Exhibit 4.5


 


DESCRIPTION OF SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934


 


AS OF DECEMBER 31,
2020


 


As of December 31, 2020,
we had one class of securities registered under Section 12 of the Securities Exchange Act of 1945, as amended, our Class A common
stock. The following is a summary of the material terms of our Class A common stock and is not intended to be a complete summary
of the rights and preferences of Class A common stock. The full text of our amended and restated articles of incorporation and
amended and restated bylaws are included as exhibits to the Form 10-K of which this exhibit is a part. You are encouraged to read
the applicable provisions of Nevada law, our amended and restated articles of incorporation and amended and restated bylaws in
their entirety for a complete description of the rights and preferences of our Class A common stock.


 


Common Stock


 


Our amended and restated
articles of incorporation authorize the issuance of 2,100,000,000 shares, of which 900,000,000 shares are shares of Class A
common stock, par value $0.0001 per share, 900,000,000 shares are shares of Class B common stock, par value $0.0001 per share,
and 300,000,000 shares are shares of preferred stock, par value $0.0001 per share.


 


Class A Common
Stock


 


Voting Rights


 


Holders of Class A
common stock are entitled to cast one vote per share of Class A common stock. Generally, holders of all classes of common
stock vote together as a single class, and an action is approved by stockholders if the number of votes cast in favor of the action
exceeds the number of votes cast in opposition to the action, while directors are elected by a plurality of the votes cast. Holders
of Class A common stock will not be entitled to cumulate their votes in the election of directors.


 


Dividend Rights


 


Holders of Class A
common stock will share ratably (based on the number of shares of Class A common stock held) if and when any dividend is declared
by our Board of Directors (the “Board”) out of funds legally available therefor, subject to restrictions, whether statutory
or contractual (including with respect to any outstanding indebtedness), on the declaration and payment of dividends and to any
restrictions on the payment of dividends imposed by the terms of any outstanding preferred stock or any class or series of stock
having a preference over, or the right to participate with, the Class A common stock with respect to the payment of dividends.


 


Liquidation, Dissolution
and Winding Up


 


On the liquidation, dissolution,
distribution of assets or winding up of DraftKings, each holder of Class A common stock will be entitled, pro rata on
a per share basis, to all assets of DraftKings of whatever kind available for distribution to the holders of common stock, subject
to the designations, preferences, limitations, restrictions and relative rights of any other class or series of preferred stock
of DraftKings then outstanding.


 






     


     


    

 


Other Matters


 


No shares of Class A
common stock will be subject to redemption (except as described below under “Redemption Rights and Transfer Restrictions
with Respect to Capital Stock held by Unsuitable Persons and Their Affiliates”) or have preemptive rights to purchase
additional shares of Class A common stock. Holders of shares of Class A common stock do not have subscription, redemption
or conversion rights. All the outstanding shares of Class A common stock are validly issued, fully paid and non-assessable.


 


Class B Common
Stock


 


Issuance of Class B
common stock with Common Units


 


Shares of Class B
common stock may be issued only to, and registered in the name of, Mr. Robins and any entities wholly owned by Mr. Robins
(including all subsequent successors, assigns and permitted transferees) (collectively, “Permitted Class B Owners”).


 


Voting Rights


 


Holders of Class B
common stock are entitled to cast 10 votes per share of Class B common stock. Generally, holders of all classes of common
stock vote together as a single class, and an action is approved by stockholders if the number of votes cast in favor of the action
exceeds the number of votes cast in opposition to the action, while directors are elected by a plurality of the votes cast. Holders
of Class B common stock will not be entitled to cumulate their votes in the election of directors.


 


Dividend Rights


 


Holders of Class B
common stock will not participate in any dividend declared by the Board.


 


Liquidation Rights


 


On the liquidation, dissolution,
distribution of assets or winding up of DraftKings, holders of Class B common stock will not be entitled to receive any distribution
of DraftKings assets of whatever kind available until distribution has first been made to all holders of Class A common stock.
Notwithstanding this, due to the liquidation rights of holders of Class A common stock described above in which all assets
of DraftKings of whatever kind available will be distributed to holders of Class A common stock, no assets of DraftKings will
be available for liquidating distributions in respect of Class B common stock.


