain (i) a directors’ and officers’ liability insurance policy, or an equivalent errors and omissions liability insurance policy, and (ii) an employment practices liability insurance policy. Each such policy shall cover you with scope, exclusions, amounts and deductibles no less favorable to you than those applicable to Beachbody’s other executive officers and directors employed on your start date.

If any amounts payable hereunder are subject to Section 409A of the Internal Revenue Code of 1986, as amended, (“Section 409A), the provisions of Schedule A hereto shall apply to such amounts.

The Immigration Reform and Control Act of 1986, as amended, makes it unlawful for an employer to hire an individual who is not authorized to work in the United States. Therefore, on your first day of employment, you will be required to present documentation to verify your employment eligibility and identity.

You have represented to us that you are not subject to a non-compete or other restriction that would prevent you from joining Beachbody or which would limit your ability to work for Beachbody in any way. This offer of employment, and your continued employment at Beachbody, is contingent upon the satisfactory completion of reference/background/credit checks. In addition, as a condition of employment, you will be required to execute a Confidentiality Agreement and an Arbitration Agreement.

This letter and your relationship with Beachbody shall be governed by and construed in accordance with the laws of the State of California without reference to its principles of conflicts of law. This letter may be amended only by an instrument in writing signed by the parties hereto, and any provision hereof may be waived only by an instrument in writing signed by the party or parties against whom or which enforcement of such waiver is sought.

I am very excited about the contribution you will make to Beachbody. If you share my enthusiasm and these terms and conditions are satisfactory to you, please acknowledge and accept this offer by signing this letter and returning a copy to Helene Klein, Chief People Officer, at hklein@beachbody.com on or before January 31, 2017. Of course, should you have any questions or concerns about anything in this offer letter, please call me directly at any time.

 

Very truly yours,

/s/ Carl Daikeler

Carl Daikeler
Chief Executive Officer

I hereby accept the Beachbody employment offer on the terms provided in this letter.

 

/s/ Robert Gifford

Robert Gifford


Schedule A

Compliance with Section 409A. Notwithstanding any other provision of this letter to the contrary, the provision, time and manner of payment or distribution of all compensation and benefits provided by this Agreement that constitute nonqualified deferred compensation subject to and not exempted from the requirements of Code Section 409A (“Section 409A Deferred Compensation”) shall be subject to, limited by and construed in accordance with the requirements of Code Section 409A and all regulations and other guidance promulgated by the Secretary of the Treasury pursuant to such Section (such Section, regulations and other guidance being referred to herein as “Section 409A”), including the following:

(a)Separation from Service. Payments and benefits constituting Section 409A Deferred Compensation otherwise payable or provided upon your termination of employment shall be paid or provided only at the time of a termination of your employment that constitutes a Separation from Service. For the purposes of this letter, a “Separation from Service” is a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h). For any payment described in this paragraph which is contingent upon the execution of a release, the following shall apply: In the event the review and revocation period of such release could cause the payment to be made in either of two successive calendar years, then, notwithstanding any provision in the letter to the contrary, the payment shall not be made prior to January 1 of the second such year.

(b)Six-Month Delay Applicable to Specified Employees. If, at the time of a Separation from Service, you are a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) (a “Specified Employee”), then any payments and benefits constituting Section 409A Deferred Compensation to be paid or provided upon the Separation from Service shall be paid or provided commencing on the later of (i) the date that is six months after the date of such Separation from Service or, if earlier, the date of your death (in either case, the “Delayed Payment Date”), or (ii) the date or dates on which such Section 409A Deferred Compensation would otherwise be paid or provided. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.

(c)Installments. Your right to receive any installment payments payable hereunder shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment for purposes of Section 409A.

(d)Reimbursements. To the extent that any reimbursements or in-kind benefits payable pursuant to this letter are subject to the provisions of Section 409A of the Code, such reimbursements shall be paid no later than December 31 of the year following the year in which the cost was incurred; the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year; and your right to reimbursement will not be subject to liquidation or exchange for another benefit.

You acknowledge that (i) the provisions of this Section may result in a delay in the time which payments would otherwise be made pursuant to this Agreement and (ii) Beachbody is authorized to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by Beachbody, in its discretion, to be necessary or appropriate to comply with Section 409A (including any transition or grandfather rules thereunder) without prior notice or consent. You hereby release and hold harmless Beachbody, its directors, officers and stockholders from any and all claims that may arise from or relate to any tax liability, penalties, interest, costs, fees or other liability incurred as a result of the application of Code Section 409A.

Exhibit 10.11

THE BEACHBODY COMPANY, INC.

FORM OF NON-EMPLOYEE DIRECTOR COMPENSATION PROGRAM

Eligible Directors (as defined below) on the board of directors (the “Board”) of The Beachbody Company, Inc. (the “Company”) shall be eligible to receive cash and equity compensation as set forth in this Non-Employee Director Compensation Program (this “Program”). The cash and equity compensation described in this Program shall be paid or be made, as applicable, automatically as set forth herein and without further action of the Board, to each member of the Board who is not an employee of the Company or any of its parents, affiliates or subsidiaries (each, an “Eligible Director”), who may be eligible to receive such cash or equity compensation, unless such Eligible Director declines the receipt of such cash or equity compensation by written notice to the Company.

This Program shall become effective upon the Effective Date (as defined below), and shall remain in effect until it is revised or rescinded by further action of the Board. This Program may be amended, modified or terminated by the Board at any time in its sole discretion. No Eligible Director shall have any rights hereunder, except with respect to equity awards granted pursuant to Section 2 of this Program. For purposes of this Program, the “Effective Date” shall mean the date on which the closing of the transactions contemplated by that certain Agreement and Plan of Merger by and among Forest Road Acquisition Corp. and certain parties thereto, dated as of February 9, 2021 (the “SPAC Merger”) are consummated.

1.Cash Compensation.

a.Annual Retainers. Each Eligible Director shall be eligible to receive an annual cash retainer of $45,000 for service on the Board.

b.Additional Annual Retainers. An Eligible Director shall be eligible to receive the following additional annual retainers, as applicable:

(i)Audit Committee. An Eligible Director serving as Chairperson of the Audit Committee shall be eligible to receive an additional annual retainer of $20,000 for such service. An Eligible Director serving as a member of the Audit Committee (other than the Chairperson) shall be eligible to receive an additional annual retainer of $10,000 for such service.

(ii)Compensation Committee. An Eligible Director serving as Chairperson of the Compensation Committee shall be eligible to receive an additional annual retainer of $15,000 for such service. An Eligible Director serving as a member of the Compensation Committee (other than the Chairperson) shall be eligible to receive an additional annual retainer of $7,500 for such service.

