UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 18, 2021

 

FUBOTV INC.

(Exact name of registrant as specified in its charter)

 

Florida   001-39590   26-4330545

(State or other jurisdiction of

incorporation or organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification Number)

 

1330 Avenue of the Americas, New York, NY   10019
(Address of principal executive offices)   (Zip Code)
     
Registrant’s telephone number, including area code:   (212) 672-0055

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

[  ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
[  ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
[  ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
[  ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock, par value $0.0001 per share   FUBO   New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

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 pursuant to Section 13(a) of the Exchange Act. [  ]

 

 

 

 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

 

(e)

 

As previously disclosed in the Company’s Current Report on Form 8-K filed March 12, 2021, Jordan Fiksenbaum resigned from his position as President of fuboTV Inc., a Florida corporation, (the “Company”), effective as of March 8, 2021 (the “Resignation Date”). Mr. Fiksenbaum was designated President of the Company prior to the merger of Facebank Group Inc. and fuboTV in April 2020. His resignation represents an amicable alignment of his post-merger current responsibilities to his role. More specifically, Mr. Fiksenbaum will remain a director and officer of Pulse Evolution Corporation, an entity in which the Company is a majority owner, and focus on that business. The Company has no current intent to designate a Company president and David Gandler will continue to lead the Company as its CEO as he has since the merger in April 2020.

 

The Company and Mr. Fiksenbaum have agreed (i) to enter into a Separation and Settlement Agreement and Release dated as of March 18, 2021 (the “Separation Agreement”), and, (ii) that Mr. Fiksenbaum will provide services to Pulse Evolution Corporation pursuant to the terms of a consulting agreement by and among the Company and HC Marketing, LLC, a company controlled by Mr. Fiksenbaum, dated as of March 18, 2021 (the “Consulting Agreement”).

 

Under the terms of the Separation Agreement, Mr. Fiksenbaum will be paid a total of Three Hundred Thousand Dollars ($300,000) to be paid in equal monthly installments of Twenty-Five Thousand U.S. Dollars ($25,000) over the first 12 months following the Effective Date (as defined in the Separation Agreement) in exchange for a general release of claims against the Company and in satisfaction of any outstanding monetary obligations of the Company to Mr. Fiksenbaum.

 

A copy of the Separation Agreement, is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The foregoing summary of the material terms of the Separation Agreement does not purport to be complete and is qualified in its entirety by reference to Exhibit 10.1.

 

Under the terms of the Consulting Agreement, Mr. Fiksenbaum will be paid equal monthly installments of Fifteen Thousand U.S. Dollars ($15,000) over the first 12 months following the Effective Date (as defined in the Consulting Agreement) for an aggregate payment of One Hundred Eighty Thousand U.S. Dollars ($180,000) in exchange for the performance of certain services to be provided to Pulse Evolution Corporation.

 

A copy of the Consulting Agreement, is attached hereto as Exhibit 10.2 and is incorporated herein by reference. The foregoing summary of the material terms of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to Exhibit 10.2.

 

Item 9.01 Financial Statements and Exhibits

 

(d) Exhibits.

 

Exhibit No.   Description
10.1   Separation Agreement, by and among the Company and Jordan Fiksenbaum, dated as of March 18, 2021.
10.2   Consulting Agreement, by and among the Company and HC Marketing, LLC, a company controlled by Jordan Fiksenbaum, dated as of March 18, 2021.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  FUBOTV INC.
   
Date: March 23, 2021 By /s/ Simone Nardi
  Name: Simone Nardi
  Title: Chief Financial Officer

 

 

 

 

Exhibit 10.1

 

SEPARATION AND SETTLEMENT AGREEMENT AND RELEASE

 

This Separation and Settlement Agreement and Release (“Agreement”) is made by and between Jordan Fiksenbaum (“Individual”) and fuboTV Inc. (fka FaceBank Group, Inc.) (the “Company”) (jointly referred to as the “Parties” or individually referred to as a “Party”).

 

RECITALS

 

WHEREAS, Individual served as President of the Company and submitted his resignation from his position as President of the Company effective as of March 8, 2020 (the “Termination Date”); and

 

WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that the Individual may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Individual’s services to and relationship with the Compan arising prior to the Effective Date of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Individua hereby agree as follows:

 

COVENANTS

 

1. Consideration. In consideration of Individual’s execution of this Agreement and Individual’s fulfillment of all of its terms and conditions, and provided that Individual does not revoke the Agreement under Section 6 below, the Company agrees as follows:

 

a. Payment. The Company shall pay Individual a total of Three Hundred Thousand Dollars ($300,000) payable in twelve equal monthly installments of Twenty-Five Thousand U.S. Dollars ($25,000) each following the Effective Date. Individual will be issued an IRS Form 1099 for the payments set forth in this Section 1.a.

 

b. Acknowledgments. Except as specifically set forth herein, Individual specifically acknowledges and agrees that the consideration provided to Individual hereunder fully satisfies any and all obligations of the Company and any other Releasee (as defined herein), including without limitation related to the wages or any other compensation for any of the services that Individual rendered to the Company or any other Releasee. Individual further acknowledges that the amount payable hereunder is in excess of any disputed wage claim that Individual may have, that the consideration paid shall be deemed to be paid first in satisfaction of any disputed wage claim with the remainder sufficient to act as consideration for the release of claims set forth herein, and that Individual has not earned and is not entitled to receive any additional wages or other form of compensation from the Company. Individual acknowledges that without this Agreement, Individual is otherwise not entitled to the consideration listed in this Section 1.

 

2. Resignation. Effective March 8, 2020, Individual has resigned from any positions he holds as a director or employee of, or other affiliation with, the Company or any of its affiliates or subsidiaries or the respective boards of directors thereof except as relates to his role as an officer and/ or director of Pulse Evolution Corporation. Effective as of March 8, 2020, Individual shall no longer hold himself out or act as a representative of the Company, and he shall promptly direct and forward any inquiries and other communications he receives that pertain to the Company to the Company’s General Counsel.

 

3. Benefits. Individual acknowledges that to the extent he was entitled to participate in any benefits and incidents of his position with the Company, including, but not limited to, vesting in stock options, health insurance, and the accrual of bonuses, vacation, and paid time off, such benefits ceased as of the Termination Date and that no monies are due and payable to him in connection with such matters.