 


Transfers


 


Pursuant to our amended
and restated articles of incorporation, holders of Class B common stock are generally restricted from transferring such shares,
other than to a Permitted Class B Owner or in connection with a divorce or domestic relations order or decree.


 


Mandatory Cancellation


 


Each share of Class B
common stock will be (1) automatically canceled for no consideration in the event that shares of Class A common stock
that are then held by Permitted Class B Owners (including without limitation all shares of Class A common stock that
are the subject of unvested stock options or other equity awards held by Mr. Robins) represent less than 33% of Base Class A
Shares (as defined in our amended and restated articles of incorporation) and (2) subject to cancelation by DraftKings (without
consideration) one year after the date that both of the following conditions apply (the “Founder Termination Anniversary
Date”): (a) the earliest to occur of (i) Mr. Robins’ employment as Chief Executive Officer of DraftKings
being terminated due to termination of employment for cause or due to death or permanent disability and (ii) Mr. Robins
resigns (other than for good reason) as the Chief Executive Officer of DraftKings and (b) either (i) Mr. Robins
no longer serves as a member of the board of directors of DraftKings or (ii) Mr. Robins’ service to DraftKings
is not his primary business occupation. In the event that Mr. Robins is reinstated as the Chief Executive Officer of DraftKings
or is reelected or reappointed to serve as a member of the board of directors of DraftKings prior to the Founder Termination Anniversary
Date (each, a “Reset Event”), then the shares of Class B common stock will not be canceled pursuant to clause
(2) unless and until the one-year anniversary of the date that both of the foregoing conditions are subsequently met; provided
that in the event of a subsequent Reset Event, the next Founder Termination Anniversary Date will extend until the one-year anniversary
of the date that both of the foregoing conditions are subsequently met without a Reset Event occurring prior to such anniversary.


 






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Other Matters


 


No shares of Class B
common stock are subject to redemption (except as described below under “Redemption Rights and Transfer Restrictions with
Respect to Capital Stock Held by Unsuitable Persons and Their Affiliates”) or have preemptive rights to purchase additional
shares of Class B common stock. Holders of shares of Class B common stock do not have subscription, redemption or conversion
rights. All outstanding shares of Class B common stock are validly issued, fully paid and non-assessable.


 


Preferred Stock


 


Our amended and restated
articles of incorporation provide that the Board has the authority, without action by the stockholders, to designate and issue
shares of preferred stock in one or more classes or series, and the number of shares constituting any such class or series, and
to fix the voting powers, designations, preferences, limitations, restrictions and relative rights of each class or series of preferred
stock, including, without limitation, dividend rights, dividend rates, conversion rights, exchange rights, voting rights, rights
and terms of redemption, dissolution preferences, and treatment in the case of a merger, business combination transaction, or sale
of our assets, which rights may be greater than the rights of the holders of the common stock. As of December 31, 2020, there were
no shares of preferred stock outstanding.


 


The purpose of authorizing
the Board to issue preferred stock and determine the rights and preferences of any classes or series of preferred stock is to eliminate
delays associated with a stockholder vote on specific issuances. The simplified issuance of preferred stock, while providing flexibility
in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more
difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of our outstanding
voting stock. Additionally, the issuance of preferred stock may adversely affect the holders of Class A common stock by restricting
dividends on the Class A common stock, diluting the voting power of the Class A common stock or subordinating the dividend
or liquidation rights of the Class A common stock. As a result of these or other factors, the issuance of preferred stock
could have an adverse impact on the market price of Class A common stock.