(iii) Nominating and Corporate Governance Committee. An Eligible Director serving as Chairperson of the Nominating and Corporate Governance Committee shall be eligible to receive an additional annual retainer of $10,000 for such service. An Eligible Director serving as a member of the Nominating and Corporate Governance Committee (other than the Chairperson) shall be eligible to receive an additional annual retainer of $5,000 for such service.

c.Payment of Retainers. The annual cash retainers described in Sections 1(a) and 1(b) shall be earned on a quarterly basis based on a calendar quarter and shall be paid by the Company in arrears not later than 30 days following the end of each calendar quarter. In the event an Eligible Director does not serve as a director, or in the applicable positions described in Section 1(b), for an entire calendar quarter, the retainer paid to such Eligible Director shall be prorated for the portion of such calendar quarter actually served as a director, or in such position, as applicable.


2.Equity Compensation.

a.General. Eligible Directors shall be granted the equity awards described below. The awards described below shall be granted under and shall be subject to the terms and provisions of the Company’s 2021 Incentive Award Plan or any other applicable Company equity incentive plan then-maintained by the Company (such plan, as may be amended from time to time, the “Equity Plan”) and may be granted subject to the execution and delivery of award agreements, including attached exhibits, in substantially the forms approved by the Board prior to or in connection with such grants. All applicable terms of the Equity Plan apply to this Program as if fully set forth herein, and all grants of equity awards hereby are subject in all respects to the terms of the Equity Plan. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Equity Plan.

b.SPAC Merger Awards. Each Eligible Director serving on the Board as of the closing of the SPAC Merger automatically shall be granted a Restricted Stock Unit award (the “SPAC Merger Award”). The Existing Director Award shall be granted upon effectiveness of the Form S-8 with respect to the Company’s Class A common stock issuable under the Plan, subject to continued service through the grant date, and shall cover a number of Restricted Stock Units equal to $200,000 divided by the closing price of the Company’s Class A common stock on the grant date. The Existing Director Award shall vest in full on the date of the annual meeting of the Company’s stockholders (an “Annual Meeting”) in calendar year 2022, subject to continued service through the applicable vesting date.

c.Initial Awards. Each Eligible Director who is initially elected or appointed to serve on the Board after the Effective Date automatically shall be granted a Restricted Stock Unit award (the “Initial Equity Award”). The number of Restricted Stock Units subject to an Initial Equity Award will be determined by dividing the Pro-Rated Value by the closing price for the Company’s Class A common stock on the applicable grant date. The Initial Equity Award shall be granted on the date on which such Eligible Director is appointed or elected to serve on the Board, and shall vest in full on the earlier to occur of (i) the one-year anniversary of the applicable grant date and (ii) the date of the next Annual Meeting following the grant date, subject to such Eligible Director’s continued service through the applicable vesting date. The “Pro-Rated Value” shall equal $200,000, multiplied by a fraction, (i) the numerator of which is the difference between 365 and the number of days from the immediately preceding Annual Meeting date (or the Effective Date, if there is no preceding Annual Meeting date) through the appointment or election date and (ii) the denominator of which is 365.

d.Annual Awards. An Eligible Director who is serving on the Board as of the date of the Annual Meeting each calendar year beginning with calendar year 2022 shall be granted a Restricted Stock Unit award with a value of $200,000 (an “Annual Award” and together with the SPAC Merger Awards and the Initial Equity Awards, the “Director Equity Awards”). The number of Restricted Stock Units subject to an Annual Award will be determined by dividing the value by the closing price for the Company’s Class A common stock on the applicable grant date. Each Annual Award shall vest in full on the earlier to occur of (i) the one-year anniversary of the applicable grant date and (ii) the date of the next Annual Meeting following the grant date, subject to continued service through the applicable vesting date.

e.Accelerated Vesting Events. Notwithstanding the foregoing, an Eligible Director’s Director Equity Award(s) shall vest in full immediately prior to the occurrence of a Change in Control to the extent outstanding at such time.


3.Compensation Limits. Notwithstanding anything to the contrary in this Program, all compensation payable under this Program will be subject to any limits on the maximum amount of non-employee Director compensation set forth in the Equity Plan, as in effect from time to time.

*****

Exhibit 10.12

THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR HYPOTHECATION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED HEREBY.

THE BEACHBODY COMPANY GROUP, LLC

WARRANT TO PURCHASE COMMON UNITS

Void After September 18, 2030

THIS CERTIFIES THAT, for value received, Akron Supplement, LLC or its assigns (the “Holder”), is entitled, subject to the provisions and upon the terms and conditions set forth herein, to subscribe for and purchase at the Exercise Price (defined below) from The Beachbody Company Group, LLC, a Delaware limited liability company (the “Company”), a number of Common Units of the Company as determined hereunder. This Warrant is issued in exchange for, and shall become effective upon surrender by the Holder for cancellation of, that certain Warrant to Purchase Common Units of Beachbody, LLC, a Delaware limited liability company (“Beachbody”), dated as of July 23, 2020 (the “Beachbody Warrant”), at the closing of the transactions contemplated by the Merger Agreement (as defined below).

1. WARRANT UNITS. Subject to any previous exercise of this Warrant and the vesting provisions outlined in Section 4 below, the Holder shall have the right to purchase up to an aggregate of 592,417 of the Company’s Common Units, subject to adjustment as set forth in Section 8(a) (the “Warrant Units”), at a price of $8.44 per unit (the “Exercise Price”), at any time or from time to time prior to the Expiration Date.

2. DEFINITIONS. As used herein, the following terms shall have the following respective meanings:

a. “Act” has the meaning ascribed to such term in the Heading above.

b. “Beachbody” has the meaning ascribed to such term in the Preamble above.

c. “Beachbody Warrant” has the meaning ascribed to such term in the Preamble above.

d. “Common Units” means the units of membership interest designated “Common Units” under the Operating Agreement and having the rights, preferences, privileges and limitations set forth therein.

e. “Expiration Date” means September 18, 2030, unless sooner terminated as provided herein.

 

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f. “Exercise Price” has the meaning ascribed to such term in Section 1 above.

g. “Market Stand-Off” has the meaning ascribed to such term in Section 11 below.

h. “Merger Agreement” means that certain Agreement and Plan of Merger, dated of September     , 2020, by and among the Company, Beachbody, Beachbody Holdings, Inc., a California corporation, Beachbody Merger Sub, LLC, a Delaware limited liability company, Ladder Merger Sub, LLC, a Delaware limited liability company, Ladder, LLC, a Delaware limited liability company, and MSA Manager IV, LLC, as the Equityholder Representative.

i. “Operating Agreement” means that certain Amended and Restated Operating Agreement of the Company dated as of September , 2020, as the same may be amended, restated, supplemented or otherwise modified from time to time.

j. “Services Agreement” means that certain Amended and Restated Services Agreement, dated as of September 18, 2020, by and between Suite 602, LLC and Ladder, LLC, as the same may be amended, restated, supplemented or otherwise modified from time to time.

k. “Warrant Units” has the meaning ascribed to such term in Section 1 above.

