UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date
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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) |
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| 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:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
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 3.03 Material Modification to Rights of Security Holders.
Second Amended and Restated Certificate of Incorporation
In connection with the approval by the stockholders of Signing Day Sports, Inc. (the “Company”) of a proposal to amend the Amended and Restated Certificate of Incorporation of the Company to authorize 15,000,000 shares of “blank-check preferred stock” in one or more series as solely determined by the board of directors of the Company (the “Board”) with voting powers, preferences and relative participation, optional and special rights and qualifications, limitations and restrictions thereof as solely determined by the Board (the “Blank Check Preferred Stock Authorization”), on February 27, 2024, the Company filed the Second Amended and Restated Certificate of Incorporation (the “Second Amended and Restated Certificate”) with the Secretary of State of the State of Delaware, which became effective on February 27, 2024, to effect the Blank Check Preferred Stock Authorization. The principal and potential effects of the Blank Check Preferred Stock Authorization upon the rights of holders of the Company’s capital stock are included in the section “Proposal No. 1 – Amendment to the Amended and Restated Certificate of Incorporation To Authorize Blank Check Preferred Stock” of the Definitive Proxy Statement filed by the Company with the Securities and Exchange Commission (the “SEC”) on December 29, 2023 and distributed in accordance with the requirements of Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Proxy Statement”), which is incorporated by reference herein. The foregoing description of the Second Amended and Restated Certificate is a summary only and is qualified in its entirety by reference to the complete text of the Second Amended and Restated Certificate, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein. Additional information regarding the submission and approval of the proposal relating to the Blank Check Preferred Stock Authorization is disclosed under Item 5.07 below.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On February 22, 2024, Richard Symington notified the Board of his resignation from his positions as President, Chief Technology Officer, and a member of the Board, effective immediately. Mr. Symington’s resignation was not due to any disagreement with the Company on any matter relating to the Company’s operations, policies or practices. Mr. Symington also notified the Board that the Executive Employment Agreement, dated November 22, 2023, between Mr. Symington and the Company, was terminated, effective immediately.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Second Amended and Restated Certificate of Incorporation
The information set forth in Item 3.03 – “Second Amended and Restated Certificate of Incorporation” above is incorporated by reference herein.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On February 27, 2024, the Company held a Special Meeting of Stockholders (the “Special Meeting”). As of December 29, 2023, the record date for the Special Meeting, there were 13,248,552 shares of common stock issued and outstanding and entitled to vote on the proposals presented at the Special Meeting, of which 10,022,278 shares, or 75.65%, were present in person or represented by proxy, which constituted a quorum. The holders of shares of the Company’s common stock are entitled to one vote for each share held. The proposals are described in greater detail in the Proxy Statement, the relevant portions of which are incorporated by reference herein. Set forth below are the final voting results for each of the proposals submitted to a vote of the Company’s stockholders at the Special Meeting.
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(i) Proposal No. 1: To consider and vote upon a proposal to amend the Amended and Restated Certificate of Incorporation of the Company to authorize 15,000,000 shares of preferred stock, which shares shall be “blank-check preferred stock” in one or more series as solely determined by the Board, and to have the voting powers, preferences and relative participation, optional and special rights and qualifications, limitations and restrictions thereof as solely determined by the Board. Proposal No. 1 was approved as set forth below:
For | Against | Abstain | ||||||||
| 9,413,811 | 807,721 | 50,000 | ||||||||
(ii) Proposal No. 2: To consider and vote upon a proposal to amend the Signing Day Sports, Inc. 2022 Equity Incentive Plan (the “Plan”) to increase the number of authorized shares of common stock available for issuance under the Plan from 750,000 shares of common stock to 2,250,000 shares of common stock. Proposal No. 2 was approved as set forth below:
| For | Against | Abstain | ||||||||
| 5,736,703 | 4,440,829 | 94,000 | ||||||||
(iii) Proposal No. 3: To consider and vote upon a proposal to approve the issuance of up to $25,000,000 in common stock under an “equity line” financing arrangement in order to comply with Section 713 of the NYSE American LLC Company Guide. Proposal No. 3 was approved as set forth below:
| For | Against | Abstain | ||||||||
| 9,594,987 | 582,515 | 94,030 | ||||||||
There were no broker non-votes with respect to any of the above proposals.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description of Exhibit | |
| 3.1 | Second Amended and Restated Certificate of Incorporation of Signing Day Sports, Inc. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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 hereunto duly authorized.
| Date: February 28, 2024 | SIGNING DAY SPORTS, INC. |
| /s/ Daniel D. Nelson | |
| Name: Daniel D. Nelson | |
| Title: Chief Executive Officer |
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Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SIGNING DAY SPORTS, INC.