 


Exclusive Forum


 


Our amended and restated
articles of incorporation provide that, to the fullest extent permitted by law, unless we otherwise consent in writing, the Eighth
Judicial District Court of Clark County, Nevada (or if the Eighth Judicial District Court of Clark County, Nevada does not have
jurisdiction, any other state district court located in the State of Nevada, and if no state district court in the State of Nevada
has jurisdiction, any federal court located in the State of Nevada) will be the exclusive forum for any action or proceeding brought
in the name or right of DraftKings or on its behalf, any action asserting a claim for breach of any fiduciary duty owed by any
director, officer, employee or agent of DraftKings to DraftKings or its stockholders, any action asserting a claim arising pursuant
to any provision of NRS Chapters 78 or 92A, our amended and restated articles of incorporation or the bylaws, any action to interpret,
apply, enforce or determine the validity of our amended and restated articles of incorporation or bylaws or any action asserting
a claim governed by the internal affairs doctrine. The exclusive forum provision will provide federal courts located in the State
of Nevada as the forum for suits brought to enforce any duty or liability for which Section 27 of the Exchange Act establishes
exclusive jurisdiction with the federal courts or any other claim for which the federal courts have exclusive jurisdiction.


 






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Anti-Takeover Effects
of Provisions of the Amended and Restated Articles of Incorporation, the Amended and Restated Bylaws and Applicable Law


 


Certain provisions of our
amended and restated articles of incorporation, amended and restated bylaws and laws of the State of Nevada, where DraftKings is
incorporated, may discourage or make more difficult a takeover attempt that a stockholder might consider in his or her best interest.
These provisions may also adversely affect prevailing market prices for our common stock. We believe that the benefits of increased
protection give us the potential ability to negotiate with the proponent of an unsolicited proposal to acquire or restructure DraftKings
and outweigh the disadvantage of discouraging those proposals because negotiation of the proposals could result in an improvement
of their terms.


 


Authorized but Unissued
Shares


 


The authorized but unissued
shares of Class A common stock, Class B common stock and preferred stock are available for future issuance without stockholder
approval, subject to any limitations imposed by the listing standards of The Nasdaq Stock Market. These additional shares may be
used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but
unissued and unreserved common stock and preferred stock could make more difficult or discourage an attempt to obtain control of
DraftKings by means of a proxy contest, tender offer, merger or otherwise.


 


Dual Class Stock


 


Our amended and restated
articles of incorporation provide for a dual class common stock structure, which provides Mr. Robins with the ability to control
the outcome of matters requiring stockholder approval, even though he owns significantly less than a majority of the shares of
outstanding Class A common stock, including the election of directors and significant corporate transactions, such as a merger
or other sale of DraftKings or its assets.


 


Number of Directors


 


Our amended and restated
articles of incorporation and amended and restated bylaws provide that, subject to any rights of holders of preferred stock to
elect additional directors under specified circumstances, the number of directors may be fixed from time to time pursuant to a
resolution adopted by the Board or, from and after the time that Mr. Robins beneficially owns less than a majority of the
voting power of our outstanding capital stock, may be modified by the affirmative vote of at least two-thirds of the voting power
of our outstanding capital stock. The number of directors is currently fixed at 15.


 






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Requirements for
Advance Notification of Stockholder Meetings, Nominations and Proposals 


 


The bylaws establish advance
notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than
nominations made by or at the direction of the Board or a committee of the Board. In order for any matter to be “properly
brought” before a meeting, a stockholder has to comply with advance notice requirements and provide DraftKings with certain
information. Generally, to be timely, a stockholder’s notice must be received at DraftKings’ principal executive offices
not less than 90 days nor more than 120 days prior to the first anniversary date of the immediately preceding annual
meeting of stockholders. The bylaws also specify requirements as to the form and content of a stockholder’s notice. The bylaws
allow the chairman of the meeting at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings which
may have the effect of precluding the conduct of certain business at a meeting if the rules and regulations are not followed. These
provisions may also defer, delay or discourage a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s
own slate of directors or otherwise attempting to influence or obtain control of us.


 


Limitations on
Stockholder Action by Written Consent


 


Nevada law permits stockholder
action by written consent unless the corporation’s articles of incorporation or bylaws provide otherwise. Pursuant to Section 78.320
of the NRS, any action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting,
if a written consent to such action is signed by the holders of outstanding stock having at least a majority of the voting power
of all classes entitled to vote, or such different proportion that would be required for such an action at a meeting of the stockholders.
Our amended and restated articles of incorporation provide that stockholder action by written consent will be permitted so long
as Mr. Robins beneficially owns a majority of the voting power of the then-outstanding shares of our capital stock. Once Mr. Robins
no longer beneficially owns a majority of the voting power of the then-outstanding shares of our capital stock, all stockholder
actions must be taken at a meeting of our stockholders.


