Exhibit 3.1
SECOND 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. (“Corporation”),
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. The
Corporation’s Board of Directors and holders of a majority of
the Corporation’s voting stock previously adopted resolutions
to amend and restate the Certificate of Incorporation of this
Corporation on October 7, 2016, which amended and restated
Certificate of Incorporation was filed with the State of Delaware
on the same date.
3. That the Board of
Directors duly adopted resolutions on August 15, 2018 proposing to
again amend and restate the Certificate of Incorporation of this
Corporation, declaring this Second Amended and Restated Certificate
of Incorporation 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
Second Amended and Restated Certificate of Incorporation 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 is 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 which the Corporation shall have authority
to issue is one hundred and ten million (110,000,000) shares, of
which one hundred million (100,000,000) shares shall be common
stock, par value $0.001 per share (“Common
Stock”), and ten million (10,000,000) shares shall be
preferred stock, par value $0.001 per share (“Preferred
Stock”). The Board of Directors of the Corporation may
divide the Preferred Stock into any number of series, fix the
designation and number of each such series, and determine or change
the designation, relative rights, preferences, and limitations of
any series of Preferred Stock. The Board of Directors (within the
limits and restrictions of the adopting resolutions) may also
increase or decrease the number of shares of Preferred Stock
initially fixed for any series, but no decrease may reduce the
number below the shares of Preferred Stock then outstanding and
duly reserved for issuance.
The
following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or
restrictions thereof in respect of the Common 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. Payments to Holders of Common
Stock. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation available for distribution to its holders
of Common Stock 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.
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 provisions 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 capital 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).
* * * * *
4. That this Second
Amended and Restated Certificate of Incorporation was approved by
the holders of the requisite number of shares of this Corporation
in accordance with Section 228 of the General Corporation
Law.
5. That this Second
Amended and Restated Certificate of Incorporation, which restates
and integrates and further amends the provisions of this
Corporation’s Amended and Restated Certificate of
Incorporation, has been duly adopted in accordance with Sections
242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Second Amended
and Restated Certificate of Incorporation has been executed by a
duly authorized officer of this Corporation on November 19,
2018.
Ann
Hand
Chief
Executive Officer