(Pursuant
to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Signing Day Sports, Inc. (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 “DGCL”), does hereby certify as follows.
1. The name of this Corporation is Signing Day Sports, Inc., and the original Certificate of Incorporation of this Corporation (the “Original Certificate”) was filed with the Secretary of State of the State of Delaware on September 9, 2021 under the name Signing Day Sports, Inc.
2. The Amended and Restated Certificate of Incorporation of this Corporation (“First Amended and Restated Certificate”) was filed with the Secretary of State of the State of Delaware on May 9, 2023 and amended and restated the Original Certificate in its entirety.
3. This Second Amended and Restated Certificate of Incorporation (“Second Amended and Restated Certificate”) amends and restates in its entirety the First Amended and Restated Certificate, and the Board of Directors of this Corporation duly adopted resolutions proposing to amend and restate in its entirety the First Amended and Restated Certificate and to adopt this Second Amended and Restated Certificate to effect said amendment and restatement, 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 resolutions setting forth the proposed amendment and restatement state as follows:
RESOLVED, that the First Amended and Restated Certificate of this Corporation be amended and restated in its entirety to read as set forth on Exhibit A attached hereto and incorporated herein by this reference.
4. Exhibit A referred to above is attached hereto as Exhibit A and is hereby incorporated herein by this reference. This Second Amended and Restated Certificate was approved by the holders of the requisite number of shares of this Corporation in accordance with Section 228 of the DGCL.
5. This Second Amended and Restated Certificate, which restates and integrates and further amends the provisions of this Corporation’s First Amended and Restated Certificate, has been duly adopted in accordance with Sections 242 and 245 of the DGCL.
[Signature page follows]
IN WITNESS WHEREOF, this Second Amended and Restated Certificate has been executed by a duly authorized officer of this Corporation on this 27th day of February, 2024.
| By: | /s/ Daniel D. Nelson | ||
| Name: | Daniel D. Nelson | ||
| Title: | Chief Executive Officer | ||
Exhibit A
SIGNING DAY SPORTS, INC.
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ARTICLE I
The name of the corporation is Signing Day Sports, Inc. (the “Corporation”).
ARTICLE II
The registered agent and the address of the registered office in the State of Delaware are:
Vcorp Agent Services, Inc.
108 W. 13th Street, Suite 100
Wilmington, DE 19801
New Castle County
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE IV
The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 165,000,000 shares, consisting of (i) 150,000,000 shares of common stock, par value $0.0001 per share (“Common Stock”), and (ii) 15,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”). Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or the Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the capital stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor.
A. COMMON STOCK. The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Common Stock are as follows:
1. Ranking. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors of the Corporation (the “Board”) upon any issuance of the Preferred Stock of any series.
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2. Voting. Except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall have the exclusive right to vote for the election and removal of directors and for all other purposes. Notwithstanding any other provision of this Second Amended and Restated Certificate of Incorporation (as amended from time to time, including the terms of any Preferred Stock Designation (as defined below), this “Certificate of Incorporation”) to the contrary, the holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or the DGCL.
3. Dividends. Subject to the rights of the holders of Preferred Stock, holders of shares of Common Stock shall be entitled to receive such dividends and distributions and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor.
4. Liquidation. Subject to the rights of the holders of Preferred Stock, shares of Common Stock shall be entitled to receive the assets and funds of the Corporation available for distribution in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary. A liquidation, dissolution or winding up of the affairs of the Corporation, as such terms are used in this Article IV, shall not be deemed to be occasioned by or to include any consolidation or merger of the Corporation with or into any other person or a sale, lease, exchange or conveyance of all or a part of its assets.