3. EXERCISE OF WARRANT. The Holder may, at its option, elect to exercise this Warrant, in whole or in part and at any time or from time to time (but not later than the Expiration Date), with respect to vested underlying Warrant Units by delivery of each of the following to the Company, at its address set forth above (or at such other address as the Company may designate by notice in writing to the Holder):

a. An executed Notice of Exercise in the form attached hereto;

b. Payment of the Exercise Price (i) in cash or by check, or (ii) if the fair market value of one of the Warrant Units is greater than the Exercise Price, as of the date of exercise, the net issue exercise of this Warrant pursuant to Section 4 below; and

c. This Warrant.

Upon any exercise of this Warrant, (i) a certificate or certificates for the Warrant Units so purchased, evidencing issuance of such Warrant Units, or (ii) to the extent that the Warrant Units are uncertificated, evidence of the recordation in the books and records of the Company of the issuance of such Warrant Units, in each case, to and in the name of the Holder or persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder promptly after the rights represented by this Warrant shall have been so exercised. In the event that this Warrant is being exercised for less than all of the then-current number of Warrant Units purchasable hereunder, the Company shall, concurrently with the issuance by the Company of the number of Warrant Units for which this Warrant is being exercised, issue a new Warrant exercisable for the remaining number of Warrant Units purchasable hereunder.

It is the intent of the Company that, to the extent that the Holder exercises the Warrant with respect to Warrant Units that were not vested at the time of a dividend or distribution referred to in clause (i) below or an Acquisition referred to in clause (ii) below (“Applicable Warrant Units”), the Holder is entitled to

 

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receive a fee in an amount equal to any (i) dividends or distributions that are funded, directly or indirectly, with financing (whether in the form of equity or debt or debt-like financing) or sales or transfers of assets outside of the ordinary course of business (but only as to the portion of any such dividends or distributions with respect to the Applicable Warrant Units that are so funded) or (ii) cash consideration in an Acquisition (as defined below), in each case, paid on or after the date hereof with respect to the Common Units. Accordingly, upon exercise of this Warrant solely with respect to Applicable Warrant Units, concurrently with the delivering the Applicable Warrant Units received by the Holder upon such exercise, the Company shall pay the Holder a fee in cash in an amount equal to the amount of any such cash payments made with respect to the Applicable Warrant Units subject to such exercise (i.e., the Warrant Units received by the Holder and/or used by the Holder for a net exercise pursuant to Section 4 hereof), it being agreed and acknowledged that to the extent any cash consideration was paid for the purchase of Common Units, a payment equal to the amount thereof shall be made to the Holder in lieu of delivering the applicable Warrant Unit (unless the Holder waived this provision with respect to such consideration at the time of the Acquisition). For avoidance of doubt, nothing herein limits the effect of Section 5 below and, to the extent that the Applicable Warrant Units become Forfeited Units as referred to in Section 5c below, the Holder shall not be entitled to any cash payments pursuant to this paragraph with respect to those Forfeited Units.

The person in whose name any certificate or certificates for Warrant Units are to be issued, or to whom such issuance shall be recorded in the books and records of the Company, in each case, upon exercise of this Warrant shall be deemed to have become the holder of record of such Warrant Units on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate or certificates or such recordation, as applicable, except that, if the date of such surrender and payment is a date when the unit transfer books of the Company are closed, such person shall be deemed to have become the holder of such Warrant Units at the close of business on the next succeeding date on which such unit transfer books are open.

4. NET EXERCISE. Notwithstanding any provisions herein to the contrary, if the fair market value of one of the Warrant Units is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant by payment of cash, the Holder may elect to receive Warrant Units equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the properly endorsed Notice of Exercise, in which event the Company shall issue to the Holder a number of Warrant Units computed using the following formula:

X = Y (A-B)

A

 

Where    X = the number of Warrant Units to be issued to the Holder
   Y = the number of Warrant Units purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)
   A = the fair market value of one of the Warrant Units (at the date of such calculation)
   B = the Exercise Price (as adjusted to the date of such calculation)

 

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For purposes of the above calculation, the fair market value of one of the Warrant Units shall be determined in reasonable good faith by the Board of Managers of the Company (using reasonable, generally accepted valuation techniques for companies in the Company’s industry, taking into account recent equity financing activities and/or significant transactions involving the Company’s equity, as applicable, and without any minority, illiquidity or other similar discounts); provided, that, the Company shall give the Holder prompt written notice thereof following any such determination, together with reasonable data and documentation to support such determination.

5. VESTING OF THE WARRANT. The Warrant Units shall vest (i) 25% upon the issuance of this Warrant, and (ii) 25% upon each of the first, second and third anniversaries of the issuance of this Warrant. Notwithstanding the foregoing:

a. If the Services Agreement is terminated pursuant to Section 11 thereof, the then unvested Warrant Units shall terminate immediately upon the effectiveness of such termination and the Holder may continue to exercise the vested portion of this Warrant as provided in Section 3, subject to the provisions of subsection (c) below;

b. If the Services Agreement is terminated pursuant to Section 10 thereof, the vesting of the Warrant Units shall accelerate and automatically vest in full upon the effectiveness of such termination, and the Holder may continue to exercise the vested portion of this Warrant as provided in Section 3; and

c. Notwithstanding any other provision of this Warrant, the right to purchase vested Warrant Units shall be terminated and Warrants Units previously purchased shall be subject to repurchase by the Company with respect the Forfeited Units (as defined in and to the extent and on the terms provided in Section 13(a)(ii) of the Services Agreement).

6. COVENANTS OF THE COMPANY.

a. Covenants as to Warrant Units. The Company covenants and agrees that all Warrant Units that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly issued and outstanding, and free from all taxes, liens, encumbrances and charges with respect to the issuance thereof other than as set forth in the Operating Agreement and restrictions on transfer set forth herein and under applicable federal and state securities laws, and no person or entity shall have a right to consent to such issuance. The Company further covenants and agrees that the Company will at all times during the term of this Warrant, have authorized and reserved, free from preemptive rights, a sufficient number of Common Units to provide for the exercise of the rights represented by this Warrant. If at any time during the term of this Warrant, the number of authorized but unissued Common Units shall not be sufficient to permit exercise of this Warrant in full (taking into account any other outstanding warrants and other rights any person or entity may have to acquire Common Units), the Company will take such action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued Common Units to such number of Common Units as shall be sufficient for such purposes.

b. Notices of Record Date. In the event of:

(i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid in previous quarters) or other distribution;

 

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(ii) any capital reorganization of the Company, any reclassification of the equity interests in the Company, any consolidation or merger of the Company, any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company; or

(iii) the voluntary or involuntary dissolution, liquidation or winding up of the Company;

then, and in each such case, the Company shall mail to the Holder, at least 10 days prior to the record date or effective date for the event specified in such notice, a notice specifying, as the case may be, (i) the date on which any such record is to be taken for the purpose of such dividend or distribution of (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Units (or such other equity interests or securities at the time deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding up) are to be determined.

7. REPRESENTATIONS OF HOLDER.

a. Acquisition of Warrant for Personal Account. The Holder represents and warrants that it is acquiring the Warrant solely for its account for investment and not with a view to or for sale or distribution of said Warrant or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Warrant and Warrant Units the Holder is acquiring is being acquired for, and will be held for, its account only.

b. Securities Are Not Registered.