 


Amendment of Amended
and Restated Articles of Incorporation or Bylaws


 


Nevada law provides generally
that a resolution of the board of directors is required to propose an amendment to a corporation’s articles of incorporation
and that the amendment must be approved by the affirmative vote of a majority of the voting power of all classes entitled to vote,
as well as a majority of any class adversely affected. Nevada law also provides that the corporation’s bylaws, including
any bylaws adopted by its stockholders, may be amended by the board of directors and that the power to adopt, amend or repeal the
bylaws may be granted exclusively to the directors in the corporation’s articles of incorporation. Our amended and restated
articles of incorporation provide that, except as otherwise provided by applicable law, amendments to our amended and restated
articles of incorporation must be approved by (1) a majority of the combined voting power of all shares of our capital stock
entitled to vote, voting together as a single class, so long as shares representing a majority of the voting power of all of the
then-outstanding shares of our capital stock entitled to vote is beneficially owned by Mr. Robins or (2) two-thirds of
the combined voting power of all shares entitled to vote, voting together as a single class, thereafter. Our amended and restated
articles of incorporation and bylaws provide that the amended and restated bylaws may be amended or repealed by either the affirmative
vote of a majority of the Board or by the affirmative vote of stockholders representing a majority of the voting power of all of
the then-outstanding shares of our capital stock entitled to vote, while Mr. Robins beneficially owns shares representing
at least a majority of the voting power of our capital stock, or, thereafter, by the affirmative vote of stockholders representing
at least two-thirds or more of the voting power of our capital stock.


 






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Business Combinations


 


The “business combination”
provisions of Sections 78.411 to 78.444, inclusive, of the NRS generally prohibit a publicly traded Nevada corporation with
at least 200 stockholders of record from engaging in various “combination” transactions with any interested stockholder
for a period of up to four years after the date of the transaction in which the person became an interested stockholder, unless
the combination or transaction was approved by the board of directors before such person became an interested stockholder or the
combination is approved by the board of directors, if within two years after the date in which the person became an interested
stockholder, and is approved at a meeting of the stockholders by the affirmative vote of stockholders representing at least 60%
(for a combination within two years after becoming an interested stockholder) or a majority (for combinations between two
and four years thereafter) of the outstanding voting power held by disinterested stockholders. Alternatively, a corporation
may engage in a combination with an interested stockholder more than two years after such person becomes an interested stockholder
if:


 


		•	the consideration to be paid to the holders of the corporation’s stock, other than the interested
stockholder, is at least equal to the highest of: (a) the highest price per share paid by the interested stockholder within
the two years immediately preceding the date of the announcement of the combination or the transaction in which it became
an interested stockholder, whichever is higher, plus interest compounded annually, (b) the market value per share of common
stock on the date of announcement of the combination or the date the interested stockholder acquired the shares, whichever is higher,
less certain dividends paid or (c) for holders of preferred stock, the highest liquidation value of the preferred stock, if
it is higher; and



 


		•	the interested stockholder has not become the owner of any additional voting shares since the date
of becoming an interested stockholder except by certain permitted transactions.



 