B. PREFERRED STOCK. Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized to provide by resolution or resolutions from time to time for the issuance, out of the unissued shares of Preferred Stock, of one or more series of Preferred Stock, without stockholder approval, by filing a certificate pursuant to the applicable law of the State of Delaware (the “Preferred Stock Designation”), setting forth such resolution and, with respect to each such series, establishing the number of shares to be included in such series, and fixing the voting powers, full or limited, or no voting power of the shares of such series, and the designation, preferences and relative, participating, optional or other special rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof. The powers, designation, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:
1. the designation of the series, which may be by distinguishing number, letter or title;
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2. the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);
3. the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;
4. the dates on which dividends, if any, shall be payable;
5. the redemption rights and price or prices, if any, for shares of the series;
6. the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;
7. the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;
8. whether the shares of the series shall be convertible into or exchangeable for, shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;
9. restrictions on the issuance of shares of the same series or any other class or series;
10. the voting rights, if any, of the holders of shares of the series generally or upon specified events; and
11. any other powers, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions of such shares, all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock.
Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.
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ARTICLE V
This Article V is inserted for the management of the business and for the conduct of the affairs of the Corporation.
A. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law.
B. Number of Directors; Election of Directors. Subject to the rights of holders of any series of Preferred Stock then outstanding to elect directors, the number of directors of the Corporation shall be fixed from time to time solely by resolution of the majority of the Whole Board. For purposes of this Certificate of Incorporation, the term “Whole Board” will mean the total number of authorized directors, whether or not there exist any vacancies in previously authorized directorships. No decrease in the number of directors constituting the Board shall shorten the term of any incumbent director.
C. Terms of Office. Subject to the rights of holders of any series of Preferred Stock then outstanding to elect directors, each director shall serve for a term ending on the date of the election and qualification of such director’s successor and be subject to such director’s earlier death, disqualification, resignation or removal.
D. Vacancies. Subject to the rights of holders of any series of Preferred Stock then outstanding to elect directors, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of directors then in office, even if less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall hold office for the remaining term of such director’s predecessor.
E. Committees. Pursuant to the Second Amended and Restated Bylaws of the Corporation (as amended from time to time, the “Bylaws”), the Board may establish one or more committees to which may be delegated any or all of the powers and duties of the Board to the full extent permitted by law.
F. Stockholder Nominations and Introduction of Business. Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the Bylaws.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise provided in the Bylaws.
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ARTICLE VII
To the fullest extent permitted by the DGCL as it now exists and as it may hereafter be amended, no director or officer of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer; provided, however, that nothing contained in this Article VII shall eliminate or limit the liability: (i) of a director or officer for any breach of the director’s or officer’s duty of loyalty to the Corporation or its stockholders, (ii) of a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) of a director pursuant to the provisions of Section 174 of the DGCL, (iv) of a director or officer for any transaction from which the director or officer derived an improper personal benefit, or (v) of an officer in any action by or in the right of the corporation. No repeal or modification of this Article VII shall apply to or have any adverse effect on any right or protection of, or any limitation of the liability of, a director or officer of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
ARTICLE VIII
The Corporation may indemnify, and advance expenses to, to the fullest extent permitted by law, any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE IX
Special meetings of stockholders for any purpose or purposes may be called at any time by any of the persons and in the manner as provided in the Bylaws, and may not be called by any other person or persons or otherwise. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
ARTICLE X
If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.
The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the DGCL may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article X. Any amendment, repeal or modification of Article VII or this sentence shall not adversely affect any right or protection of any person existing thereunder with respect to any act or omission occurring prior to such repeal or modification.
ARTICLE XI
In furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized and empowered to adopt, amend and repeal the Bylaws by the affirmative vote of a majority of the Whole Board, provided that such power shall not divest the stockholders or members of the power, nor limit their power to adopt, amend or repeal the Bylaws.
* * * * * * * *
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Cover |
Feb. 22, 2024 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Feb. 22, 2024 |
| Current Fiscal Year End Date | --12-31 |
| Entity File Number | 001-41863 |
| Entity Registrant Name | SIGNING DAY SPORTS, INC. |
| Entity Central Index Key | 0001898474 |
| Entity Tax Identification Number | 87-2792157 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 8355 East Hartford Rd. |
| Entity Address, Address Line Two | Suite 100 |
| Entity Address, City or Town | Scottsdale |
| Entity Address, State or Province | AZ |
| Entity Address, Postal Zip Code | 85255 |
| City Area Code | 480 |
| Local Phone Number | 220-6814 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common Stock, $0.0001 par value per share |
| Trading Symbol | SGN |
| Security Exchange Name | NYSEAMER |
| Entity Emerging Growth Company | true |
| Elected Not To Use the Extended Transition Period | false |
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