 

4. Payments. Individual acknowledges and represents that, other than the consideration set forth in this Agreement, the Company and the Releasees have paid or provided any and all monies due Individual by Company and any Releasee, including without limitation, all salary, wages, bonuses, accrued vacation/paid time off, notice periods, premiums, leaves, housing allowances, relocation costs, interest, severance, outplacement costs, fees, reimbursable expenses, commissions, stock, stock options, vesting, loan or note repayments, and any and all other benefits and monies due to Individual.

 

Page 1 of 8

 

 

5. Release of Claims. Individual agrees that the foregoing consideration represents settlement in full of all outstanding obligations owed to Individual by the Company and its current and former: officers, directors, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, professional employer organization or co-employer, insurers, trustees, divisions, and subsidiaries and affiliates, and predecessor and successor corporations and assigns (collectively, the “Releasees”). Individual, on Individual’s own behalf and on behalf of Individual’s respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, demand, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that Individual may possess against any of the Releasees arising from any omissions, acts, facts, or damages that have occurred up until and including the Effective Date of this Agreement, including, without limitation:

 

a. any and all claims relating to or arising from Individual’s relationship with the Company, or any other affiliate, subsidiary, or predecessor or successor corporation of the Company, and the termination of those relationships;

 

b. intentionally omitted;

 

c. any and all claims relating to, or arising from, Individual’s right to purchase, actual purchase, or ownership of shares of stock of the Company or any Releasee, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;

 

d. discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and any other tort or contract claims;

 

e. any and all claims for violation of any federal, state, or municipal statute;

 

f. any and all claims for violation of the federal or any state constitution;

 

g. any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Individual as a result of this Agreement; and

 

h. any and all claims for attorneys’ fees and costs.

 

Individual agrees that the release set forth in this Section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any obligations incurred under this Agreement or to Individual’s right to indemnification, if any, under applicable law or the Company’s bylaws or articles of incorporation. This release does not release claims that cannot be released as a matter of law, including any Protected Activity (as defined below). Individual represents that Individual has made no assignment or transfer of any right, claim, complaint, charge, duty, obligation, demand, cause of action, or other matter waived or released by this Section.

 

Page 2 of 8

 

 

6. Acknowledgment of Waiver of Claims under ADEA. Individual acknowledges that Individual is waiving and releasing any rights Individual may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this waiver and release is knowing and voluntary. Individual agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the Effective Date of this Agreement. Individual acknowledges that the consideration given for this waiver and release is in addition to anything of value to which Individual was already entitled. Individual further acknowledges that Individual has been advised by this writing that: (a) Individual should consult with an attorney prior to executing this Agreement; (b) Individual has twenty-one (21) days within which to consider this Agreement; (c) Individual has seven (7) days following Individual’s execution of this Agreement to revoke this Agreement; (d) this Agreement shall not be effective until after the revocation period has expired; and (e) nothing in this Agreement prevents or precludes Individual from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event Individual signs this Agreement and returns it to the Company in less than the 21-day period identified above, Individual hereby acknowledges that Individual has freely and voluntarily chosen to waive the time period allotted for considering this Agreement. Individual acknowledges and understands that revocation must be accomplished by a written notification to the undersigned Individual representative that is received prior to the Effective Date. The Parties agree that changes, whether material or immaterial, do not restart the running of the 21-day period.

 

7. No Pending or Future Lawsuits. Except as set forth on the attached, Individual represents that Individual has no lawsuits, claims, or actions pending in Individual’s name, or on behalf of any other person or entity, against the Company or any of the other Releasees. Individual also represents that Individual does not intend to bring any claims on Individual’s own behalf or on behalf of any other person or entity against the Company or any of the other Releasees.

 

8. Confidentiality. Individual agrees to maintain in complete confidence the existence of this Agreement, the contents and terms of this Agreement, and the consideration for this Agreement (hereinafter collectively referred to as “Separation Information”). Except as required by law, Individual may disclose Separation Information only to Individual’s immediate family members, the Court in any proceedings to enforce the terms of this Agreement, Individual’s counsel, and Individual’s accountant and any professional tax advisor to the extent that they need to know the Separation Information in order to provide advice on tax treatment or to prepare tax returns, and must prevent disclosure of any Separation Information to all other third parties. Individual agrees that Individual will not publicize, directly or indirectly, any Separation Information.

 

9. Trade Secrets and Confidential Information/Company Property. Individual agrees at all times hereafter to hold in the strictest confidence, and not to use or disclose to any person or entity, any Confidential Information of the Company, or any of the Company’s subsidiaries, affiliates, or predecessor corporations. Individual understands that “Confidential Information” means any proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of the Company on whom Individual has called or with whom Individual became acquainted during the term of Individual’s relationship with the Company), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to Individual by the Company, Recall, or any affiliate, subsidiary, or predecessor corporation of the Company either directly or indirectly, in writing, orally, or by drawings or observation of parts or equipment. Individual further understands that Confidential Information does not include any of the foregoing items that have become publicly known and made generally available through no wrongful act of Individual’s or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof. Individual hereby grants consent to notification by the Company to any new employer about Individual’s obligations under this paragraph. Individual represents that Individual has not to date misused or disclosed Confidential Information to any unauthorized party. Individual’s signature below constitutes Individual’s certification under penalty of perjury that Individual has returned all documents and other items provided to Individual by the Company, or any affiliate, subsidiary, or predecessor corporation of the Company, developed or obtained by Individual in connection with Individual’s relationship with the Company or any subsidiary, affiliate, or predecessor corporation of the Company, or otherwise belonging to the Company or any affiliate, subsidiary, or predecessor corporation of the Company.

