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EXHIBIT 3.4
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
NTN COMMUNICATIONS, INC.
Kendra Berger hereby certifies as follows:
She is the duly appointed and acting Chief Financial Officer and Secretary of
NTN Communications, Inc., a Delaware corporation.
Articles IX, X and XI are hereby added to the Restated Certificate of
Incorporation of this corporation and shall read in their entirety as follows:
"ARTICLE IX
Number, Election and Term of Directors. Except as otherwise fixed by
or pursuant to the provisions of Article IV hereof relating to the
rights of the holders of Preferred Stock to elect additional directors
under specified circumstances, the number of the directors of the
Corporation shall be fixed from time to time by or pursuant to the
bylaws of the Corporation. The directors, other than those who may be
elected by the holders of Preferred Stock, shall be classified, with
respect to the time for which they severally hold office, into three
classes, as nearly equal in number as possible, as shall be provided
in the manner specified in the bylaws of the Corporation, one class to
be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1994, another class to be originally
elected for a term expiring at the annual meeting of stockholders to
be held in 1995, and another class to be originally elected for a term
expiring at the annual meeting of stockholders to be held in 1996,
with each class to hold office until its successor is elected and
qualified. At each annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election.
Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article IV
hereof relating to the rights of the holders of Preferred Stock to
elect directors under specified circumstances, newly created
directorships resulting from any increase in the number of directors
and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled
by the affirmative vote of a majority of the remaining directors then
in the office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been
elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
Removal. Subject to the rights of any Preferred Stock to elect
directors under specified circumstances, any director may be removed
from office, with or without cause, and only by the affirmative vote
of the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election
of directors, voting together as a single class.
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ARTICLE X
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special
meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and
subject to the rights of the holders of Preferred Stock, special
meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution approved by a majority of
the entire Board of Directors. Notwithstanding anything contained in
this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the voting power of
all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with or
repeal this Article X.
ARTICLE XI
Except as otherwise provided in this Article XI, no purchase by the
Corporation from any Controlling Person (as hereinafter defined) of
shares of any stock of the Corporation owned by such Controlling
Person shall be made at a price exceeding the average price paid by
such Controlling Person for all shares of stock of the Corporation
acquired by such Controlling Person during the two-year period
preceding the date of such proposed purchase unless such purchase is
approved by the affirmative vote of not less than a majority of the
voting power of the shares of stock of the Corporation entitled to
vote held by Disinterested Stockholders (as hereinafter defined).
The provisions of this Article XI shall not apply to (i) any offer to
purchase made by the Corporation which is made on the same terms and
conditions to the holders of all shares of stock of the Corporation,
(ii) any purchase by the Corporation of shares owned by a Controlling
Person occurring after the end of two years following the date of the
last acquisition by such Controlling Person of stock of the
Corporation, (iii) any transaction which may be deemed to be a
purchase by the Corporation of shares of its stock which is made in
accordance with the terms of any stock option or other employee
benefit plan now or hereafter maintained by the Corporation, or (iv)
any purchase by the Corporation of shares of its stock at prevailing
market prices pursuant to a stock repurchase program.
This Article XI shall not be amended without the affirmative vote of
not less than a majority of the stock of the Corporation entitled to
vote thereon; provided, however, that if, at the time of such vote,
there shall be one or more Controlling Persons, such affirmative vote
shall include the affirmative vote in favor of such amendment of not
less than a majority of the voting power of the shares of stock of the
Corporation entitled to vote thereon held by Disinterested
Stockholders.
For purposes of this Article XI: (i) the term "Controlling Person"
means any individual, corporation, partnership, trust, association or
other organization or entity (including any group formed for the
purpose of acquiring, voting or holding securities of the Corporation)
which either directly, or indirectly through one or more
intermediaries, owns, beneficially or of record, or controls by
agreement, voting trust or otherwise, at least 10% of the voting power
of the stock of the Corporation, and such term also includes any
corporation, partnership, trust, association or other organization or
entity in which one or more Controlling Persons have the power,
through the ownership of voting securities, by contract, or otherwise,
to influence significantly any of the management, activities or
policies of such corporation, partnership, trust, association, other
organization or entity and (ii) the term "Disinterested Stockholders"
means those holders of the stock of the Corporation entitled to vote
on any matter, none of which is a "Controlling Person.""
The foregoing amendment of the Restated Certificate of Incorporation of this
corporation has been duly adopted in accordance with Section 242 of the Delaware
General Corporation Law.
Dated: March 24, 2000
/s/ Kendra Berger
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Kendra Berger, Chief Financial
Officer and Secretary