A “combination”
is generally defined to include (i) mergers or consolidations with the “interested stockholder” or an affiliate
or associate of the interested stockholder, (ii) any sale, lease exchange, mortgage, pledge, transfer or other disposition
of assets of the corporation, in one transaction or a series of transactions, to or with the interested stockholder or an affiliate
or associate of the interested stockholder: (a) having an aggregate market value equal to 5% or more of the aggregate market
value of the assets of the corporation, (b) having an aggregate market value equal to 5% or more of the aggregate market value
of all outstanding shares of the corporation or (c) representing more than 10% of the earning power or net income (determined
on a consolidated basis) of the corporation, (iii) any issuance or transfer of securities to the interested stockholder or
an affiliate or associate of the interested stockholder, in one transaction or a series of transactions, having an aggregate market
value equal to 5% or more of the aggregate market value of all of the outstanding voting shares of the corporation (other than
under the exercise of warrants or rights to purchase shares offered, or a dividend or distribution made pro rata to all stockholders
of the corporation), (iv) adoption of a plan or proposal for liquidation or dissolution of the corporation with the interested
stockholder or an affiliate or associate of the interested stockholder and (v) certain other transactions having the effect
of increasing the proportionate share of voting securities beneficially owned by the interested stockholder or an affiliate or
associate of the interested stockholder.


 


In general, an “interested
stockholder” means any person who (i) beneficially owns, directly or indirectly, 10% or more of the voting power of
the outstanding voting shares of a corporation, or (ii) is an affiliate or associate of the corporation that beneficially
owned, within two years prior to the date in question, 10% or more of the voting power of the then-outstanding shares of the
corporation.


 






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We have opted out of these
provisions in our amended and restated articles of incorporation until Mr. Robins ceases to beneficially own shares of our
common stock representing at least 15% of our outstanding voting stock.


 


Control Share Acquisitions


 


The “control share”
provisions of Sections 78.378 to 78.3793, inclusive, of the NRS apply to “issuing corporations” that are Nevada
corporations doing business, directly or through an affiliate, in Nevada, and having at least 200 stockholders of record, including
at least 100 of whom have addresses in Nevada appearing on the stock ledger of the corporation. The control share statute prohibits
an acquirer, under certain circumstances, from voting its “control shares” of an issuing corporation’s stock
after crossing certain ownership threshold percentages, unless the acquirer obtains approval of the issuing corporation’s
disinterested stockholders or unless the issuing corporation amends its articles of incorporation or bylaws within 10 days
of the acquisition. The statute specifies three thresholds: one-fifth or more but less than one-third, one-third but less than
a majority, and a majority or more, of the outstanding voting power of a corporation. Generally, once an acquirer crosses one of
the foregoing thresholds, those shares acquired in an acquisition or offer to acquire in an acquisition and acquired within 90 days
immediately preceding the date that the acquirer crosses one of the thresholds become “control shares,” and such control
shares are deprived of the right to vote until disinterested stockholders restore the right. In addition, the corporation, if provided
in its articles of incorporation or bylaws in effect on the tenth (10th) day following the acquisition of a controlling
interest, may cause the redemption of all of the control shares at the average price paid for such shares if the stockholders do
not accord the control shares full voting rights. If control shares are accorded full voting rights and the acquiring person has
acquired a majority or more of all voting power, all other stockholders who did not vote in favor of authorizing voting rights
to the control shares are entitled to demand payment for the fair value of their shares in accordance with statutory procedures
established for dissenters’ rights.


 


We have opted out of these
provisions in our amended and restated articles of incorporation until Mr. Robins ceases to beneficially own shares of our
common stock representing at least 15% of our outstanding voting stock. After such time, we may opt out of the “control share”
statute by amending our articles of incorporation or bylaws within 10 days of the acquisition as provided by Nevada law.


 


Limitations on Liability
and Indemnification of Officers and Directors


 


Our amended and restated
articles of incorporation eliminate the liability of our officers and directors to the fullest extent permitted by Nevada law.
Nevada law provides that our directors and officers will not be individually liable to us, our stockholders or our creditors for
any damages for any act or failure to act in the capacity of a director or officer other than in circumstances where both (i) the
presumption that the director or officer acted in good faith, on an informed basis and with a view to the interests of the corporation
has been rebutted, and (ii) the act or failure to act of the director or officer is proven to have been a breach of his or
her fiduciary duties as a director or officer and such breach is proven to have involved intentional misconduct, fraud or a knowing
violation of law.


 


Our amended and restated
articles of incorporation and bylaws also provide for indemnification for our directors and officers to the fullest extent permitted
by Nevada law. We have entered into indemnification agreements with each of our directors that are, in some cases, broader than
the specific indemnification provisions contained under Nevada law. The effect of these provisions is to restrict our rights and
the rights of our stockholders in derivative suits to recover any damages against a director for breach of fiduciary duties as
a director, because a director will not be individually liable for acts or omissions, except where the act or failure to act constituted
a breach of fiduciary duty and such breach involved intentional misconduct, fraud or a knowing violation of law, and the presumption
that the director or officer acted in good faith, on an informed basis, and with a view to the interests of the corporation, has
been rebutted.


 






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These provisions may be
held not to be enforceable for certain violations of the federal securities laws of the United States.


 


We are also expressly authorized
to carry directors’ and officers’ insurance to protect our directors, officers, employees and agents against certain
liabilities.


 


The limitation of
liability and indemnification provisions under Nevada law and in our amended and restated articles of incorporation and
amended and restated bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their
fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against
directors and officers, even though such an action, if successful, might otherwise benefit DraftKings and our stockholders.
However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek non-monetary relief such
as injunction or rescission in the event of a breach of a director’s fiduciary duties. Moreover, the provisions do not
alter the liability of directors under the federal securities laws. In addition, your investment may be adversely affected to
the extent that, in a class action or direct suit, we cover the costs of settlement and damage awards against directors and
officers pursuant to these indemnification provisions.


 


The foregoing provisions
of our amended and restated articles of incorporation and amended and restated bylaws could discourage potential acquisition proposals
and could delay or prevent a change in control. These provisions are intended to enhance the likelihood of continuity and stability
in the composition of our board of directors and in the policies formulated by our board of directors and to discourage certain
types of transactions that may involve an actual or threatened change of control. These provisions are designed to reduce DraftKings’
vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage certain tactics that may be
used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares
and, as a consequence, they also may inhibit fluctuations in the market price of Class A common stock that could result from
actual or rumored takeover attempts. Such provisions also may have the effect of preventing changes in our management or delaying
or preventing a transaction that might benefit you or other minority stockholders.


 


Corporate Opportunities


 


In anticipation that Mr. Robins
may engage in activities or lines of business similar to those in which we engage, our amended and restated articles of incorporation
provide for, to the fullest extent permitted under Nevada law, the renouncement by DraftKings of all interest and expectancy that
DraftKings otherwise would be entitled to have in, and all rights to be offered an opportunity to participate in, any business
opportunity that from time to time may be presented to any director, stockholder, officer or agent of DraftKings (or any affiliate
thereof), other than an employee of DraftKings or any of its subsidiaries. Specifically, no holder of shares of common stock, nor
any non-employee director, of DraftKings has any duty to refrain from engaging in the same or similar business activities or lines
of business that DraftKings does or otherwise competing with DraftKings. In the event that any holder of shares of common stock
of DraftKings or any director that is not an employee of DraftKings or its subsidiaries acquires knowledge of a potential transaction
or matter which may be a corporate opportunity for itself and DraftKings, that person will not have any duty to communicate or
offer such corporate opportunity to DraftKings and may pursue or acquire such corporate opportunity for itself or direct such opportunity
to another person.


 






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To the fullest extent permitted
by Nevada law, no potential transaction or business opportunity may be deemed to be a potential corporate opportunity of DraftKings
or its subsidiaries unless (a) DraftKings and its subsidiaries would be permitted to undertake such transaction or opportunity
in accordance with the DraftKings amended and restated articles of incorporation, (b) DraftKings and its subsidiaries at such
time have sufficient financial resources to undertake such transaction or opportunity and (c) such transaction or opportunity
would be in the same or similar line of business in which DraftKings and its subsidiaries are then engaged or a line of business
that is reasonably related to, or a reasonable extension of, such line of business.