 

Page 3 of 8

 

 

10. Assignment of Intellectual Property. To the fullest extent permitted by the laws of the State of New York, and the Copyright Act, Individual agrees that all right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, know-how, trademarks, and trade secrets, whether or not patentable or registrable under copyright or similar laws, that Individual may have solely or jointly authored, conceived, developed, or reduced to practice during the period of time he provided services to the Company, Recall, or any affiliate, subsidiary, or predecessor corporation of the Company (including during his off-duty hours), or with the use of the Company’s, Recall’s, or any affiliate’s, subsidiary’s, or predecessor corporation’s equipment, supplies, facilities, or Confidential Information (collectively, “Inventions”), are the sole property of the Company. Individual also agrees to assign, and hereby irrevocably assigns fully to the Company, all of Individual’s right, title and interest in and to Inventions. Individual further acknowledges that all original works of authorship that are made by Individual (solely or jointly with others) within the scope of and during the period of his relationship with the Company, Recall, or any affiliate, subsidiary, or predecessor corporation of the Company and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. Individual understands and agrees that the decision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s sole benefit, and that no royalty, other consideration, or attribution will be due to Individual as a result of the Company’s efforts to commercialize or market any such Inventions. Individual further agrees to assist the Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the Company shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and interest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions.

 

11. No Cooperation. Individual agrees that Individual will not knowingly encourage, counsel, or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against any of the Releasees, unless under a subpoena or other court order to do so or as related directly to the ADEA waiver in this Agreement. Individual agrees both to immediately notify the Company upon receipt of any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a copy of such subpoena or other court order. If approached by anyone for counsel or assistance in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints against any of the Releasees, Individual shall state no more than that Individual cannot provide counsel or assistance.

 

12. Transition Cooperation. Individual agrees to cooperate with the Company and the Board and to make himself available to the Company and the Board for purposes of providing transition assistance, responding to inquiries, and providing information and other assistance as may reasonably be requested.

 

13. Non-disparagement. Individual agrees to refrain from any disparagement, defamation, libel, or slander of any of the Releasees, and agrees to refrain from any tortious interference with the contracts and relationships of any of the Releasees.

 

14. Breach. In addition to the rights provided in the “Attorneys’ Fees” Section below, Individual acknowledges and agrees that any material breach of this Agreement, unless such breach constitutes a legal action by Individual challenging or seeking a determination in good faith of the validity of the waiver herein under the ADEA, shall entitle the Company immediately to recover and/or cease providing the consideration provided to Individual under this Agreement and to obtain damages, except as provided by law, provided, however, that the Company shall not recover One Hundred Dollars ($100.00) of the consideration already paid pursuant to this Agreement and such amount shall serve as full and complete consideration for the promises and obligations assumed by Individual under this Agreement.

 

15. No Admission of Liability. Individual understands and acknowledges that this Agreement constitutes a compromise and settlement of any and all actual or potential disputed claims by Individual. No action taken by the Company hereto, either previously or in connection with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual or potential claims or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever to Individual or to any third party.

 

16. Costs. The Parties shall each bear their own costs, attorneys’ fees, and other fees incurred in connection with the preparation of this Agreement.

 

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17. ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO ARBITRATION IN NEW YORK COUNTY, NEW YORK BEFORE THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (“JAMS”) UNDER ITS COMPREHENSIVE ARBITRATION RULES (“JAMS RULES”) AND NEW YORK. THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH NEW YORK LAW, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL NEW YORK LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH NEW YORK LAW, NEW YORK LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY HALF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES AGREE THAT PUNITIVE DAMAGES SHALL BE UNAVAILABLE IN ARBITRATION. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN.

 

18. Tax Consequences. The Company makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Individual or made on Individual’s behalf under the terms of this Agreement. Individual agrees and understands that Individual is responsible for payment, if any, of local, state, and/or federal taxes on the payments and any other consideration provided hereunder by the Company and any penalties or assessments thereon. Individual further agrees to indemnify and hold the Individual harmless from any claims, demands, deficiencies, penalties, interest, assessments, executions, judgments, or recoveries by any government agency against the Company for any amounts claimed due on account of (a) Individual’s failure to pay, or Individual’s delayed payment of, federal or state taxes, or (b) damages sustained by the Company by reason of any such claims, including attorneys’ fees and costs.

 

19. Authority. The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Individual represents and warrants that Individual has the capacity to act on Individual’s own behalf and on behalf of all who might claim through Individual to bind them to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein.

 

20. Protected Activity. Individual understands that nothing in this Agreement shall in any way limit or prohibit Individual from engaging for a lawful purpose in any Protected Activity. For purposes of this Agreement, “Protected Activity” shall mean filing a charge, complaint, or report with, or otherwise communicating with, cooperating with or participating in any investigation or proceeding that may be conducted by, any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”). Individual understands that in connection with such Protected Activity, Individual is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, the Company. Notwithstanding the foregoing, Individual agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Company confidential information to any parties other than the relevant Government Agencies. Individual further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications, and that any such disclosure without the Company’s written consent shall constitute a material breach of this Agreement. In addition, pursuant to the Defend Trade Secrets Act of 2016, Individual is notified that an individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made in confidence to a federal, state, or local government official (directly or indirectly) or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if (and only if) such filing is made under seal. In addition, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the individual’s attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.

 

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21. No Representations. Individual represents that Individual has had an opportunity to consult with an attorney, and has carefully read and understands the scope and effect of the provisions of this Agreement. Individual has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.

 

22. Severability. In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision or portion of provision.

 

23. Attorneys’ Fees. Except with regard to a legal action challenging or seeking a determination in good faith of the validity of the waiver herein under the ADEA, in the event that either Party brings an action to enforce or effect its rights under this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including the costs of mediation, arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in connection with such an action.

 

24. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Individual concerning the subject matter of this Agreement, the termination of Individual’s relationship with the Company, and the events leading thereto and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement and Individual’s relationship with the Company and any employment agreements between the Company and Individual, with the exception of any services agreement with Pulse Evolution Corporation, except that Sections 9 and 10 of this Agreement shall supersede the surviving provisions of the Employment Agreement (as defined in the Termination Agreement).

 

25. No Oral Modification. This Agreement may only be amended in a writing signed by Individual and the Company’s Chief Executive Officer.

 

26. Governing Law. This Agreement shall be governed by the laws of the New York, without regard for choice-of-law provisions. Individual consents to personal and exclusive jurisdiction and venue in the State of New York.

