EXHIBIT 3.9
CERTIFICATE OF INCORPORATION
ARTICLE I
The name of the corporation is Source Interlink Companies, Inc. (the
"CORPORATION").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is 2711 Centerville Road, Suite 400 in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware (the "DGCL").
ARTICLE IV
SECTION 1. The total number of shares of all classes of stock which the
Corporation is authorized to issue is 102,000,000 shares consisting of: (a)
100,000,000 shares of common stock, par value $0.01 per share (the "COMMON
STOCK"), and (b) 2,000,000 shares of preferred stock, par value $0.01 per share
(the "PREFERRED STOCK"). The number of authorized shares of any class or classes
of stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of at least a
majority of the voting power of the issued and outstanding Common Stock, voting
together as a single class.
SECTION 2. The Preferred Stock may be issued from time to time in one or
more series pursuant to a resolution or resolutions providing for such issue
duly adopted by the Board of Directors (authority to do so being hereby
expressly vested in the Board of Directors). The Board of Directors is further
authorized, subject to limitations prescribed by law, to fix by resolution or
resolutions the designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of any wholly unissued
series of Preferred Stock, including without limitation authority to fix by
resolution or resolutions the dividend rights, dividend rate, conversion rights,
voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any such
series, and the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
SECTION 1. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition to the powers and
authority conferred upon them by statute of this Certificate of Incorporation or
the Bylaws of the Corporation, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation.
SECTION 2. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, alter, amend
or repeal the Bylaws of the Corporation. The affirmative vote of at least a
majority of the Board of Directors then in office shall be required in order for
the Board of Directors to adopt, amend, alter or repeal the Corporation's
Bylaws. The Corporation's Bylaws may also be adopted, amended, altered or
repealed by the stockholders of the Corporation. Notwithstanding the above or
any other provision of this Certificate of Incorporation, the Bylaws of the
Corporation may not be amended, altered or repealed except in accordance with
Article X of the Bylaws. No Bylaw hereafter legally adopted, amended, altered or
repealed shall
invalidate any prior act of the directors or officers of the Corporation that
would have been valid if such Bylaw had not been adopted, amended, altered or
repealed.
SECTION 3. Election of directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
SECTION 4. No stockholder will be permitted to cumulate votes at any
election of directors.
SECTION 5. 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 stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
SECTION 6. Advance notice of new business and stockholder nominations for
the election of directors shall be given in the manner and to the extent
provided in the Bylaws.
SECTION 7. Unless otherwise required by law, special meetings of the
stockholders of the Corporation may be called only by (i) the Board of Directors
of the Corporation, (ii) the Chairperson of the Board of Directors of the
Corporation or (iii) the Chief Executive Officer or president (in the absence of
a chief executive officer) of the Corporation.
ARTICLE VII
SECTION 1. The number of directors that constitute the whole Board of
Directors shall be fixed exclusively in the manner designated by the Bylaws.
SECTION 2. The qualifications of directors and their divisions into classes
shall be specified in the Bylaws of the Corporation. If the number of directors
is hereafter changed, any newly created directorships or decreases in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as is practicable, provided that no decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
SECTION 3. Each director shall serve until the expiration of the term for
which he or she is elected and until his or her successors has been duly elected
and qualified, except in the case of the death, resignation, retirement or
removal of such director.
SECTION 4. Except as otherwise provided for or fixed by or pursuant 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, created in accordance with the Bylaws, and any vacancies on
the Board of Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled only in the manner set forth in the
Bylaws. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
SECTION 5. Any director or the entire Board of Directors may be removed
from office at such time, for such reasons, or for no reason, by the
stockholders of the Corporation in the manner set forth in the Bylaws.
ARTICLE VIII
SECTION 1. To the fullest extent permitted by the DGCL as it presently
exists or as may hereafter be amended, a director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated to the fullest extent permitted by the DGCL, as so amended.
SECTION 2. The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by the DGCL as it presently exists or may hereafter be
amended, any person who was or is made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether criminal,
civil, administrative or
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investigative, by reason of the fact that such person (or the legal
representative of such person) is or was a director, officer, employee or agent
of the Corporation or any predecessor to the Corporation or serves or served at
any other enterprise as a director, officer, employee or agent at the request of
the Corporation or any predecessor to the Corporation.
SECTION 3. