UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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) April 24, 2024 (August 5, 2024)
SIMPLICITY ESPORTS AND GAMING COMPANY
(Exact name of registrant as specified in its charter)
Delaware | 001-38188 | 82-1231127 | ||
(State or other jurisdiction | (Commission | (IRS Employer | ||
of incorporation) | File Number) | Identification No.) |
203 S Church Street Jacksboro, TX |
76458 | |
(Address of principal executive offices) | (Zip Code) |
(855) 345-9467
(Registrant’s telephone number, including area code)
7000 W. Palmetto Part Road, Suite 505
Boca Raton, FL
(Former name or former address, if changed since last report.)
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 (see General Instruction A.2. below):
☐ | 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 | ||
N/A | N/A | N/A |
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 provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.01 Change in Control of Registrant.
On or about April 24, 2024, pursuant to the Assignment Agreement by and between James Hiza and Roman Franklin, dated as of April 24, 2024 (the “Assignment Agreement”), Roman Franklin assigned and sold one share of the Series X Convertible Preferred Stock, par value $0.0001 per share (the “Series X Stock”), of Simplicity Esports and Gaming Company, a Delaware corporation (the “Company”), to James Hiza for a purchase price of $1.00. As such, James Hiza acquired control of the Company from Roman Franklin. The Certificate of Designations of Preferences and Rights of Series X Convertible Preferred Stock (the “Certificate of Designation”) states the rights and preferences of the holder of the Series X Stock.
Pursuant to the Certificate of Designation, the one share of Series X Stock has a number of votes at any time equal to the (i) the total number of votes then held or entitled to be made by all other securities of the Company, including, without limitation, the common stock, par value $0.0001 per share, of the Company (the “Common Stock”), debt securities of the Company or pursuant to any other agreement, contract or understanding of the Corporation, plus (ii) one (1) vote.
As a result of the assignment, a change in control of the Company to Mr. Hiza occurred.
The information set forth under Items 5.02 this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
The forgoing summaries of the material terms of the Assignment Agreement and Certificate of Designation are qualified in their entirety by the full text of the agreement and certificate, copies of which are filed herewith as Exhibits 3.1 and 4.1, respectively.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Election of Directors
In light of the circumstance that all members of the board of directors of the Company (the “Board”) have resigned as of May 15, 2024, the Company’s stockholders elected Scott Cox to serve as the sole Class I director of the Board on May 15, 2024 (with one Class II director seat remaining vacant until filled by the Class I director pursuant to Section 5.2 of Article V of the Certificate of Incorporation (as defined below)). Scott Cox will serve on the Board until the earlier of (i) the election of his successor at the second annual meeting of stockholders following the date hereof in accordance with the Bylaws (as defined below), or (ii) his resignation, removal, disqualification or death.
Mr. Cox, age 51, has over 25 years of experience in the management and operations of public and private companies. Mr. Cox currently serves as President, CEO, CFO and sole director of Formation Minerals, Inc. (OTC: FOMI) (“Formation”). Since September 2023, Mr. Cox also serves as a director and the interim Chief Executive Officer of THC Therapeutics, Inc. (OTC: THCT), a company focusing on becoming a consolidation catalyst in the cannabis industry and modern healthcare space through mergers and acquisitions. Prior, he served as Chief Executive Officer and sole director of Verde Bio Holdings, Inc., which was merged with SensaSure Technologies Inc. (OTC: SSTC) to form Formation, since November 20, 2019. Mr. Cox served as the President and Chief Operating Officer of NewBridge Global Ventures, Inc, (OTC: NBGV) from October 2017 to September 2018, where he led a transition into the legal cannabis space and the successful merger with a family-owned consortium of companies. Since October 2015, Mr. Cox has served as a Principal in a private family office focused on the acquisition and divestiture of oil and gas properties and various entrepreneurial ventures. Mr. Cox served in various private and public companies in oil and gas and other sectors and in a number of entrepreneurial ventures. Mr. Cox attended Eastern New Mexico University where he studied Business Administration.