 

27. Effective Date. Individual understands that this Agreement shall be null and void if not executed by Individual, and returned to the Company, within the twenty-one (21) day period set forth above. Each Party has seven (7) days after that Party signs this Agreement to revoke it. This Agreement will become effective on the eighth (8th) day after Individual signed this Agreement, so long as it has been signed by the Parties and has not been revoked by either Party before that date (the “Effective Date”).

 

28. Counterparts. This Agreement may be executed in counterparts and each counterpart shall be deemed an original and all of which counterparts taken together shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned. The counterparts of this Agreement may be executed and delivered by facsimile, photo, email PDF, Docusign/Echosign or a similarly accredited secure signature service, or other electronic transmission or signature. This Agreement may be executed in one or more counterparts, and counterparts may be exchanged by electronic transmission (including by email), each of which will be deemed an original, but all of which together constitute one and the same instrument.

 

29. Voluntary Execution of Agreement. Individual understands and agrees that Individual executed this Agreement voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of Individual’s claims against the Company and any of the other Releasees. Individual acknowledges that:

 

  (a) Individual has read this Agreement;
     
  (b) Individual has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of Individual’s own choice or has elected not to retain legal counsel;
     
  (c) Individual understands the terms and consequences of this Agreement and of the releases it contains; and
     
  (d) Individual is fully aware of the legal and binding effect of this Agreement.

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.

 

 

    JORDAN FIKSENBAUM, an individual
     
Dated: 03/18/2021   /s/Jordan Fiskenbaum
     
    FaceBank Group, Inc.
     
Dated: 03/18/2021 By  /s/Gina Sheldon
    Gina Sheldon
    General Counsel and Corporate Secretary

 

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Exhibit A

 

[List Litigations]

 

Page 8 of 8

 

 

 

Exhibit 10.2

 

Consulting Agreement

 

Dated as of March 18, 2021

 

This Consulting Agreement (“Agreement”) is made and entered into as of the date first set forth above (the “Effective Date”), by and between Pulse Evolution Corporation, a Nevada corporation (the “Company”) and HC Marketing, LLC, a Delaware limited liability company (“Contractor”). Each of the Company and Contractor may be referred to herein individually as a “Party” and collectively as the “Parties.”

 

W I T N E S S E T H:

 

WHEREAS, the Company is engaged in various business and Contractor is in the business of, among other things, providing services to companies such as the Company; and

 

WHEREAS, the Company desires to engage Contractor, and Contractor desires to be engaged by the Company, on a non-exclusive basis, to render the Services (as hereinafter defined) in connection with the business of the Company to and on behalf of the Company and its subsidiaries and affiliated entities, upon the terms and subject to the conditions and limitations set forth herein.

 

NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

  1. Engagement. In exchange for the compensation as set forth herein and subject to the other terms and conditions hereinafter set forth, the Company hereby engages Contractor during the Term (as defined below), on a non-exclusive basis, to render the Services set forth in Section 2 as an independent contractor of the Company, and Contractor hereby accepts such engagement.
       
  2. Services.
       
      (a) Subject to the terms and conditions and for the Term, Contractor shall provide the Company with strategic advisory services, including providing advice on Company operations and the determination of potential revenue and other opportunities as well as other assigned duties in selected key projects and initiatives as agreed to by the Company and Contractor (collectively, the “Services”).
         
      (b) Contractor will use Contractor’s commercially reasonable efforts to provide the Services using the best of Contractor’s professional skills and in a manner consistent with generally accepted standards for the performance of such work.
         
      (c) The Parties acknowledge and agree that Jordan Fiksenbaum, one of the owners of Contractor, shall be providing the Services hereunder, and that Mr. Fiksenbaum is also the President and currently the sole director of the Company. Contractor’s rights and obligations hereunder shall be separate and distinct from the rights and obligations of Mr. Fiksenbaum and the Company related to Mr. Fiksenbaum’s services as a director or officer of the Company. This Agreement has been approved by the Board of Directors of fuboTV Inc., a Florida corporation and the majority shareholder (directly or indirectly) of the Company (“fuboTV”).

 

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  3. Compensation and Expenses. In return for the provision of the Services, Contractor shall be compensated as follows:
         
      (a) For each full month of the Term (as defined below), the Company shall pay to contractor the sum of $15,000.00, with any partial months to be pro-rated (the “Compensation”).
         
      (b) The Company and Contractor may also agree, in writing, for alternate payments or fees for specific projects requested by the Company and undertaken by Contractor.
         
      (c) The Company shall reimburse Contractor, within 30 days of provision of documented costs, for Contractor’ reasonable out-of-pocket costs related to the provision of the Services which are pre-approved in writing by the Company. Other than as set forth herein, Contractor will pay its own costs and expenses in connection with the provision of the Services.
         
      (d) Any equipment provided by the Company to Contractor in connection with or furtherance of Contractor’s provision of the Services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Company.
         
  4. No Employee Status, No Securities Sales. The Parties also acknowledge and agree that Contractor is an independent contractor and is not an employee or agent of Company in its position as a consultant and advisor. As such, the Company shall not be liable for any employment tax, withholding tax, social security tax, worker’s compensation or any other tax, insurance, expense or liability with respect to any or all compensation, reimbursements and remuneration Contractor may receive hereunder, all of which shall be the sole responsibility of Contractor. Contractor is solely responsible for the reporting and payment of, all pertinent federal, state, or local self-employment or income taxes, licensing fees, or any other taxes or assessments levied by governmental authorities, as well as for all other liabilities or payments related to those services. The Parties also acknowledge and agree that Contractor is not a licensed securities broker or salesperson, and that Contractor will not be participating in, nor compensated for, any unlicensed securities sales activities other than those permitted under any applicable securities laws or Securities and Exchange Commission exemptions.
       
  5. Term; Termination.
       
      (a) The term of this Agreement shall begin as of the Effective Date and shall end on the earlier of (i) the first anniversary of the Effective Date and (ii) the time of the termination of this Agreement and the Term in accordance with this Section 5 (the “Term”).