(i) The Holder understands that the Warrant and the Warrant Units have not been registered under the Securities Act of 1933, as amended (the “Act”) and are characterized as “restricted securities” under the federal securities laws on the basis that they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations this Warrant and the Warrant Units may be resold without registration under the Act only in certain limited circumstances. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the securities. The Holder has no such present intention.

(ii) The Holder recognizes that the Warrant and the Warrant Units may need to be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available. In this connection, the Holder represents that it is familiar with Rule 144 under the Act, as presently in effect, and understands the resale limitations imposed thereby and by the Act.

c. Legend.

(i) The Holder understands and agrees that all certificates evidencing the Common Units to be issued to the Holder (if any) may bear the following legend:

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

 

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8. ADJUSTMENT OF EXERCISE PRICE.

a. Reclassifications, Equity Splits, Combinations, Etc. In the event of changes in the outstanding Common Units of the Company by reason of non-cash dividends, equity splits, recapitalizations, reclassifications, combinations or exchanges of equity interests, separations, reorganizations, liquidations, or the like, the number and class of equity interests available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of equity interests as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such equity interests until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Warrant Units subject to this Warrant.

b. Assumption of Warrant. In the event of a merger of the Company with or into another entity, or the sale of substantially all of the assets of the Company (an “Acquisition”), this Warrant shall be assumed or an equivalent warrant substituted by the successor corporation or a parent of the successor corporation at the election of such successor corporation. For the purposes of this paragraph, this Warrant shall be considered assumed if, following the Acquisition, the warrant or right confers the right to purchase or receive, for each Warrant Unit subject to this Warrant immediately prior to the Acquisition, the consideration (whether stock, cash, or other securities or property) received in the Acquisition by holders of Common Units for each Common Unit held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Units).

c. Certificate as to Adjustments. When any adjustment is required to be made in the Warrant Units or the Exercise Price pursuant to this Section 8, the Company shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment.

9. FRACTIONAL UNITS. Fractional units may be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto.

10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by anyone.

11. NO MEMBER RIGHTS. This Warrant in and of itself shall not entitle the Holder to any voting rights or other rights as a member of the Company.

12. TRANSFER OF WARRANT. Notwithstanding anything herein to the contrary, neither this Warrant nor any Warrant Units issued to the Holder hereunder may be transferred or sold without the prior written consent of the Company; provided, that, the Company shall not unreasonably withhold consent for any transfer by the Holder of the Warrant and/or Warrant Units to an affiliate and/or for estate or other tax planning purposes.

 

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13. MARKET STAND-OFF. If an underwritten public offering by the Company of its equity securities occurs pursuant to an effective registration statement filed under the Securities Act, the Holder shall not sell, make any short sale of, loan, hypothecate, pledge, grant any option for the repurchase of, transfer the economic consequences of ownership or otherwise dispose or transfer for value or otherwise agree to engage in any of the foregoing transactions with respect to this Warrant or any Warrant Units without the prior written consent of the Company or its underwriters, for such period of time from and after the effective date of such registration statement as may be requested by the Company or such underwriters (the “Market Stand-Off”); provided, that, the Market Stand-Off is applicable to all equityholders owning more than one percent (1%) of the Company’s outstanding equity securities and all officers and directors. In order to enforce the Market Stand-Off, the Company may impose stop-transfer instructions with respect to this Warrant and any Warrant Units acquired under this Warrant until the end of the applicable stand-off period. If there is any change in the number of outstanding Warrant Units by reason of a Unit split, reverse Unit split, Unit dividend, recapitalization, combination, reclassification, dissolution or liquidation of the Company, any corporate separation or division (including, but not limited to, a split-up, a split-off or a spin-off), a merger or consolidation, a reverse merger or similar transaction, then subject to the foregoing, any new, substituted or additional securities which are by reason of such transaction distributed with respect to any Warrant Units subject to the Market Stand-Off, or into which such Warrant Units thereby become convertible, shall immediately be subject to the Market Stand-Off.

14. Tax Withholding. As a condition to the exercise of this Warrant, to the extent required by applicable federal, state, or local law, prior to the issuance of the Warrant Units, the Holder shall pay or provide for required withholding obligations of the Company. In such circumstances, if the Company permits, the Holder may provide for payment of such withholding taxes upon exercise of this Warrant by one or more of the following means: (a) tendering a cash payment; (b) tendering previously acquired Warrant Units with a Fair Market Value equal to or less than the minimum statutory amount of taxes required to be withheld by law, or (c) by requesting that the Company retain Warrant Units from the Warrant Units otherwise issuable to the Holder as a result of the exercise of this Warrant, provided that no Warrant Units are withheld with a Fair Market Value exceeding the minimum statutory amount of taxes required to be withheld by law. In the case of clause (c), the Company shall issue the net number of Warrant Units to the Holder by deducting the Warrant Units retained from the Warrant Units issuable upon exercise. For purposes of this Section 14, “Fair Market Value” shall be determined in the manner contemplated by Section 4 hereof.

15. AMENDMENT; TERMINATION. This Warrant may be terminated, and any term of this Warrant may be amended or waived, with the written consent of the Company and Holder.

16. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be dispatched by personal delivery or by a nationally recognized, overnight courier service (with tracking capability), addressed in each case to the party entitled thereto at the following addresses: (a) if to the Company, to Beachbody, LLC, 3301 Exposition Blvd, Santa Monica, CA 90404, and (b) if to Holder, c/o Main Street Advisors, 3110 Main Street, Suite 300, Santa Monica, CA 90405, or at such other address as one party may furnish to the other in writing. Notice shall be deemed effective on the date dispatched if by personal delivery or one business day after mailing if by a nationally recognized, overnight courier service.

 

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17. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

18. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder shall be governed by the laws of the State of Delaware.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, each of the undersigned has caused this Warrant to be executed by its duly authorized officer as of September 18, 2020.

 

THE BEACHBODY COMPANY GROUP, LLC
By:  

/s/ Carl Daikeler

  Name: Carl Daikeler
  Title: Chief Executive Officer
AKRON SUPPLEMENT LLC
By:  

/s/ Maverick Carter

  Name: Maverick Carter
  Title: Manager


NOTICE OF EXERCISE TO: THE BEACHBODY COMPANY GROUP, LLC

(1) The undersigned hereby elects to purchase            Common Units of The Beachbody Company Group, LLC (the “Company”) pursuant to the terms of the attached Warrant, and (choose one):

☐ herewith makes payment of                                           Dollars ($                                         ) in payment of the exercise price in full, together with all applicable transfer taxes, if any;

or

☐ elects to Net Exercise the Warrant pursuant to Section 4 thereof in payment of the exercise price in full, together with all applicable transfer taxes, if any.

(2) The undersigned, if not a member of the Company as of the date hereof, intending to be legally bound, hereby joins in and agrees to be bound by, the Amended and Restated Operating Agreement of the Company, as amended to date.