 


Redemption Rights and Transfer Restrictions
with Respect to Capital Stock Held by Unsuitable Persons and Their Affiliates


 


Our amended and restated
articles of incorporation provide that any common stock or any other equity securities of DraftKings, or securities exchangeable
or exercisable for, or convertible into, such other equity securities of DraftKings owned or controlled by a person whom the board
determines in good faith (following consultation with reputable outside gaming regulatory counsel) pursuant to a resolution adopted
by the unanimous affirmative vote of all of the disinterested members of the DraftKings board of directors (i) fails or refuses
to file an application (or fails or refuses, as an alternative, to otherwise formally request from the relevant Gaming Authority
a waiver or similar relief from filing such application) within 30 days (or such shorter period imposed by any gaming authority,
including any extensions of that period granted by the relevant gaming authority, but in no event more than such original thirty
(30) days) after having been requested in writing and in good faith to file an application by DraftKings (based on consultation
with reputable outside gaming regulatory counsel), or has withdrawn or requested the withdrawal of a pending application (other
than for technical reasons with the intent to promptly file an amended application following such withdrawal), to be found suitable
by any gaming authority or for any gaming license when such finding of suitability or gaming license is required by gaming laws
or gaming authorities for the purpose of obtaining a material gaming license for, or compliance with material gaming laws by DraftKings
 “or any affiliated company”, (ii) is denied or disqualified from eligibility for any material gaming license by
any gaming authority, (iii) is determined by a gaming authority in any material gaming jurisdiction to be unsuitable to own
or control any equity interests, or be affiliated, associated or involved with a person engaged in gaming activities, (iv) is
determined by a gaming authority to have caused, in whole or in part, any material gaming license of DraftKings or any affiliated
company to be lost, rejected, rescinded, suspended, revoked or not renewed by any gaming authority, or to have cause, in whole
or in part, DraftKings or any affiliated company to be threatened by any gaming authority with the loss, rejection, rescission,
suspension, revocation or non-renewal of any material gaming license (in each of  (ii) through (iv) above, only
if such denial, disqualification or determination by a gaming authority is final and non-appealable), or (v) is reasonably
likely to (1) preclude or materially delay, impede, impair, threaten or jeopardize any material gaming license held or desired
in good faith to be held by DraftKings or any affiliated company or DraftKings’ or any affiliated company’s application
for, right to the use of, entitlement to, or ability to obtain or retain, any material gaming license held or desired in good faith
to be held by DraftKings or any affiliated company, or (2) cause or otherwise be reasonably likely to result in the imposition
of any materially burdensome terms or conditions on any material gaming license held or desired to be held by DraftKings or any
affiliated company (each of such persons, an “Unsuitable Person”) or its affiliates will be subject to mandatory sale
and transfer on the terms and conditions set forth in our amended and restated articles of incorporation to either DraftKings or
one or more third-party transferees (as described in our amended and restated articles of incorporation) and in such number and
class(es)/series as determined by the Board.


 


Any such sale or transfer
will not occur until the later to occur of: (i) delivery to the Unsuitable Person of a copy of a resolution duly adopted by
the unanimous affirmative vote of all of the disinterested members of the DraftKings board of directors at a meeting thereof called
and held for the purpose (after providing reasonable notice to such person and a reasonable opportunity for such person, together
with their counsel, to be heard and to provide documents and written arguments), finding that the DraftKings board of directors
has determined in good faith (following consultation with reputable outside gaming regulatory counsel) that (A) such person
is an Unsuitable Person and (B) it is necessary for such person or an affiliate of such person (as applicable) to sell and
transfer such number and class(es)/series of equity interests in order for DraftKings or an affiliated company to: (1) obtain,
renew, maintain or prevent the loss, rejection, rescission, suspension, revocation or non-renewal of a material gaming license;
(2) comply in any material respect with a material gaming law; (3) ensure that any material gaming license held or desired
in good faith to be held by DraftKings or any affiliated company, or DraftKings’ or any affiliated company’s application
for, right to the use of, entitlement to, or ability to obtain or retain, any material gaming license held or desired in good faith
to be held by DraftKings or any affiliated company, is not precluded, delayed, impeded, impaired, threatened or jeopardized in
any material respect; or (4) prevent the imposition of any materially burdensome terms or conditions on any material gaming
license held or desired in good faith to be held by DraftKings or any affiliated company, and specifying the reasoning for such
determinations in reasonable detail, and (ii) conclusion of any arbitration process brought in accordance with the provisions
of our amended and restated articles of incorporation.