 

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    (b) Termination by the Contractor. The Contractor may terminate this Agreement and the Term (and therefore Contractor’s engagement hereunder) at any time, for any reason. In the event that Contractor terminates this Agreement and the Term for any reason, then (i) the Company shall pay to Contractor any unpaid Compensation then owed or accrued, and any unreimbursed expenses incurred by the Contractor in each case through the termination date, and each of which shall be paid within 10 days following the termination date; and (ii) all of the Parties’ rights and obligations hereunder shall thereafter cease, other than such rights or obligations which arose prior to the termination date or in connection with such termination, and subject to Section 14(k).
         
    (c) Termination by the Company. The Company may terminate this Agreement and the Term (and therefore Contractor’s engagement hereunder) at any time, with or without Cause (as defined below), subject to the terms and conditions herein.
           
        (i) For Cause. In the event that the Company terminates this Agreement and the Term with Cause, then in such event, (i) the Company shall pay to Contractor any unpaid Compensation then owed or accrued, and any unreimbursed expenses incurred by the Contractor in each case through the termination date, and each of which shall be paid within 10 days following the termination date; and (ii) all of the Parties’ rights and obligations hereunder shall thereafter cease, other than such rights or obligations which arose prior to the termination date or in connection with such termination, and subject to Section 14(k).
           
        (ii) Without Cause. In the event that the Company terminates this Agreement and the Term without Cause, then in such event, (i) the Company shall pay to Contractor an amount equal to $180,000 less any Compensation previously paid, and shall pay to Contractor any unreimbursed expenses incurred by the Contractor in each case through the termination date, and each of which shall be paid within 10 days following the termination date; and (ii) all of the Parties’ rights and obligations hereunder shall thereafter cease, other than such rights or obligations which arose prior to the termination date or in connection with such termination, and subject to Section 14(k).
           
    (d) Definition of Cause. For purposes hereof, “Cause” shall mean:
           
        (i) a material violation of any material written rule or policy of the Company or fuboTV by Contractor or any of Contractor’s personnel (A) for which violation any contractor may be terminated pursuant to the written policies of the Company or fuboTV reasonably applicable to a contractor, and (B) which the Contractor fails to correct within 10 days after the Contractor receives written notice from the Board of Directors of the Company (the “Board”) or any officer of fuboTV of such violation;
           
        (ii) misconduct by the Contractor or any of Contractor’s personnel to the material and demonstrable detriment of the Company or fuboTV;

 

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          (iii) the Contractor’s or any of Contractor’s personnel’s conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to, a felony;
             
          (iv) the Contractor’s or any of Contractor’s personnel’s continued and ongoing gross negligence in the performance of contractor’s duties and responsibilities to the Company as described in this Agreement;
             
          (v) the death or total disability (as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) of Mr. Fiksenbaum; or
             
          (vi) the Contractor’s material failure to perform Contractor’s duties and responsibilities to the Company as described in this Agreement, in either case after written notice from the Board or any officer of fuboTV of such violation to the Contractor of the specific nature of such material failure and the Contractor’s failure to cure such material failure within 10 days following receipt of such notice.
             
  6. Relationship of the Parties.
             
      (a) Contractor is retained by the Company only for the purposes of and to the extent set forth in this Agreement, and Contractor’ relationship to the Company during the period of its engagement hereunder shall be that of an independent contractor. Contractor shall be responsible for the reporting and payment of all income and self-employment taxes for all compensation paid to Contractor hereunder.
           
      (b) This Agreement does not create a relationship of principal and agent, joint venture, partnership or employment between the Company and Contractor. Contractor’ engagement hereunder is not a franchise or business opportunity. Neither Party shall be liable for any obligations incurred by the other except as expressly provided herein.
           
      (c) Contractor shall not have authority to enter into contracts binding the Company or to create any obligations or incur liabilities on behalf of the Company. Contractor shall not act or represent itself, directly or by implication, as an agent of the Company with any authority other than as set forth expressly in this Agreement.
           
      (d) Any person hired by Contractor shall be the employee of Contractor and not of the Company, and all compensation, payroll taxes, facilities and related expenses for any such employee shall be the sole responsibility of Contractor.
             
  7.   Representations and Warranties.
             
      (a) Representations and Warranties of the Company. Company represents and warrants hereunder that this Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite corporate action; that Company has the full right, power and capacity to execute, deliver and perform its obligations hereunder; and that this Agreement, upon execution and delivery of the same by Company, will represent the valid and binding obligation of Company enforceable in accordance with its terms, subject to the application of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, regardless of whether enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”). The representations and warranties set forth herein shall survive the termination or expiration of this Agreement.

 

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      (b) Representations and Warranties of Contractor. Contractor represents and warrants hereunder that this Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite action; that Contractor has the full right, power and capacity to execute, deliver and perform its obligations hereunder; and that this Agreement, upon execution and delivery of the same by Contractor, will represent the valid and binding obligation of Contractor enforceable in accordance with its terms, subject to the Enforceability Exceptions. The representations and warranties set forth herein shall survive the termination or expiration of this Agreement.
         
  8. Indemnification. In the event either Party is subject to any action, claim or proceeding resulting from the other’s gross negligence or intentional breach of this Agreement, the Party at fault agrees to indemnify and hold harmless the other from any such action, claim or proceeding. Indemnification shall include all fees, costs and reasonable attorneys’ fees that the indemnified Party may incur. In claiming indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party written notice of any claim that the indemnified Party reasonably believes falls within the scope of this Agreement. The indemnified Party may, at its expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense, and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent. Any liability of a Party and its officers, directors, controlling persons, employees or agents shall not exceed the amount of fees actually paid to Contractor by Company pursuant this Agreement.
       
  9. Non-Solicit.
         
      (a) As a material inducement to the Company to enter into this Agreement, Contractor agrees, during the Term and for a period of one (1) year thereafter, Contractor shall not directly or indirectly (i) solicit, induce, recruit, encourage or otherwise endeavor to cause or attempt to cause any employee, independent contractor or consultant of the Company or fuboTV to terminate their relationship the Company or fuboTV; (ii) solicit the business or patronage of any Company customer or any fuboTV customer for any other person or entity; (iii) divert, entice, or otherwise take away from the Company or fuboTV the business or patronage of any Company customer or any fuboTV customer, or attempt to do so, (iv) solicit or induce any Company customer or any fuboTV customer to terminate or reduce its relationship with the Company or fuboTV; or (v) solicit or attempt to solicit, for the purpose of engaging in competition with the Company or fuboTV, any person or entity whose account was serviced by Company or fuboTV or which the Company or fuboTV has targeted and contacted prior to the termination of this Agreement, for the purpose of establishing a customer relationship.