On May 15, 2024, Mr. Hiza was elected and appointed as the Class II Director and the Executive Chairman until the next annual meeting, his earlier resignation or death. His biography is as follows:
Mr. Hiza, age 54, began his career as a certified public accountant and spent 15 years managing investment portfolios for small businesses and individuals. For the next 11 years, Mr. Hiza served as a Managing Partner for Lighthouse Energy Partners – helping institutional investors acquire and manage oil and gas royalties and mineral rights. In 2021, Mr. Hiza served as the Vice President of Asset Management at Verde Bio Holdings, Inc., where he was responsible for oil and gas royalty acquisitions and portfolio evaluation and monitoring. In 2023, Mr. Hiza founded Carolina Natural Resource Group and acts as Managing Partner – helping individuals acquire oil and natural gas mineral rights and royalties.
Removal of Officers
On May 15, 2024, Scott Cox, acting in his capacity as the sole Class I Director and sole director of the Board, removed all then acting officers of the Company.
Appointment of Officers
On May 15, 2024, Brandon Sisson was appointed to serve as President, Secretary, Treasurer, Chief Executive Officer, Chief Financial Officer, Principal Executive Officer, and Principal Accounting Officer.
Mr. Sisson’s biography is as follows:
Mr. Sisson since his appointment in May, 2024, has served as the Company’s President, Secretary, CEO, CFO, Principal Executive Officer and Principal Accounting Officer (OTC: WINR). Mr. Sisson, since its incorporation in June, 2024 has served as the President of Redacted Optics Inc., a privately held company seeking to develop new technology in the optics industry either through using its own resources or through an acquisition or merger. Since April of 2019, Mr. Sisson has worked for Accufire Technologies, Inc, a firearms optics company specializing in digital technology, where he started as an operations consultant and is currently the interim CEO while the company is winding down.
Mr. Sisson is a United States Air Force veteran and has spent the last 13 years working as an operations and talent development consultant focusing on technology companies as the primary field of work. Mr. Sisson was the owner and President of Stoic Resources, LLC, an operations consulting management firm, from February, 2014 to May, 2021.
There is no family relationship between Mr. Sisson, Mr. Cox, or Mr. Hiza and any director or executive officer of the Company. There are no transactions between Mr. Sisson, Mr. Cox, or Mr. Hiza and the Company that would be required to be reported under Item 404(a) of Regulation S-K of the Securities Exchange Act of 1934, as amended.
Item 5.03 Amendments to Articles of Incorporation or Bylaws.
Amendment to the Certificate of Incorporation
On August 5, 2024, the Company amended Section 7.3 of the Third Amended and Restated Certificate of Incorporation of the Company, as further amended through the date hereof (the “Certificate of Incorporation”), pursuant to Article IX of the Certificate of Incorporation and applicable law. The following restatement of Section 7.3 has been adopted and approved by the Board and the stockholders of the Company:
Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock or the Bylaws, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders of the Corporation.
The forgoing excerpt of the amendment to the Certificate of Incorporation is qualified in its entirety by the full text of the Certificate of Amendment to the Third Amended and Restated Certificate of Incorporation of the Company, a copy of which is filed herewith as Exhibit 3.2.
Amendment to the Bylaws of the Company
On August 5, 2024, the Company amended Article II, Section 2.9 of the Bylaws of the Company (as amended, restated, supplemented or otherwise modified and in effect as of the date hereof, the “Bylaws”). The following restatement of Section 2.9 of the Bylaws has been adopted and approved by the Board and the stockholders of the Company:
Section 2.9. Consents in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation and so long as any shares of the Series X Convertible Preferred Stock are outstanding any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock entitled to vote on such matters having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
The forgoing excerpt of the amendment to the Bylaws is qualified in its entirety by the full text of the Amendment to Bylaws, a copy of which is filed herewith as Exhibit 3.3.
Amendment to Series X Convertible Preferred Stock
On August 5, 2024, the Company amended Section 1(c) of the Certificate of Designation. The following restatement of Section 1(c) of the Certificate of Designation has been adopted and approved by the Board and the stockholders of the Company:
(c) Transfers. Without the prior written approval of the Board of Directors of the Corporation, the Share of Series X Stock may not be transferred by the of the Series X Holder whether voluntary or by operation of law or otherwise and any such transfer shall be void ab initio and of no force or effect and the Corporation shall not recognize the purposed transferee thereof as the holder of the share of Series X Stock, and such share of Series X Stock shall be deemed automatically redeemed by the Corporation as of immediately prior to any such transfer or attempted transfer, and the Series X Holder shall thereafter be entitled to receive solely a redemption price of $1.00 therefor.
The forgoing excerpt of the amendment to the Series X Convertible Preferred Stock is qualified in its entirety by the full text of the amendment, a copy of which is filed herewith as Exhibit 4.2.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit | ||
Number | Description | |
3.1 | Franklin – Hiza Assignment Agreement for Series X Convertible Preferred Stock. | |
3.2 | Certificate of Amendment to the Third Amended and Restated Certificate of Incorporation of the Company | |
3.3 | Amendment to Bylaws of the Company | |
4.1 | Certificate of Designations of Preferences and Rights of Series X Convertible Preferred Stock | |
4.2 | Certificate of Amendment to Certificate of Designations of Preferences and Rights of Series X Convertible Preferred Stock | |
104.1 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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.
Date: August 5, 2024 | SIMPLICITY ESPORTS AND GAMING COMPANY | |
By: | /s/ Brandon Sisson | |
Brandon Sisson | ||
Chief Executive Officer |
Exhibit 3.1
Assignment Agreement
This Assignment Agreement (the “Agreement”) is made by and between James Hiza, an individual (the “Assignee”) and Roman Franklin, an individual (the “Assignor”), effective April 12, 2024. The Assignor and the Assignee are sometimes referred to in this Agreement singly as a “Party” or collectively as the “Parties”.
WHEREAS, the Assignor is the holder of one share of Series X Convertible Preferred Stock, par value $0.0001 per share (the “Securities”), issued by Simplicity Esports and Gaming Company (the “Company”), which Securities were acquired for a total investment of $1,000 and represent an ownership interest of 100% of the Company’s Series X Convertible Preferred Stock, par value $0.0001 per share, which is the only class of preferred stock issued and outstanding.
WHEREAS, Assignor wishes to assign and sell the Securities for $1.00 (the “Assigned Securities”) to Assignee;
WHEREAS, Assignee desires to purchase the offered Assigned Securities for $1.00;
WHEREAS, Assignor agrees that, upon Assignor’s receipt of the payment of the applicable price set forth in Section 1.1 herein from Assignee, Assignee shall have all interests and rights to such Assigned Securities, and the Assignor shall have no claim, right or other ownership in such Assigned Securities; and
WHEREAS, the above Recitals are incorporated into and made part of this Agreement and Parties intend to be bound by the terms of this Agreement;
NOW THEREFORE, in consideration of the mutual promises and agreements contained in this Agreement, and intending to be legally bound, the Parties agree as follows:
1. | Assignment of Interest. The Assignor hereby sells, transfers, and assigns the Assigned Securities to Assignee (the “Assignment”), and Assignee hereby purchases the Assigned Securities and accepts such Assignment, subject to the terms and conditions of this Agreement. |
1.1 | As consideration for the Assignment, Assignee shall pay to Assignor a single payment of $1.00 in immediately available funds, simultaneously with the full execution and delivery of this Agreement. |
1.2 | The payment shall be made by bank transfer pursuant to the written instructions of Assignor to Assignee or certified check made out to the Assignor. |
1.3 | As a condition precedent to the Assignment and the payment of the purchase price described in Sections 1.1 and 1.2 herein: |
1.3.1 | The Assignment of the Assigned Securities must be approved by the Company; and |
1 |
1.3.2 | All back-up documents and paperwork related to this Agreement and the Assigned Securities shall be executed and will include the standard and customary terms of an agreement(s) of similar nature. |
2. | Representations and Warranties of Assignor. |
2.1 | Assignor holds its right in the Assigned Securities free and clear of all mortgages, pledges, restrictions, liens, charges, encumbrances, security interests, obligations or other claims. |
2.2 | Assignor has all requisite power and authority to enter into and perform this Agreement and to consummate the Assignment contemplated pursuant to the terms of this Agreement. Upon execution and delivery hereof, this Agreement shall be a legal, valid and binding agreement of Assignor, enforceable against Assignor in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights and by general principles of equity. |
2.3 | There are no claims, actions, suits or proceedings pending or threatened against Assignor which, if determined adversely to Assignor, would materially and adversely affect the Assignor’s ability to perform its obligations under this Agreement. |
2.4 | No consent, approval or agreement of any individual or entity is required to be obtained by Assignor in connection with the execution and performance by Assignor of this Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. |
2.5 | Assignor has taken no action and has no knowledge of any action which would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transaction contemplated hereby |
3. | Representations, Warranties, and Covenants of Assignee. |
3.1 | Assignee has all requisite power and authority to enter into and perform this Agreement and to consummate the Assignment contemplated pursuant to the terms of this Agreement. Upon execution and delivery hereof, this Agreement shall be a legal, valid and binding agreement of Assignee, enforceable against Assignee in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights and by general principles of equity. |
3.2 | There are no claims, actions, suits or proceedings pending or threatened against Assignee which, if determined adversely to Assignee, would materially and adversely affect the Assignee’s ability to perform its obligations under this Agreement. |
2 |
3.3 | No consent, approval or agreement of any individual or entity is required to be obtained by Assignee in connection with the execution and performance by Assignee of this Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. |
3.4 | Assignee has taken no action and has no knowledge of any action which would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transaction contemplated hereby. |
3.5 | Assignee understands none of the Securities are registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. Assignee further understands that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2) thereof and the provisions of Regulation D promulgated thereunder. |
3.6 | Assignee and Assignee’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by Assignee or its Advisors, if any, and understand the information contained therein, prior to the execution of this Agreement. |
3.7 | Assignee, either alone or together with its Advisors, if any, has such knowledge and experience in financial, tax, and business matters, and, in particular, investments in securities, so as to enable it to utilize the information made available to it in connection with the Assignment to evaluate the merits and risks of an investment in the Securities and the Company and to make an informed investment decision with respect thereto. |
3.8 | Assignee is acquiring the Securities solely for such Assignee’s own account for investment and not with a view to resale or distribution thereof, in whole or in part. Assignee has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of any of the Securities and Assignee has no plans to enter into any such agreement or arrangement. |
3.9 | Assignee understands and agrees that purchase of the Securities is a high-risk investment and Assignee is able to afford an investment in a speculative venture having the risks and objectives of the Company. Assignee must bear the substantial economic risks of the investment in the Securities indefinitely because none of the Securities may be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from such registration is available. |
3.10 | Assignee is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the Commission under the Securities Act. |
3.11 | Assignee hereby accepts the foregoing assignment and transfer and promises to be bound by and upon all the covenants, agreements, terms and conditions set forth therein. |
4. | Benefit and Assignments. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns; provided that no party, except Assignee, shall assign or transfer all or any portion of this Agreement without the prior written consent of the other party, and any such attempted assignment shall be null and void and of no force or effect. |
3 |
5. | Expenses and Fees. Each Party shall bear its own costs and expenses, including legal fees, consulting fees, and travel expenses incurred in connection with the transactions contemplated hereby. |
6. | Additional Undertakings. Each Party shall take such further action and undertakings and execute and deliver such additional documents, including, without limitation, a standard form of (a) stock power and (b) corporate indemnification agreement for a Nevada corporation, as reasonably requested by one or more of the other Parties hereto. |