(3) Please (a) issue a certificate or certificates representing said Common Units, or (b) if such Common Units are uncertificated, record such issuance to the undersigned in the books and records of the Company and provide evidence of such recordation, in each case, in the name of the undersigned or in such other name as is specified below:

 

 

 

 
  (Name)  
 

 

 
 

 

 
  (Address)  

By its signature below, the undersigned hereby represents and warrants that it is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended.

 

 

   

 

(Date)     (Signature)
   

 

    (Print name)

Exhibit 10.13

THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR HYPOTHECATION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED HEREBY.

THE BEACHBODY COMPANY GROUP, LLC

WARRANT TO PURCHASE COMMON UNITS

Void After September 18, 2030

THIS CERTIFIES THAT, for value received, Schwarzenegger Blind Trust or its assigns (the “Holder”), is entitled, subject to the provisions and upon the terms and conditions set forth herein, to subscribe for and purchase at the Exercise Price (defined below) from The Beachbody Company Group, LLC, a Delaware limited liability company (the “Company”), a number of Common Units of the Company as determined hereunder. This Warrant is issued in exchange for, and shall become effective upon surrender by the Holder for cancellation of, that certain Warrant to Purchase Common Units of Beachbody, LLC, a Delaware limited liability company (“Beachbody”), dated as of July 23, 2020 (the “Beachbody Warrant”), at the closing of the transactions contemplated by the Merger Agreement (as defined below).

1. WARRANT UNITS. Subject to any previous exercise of this Warrant and the vesting provisions outlined in Section 4 below, the Holder shall have the right to purchase up to an aggregate of 592,417 of the Company’s Common Units, subject to adjustment as set forth in Section 8(a) (the “Warrant Units”), at a price of $8.44 per unit (the “Exercise Price”), at any time or from time to time prior to the Expiration Date.

2. DEFINITIONS. As used herein, the following terms shall have the following respective meanings:

a. “Act” has the meaning ascribed to such term in the Heading above.

b. “Beachbody” has the meaning ascribed to such term in the Preamble above.

c. “Beachbody Warrant” has the meaning ascribed to such term in the Preamble above.

d. “Common Units” means the units of membership interest designated “Common Units” under the Operating Agreement and having the rights, preferences, privileges and limitations set forth therein.

e. “Expiration Date” means September 18, 2030, unless sooner terminated as provided herein.


f. “Exercise Price” has the meaning ascribed to such term in Section 1 above.

g. “Market Stand-Off” has the meaning ascribed to such term in Section 11 below.

h. “Merger Agreement” means that certain Agreement and Plan of Merger,

i. dated of September 18, 2020, by and among the Company, Beachbody, Beachbody Holdings, Inc., a California corporation, Beachbody Merger Sub, LLC, a Delaware limited liability company, Ladder Merger Sub, LLC, a Delaware limited liability company, Ladder, LLC, a Delaware limited liability company, and MSA Manager IV, LLC, as the Equityholder Representative.

j. “Operating Agreement” means that certain Amended and Restated Operating Agreement of the Company dated as of September , 2020, as the same may be amended, restated, supplemented or otherwise modified from time to time.

k. “Services Agreement” means that certain Amended and Restated Services Agreement, dated as of September 18, 2020, by and between Suite 602, LLC and Ladder, LLC, as the same may be amended, restated, supplemented or otherwise modified from time to time.

l. “Warrant Units” has the meaning ascribed to such term in Section 1 above.

3. Exercise of Warrant. The Holder may, at its option, elect to exercise this Warrant, in whole or in part and at any time or from time to time (but not later than the Expiration Date), with respect to vested underlying Warrant Units by delivery of each of the following to the Company, at its address set forth above (or at such other address as the Company may designate by notice in writing to the Holder):

a. An executed Notice of Exercise in the form attached hereto;

b. Payment of the Exercise Price (i) in cash or by check, or (ii) if the fair market value of one of the Warrant Units is greater than the Exercise Price, as of the date of exercise, the net issue exercise of this Warrant pursuant to Section 4 below; and

c. This Warrant.

Upon any exercise of this Warrant, (i) a certificate or certificates for the Warrant Units so purchased, evidencing issuance of such Warrant Units, or (ii) to the extent that the Warrant Units are uncertificated, evidence of the recordation in the books and records of the Company of the issuance of such Warrant Units, in each case, to and in the name of the Holder or persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder promptly after the rights represented by this Warrant shall have been so exercised. In the event that this Warrant is being exercised for less than all of the then-current number of Warrant Units purchasable hereunder, the Company shall, concurrently with the issuance by the Company of the number of Warrant Units for which this Warrant is being exercised, issue a new Warrant exercisable for the remaining number of Warrant Units purchasable hereunder.

It is the intent of the Company that, to the extent that the Holder exercises the Warrant with respect to Warrant Units that were not vested at the time of a dividend or distribution referred to in clause (i) below or an Acquisition referred to in clause (ii) below (“Applicable Warrant Units”), the Holder is entitled to receive a fee in an amount equal to any (i) dividends or distributions that are funded, directly or indirectly, with financing (whether in the form of equity or debt or debt-like financing) or sales or transfers of assets outside of the ordinary course of business (but only as to the portion of any such dividends or distributions with respect to the Applicable Warrant Units that are so funded) or (ii) cash consideration in

 

2


an Acquisition (as defined below), in each case, paid on or after the date hereof with respect to the Common Units. Accordingly, upon exercise of this Warrant solely with respect to Applicable Warrant Units, concurrently with the delivering the Applicable Warrant Units received by the Holder upon such exercise, the Company shall pay the Holder a fee in cash in an amount equal to the amount of any such cash payments made with respect to the Applicable Warrant Units subject to such exercise (i.e., the Warrant Units received by the Holder and/or used by the Holder for a net exercise pursuant to Section 4 hereof), it being agreed and acknowledged that to the extent any cash consideration was paid for the purchase of Common Units, a payment equal to the amount thereof shall be made to the Holder in lieu of delivering the applicable Warrant Unit (unless the Holder waived this provision with respect to such consideration at the time of the Acquisition). For avoidance of doubt, nothing herein limits the effect of Section 5 below and, to the extent that the Applicable Warrant Units become Forfeited Units as referred to in Section 5c below, the Holder shall not be entitled to any cash payments pursuant to this paragraph with respect to those Forfeited Units.

The person in whose name any certificate or certificates for Warrant Units are to be issued, or to whom such issuance shall be recorded in the books and records of the Company, in each case, upon exercise of this Warrant shall be deemed to have become the holder of record of such Warrant Units on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate or certificates or such recordation, as applicable, except that, if the date of such surrender and payment is a date when the unit transfer books of the Company are closed, such person shall be deemed to have become the holder of such Warrant Units at the close of business on the next succeeding date on which such unit transfer books are open.