 

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      (b) Contractor admits and agrees that Contractor’s breach of the provisions of this Section 9 would result in irreparable harm to Company and or fuboTV. Accordingly, in the event of Contractor’s breach of such restrictions, Contractor agrees that the Company and fuboTV shall be entitled to an injunction restraining such breach without the necessity of posting a bond or other security. Further, in the event of Contractor’s breach, the duration of the restrictions contained in this Section 9 shall be extended for the entire time that the breach existed so that Company and fuboTV are provided with the full time period provided herein. In addition to injunctive relief, the Company and fuboTV shall be entitled to any other remedy available in law or equity by reason of Contractor’s breach or threatened breach of the restrictions contained in this Section 9. If the Company or fuboTV retains an attorney to enforce the provisions of this Section 9, the Company or fuboTV, as applicable, shall be entitled to recover its reasonable attorneys’ fees and costs so incurred from Contractor, both prior to filing a lawsuit, during the lawsuit and on appeal.
         
      (c) Contractor has carefully read and considered the provisions of this Section 9 and, having done so, agrees that the restrictions set forth in such Section 9 are fair and reasonable and are reasonably required for the protection of the legitimate business interests of the Company and fuboTV. In the event that a court of competent jurisdiction or the arbitrators pursuant to Section 14(l)(i) shall determine that any of the foregoing restrictions are unenforceable, the Parties hereto agree that it is their desire that such court or arbitrators, as applicable, substitute an enforceable restriction in place of any restriction deemed unenforceable, and that the substitute restriction be deemed incorporated herein and enforceable against Contractor. It is the intent of the Parties hereto that the court or arbitrators, as applicable, in so determining any such enforceable substitute restriction, recognize that it is their intent that the foregoing restrictions be imposed and maintained to the greatest extent possible.
         
      (d) This Section 9 shall survive the termination of this Agreement for any reason whatsoever and Contractor’ engagement in connection herewith.
         
  10. Trade Names and Trademarks. Contractor agrees that it will use only such trade names, trademarks or other designations of the Company or any simulations thereof as may be authorized in writing by the Company. All such use shall be in accordance with the Company’s instructions and any such authorization may be withdrawn or modified at any time. Contractor will, in the event this Agreement is terminated, cease all use of any of the Company’s trade names, trademarks or other designations or other simulations thereof. Contractor will not register or attempt to register or assert any right of ownership in any of the Company’s trade names, trademarks or other designations or any simulations thereof. Contractor shall immediately notify the Company in writing upon learning of any potential or actual infringement of any trademark, patent, copyright or other proprietary right owned by or licensed to the Company, or of any actual or potential infringement by the Company of the rights of any third party.

 

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  11. Confidential Information.
         
      (a) For purposes of this Agreement, and except as provided below, “Confidential Information” of the Company shall mean any confidential, proprietary or trade secret information, data or know-how which relates to the business, research, services, products, customers, suppliers, employees, or financial information of the Company or any of its subsidiaries or parent entities, including, but not limited to, product or service specifications, designs, drawings, prototypes, computer programs, models, business plans, marketing plans, financial data, financial statements, financial forecasts and statistical information, in each case that is marked as confidential, proprietary or secret, or with an alternate legend or marking indicating the confidentiality thereof or which, from the nature thereof should reasonably be expected to be confidential or proprietary, and any other Material Non-Public Information (as defined below), in each case which is disclosed by the Company or on its behalf, before or after the date hereof, to Contractor either in writing, orally, by inspection or in any other form or medium. Any technical or business information of a third person furnished or disclosed shall be deemed “Confidential Information” of the Company unless otherwise specifically indicated in writing to the contrary.
         
      (b) For purposes of this Agreement, and except as provided below, “Material Non-Public Information” shall mean any information obtained by Contractor hereunder, whether otherwise constituting Confidential Information or not, with respect to which there is a substantial likelihood that a reasonable investor would consider such information important or valuable in making any of his, her or its investment decisions or recommendations to others with respect to the Company or any of its equity securities or debt, or any derivatives thereof, or information that is reasonably certain to have a substantial effect on the price of the Company’s securities or debt, or any derivatives thereof, whether positive or negative.
         
      (c) For a period of two (2) years from the date of its receipt, Contractor agrees to use the Confidential Information only for the purpose of performing the Services (the “Purpose”) and shall use reasonable care not to disclose Confidential Information to any non-affiliated third party, such care to be at least equal to the care exercised by Contractor as to its own Confidential Information, which standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Contractor agrees that it shall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a confidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom disclosure is reasonably necessary for the Purpose. Contractor shall appropriately notify such Representatives that the disclosure is made in confidence and shall be kept in confidence in accordance with this Agreement. Contractor shall be responsible for the failure of its Representatives to comply with the terms of this Agreement.
         
      (d) In addition, Contractor agrees that, for as long as any information, including Confidential Information, continues to meet the definition of Confidential Information as set forth herein, Contractor shall not (1) buy or sell any securities or derivative securities of or related to the Company or any of its subsidiaries or parent entities, or any interest therein or (2) undertake any actions or activities that would reasonably be expected to result in a violation of the Securities Act of 1933, as amended, or the rules and regulations thereunder, or of the Securities Exchange Act of 1934, as amended, including, without limitation, Section 10(b) thereunder, or the rules and regulations thereunder, including, without limitation, Rule 10b-5 promulgated thereunder.

 

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  (e) Without the prior consent of the Company, Contractor shall not remove any proprietary, copyright, trade secret or other protective legend from the Confidential Information.
       
  (f) Contractor acknowledges that the Confidential Information disclosed hereunder may constitute “Technical Data” and may be subject to the export laws and regulations of the United States. Contractor agrees it will not knowingly export, directly or indirectly, any Confidential Information or any direct product incorporating any Confidential Information, whether or not otherwise permitted under this Agreement, to any countries, agencies, groups or companies prohibited by the United States Government unless proper authorization is obtained.
       