7. | Jurisdiction and Venue. The Parties agree that this Agreement shall be construed solely in accordance with the laws of the State of New York, notwithstanding its choice or conflict of law principles, and any proceedings arising among the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be heard solely in the State and/or Federal courts located in New York. |
8. | Headings. The paragraph headings of this Agreement are for convenience of reference only and do not form a part of the terms and conditions of this Agreement or give full notice thereof. |
9. | Severability. Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. |
10. | Entire Agreement. This Agreement contains the entire understanding between the Parties, no other representations, warranties or covenants having induced either Party to execute this Agreement and supersedes all prior or contemporaneous agreements with respect to the subject matter hereof. This Agreement may not be amended or modified in any manner except by a written agreement duly executed by the Party to be charged, and any attempted amendment or modification to the contrary shall be null and void and of no force or effect. |
11. | Counterparts. This Agreement may be executed in any number of counterparts by original, facsimile or email signature. All executed counterparts shall constitute one Agreement not withstanding that all signatories are not signatories to the original or the same counterpart. Facsimile, scanned signatures, and electronic are considered original signatures. |
12. | Modification. This Agreement may only be modified in a writing signed by all Parties. |
13. | Indemnification. Except for any claim alleging that Assignor’s acts or omissions resulted from his bad faith, willful or reckless misconduct, gross negligence or willful breach of this Agreement, the Company hereby agrees to indemnify and hold harmless Assignor from and against any and all losses, damages or liabilities due to or arising out of his due performance of this Agreement and carrying out the transactions contemplated hereby. |
[Balance of the Page Intentionally Blank; Signature Page on Next Page]
4 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.
Assignor – Roman Franklin | |
/s/ Roman Franklin | |
Assignee – James Hiza | |
/s/ James Hiza |
The Company hereby acknowledges and consents to the Assignment of the Assigned Securities and acknowledges and agrees that the Assignment shall be effective upon execution of this Agreement and the payment of the consideration set forth in Section 1.1. In furtherance of the transactions contemplated by this Agreement and as an inducement to the Assignor to execute and deliver this Agreement and carry out the transactions contemplated hereby, the Company agrees to fulfill its obligations to under Section 6 and to indemnify Assignor in accordance with the provisions of Section 12 hereof.
Simplicity Esports and Gaming Company | ||
By: | /s/ Roman Franklin | |
Name: | Roman Franklin | |
Title: | Chief Executive Officer |
5 |
Exhibit 3.2
CERTIFICATE OF AMENDMENT TO THE THIRD
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF SIMPLICITY ESPORTS AND GAMING COMPANY
Simplicity Esports and Gaming Company (the “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. The current name of the Corporation is Simplicity Esports and Gaming Company. The Corporation was first formed on April 17, 2017 under the name I-AM Capital Acquisition Company, a Delaware corporation. The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware on April 17, 2017 (the “Original Certificate”). An amended and restated certificate of incorporation which restated and amended the provisions of the Original Certificate was filed with the Secretary of State of the State of Delaware on May 31, 2017 (the “Amended and Restated Certificate”). A second amended and restated certificate of incorporation which restated and amended the provisions of the Amended and Restated Certificate was filed with the Secretary of State of the State of Delaware on August 16, 2017 (the “Second Amended and Restated Certificate”).
2. I-AM Capital Acquisition Company acquired Smaaash Entertainment Inc. pursuant to a share subscription agreement on November 20, 2018 and changed its name from I-AM Capital Acquisition Company to Smaaash in connection with the closing. A third amended and restated certificate of incorporation which restated and amended the provisions of the Second Amended and Restated Certificate was filed with the Secretary of State of the State of Delaware on November 20, 2018 (the “Third Amended and Restated Certificate”).
3. Smaaash Entertainment Inc. changed its name to Simplicity Esports and Gaming Company on January 2, 2019 with an amendment to the Third Amended and Restated Certificate.