 






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Following (x) the
determination of unsuitability by the Board and (y) if applicable, an arbitrator determining that such determinations were
made in good faith by the Board, DraftKings will deliver a transfer notice to the Unsuitable Person or its affiliate(s) and will
purchase and/or cause one or more third-party transferees to purchase such number and class(es)/series of equity interests determined
in good faith by the Board for the purchase price set forth in the transfer notice, which will be determined in accordance with
our amended and restated articles of incorporation; provided that an Unsuitable Person or its affiliate(s) will be permitted, during
the 45-day period commencing on the date of the transfer notice (or before a transfer notice is formally delivered), to effect
and close a disposition of the number and class(es)/series of equity interests specified in the transfer notice (or a portion of
them) to a person that the Board determines in good faith (following consultation with reputable outside gaming regulatory counsel)
is not an Unsuitable Person, on terms agreed between the Unsuitable Person and such person (an “Alternate Private Transaction”).


 


At the closing of a sale
and transfer other than an Alternate Private Transaction, (i) DraftKings or the third-party transferee(s) (as applicable),
will deliver the aggregate applicable purchase price for the equity interests being purchased by each of the foregoing by wire
transfer of immediately available funds to the account specified in writing by the Unsuitable Person or an affiliate of such Unsuitable
Person (as applicable) in the case of third-party transferees, by unsecured promissory note in the case of DraftKings, or a combination
of both in the case of DraftKings in such proportion as it may determine in its sole and absolute discretion and (ii) the
Unsuitable Person or affiliate thereof will deliver to DraftKings or each such third-party transferee, such stock powers, assignment
instruments and other agreements as are necessary or appropriate to fully convey all right, title and interest in and to the equity
interests being purchased by each of the foregoing, free and clear of all liens and other encumbrances and to evidence the subordination
of any promissory note if and only to the extent required by any debt obligations of DraftKings (and to the minimum extent required
pursuant to such subordination arrangement).


 


Our amended and restated
articles of incorporation provide that, in the case of a sale and transfer to DraftKings, from and after the transfer date and
subject only to the right to receive the purchase price for such equity interests, the equity interests will be deemed no longer
outstanding and the Unsuitable Person or any affiliate thereof will cease to be a stockholder, and all rights of such Unsuitable
Person or any affiliate thereof, other than the right to receive the purchase price, will cease. In the case of an Alternate Private
Transaction or a transfer to one or more third-party transferees, from and after the earlier to occur of: (i) the transfer
date, in the case of a transfer to one or more such third-party transferees, or (ii) consummation of an Alternate Private
Transaction, subject only to the right to receive the purchase price for such Unsuitable Person’s equity securities, all
rights and entitlements of the Unsuitable Person or any affiliates thereof will be terminated, including, without limitation, any
such person will from such date no longer be entitled to: (i) receive any dividend, payment, distribution or interest with
regard to the applicable equity interests which has been declared following such date or of which the due payment date according
to the applicable declaration is following such date, other than the right to receive the purchase price or (ii) to exercise,
directly or indirectly or through any proxy, trustee, or nominee, any voting or other right (including, without limitation, observer
and information rights) conferred by the underlying equity interests.


 






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Further, to the extent
that a sale and transfer to one or more third-party transferees is determined to be invalid or unenforceable for any reason, DraftKings
will be permitted to redeem or repurchase the equity interests owned or controlled by an Unsuitable Person or an affiliate thereof
for the price and under the terms contemplated by our amended and restated articles of incorporation promptly following any such
determination.


 


Stockholders’ Derivative Actions


 


Under Nevada law, any of
our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided
that the stockholder bringing the action was a holder of our shares at the time of the transaction to which the action relates
or such stockholder’s stock thereafter devolved by operation of law and such suit is brought in a Nevada court. See “Exclusive
Forum” above.


 


Transfer Agent and Registrar 


 


The transfer agent for our Class A common
stock is Computershare Trust Company, N.A.


 


 


 



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