  (g) Nothing herein shall be construed as granting to Contractor or its affiliates any right or license to use or practice any of the information defined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights, inventions, patents or other intellectual property rights now or hereafter owned or controlled by the of the Company. Except as allowed by applicable law, Contractor shall not use any tradename, service mark or trademark of the of the Company or refer to the of the Company in any promotional or sales activity or materials without first obtaining the prior written consent of the Company.
       
  (h) The obligations imposed in this Agreement shall not apply to any information that:
         
      (i) was already in the possession of Contractor at the time of disclosure without restrictions on its use or is independently developed by Contractor after the Effective Date, provided that the person or persons developing same have not used any information received from the Company in such development, or is rightfully obtained from a source other than from the Company;
         
      (ii) is in the public domain at the time of disclosure or subsequently becomes available to the general public through no fault of Contractor;
         
      (iii) is obtained by Contractor from a third person who is under no obligation of confidence to the Company; or
         
      (iv) is disclosed without restriction by the Company.
         
  (i) Contractor may disclose such Confidential Information as required to be disclosed pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, provided that Contractor shall notify the Company prior to such disclosure and shall cooperate with the Company in the event the Company elects to legally contest, request confidential treatment, or otherwise avoid such disclosure and shall thereafter only disclose such portion of the Confidential Information as legally required to disclose.

 

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      (j) Upon termination of this Agreement for any reason or upon request by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein, shall be returned to the Company, or destroyed and certified as such by an officer of Contractor. Contractor may retain one copy of all written Confidential Information for its files for reference in the event of a dispute hereunder.
         
      (k) As between the Company and Contractor, the Confidential Information and any Derivative thereof (as defined below), whether created by the Company or Contractor, will remain the property of the Company. For purposes of this Agreement, “Derivative” shall mean: (i) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted, and which constitutes a derivative work under the Copyright laws of the United States; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret.
         
  12. Intellectual Property Rights.
         
      (a) Disclosure of Work Product. As used in this Agreement, the term “Work Product” means any invention, whether or not patentable, know-how, designs, mask works, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artwork, software or any copyrightable or patentable works. Contractor agrees to disclose promptly in writing to Company, or any person designated by the Company, all Work Product that is solely or jointly conceived, made, reduced to practice, or learned by Contractor in the course of the provision of the Services or any work performed for the Company (“Company Work Product”). Contractor agrees (i) to use Contractor’s best efforts to maintain such Company Work Product in trust and strict confidence; (ii) not to use Company Work Product in any manner or for any purpose not expressly set forth in this Agreement; and (iii) not to disclose any such Company Work Product to any third party without first obtaining the Company’s express written consent on a case-by-case basis.
         
      (b) Ownership of Company Work Product. Contractor agrees that any and all Company Work Product conceived, written, created or first reduced to practice in the performance of work under this Agreement shall be deemed “work for hire” under applicable law and shall be the sole and exclusive property of the Company.

 

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    (c) Assignment of Company Work Product. Contractor irrevocably assigns to the Company all right, title and interest worldwide in and to the Company Work Product and all applicable intellectual property rights related to the Company Work Product, including without limitation, copyrights, trademarks, trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary Rights”). Except as set forth below, Contractor retains no rights to use the Company Work Product and agrees not to challenge the validity of the Company’s ownership in the Company Work Product. Contractor hereby grants to the Company a perpetual, non-exclusive, fully paid-up, royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple tiers of sublicensees, to reproduce, make derivative works of, publicly perform, and display in any form or medium whether now known or later developed, distribute, make, use and sell any and all Contractor owned or controlled Work Product or technology that Contractor uses to complete the services and which is necessary for the Company to use or exploit the Company Work Product.
       
    (d) Assistance. Contractor agrees to cooperate with the Company or its designee(s), both during and after the Term, in the procurement and maintenance of Company’s rights in Company Work Product and to execute, when requested, any other documents deemed necessary by Company to carry out the purpose of this Agreement. Contractor will assist the Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Work Product in any and all countries. Contractor’s obligation to assist Company with respect to Proprietary Rights relating to such Company Work Product in any and all countries shall continue beyond the termination of this Agreement, but the Company shall compensate Contractor at a reasonable rate to be mutually agreed upon after such termination for the time actually spent by Contractor at the Company’s request on such assistance.
       
    (e) Execution of Documents. In the event the Company is unable for any reason, after reasonable effort, to secure Contractor’s signature on any document requested by the Company pursuant to this Section 12 within seven (7) days of the Company’s initial request to Contractor, Contractor hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as its agent and attorney in fact, which appointment is coupled with an interest, to act for and on its behalf solely to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section with the same legal force and effect as if executed by Contractor. Contractor hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, which Contractor now or may hereafter have for infringement of any Proprietary Rights assignable hereunder to the Company.
       
    (f) Contractor Representations and Warranties. Contractor hereby represents and warrants that: (i) Company Work Product will be an original work of Contractor or all applicable third parties will have executed assignments of rights reasonably acceptable to the Company; (ii) neither the Company Work Product nor any element thereof will infringe the intellectual property rights of any third party; (iii) neither the Company Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments; and (iv) Contractor will not grant, directly or indirectly, any rights or interest whatsoever in the Company Work Product to any third party.

 

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  13. Non-Disparagement. Contractor agrees that during the Term and for two years following the expiration or termination of this Agreement, Contractor will not make any disparaging, defamatory, or negative statement, whether written or oral, regarding the Company or its respective current or former directors, officers, employees or representatives in any respect. Contractor’s obligations under this Section 13 shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.
       
  14. Miscellaneous.
         
      (a) Notices. All notices under this Agreement shall be in writing. Notices may be served by certified or registered mail, postage paid with return receipt requested; by private courier, prepaid; by other reliable form of electronic communication; or personally. Mailed notices shall be deemed delivered five (5) days after mailing, properly addressed. Couriered notices shall be deemed delivered on the date that the courier warrants that delivery will occur. Electronic communication notices shall be deemed delivered when receipt is either confirmed by confirming transmission equipment or acknowledged by the addressee or its office. Personal delivery shall be effective when accomplished. Any Party may change its address by giving notice, in writing, stating its new address, to the other Party. Subject to the forgoing, notices shall be sent as follows:

 

If to the Company:

 

Pulse Evolution Corporation

Attn: Jordan Fiksenbaum

11450 SE Dixie Highway

Hobe Sound, FL 33455

Email: jordan.fiksenbaum@PULSE.CO

 

With a copy, which shall not constitute notice, to:

 

fuboTV Inc.

