Document

Petitioner Skillz Inc. (“Skillz” or the “Company”), by and through its undersigned counsel, brings this petition pursuant to 8 Del. C. § 205 (the “Petition”), seeking to have this Court validate corporate acts described below as follows:

1.This Petition seeks the Court’s urgent assistance to resolve the current uncertainty surrounding the validity of the Company’s Third Amended and Restated Certificate of Incorporation (attached hereto as Exhibit A, the “New Certificate of Incorporation”) and the validity of the Company’s current capital structure effected thereby. The Company petitions this Court seeking relief similar to relief that several other publicly traded companies have recently sought from this Court. Namely, the Company seeks to validate the New Certificate of Incorporation (including the Common Stock Increase Amendment defined below), as well as all shares of the Company’s capital stock issued in reliance on the validity of the New Certificate of Incorporation. Not until this Court’s decision in Garfield v. Boxed, Inc., 2022 WL 17959766 (Del. Ch. Dec. 27, 2022) did the Company have reason to question the validity of the New Certificate of Incorporation or the Company’s capital structure effected thereby.

Common Stock to adopt the New Certificate of Incorporation, which increased the number of shares of Class A Common Stock and Class B Common Stock. However, a majority of the outstanding shares of Class A Common Stock entitled to vote, voted in favor of the New Certificate of Incorporation.

ii) Overissued Shares. The number of shares of Class A Common Stock issued and outstanding does not exceed the authorized shares of Class A Common Stock originally provided for under the Old Certificate of Incorporation, but the number of shares of Class B Common Stock issued and outstanding does exceed the authorized shares of Class B Common Stock provided for under the Old Certificate of Incorporation.

iii)Section 204 is not available because of timing exigencies. The Company needs confirmation of the validity of its capital structure to maintain compliance with required United States Securities and Exchange Commission (“SEC”) filings and to determine which stockholders are entitled to vote at its annual meeting.

3.Skillz is a Delaware corporation originally formed as a special purpose acquisition company (“SPAC”) on January 15, 2020, under the name Flying Eagle Acquisition Corp. Following the Company’s de-SPAC transaction, the Company changed its name to Skillz Inc. The Company is a leading mobile game competition platform. The Company’s Class A Common Stock trades on the New York Stock Exchange (“NYSE”) under the ticker symbol “SKLZ”.

4.On March 10, 2020, the Company filed a Form 8-K, announcing the consummation of its initial public offering (“IPO”). In connection with the IPO, the Company filed the Second Amended and Restated Certificate of Incorporation in effect prior to the de-SPAC transaction (attached hereto as Exhibit B, the “Old

The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 401,000,000 shares, consisting of (a) 400,000,000 shares of common stock (the “Common Stock”), including (i) 380,000,000 shares of Class A common stock (the “Class A Common Stock”), and (ii) 20,000,000 shares of Class B common stock (the “Class B Common Stock”), and (b) 1,000,000 shares of preferred stock (the “Preferred Stock”)

6.After entering into the Merger Agreement, the Company scheduled a special meeting of stockholders of the SPAC (the “Special Meeting”). Pursuant to its December 1, 2020 proxy statement (attached hereto as Exhibit C, the “2020 Proxy Statement”), at the Special Meeting, the stockholders would be asked to consider and vote upon, among other things, a proposal to approve the Business Combination, as well as a proposal to approve and adopt the New Certificate of Incorporation. Ex. C at 87, 121. As explained to the stockholders, the New Certificate of Incorporation would effectuate a number of changes to the Old Certificate of Incorporation, including increasing the authorized number of shares of Class A Common Stock from 380,000,000 to 500,000,000 and increasing the

(i) accommodate the issuance of shares of [the Company’s] Class A common stock and [the Company’s] Class B common stock as part of the stock consideration in the Business Combination and (ii) provide flexibility for future issuances of shares of [the Corporation’s] stock if determined by the [Company’s] board of directors to be in the best interests of [the Company] after the consummation of the Business Combination without incurring the risk, delay and potential expense incident to obtaining stockholder approval for a particular issuance.

8.The 2020 Proxy Statement also provided that the proposal to approve and adopt the amendments to the certificate of incorporation would require, “the affirmative vote of a majority of the outstanding [Class A Common Stock and Class B Common Stock of the Company], voting together as a single class.” Id. at 28.

10.As of the November 6, 2020 record date for the Special Meeting, there were 83,685,404 shares of the Company’s common stock outstanding and entitled to vote. Ex. C at 19. Of the 83,685,404 outstanding shares, 66,435,404 were Class A Common Stock and 17,250,000 were Class B Common Stock. Id. at 196.

vote were represented by proxy constituting a quorum. As disclosed in the Company’s Form 8-K dated December 16, 2020 (attached hereto as Exhibit D, the “Results Form 8-K”), at the Special Meeting, the proposal to amend the Old Certificate of Incorporation, received approximately 93% approval from the holders of the Company’s voting common stock voting at the meeting (and received approximately 67% approval from the holders of all of the Company’s voting common stock). Moreover, assuming all the holders of Class B Common Stock were present and voted in favor of the proposal, the holders of a majority of the outstanding shares of Class A Common Stock entitled to vote voted for its approval.

12.The Company believed that the Common Stock Increase Amendment and the additional amendments to the Old Certificate of Incorporation had received the requisite stockholder approval. However, the 2020 Proxy Statement did not disclose that a separate vote of all outstanding Class A Common Stock was required. Nonetheless, the Company received a majority vote of the outstanding Class A Common Stock for the proposal to approve and adopt the amendments to the Old Certificate of Incorporation.

provided for the issuance of shares of Class A Common Stock and Class B Common Stock to the stockholders of legacy Skillz entitled to receive stock consideration in the Merger. The issuance immediately following the Business Combination increased the total number of shares of Class A Common Stock the Company had outstanding from 66,435,404 to 291,706,860 and increased the total number of shares of Class B Common Stock the Company had outstanding from 17,250,000 to 78,090,663. As March 15, 2023, 353,090,106 shares of Class A Common Stock were issued and outstanding, 68,601,268 shares of Class B Common Stock were issued and outstanding, and the Company has outstanding warrants to purchase 4,170,394 additional shares of Class A Common Stock. The number of shares of Class A Common Stock issued and outstanding does not exceed the 380 million authorized shares of Class A Common Stock originally provided for under the Old Certificate of Incorporation. The number of shares of Class B Common Stock issued and outstanding does exceed the 17.25 million authorized shares of Class B Common Stock originally provided for under the Old Certificate of Incorporation.

15.Following the Business Combination, the Company and its board of directors have treated the approval of the Common Stock Increase Amendment and the New Certificate of Incorporation as valid, as evidenced by the Company’s subsequent public disclosures. For example, as disclosed in the Company’s most recent Form 10-Q, filed November 7, 2022, the authorized number of shares of Class A Common Stock was listed at 500 million shares and the authorized number of Class B Common Stock was listed at 125 million shares.

16.As mentioned above, this Court’s recent decision in Boxed calls into question the validity of the Common Stock Increase Amendment. There, the defendant corporation also sought stockholder approval to amend its certificate of incorporation to increase the number of authorized shares of Class A common stock in connection with its de-SPAC transaction. Boxed, 2022 WL 17959766, at *1. Before the stockholder vote, however, the plaintiff in Boxed wrote a letter to the company’s board asserting that the vote required for the amendment to the number of authorized shares of Class A common stock was incorrect because a separate vote of the holders of the Class A common stockholders was required under Section 242(b). Id. The company subsequently chose to amend its Merger Agreement and supplemented its proxy statement to require the separate vote of the holders of its Class A common stock. Id. After the de-SPAC transaction was completed, the plaintiff filed an action in this Court seeking attorneys’ fees and expenses for the benefits he allegedly conferred on the company and its stockholders as a result of this change. Id.

17.In Boxed, the Court found that the company’s Class A common stock and Class B common stock were separate classes of capital stock, rather than series of a single class of common stock. Id. at *9. Thus, the Court held, under the “meritorious when filed” standard applicable under the corporate benefit doctrine, that “Class A and Class B are each a class of common stock, not series.” Id.

19.As a result of the uncertainty created by the Court’s decision in Boxed, the validity of the Common Stock Increase Amendment, the New Certificate of Incorporation and the shares of Class A Common Stock and Class B Common Stock to be issued in the future, in reliance on the validity of the Common Stock Increase Amendment, has become and will remain uncertain without relief from this Court.

20.Under Section 205(a)(3) of the DGCL, this Court has the authority to “[d]etermine the validity and effectiveness of any defective corporate act not ratified . . . pursuant to § 204.” 8 Del. C. § 205(a)(3). Further, under Section 205(a)(4), this Court may “[d]etermine the validity of any corporate act or transaction and any stock, rights or options to acquire stock.” 8 Del. C. § 205(a)(4). A defective corporate act includes any act or transaction purportedly taken by or on behalf of the corporation that is within the power of a corporation but is void or voidable due to a failure of authorization. A failure of authorization includes, among other things, the failure to authorize or effect an act or transaction in compliance with the DGCL, the company’s certificate of incorporation, or any disclosure set forth in any proxy or consent solicitation statement, if and to the extent such failure would render such act or transaction void or voidable.

21.Relevant here, if a separate vote of the shares of Class A Common Stock was required to approve the Common Stock Increase Amendment and the other amendments to the Old Certificate of Incorporation under Section 242(b)(2), the single class vote could be considered a failure of authorization. As a result, the filing of the New Certificate of Incorporation (which effected the Common Stock Increase Amendment) and all warrants exercisable into the Company’s common stock issued in reliance on the effectiveness thereof, would potentially be considered defective corporate acts under Sections 204 and 205, notwithstanding the majority support of the holders of Class A Common Stock.

(1) Whether the defective corporate act was originally approved or effectuated with the belief that the approval or effectuation was in compliance with the provisions of this title, the certificate of incorporation or bylaws of the corporation;

24.Factor 1: The Company’s Belief That the Common Stock Increase Amendment Was Valid Under Delaware Law. With respect to the first factor set forth in Section 205(d), the Company has demonstrated that the Common Stock Increase Amendment was approved with the good faith belief that the required stockholder approval had been obtained under Delaware law. In the Results Form 8-K, the Company stated that the Common Stock Increase Amendment was approved by the stockholders at the Special Meeting and the Business Combination, and each of the transactions contemplated by the Merger Agreement was closed the same day in reliance of that approval.

25.Factor 2: The Company’s Treatment of the Common Stock Increase Amendment as Valid. With respect to the second factor set forth in Section 205(d), since the Special Meeting, the Company has treated the Common Stock Increase Amendment as valid and effective. In numerous public filings since the closing of the Business Combination (including in the Company’s most recent Form 10-Q), the Company has disclosed to its stockholders the number of shares of Class A Common Stock currently authorized at 500 million shares and the number of shares of Class B Common Stock currently authorized at 125 million shares.

26.Factor 3: No Harm to Any Person Will Result from the Validation of the Common Stock Increase Amendment. With respect to the third factor set forth in Section 205(d), the Company has no reason to believe that any person would be harmed by the validation of the Company’s New Certificate of Incorporation. Indeed, the holders of a majority of the Class A Common Stock supported the Common Stock Increase Amendment. Such a validation would only confirm the market’s pre-Boxed understanding.

27.Factor 4: Harm Will Result if the Common Stock Increase Amendment Is Not Validated. With respect to the fourth factor set forth in Section 205(d), there are many parties that would be harmed if this Court declines to validate the Company’s capital structure. As a result of the uncertainty currently surrounding the validity of the New Certificate of Incorporation, it is not clear how many shares the Company is currently authorized to issue and the Company’s stockholders may not hold valid shares, which has caused and will continue to cause harm to the Company and its stockholders. The continued uncertainty as to the validity of the Company’s capital structure will potentially cause market disruption, disrupt the Company’s commercial relationships, result in claims from purported holders of such shares, and could lead to consequent loss of value for the Company’s stockholders and jeopardize the Company’s eligibility to remain listed on the NYSE.