4. NET EXERCISE. Notwithstanding any provisions herein to the contrary, if the fair market value of one of the Warrant Units is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant by payment of cash, the Holder may elect to receive Warrant Units equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the properly endorsed Notice of Exercise, in which event the Company shall issue to the Holder a number of Warrant Units computed using the following formula:

 

   X = Y (A-B)
               A
Where    X = the number of Warrant Units to be issued to the Holder
   Y = the number of Warrant Units purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)
   A = the fair market value of one of the Warrant Units (at the date of such calculation)
   B = the Exercise Price (as adjusted to the date of such calculation)

For purposes of the above calculation, the fair market value of one of the Warrant Units shall be determined in reasonable good faith by the Board of Managers of the Company (using reasonable, generally accepted valuation techniques for companies in the Company’s industry, taking into account recent equity financing activities and/or significant transactions involving the Company’s equity, as applicable, and without any minority, illiquidity or other similar discounts); provided, that, the Company shall give the Holder prompt written notice thereof following any such determination, together with reasonable data and documentation to support such determination.

 

3


5. VESTING OF THE WARRANT. The Warrant Units shall vest (i) 25% upon the issuance of this Warrant, and (ii) 25% upon each of the first, second and third anniversaries of the issuance of this Warrant. Notwithstanding the foregoing:

a. If the Services Agreement is terminated pursuant to Section 11 thereof, the then unvested Warrant Units shall terminate immediately upon the effectiveness of such termination and the Holder may continue to exercise the vested portion of this Warrant as provided in Section 3, subject to the provisions of subsection (c) below;

b. If the Services Agreement is terminated pursuant to Section 10 thereof, the vesting of the Warrant Units shall accelerate and automatically vest in full upon the effectiveness of such termination, and the Holder may continue to exercise the vested portion of this Warrant as provided in Section 3; and

c. Notwithstanding any other provision of this Warrant, the right to purchase vested Warrant Units shall be terminated and Warrants Units previously purchased shall be subject to repurchase by the Company with respect the Forfeited Units (as defined in and to the extent and on the terms provided in Section 13(a)(ii) of the Services Agreement).

6. COVENANTS OF THE COMPANY.

a. Covenants as to Warrant Units. The Company covenants and agrees that all Warrant Units that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly issued and outstanding, and free from all taxes, liens, encumbrances and charges with respect to the issuance thereof other than as set forth in the Operating Agreement and restrictions on transfer set forth herein and under applicable federal and state securities laws, and no person or entity shall have a right to consent to such issuance. The Company further covenants and agrees that the Company will at all times during the term of this Warrant, have authorized and reserved, free from preemptive rights, a sufficient number of Common Units to provide for the exercise of the rights represented by this Warrant. If at any time during the term of this Warrant, the number of authorized but unissued Common Units shall not be sufficient to permit exercise of this Warrant in full (taking into account any other outstanding warrants and other rights any person or entity may have to acquire Common Units), the Company will take such action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued Common Units to such number of Common Units as shall be sufficient for such purposes.

b. Notices of Record Date. In the event of:

(i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid in previous quarters) or other distribution;

(ii) any capital reorganization of the Company, any reclassification of the equity interests in the Company, any consolidation or merger of the Company, any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company; or

(iii) the voluntary or involuntary dissolution, liquidation or winding up of the Company;

 

4


then, and in each such case, the Company shall mail to the Holder, at least 10 days prior to the record date or effective date for the event specified in such notice, a notice specifying, as the case may be, (i) the date on which any such record is to be taken for the purpose of such dividend or distribution of (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Units (or such other equity interests or securities at the time deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding up) are to be determined.

7. REPRESENTATIONS OF HOLDER.

a. Acquisition of Warrant for Personal Account. The Holder represents and warrants that it is acquiring the Warrant solely for its account for investment and not with a view to or for sale or distribution of said Warrant or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Warrant and Warrant Units the Holder is acquiring is being acquired for, and will be held for, its account only.

b. Securities Are Not Registered.

(i) The Holder understands that the Warrant and the Warrant Units have not been registered under the Securities Act of 1933, as amended (the “Act”) and are characterized as “restricted securities” under the federal securities laws on the basis that they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations this Warrant and the Warrant Units may be resold without registration under the Act only in certain limited circumstances. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the securities. The Holder has no such present intention.

(ii) The Holder recognizes that the Warrant and the Warrant Units may need to be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available. In this connection, the Holder represents that it is familiar with Rule 144 under the Act, as presently in effect, and understands the resale limitations imposed thereby and by the Act.

c. Legend.

(i) The Holder understands and agrees that all certificates evidencing the Common Units to be issued to the Holder (if any) may bear the following legend:

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

8. ADJUSTMENT OF EXERCISE PRICE.

a. Reclassifications, Equity Splits, Combinations, Etc. In the event of changes in the outstanding Common Units of the Company by reason of non-cash dividends, equity splits, recapitalizations, reclassifications, combinations or exchanges of equity interests, separations, reorganizations, liquidations, or the like, the number and class of equity interests available under the

 

5


Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of equity interests as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such equity interests until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Warrant Units subject to this Warrant.

b. Assumption of Warrant. In the event of a merger of the Company with or into another entity, or the sale of substantially all of the assets of the Company (an “Acquisition”), this Warrant shall be assumed or an equivalent warrant substituted by the successor corporation or a parent of the successor corporation at the election of such successor corporation. For the purposes of this paragraph, this Warrant shall be considered assumed if, following the Acquisition, the warrant or right confers the right to purchase or receive, for each Warrant Unit subject to this Warrant immediately prior to the Acquisition, the consideration (whether stock, cash, or other securities or property) received in the Acquisition by holders of Common Units for each Common Unit held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Units).

c. Certificate as to Adjustments. When any adjustment is required to be made in the Warrant Units or the Exercise Price pursuant to this Section 8, the Company shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment.

9. FRACTIONAL UNITS. Fractional units may be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto.

10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by anyone.

11. NO MEMBER RIGHTS. This Warrant in and of itself shall not entitle the Holder to any voting rights or other rights as a member of the Company.

12. TRANSFER OF WARRANT. Notwithstanding anything herein to the contrary, neither this Warrant nor any Warrant Units issued to the Holder hereunder may be transferred or sold without the prior written consent of the Company; provided, that, the Company shall not unreasonably withhold consent for any transfer by the Holder of the Warrant and/or Warrant Units to an affiliate and/or for estate or other tax planning purposes.