Attn: Gina Sheldon

1115 Broadway, 12th Floor

New York, NY 10010

Email: gsheldon@fubo.tv

 

If to Contractor, to:

 

HC Marketing, LLC

11700 W Charleston Blvd., Ste. 170-285

Las Vegas, NV 89135

Email: jordan.fiksenbaum@PULSE.CO

 

    (b) Accuracy of Statements. No representation or warranty contained in this Agreement, and no statement delivered or information supplied to any Party pursuant hereto, contains an untrue statement of material fact or omits to state a material fact necessary in order to make the statements or information contained herein or therein not misleading. The representations and warranties made in this Agreement will be continued and will remain true and complete in all material respects and will survive the execution of the transactions contemplated hereby.

 

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    (c) Entire Agreement. This Agreement sets forth all the promises, covenants, agreements, conditions and understandings between the Parties, and supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, expressed or implied, oral or written, except as herein or therein contained.
       
    (d) Binding Effect; Assignment. This Agreement shall be binding upon the Parties, their heirs, administrators, successors and assigns. Neither Party may otherwise assign or transfer its interests herein, or delegate its duties hereunder, without the written consent of the other Party and, in the case of any assignment by Contractor, the written consent of fuboTV. Any assignment or delegation of duties in violation of this provision shall be null and void.
       
    (e) Amendment. The Parties hereby irrevocably agree that no attempted amendment, modification, termination, discharge or change (collectively, “Amendment”) of this Agreement shall be valid and effective, unless the Parties shall unanimously agree in writing to such Amendment and such Amendment is agreed to in writing by fuboTV.
       
    (f) No Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the Party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver.
       
    (g) Gender and Use of Singular and Plural. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Party or Parties, or their personal representatives, successors and assigns may require.
       
    (h) Headings. The article and section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of the Agreement.
       
    (i) Governing Law. This Agreement, and any dispute arising out of, relating to, or in connection with this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

 

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  (j) Severability; Expenses; Further Assurances. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible. Except as otherwise specifically provided in this Agreement, each Party shall be responsible for the expenses it may incur in connection with the negotiation, preparation, execution, delivery, performance and enforcement of this Agreement. The Parties shall from time to time do and perform any additional acts and execute and deliver any additional documents and instruments that may be required by Law or reasonably requested by any Party to establish, maintain or protect its rights and remedies under, or to effect the intents and purposes of, this Agreement.
       
  (k) Survival. The provisions of Section 7, Section 8, Section 10, Section 11, Section 12, Section 13 and Section 14 of this Agreement shall survive any expiration or termination of this Agreement and the Term for the maximum period permitted by law.
       
  (l) Enforcement of the Agreement; Jurisdiction; No Jury Trial.
         
      (i) Each of the Parties irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising under this Agreement, or for recognition and enforcement of any judgment or arbitral award or resolution in respect of this Agreement, shall be brought and determined exclusively in the courts of the State of New York located in New York City, New York or in the event (but only in the event) that such courts do not have subject matter jurisdiction over such action or proceeding, in the United States District Court sitting in New York City, New York (the “Selected Courts”). Each of the Parties hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the Selected Courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the Selected Courts. Each of the Parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the Selected Courts for any reason other than the failure to serve in accordance with this Section 14(l); (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise); and (c) to the fullest extent permitted by law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum; (ii) the venue of such suit, action or proceeding is improper; or (iii) this Agreement, or the subject matter of this Agreement, may not be enforced in or by the Selected Courts.

 

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      (ii) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
         
      (iii) The Contractor hereby expressly acknowledges that the agreements and restrictions contained herein are reasonable and necessary to protect the Company’s legitimate interests, that the Company would not have entered into this Agreement in the absence of such agreements and restrictions, and that any violation of such restrictions will result in irreparable harm to the Company. The Contractor agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, and specific performance of, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of, the agreements and restrictions contained herein, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The Contractor irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this Section 14(l)(iii) may be brought in the Selected Courts, (ii) consents to the non-exclusive jurisdiction of the Selected Courts in any such proceeding, and (iii) waives any objection to the laying of venue of any such proceeding in any Selected Court.
         
  (m) Attorneys’ Fees. If any Party hereto is required to engage in litigation against any other Party, either as plaintiff or as defendant, in order to enforce or defend any rights under this Agreement, and such litigation results in a final judgment in favor of such Party (“Prevailing Party”), then the party or parties against whom said final judgment is obtained shall reimburse the Prevailing Party for all direct, indirect or incidental expenses incurred, including, but not limited to, all attorneys’ fees, court costs and other expenses incurred throughout all negotiations, trials or appeals undertaken in order to enforce the Prevailing Party’s rights hereunder.
       
  (n) Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to confer upon any other person or entity any rights or remedies of any nature whatsoever under or by reason of this Agreement, provided however, that fuboTV is an intended third party beneficiary of this Agreement to the extent that this Agreement provides any rights or remedies to or on behalf of fuboTV, and fuboTV may enforce the same as though it were a “Party” hereto.
       
  (o) Execution in Counterparts, Electronic Transmission. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The signature of any Party which is transmitted by any reliable electronic means such as, but not limited to, a photocopy, electronically scanned or facsimile machine, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature or an original document.

 

[Signatures appear on following page]

 

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

 

  Pulse Evolution Corporation
   
  By: /s/ Jordan Fiksenbaum
  Name: Jordan Fiksenbaum
  Title: President
     
  HC Marketing, LLC
     
  By: /s/ Jordan Fiksenbaum
  Name: Jordan Fiksenbaum
  Title: General Partner

 

Agreed and accepted:

 

fuboTV Inc.

 

By: /s/ Gina Sheldon  
Name: Gina Sheldon  
Title: General Counsel  

 

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