28.The uncertainty regarding the Company’s capital structure also threatens to jeopardize the Company’s ability to file required annual and quarterly financial statements. Because there exists uncertainty regarding the validity of the

Company’s capital structure, there is likewise uncertainty as to the statements and representations the Company is required to make in filings to the SEC, which could in turn impact the ability of the Company’s auditors to provide comfort letters for capital raising activities. In this regard, uncertainty regarding the Company’s capital structure raises potential questions regarding the proper accounting treatment of the Company’s outstanding equity awards as such treatment depends, in part, on the availability of authorized shares underlying such awards. The Company also has an upcoming annual meeting and needs confirmation of the validity of the Common Stock Increase Amendment to determine which stockholders are entitled to vote at the meeting. Absent clarity and the ability to take these necessary actions, the Company’s ability to remain in compliance with the rules and regulations of the SEC and the NYSE could be at risk, and the Company’s share price and ultimately its ability to raise capital could be adversely impacted.

30.First, “self-help” ratification by the Company’s stockholders under Section 204 may not be an effective alternative available to the Company. Under the self-help method of Section 204, the Company would be required to file a certificate of validation with the Delaware Secretary of State effectively to ratify the New Certificate of Incorporation. 8 Del. C. § 204(e)(3) (requiring the filing of a certificate of validation in circumstances where the defective act ratified relates

to a certificate previously filed with the Delaware Secretary of State). The Company understands that processing times for certificates of validation can take weeks or months, and that while a certificate of validation is being processed by the Delaware Secretary of State, the Company would not be able to obtain certificates of good standing, pay its annual franchise taxes or make any other filings with the Delaware Secretary of State. The additional time of uncertainty regarding the Company’s capital structure if forced to pursue a “self-help” ratification could be devastating to the Company and can be avoided if the Court grants the current relief requested by the Petitioner.

31.Second, the Court has recently provided direction as to whether stockholders can rely on a SPAC’s capital structure. Numerous publicly-traded Delaware corporations who accessed public markets via de-SPAC transactions in the past several years faced the same post-Boxed cloud of uncertainty over their capital structures. By granting these petitions, the Court has offered other SPACs a solution to a widespread problem. Continuing to craft sensible, equitable, and prompt solutions would be in keeping with both this Court’s and the State of Delaware’s reputations as the United States’ preeminent caretakers of corporate law and governance.

32.Third, the proposal to amend the Old Certificate of Incorporation received overwhelming support from the voting stockholders, receiving 93% approval from the participating holders of the Company’s voting common stock. That included support from the majority of the Company’s Class A Common Stock. The uniform support of the participating stockholders, including the holders

33.The Company therefore respectfully requests that this Court enter an order validating and declaring effective the New Certificate of Incorporation and all of the Company’s outstanding shares of Class A Common Stock and Class B Common Stock to prevent ongoing and significant harm to the Company, its stockholders, and its commercial prospects.

36.The Company consummated the Business Combination and filed the New Certificate of Incorporation, effecting an increase in the authorized shares of Class A Common Stock and Class B Common Stock in the good faith belief that such increase was adopted in compliance with Delaware Law.

38.The Company’s stockholders, directors, and employees, as well as the Company’s commercial partners, have relied on the effectiveness of the New Certificate of Incorporation and have treated all acts in reliance on the New Certificate of Incorporation as valid.

A.Validating and declaring effective the New Certificate of Incorporation (and the Common Stock Increase Amendment effected thereby), including the filing and effectiveness thereof, as of the date and time that the New Certificate of Incorporation was originally filed with the Delaware Secretary of State;

B.Validating and declaring effective any and all shares of Class A Common Stock and Class B Common Stock issued at or after the filing of the New Certificate of Incorporation in reliance on the effectiveness of the New Certificate of Incorporation, including the 291,706,860 shares of Class A Common Stock and 78,090,633 shares of Class B Common Stock issued by the Company pursuant to the Business Combination, in each case as of the date and time of the original issuance of such shares of capital stock; and


Dated: March 17, 2023			/s/ Raymond J. DiCamillo Raymond J. DiCamillo (#3188) Kevin M. Gallagher (#5337) Nicole M. Henry (#6550) Richards, Layton & Finger, P.A. 920 North King Street Wilmington, Delaware 19801 (302) 651-7700 Attorneys for Petitioner Skillz Inc.


IN RE SKILLZ INC.			) )			c.a. no. 2023-____-___