13. MARKET STAND-OFF. If an underwritten public offering by the Company of its equity securities occurs pursuant to an effective registration statement filed under the Securities Act, the Holder shall not sell, make any short sale of, loan, hypothecate, pledge, grant any option for the repurchase of, transfer the economic consequences of ownership or otherwise dispose or transfer for value or otherwise agree to engage in any of the foregoing transactions with respect to this Warrant or any Warrant Units without the prior written consent of the Company or its underwriters, for such period of time from and after the effective date of such registration statement as may be requested by the Company or such underwriters (the “Market Stand-Off”); provided, that, the Market Stand-Off is applicable to all equityholders owning

 

6


more than one percent (1%) of the Company’s outstanding equity securities and all officers and directors. In order to enforce the Market Stand-Off, the Company may impose stop-transfer instructions with respect to this Warrant and any Warrant Units acquired under this Warrant until the end of the applicable stand-off period. If there is any change in the number of outstanding Warrant Units by reason of a Unit split, reverse Unit split, Unit dividend, recapitalization, combination, reclassification, dissolution or liquidation of the Company, any corporate separation or division (including, but not limited to, a split-up, a split-off or a spin-off), a merger or consolidation, a reverse merger or similar transaction, then subject to the foregoing, any new, substituted or additional securities which are by reason of such transaction distributed with respect to any Warrant Units subject to the Market Stand-Off, or into which such Warrant Units thereby become convertible, shall immediately be subject to the Market Stand-Off.

14. TAX WITHHOLDING. As a condition to the exercise of this Warrant, to the extent required by applicable federal, state, or local law, prior to the issuance of the Warrant Units, the Holder shall pay or provide for required withholding obligations of the Company. In such circumstances, if the Company permits, the Holder may provide for payment of such withholding taxes upon exercise of this Warrant by one or more of the following means: (a) tendering a cash payment; (b) tendering previously acquired Warrant Units with a Fair Market Value equal to or less than the minimum statutory amount of taxes required to be withheld by law, or (c) by requesting that the Company retain Warrant Units from the Warrant Units otherwise issuable to the Holder as a result of the exercise of this Warrant, provided that no Warrant Units are withheld with a Fair Market Value exceeding the minimum statutory amount of taxes required to be withheld by law. In the case of clause (c), the Company shall issue the net number of Warrant Units to the Holder by deducting the Warrant Units retained from the Warrant Units issuable upon exercise. For purposes of this Section 14, “Fair Market Value” shall be determined in the manner contemplated by Section 4 hereof.

15. AMENDMENT; TERMINATION. This Warrant may be terminated, and any term of this Warrant may be amended or waived, with the written consent of the Company and Holder.

16. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be dispatched by personal delivery or by a nationally recognized, overnight courier service (with tracking capability), addressed in each case to the party entitled thereto at the following addresses: (a) if to the Company, to Beachbody, LLC, 3301 Exposition Blvd, Santa Monica, CA 90404, and (b) if to Holder, c/o Main Street Advisors, 3110 Main Street, Suite 300, Santa Monica, CA 90405, or at such other address as one party may furnish to the other in writing. Notice shall be deemed effective on the date dispatched if by personal delivery or one business day after mailing if by a nationally recognized, overnight courier service.

17. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

18. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder shall be governed by the laws of the State of Delaware.

[SIGNATURE PAGE FOLLOWS]

 

7


IN WITNESS WHEREOF, each of the undersigned has caused this Warrant to be executed by its duly authorized officer as of September 18, 2020.

 

THE BEACHBODY COMPANY GROUP, LLC
By:  

/s/ Carl Daikeler

Name: Carl Daikeler

Title: Chief Executive Officer

PAUL WACHTER, AS TRUSTEE OF THE SCHWARZENEGGER BLIND TRUST
By:  

/s/ Paul Wachter


NOTICE OF EXERCISE TO: THE BEACHBODY COMPANY GROUP, LLC

(1) The undersigned hereby elects to purchase                             Common Units of The Beachbody Company Group, LLC (the “Company”) pursuant to the terms of the attached Warrant, and (choose one):

☐ Herewith makes payment of              Dollars ($             ) in payment of the exercise price in full, together with all applicable transfer taxes, if any; or

☐ elects to Net Exercise the Warrant pursuant to Section 4 thereof in payment of the exercise price in full, together with all applicable transfer taxes, if any.

(2) The undersigned, if not a member of the Company as of the date hereof, intending to be legally bound, hereby joins in and agrees to be bound by, the Amended and Restated Operating Agreement of the Company, as amended to date.

(3) Please (a) issue a certificate or certificates representing said Common Units, or (b) if such Common Units are uncertificated, record such issuance to the undersigned in the books and records of the Company and provide evidence of such recordation, in each case, in the name of the undersigned or in such other name as is specified below:

 

 

(Name)

 

 

 

 

(Address)

By its signature below, the undersigned hereby represents and warrants that it is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended.

 

 

(Date)

                

 

(Signature)

   

 

(Print name)

Exhibit 99.1

PRELIMINARY PROXY CARD – SUBJECT TO COMPLETION

FOREST ROAD ACQUISITION CORP.

1177 Avenue of the Americas, 5th Floor

New York, New York 10036

PROXY CARD

FOR THE SPECIAL MEETING OF STOCKHOLDERS OF

FOREST ROAD ACQUISITION CORP.

THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS

The undersigned hereby appoints Keith L. Horn and Salil Mehta (each, a “Proxy”) as proxies, each with full power to act without the other and the power to appoint a substitute to vote the shares that the undersigned is entitled to vote at the special meeting of stockholders of Forest Road Acquisition Corp. (“Forest Road”) to be held on [ ], 2021 at 10:00 a.m., Eastern Time via live webcast at https://www.[ ], and at any adjournments and/or postponements thereof. Such shares shall be voted as indicated with respect to the proposals listed on the reverse side hereof and in each Proxy’s discretion on such other matters as may properly come before the special meeting or any adjournment or postponement thereof.

The undersigned acknowledges receipt of the accompanying proxy statement and revokes all prior proxies for said meeting.

THE SHARES REPRESENTED BY THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO SPECIFIC DIRECTION IS GIVEN AS TO THE PROPOSALS ON THE REVERSE SIDE, THIS PROXY WILL BE VOTED “FOR” PROPOSALS 1, 2, 3(A)-(F), 4, 5, 6, 7 AND 8. PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY.

(Continued and to be marked, dated and signed on reverse side)

pTO VOTE BY MAIL PLEASE DETACH PROXY CARD HERE AND SIGN, DATE AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDEDp

 

THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1, 2, 3(A)-(F), 4, 5, 6, 7 AND 8.    PLEASE MARK YOUR VOTE AS INDICATED IN THIS EXAMPLE   

(1) Proposal No. 1 — The Business Combination Proposal — To adopt and approve the Agreement and Plan of Merger dated as of February 9, 2021 (as amended or supplemented from time to time, the “Merger Agreement”) by and among Forest Road, BB Merger Sub, LLC, a Delaware limited liability company and direct, wholly-owned subsidiary of Forest Road (“BB Merger Sub”), MFH Merger Sub, LLC, a Delaware limited liability company and direct, wholly-owned subsidiary of Forest Road (“Myx Merger Sub”, and together with BB Merger Sub, the “Merger Subs”), The Beachbody Company Group, LLC, a Delaware limited liability company (“Beachbody”), and Myx Fitness Holdings, LLC, a Delaware limited liability company (“Myx”, and together with Beachbody, the “Target Companies”), and the transactions contemplated by the Merger Agreement (collectively, the “Business Combination”). Pursuant to the Merger Agreement, (1) BB Merger Sub will merge with and into Beachbody, with Beachbody surviving as a wholly-owned subsidiary of Forest Road (the “Surviving Beachbody Entity”); (2) Myx Merger Sub will merge with and into Myx, with Myx surviving as a wholly-owned subsidiary of Forest Road; and (3) the Surviving Beachbody Entity will merge with and into Forest Road (the “Merger”), with Forest Road surviving such merger (such surviving entity, the “Company”), as described in more detail in the attached proxy statement/prospectus.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

