Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF
SUPER LEAGUE GAMING, INC.
(Pursuant to
Sections 242 and 245 of the General Corporation Law of the State of
Delaware)
Super
League Gaming, Inc., a corporation organized and existing under and
by virtue of the provisions of the General Corporation Law of the
State of Delaware (the
"General Corporation Law"),
DOES HEREBY CERTIFY:
1. That the name of
this corporation is Super League Gaming, Inc., and that this
corporation was originally incorporated pursuant to the General
Corporation Law on October 1, 2014 under the name Nth Games,
Inc.
2. That the Board of
Directors duly adopted resolutions proposing to amend and restate
the Certificate of Incorporation of this corporation, declaring
said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing
the appropriate officers of this corporation to solicit the consent
of the stockholders therefor, which resolution setting forth the
proposed amendment and restatement is as follows:
RESOLVED, that the Certificate of
Incorporation of this corporation be amended and restated in its
entirety to read as follows:
FIRST: The name of this corporation 1s
Super League Gaming, Inc. (the
"Corporation").
SECOND: The address of the registered
office of the Corporation in the State of Delaware is 1209 Orange
Street, Wilmington, DE 19801, New Castle County. The name of its
registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or
purposes to be conducted or promoted is to engage in any lawful act
or activity for which corporations may be organized under the
General Corporation Law.
FOURTH: The total number of shares of
all classes of stock which the Corporation shall have authority to
issue is 50,000,000 shares of Common Stock, $0.001 par value per
share
("Common Stock").
The
following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or
restrictions thereof in respect of each class of capital stock of
the Corporation.
A. COMMON
STOCK
1. Voting. The holders of the
Common Stock are entitled to one vote for each share of Common
Stock held at all meetings of stockholders (and written actions in
lieu of meetings). There shall be no cumulative
voting.
2. Dividends.
2.1 Dividends Generally. Any
dividends declared or paid in any fiscal year shall be declared or
paid among the holders of the Common Stock then outstanding, pro
rata and pari passu based on the number of shares held by each such
holder. The right to receive dividends on shares of Common Stock
shall not be cumulative.
2.2 Non-Cash Distributions.
Whenever a dividend provided for in this Section 2 shall be payable in
property other than cash, the value of such dividend shall be
deemed to be the fair market value of such property as determined
in good faith by the Board of Directors.
3. Liquidation. Dissolution or Winding
Up: Certain Mergers. Consolidations and Asset
Sales.
3.1 Payments to Holders of Common
Stock. In the event ofany voluntary or involuntary
liquidation, dissolution or winding up of the Corporation or Deemed
Liquidation Event (as defined in Subsection 3.2.1). the assets
of the Corporation available for distribution to its stockholders
shall be distributed among the holders of shares of Common Stock,
pro rata and pari passu based on the number of shares held by each
such holder (the amount payable per share of Common Stock pursuant
to the foregoing sentence is hereinafter referred to as the
"Liquidation Amount").
3.2
Deemed Liquidation Events.
3.2.1 Definition. Each of the
following events shall be considered a"Deemed Liquidation
Event":
(a)
a merger or
consolidation in which (i) the Corporation is a constituent party
or (ii) a subsidiary of the Corporation is a constituent party and
the Corporation issues shares of its capital stock pursuant to such
merger or consolidation, except any such merger or consolidation
involving the Corporation or a subsidiary in which the shares of
capital stock of the Corporation outstanding immediately prior to
such merger or consolidation continue to represent, or are
converted into or exchanged for equity securities that represent,
immediately following such merger or consolidation, at least a
majority, by voting power, of the equity securities of (I) the surviving or
resulting entity or (2) if the surviving or resulting entity is a
wholly owned subsidiary of another entity immediately following
such merger or consolidation, the parent entity of such surviving
or resulting entity; or
(b)
the
sale, lease, conveyance, transfer, exclusive license or other
disposition, in a single transaction or series of related
transactions, by the Corporation or any subsidiary of the
Corporation of all or substantially all the assets of the
Corporation and its subsidiaries taken as a whole, or the sale or
disposition (whether by merger, consolidation or otherwise) of one
or more subsidiaries of the Corporation if substantially all of the
assets of the Corporation and its subsidiaries taken as a whole are
held by such subsidiary or subsidiaries, except where such sale,
lease, conveyance, transfer, exclusive license or other disposition
is to a wholly owned subsidiary of the Corporation (an
"Asset Sale").
3.2.2 Effecting
a Deemed Liquidation Event.
(a)
The Corporation shall not have the power to effect a Deemed
Liquidation Event referred to in Subsection 3.2.l(a)(i) unless
the agreement or plan of merger or consolidation for such
transaction provides that the consideration payable to the
stockholders of the Corporation shall be allocated among the
holders of capital stock of the Corporation in accordance with
Subsection
3.1.
(b)
In the
event of a Deemed Liquidation Event referred to in Subsection 3.2.I(a)(ii) or
3.2.l(b), if the
Corporation does not effect a dissolution of the Corporation under
the General Corporation Law within ninety (90) days after such
Deemed Liquidation Event, then (i) the Corporation shall send a
written notice to each holder of Common Stock no later than the
ninetieth (90th) day after the Deemed Liquidation Event advising
such holders of their right (and the requirements to be met to
secure such right) pursuant to the terms of the following clause
(ii) to require the redemption of such shares of Common Stock, and
(ii) if the holders of at least a majority of the then outstanding
shares of Common Stock so request in a written instrument delivered
to the Corporation not later than one hundred twenty (120) days
after such Deemed Liquidation Event, the Corporation shall use the
consideration received by the Corporation for such Deemed
Liquidation Event (net of any retained liabilities associated with
the assets sold or technology licensed, as determined in good faith
by the Board of Directors of the Corporation), together with any
other assets of the Corporation available for distribution to its
stockholders, all to the extent permitted by Delaware law governing
distributions to stockholders (the
"Available Proceeds"), on the one hundred fiftieth (150th)
day after such Deemed Liquidation Event, to redeem all outstanding
shares of Common Stock at a price per share equal to the
Liquidation Amount. Notwithstanding the foregoing, in the event of
a redemption pursuant to the preceding sentence, if the Available
Proceeds are not sufficient to redeem all outstanding shares of
Common Stock, the Corporation shall ratably redeem each holder's
shares of Common Stock to the fullest extent of such Available
Proceeds, and shall redeem the remaining shares as soon as it may
lawfully do so under Delaware law governing distributions to
stockholders. Upon any such redemption, each holder shall surrender
the certificates being redeemed upon receipt of payment therefor.
Prior to the distribution or redemption provided for in this
Section 3.2.2(b).
the Corporation shall not expend or dissipate the consideration
received for such Deemed Liquidation Event, except to discharge
expenses incurred in connection with such Deemed Liquidation
Event.
3.2.3 Amount Deemed Paid or
Distributed. The amount deemed paid or distributed to the
holders of capital stock of the Corporation upon any such merger,
consolidation, sale, transfer, exclusive license, other disposition
or redemption shall be the cash or the value of the
property, rights or securities paid or distributed to such holders
by the Corporation or the acquiring person, firm or other entity.
The value of such property, rights or securities shall be
determined in good faith by the Board of Directors of the
Corporation.
4. Election of Directors. The
holders of record of the shares of Common Stock shall be entitled
to elect the directors of the Corporation. At any meeting held for
the purpose of electing a director, the presence in person or by
proxy of the holders of a majority of the outstanding shares of
Common Stock shall constitute a quorum for the purpose of electing
such director.
5. Notice of Record Date. In the
event (i) the
Corporation shall take a record of the holders of Common Stock for
the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or
purchase any shares of capital stock of any class or any other
securities, or to receive any other security, (ii) of any capital
reorganization of the Corporation, any reclassification of the
Common Stock, or any Deemed Liquidation Event or
(iii)
of the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, then, and in each such case, the Corporation
will send or cause to be sent to the holders of the Common Stock a
notice specifying, as the case may be, (x) the record date for such
dividend, distribution or right, and the amount and character of
such dividend, distribution or right, or (y) the effective date on
which such capital reorganization, reclassification, Deemed
Liquidation Event, dissolution, liquidation or winding up is
proposed to take place, and the time, if any is to be fixed, as of
which the holders ofrecord of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other
property deliverable upon such capital reorganization,
reclassification, Deemed Liquidation Event, dissolution,
liquidation or winding up, and the amount per share and character
of such exchange applicable to the Common Stock. Such notice shall
be sent at least ten (10) days prior to
the record date or effective date for the event specified in such
notice.
6. Notices. Any notice required or
permitted by the provisions of this Article Fourth to be given to a
holder of shares of Common Stock shall be mailed, postage prepaid,
to the post office address last shown on the records of the
Corporation for such holder, given by the holder to the Corporation
for the purpose of notice, or given by electronic communication in
compliance with the provisions of the General Corporation Law, and
shall be deemed sent upon such mailing or electronic
transmission.
FIFTH: Subject to any additional vote
required by this Amended and Restated Certificate of Incorporation
or the Bylaws of the Corporation, in furtherance and not in
limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, repeal, alter, amend and
rescind any or all of the Bylaws of the Corporation.
SIXTH: The number of directors of the
Corporation shall be determined in the manner set forth in the
Bylaws of the Corporation.
SEVENTH: Elections of directors need not
be by written ballot unless the Bylaws of the Corporation shall so
provide.
EIGHTH: Meetings of stockholders may be
held within or without the State of Delaware, as the Bylaws of the
Corporation may provide. The books of the Corporation may be
kept
outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
NINTH: To the fullest extent permitted
by law, a director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. If the General
Corporation Law or any other law of the State of Delaware is
amended after approval by the stockholders of this Article Ninth to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law as so
amended.
Any
repeal or modification of the foregoing prov1s1ons of this Article
Ninth by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of, or increase the liability of any director
of the Corporation with respect to any acts or omissions of such
director occurring prior to, such repeal or
modification.
TENTH: To the fullest extent permitted
by applicable law, the Corporation is authorized to provide
indemnification of (and advancement of expenses to) directors,
officers and agents of the Corporation (and any other persons to
which General Corporation Law permits the Corporation to provide
indemnification) through Bylaw provisions, agreements with such
agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the General
Corporation Law.
Any
amendment, repeal or modification of the foregoing provisions of
this Article Tenth shall not adversely affect any right or
protection of any director, officer or other agent of the
Corporation existing at the time of such amendment, repeal or
modification.
ELEVENTH: For purposes of Section 500 of
the California Corporations Code (to the extent applicable), in
connection with any repurchase of shares of Common Stock permitted
under the Certificate of Incorporation from employees, officers,
directors or consultants of the Corporation in connection with a
termination of employment or services pursuant to agreements or
arrangements approved by the Board (in addition to any other
consent required under the Certificate of Incorporation), such
repurchase may be made without regard to any "preferential
dividends arrears amount" or "preferential rights amount" (as those
terms are defined in Section 500 of the California Corporations
Code). Accordingly, for purposes of making any calculation under
California Corporations Code Section 500 in connection with such
repurchase, the amount of any "preferential dividends arrears
amount" or "preferential rights amount" (as those terms are defined
therein) shall be deemed to be zero (0).
* *
* * *
3. That the foregoing
amendment and restatement was approved by the holders of the
requisite number of shares of this corporation in accordance with
Section 228 of the General Corporation Law.
4. That this Amended
and Restated Certificate of Incorporation, which restates and
integrates and further amends the provisions of this Corporation's
Certificate of Incorporation, has been duly adopted in accordance
with Sections 242 and 245 of the General Corporation
Law.
IN WITNESS WHEREOF, this Amended and
Restated Certificate of Incorporation has been executed by a duly
authorized officer of this corporation on October 7,
2016.
|
By:
/s/ Ann
Hand
Ann Hand, Chief Executive Officer
|