4. The amendments to the existing Certificate of Incorporation being effected hereby are to amend and restate in its entirety Section 7.3, entitled “Action by Written Consent” to read as follows:
“Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock or the Bylaws, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders of the Corporation.”
5. All other provisions of the Certificate of Incorporation shall remain in full force and effect.
6. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of 242 of the General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed by the undersigned authorized officer of the Corporation as of this 5th day of August, 2024.
By: | /s/ Brandon Sisson |
|
Brandon Sisson | ||
Chief Executive Officer |
Exhibit 3.3
SIMPLICITY ESPORTS AND GAMING COMPANY
AMENDMENT TO BYLAWS
This Amendment to the Bylaws (the “Bylaws”) of Simplicity Esports and Gaming Company, as adopted by the Board of Directors pursuant to Delaware General Corporation Law, Section 141(f) and Section 4.5 of said Bylaws, is effective as of the 5th day of August, 2024.
Article II, Section 2.9 of the Bylaws, entitled “Consents in Lieu of Meeting”, be, and hereby is, deleted in its entirety and replaced with the following:
“Section 2.9. Consents in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation and so long as any shares of the Series X Convertible Preferred Stock are outstanding any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock entitled to vote on such matters having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.”
Exhibit 4.1
Exhibit 4.2
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF DESIGNATIONS OF PREFERENCES AND RIGHTS OF
SERIES X CONVERTIBLE PREFERRED STOCK
OF SIMPLICITY ESPORTS AND GAMING COMPANY
Simplicity Esports and Gaming Company, a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Corporation”), does hereby certify as follows:
FIRST: The Board of Directors of the Corporation (the “Board”) previously adopted a resolution designating one share of preferred stock as “Series X Convertible Preferred Stock,” and the original Certificate of Designations of Preferences and Rights of Series X Convertible Preferred Stock was filed with the Secretary of State of Delaware on August 23, 2022 (the “Certificate of Designations”).
SECOND: That this Certificate of Amendment to the Certificate of Designations of Series X Convertible Preferred Stock (this “Certificate of Amendment”) amends and clarifies certain provisions of the Certificate of Designations.
THIRD: The Board has duly adopted resolutions approving the following amendment to the Certificate of Designations in accordance with the provisions of Sections 242 of the General Corporation Law of the State of Delaware, wherein the Board declared the amendment to be advisable and recommended that the stockholders of the Corporation entitled to vote thereon likewise adopt and approve the amendment.
FOURTH: The requisite holders of the Series X Convertible Preferred Stock have duly approved this Amendment in accordance with Sections 242 and 228 of the DGCL and Section 1(e) of the Certificate of Designations.
FIFTH: Section 1(c) of Certificate of Designations is hereby amended and restated in its entirety as follows:
“(c) Transfers. Without the prior written approval of the Board of Directors of the Corporation, the Share of Series X Stock may not be transferred by the of the Series X Holder whether voluntary or by operation of law or otherwise and any such transfer shall be void ab initio and of no force or effect and the Corporation shall not recognize the purposed transferee thereof as the holder of the share of Series X Stock, and such share of Series X Stock shall be deemed automatically redeemed by the Corporation as of immediately prior to any such transfer or attempted transfer, and the Series X Holder shall thereafter be entitled to receive solely a redemption price of $1.00 therefor.”
SIXTH: That this Certificate of Amendment was duly adopted in accordance with Sections 242 and 228 of the General Corporation Law of the State of Delaware and amends the provisions of the Corporation’s Certificate of Designations.
SEVENTH: All other provisions of the Certificate of Designations shall remain in full force and effect.
EIGHTH: This Certificate of Amendment shall become effective immediately upon its filing with and acceptance by the Secretary of State of the State of Delaware.
[Rest of the page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be duly executed in its name on its behalf by its duly authorized officer as of the 5th day of August, 2024.
Simplicity Esports and Gaming Company | ||
By: | /s/ Brandon Sission | |
Brandon Sisson | ||
Chief Executive Officer |
2 |