 

 


(2) Proposal No. 2 — The Organizational Documents Proposals — To approve and adopt, assuming the Business Combination Proposal is approved and adopted, the second amended and restated certificate of incorporation of the Company (the “Proposed Charter”) and the proposed amended and restated bylaws of the Company to be in effect following the Business Combination, each of which, if approved, would take effect upon the Closing.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

(3) The Advisory Charter Proposals — To approve and adopt, on a non-binding advisory basis, certain governance provisions in the Proposed Charter, which are being presented separately in accordance with SEC guidance to give stockholders the opportunity to present their separate views on important corporate governance provisions, as 6 sub-proposals:

 

  i.

Proposal No. 3(A) — Advisory Charter Proposal A — To reclassify the Company’s capital stock and to increase the total number of authorized shares and classes of stock to 2,000,000,000 shares, consisting of (i) 100,000,000 shares of preferred stock, par value $0.0001 per share, (ii) 1,600,000,000 shares of Class A Common Stock, par value $0.0001 per share, (iii) 200,000,000 shares of Class X Common Stock, par value $0.0001 per shares, and (iv) 100,000,000 shares of Class C Common Stock, par value $0.0001 per share.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

 

  ii.

Proposal No. 3(B) — Advisory Charter Proposal B — To provide that holders of shares of the Company’s Class A Common Stock will be entitled to cast one vote per share of the Company’s Class A Common Stock and holders of shares of the Company’s Class X Common Stock will be entitled to cast 10 votes per share of the Company’s Class common stock on each matter properly submitted to the Company’s stockholders entitled to vote, until the earlier of (a) the date Carl Daikeler is no longer providing services to the Company as a senior executive officer or director of the Company or (b) the date on which the holders of Class X Common Stock as of the Closing Date have sold 75% of their shares (other than pursuant to a Permitted Transfer (as defined in the Proposed Charter), as opposed to each share of Forest Road Class A common stock and Forest Road Class B common stock being entitled to one vote per share on each matter properly submitted to Forest Road’s stockholders entitled to vote.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

 

  iii.

Proposal No. 3(C) — Advisory Charter Proposal C — To provide that each member of the board of directors of the Company will be elected at each annual meeting of stockholders (or special meeting in lieu thereof), as opposed to Forest Road having three classes of directors, with only one class of directors being elected in each year and each class serving a three-year term.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

 

  iv.

Proposal No. 3(D) — Advisory Charter Proposal D — To provide that any action required or permitted to be taken by the stockholders of the Company may not be taken by written consent, other than with respect to holders of preferred stock, who are permitted to take actions by written consent.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN


  iv.

Proposal No. 3(E) — Advisory Charter Proposal E — To provide that if the Delaware Court of Chancery lacks subject matter jurisdiction over a claim brought against or on behalf of the Company or any of its directors, officers, employees or stockholders, then the sole and exclusive forum for such action shall be another state or federal court located within the state of Delaware, unless the Court of Chancery (or such other state or federal court located within the state of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein, and to provide further that any cause of action arising under the Securities Act of 1933, as amended, that is asserted against the Company shall be brought in the federal district courts of the United States unless the Company consents in writing to an alternate forum, and to provide further that failure to enforce the forum selection clause of the Proposed Charter would cause the Company irreparable harm and entitle the Company to equitable relief to enforce the forum selection clause; provided that, notwithstanding the foregoing, the Proposed Charter will provide that the exclusive forum provision will not apply to suits brought to enforce a duty or liability created by the Securities Act or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction, as Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder and Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

 

  iv.

Proposal No. 3(F) — Advisory Charter Proposal F — To provide that the bylaws of the Company may be amended, altered, rescinded or repealed or adopted either (x) by the Company’s board of directors or (y) the affirmative vote of the holders of at least two-thirds of the voting power of the capital stock of the Company.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

(4) Proposal No. 4 — The NYSE Proposal — To approve, assuming the Business Combination Proposal and the Organizational Document Proposal are approved and adopted, for the purposes of complying with the applicable listing rules of the New York Stock Exchange (the “NYSE”), the issuance of more than 20% of our issued and outstanding common stock in connection with subscription agreements entered into in connection with the Business Combination that, in each case, may result in any Seller or any other investor acquiring shares pursuant to such subscription agreements owning more than 20% of our outstanding common stock, or more than 20% of the voting power, which could constitute a “change of control” under NYSE rules.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

(5) Proposal No. 5 — The Incentive Plan Proposal — To approve and adopt, assuming the Business Combination Proposal, the Organizational Document Proposal and the NYSE Proposal are approved and adopted, The Beachbody Company, Inc. 2021 Incentive Award Plan, a copy of which is attached to the accompanying proxy statement as Annex C.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

(6) Proposal No. 6 — The ESPP Proposal — To approve and adopt, assuming the Business Combination Proposal, the Organizational Document Proposal and the NYSE Proposal are approved and adopted, The Beachbody Company, Inc. Employee Stock Purchase Plan, a copy of which is attached to the accompanying proxy statement as Annex D.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN


(7) Proposal No. 7 — The Director Election Proposal — To elect [ ] directors, effective upon the Closing, to serve terms on our board of directors until the annual meeting of stockholders held in the year following the year of their election, or until such directors’ successors have been duly elected and qualified, or until such directors’ earlier death, resignation, retirement or removal.

 

☐ FOR    ☐ AGAINST    ☐ ABSTAIN

(6) Proposal No. 8 — The Adjournment Proposal — To approve the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of any of the Incentive Plan Proposal, Business Combination Proposal, Organizational Document Proposal, NYSE Proposal and ESPP Proposal or the Advisory Charter Proposals.

 

☐ FOR

 

   ☐ AGAINST    ☐ ABSTAIN

 

 

 

  PLEASE MARK, DATE AND RETURN THIS PROXY PROMPTLY.
  ANY VOTES RECEIVED AFTER A MATTER HAS BEEN VOTED UPON WILL NOT BE COUNTED.
  Date: _____________________________, 2021
 

         

  Signature
 

         

  Signature
  Sign exactly as name appears on this proxy card. If shares are held jointly, each holder should sign. Executors, administrators, trustees, guardians, attorneys and agents should give their full titles. If stockholder is a corporation, sign in corporate name by an authorized officer, giving full title as such. If stockholder is a partnership, sign in partnership name by an authorized person, giving full title as such.

pTO VOTE BY MAIL PLEASE DETACH PROXY CARD HERE AND SIGN, DATE AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDEDp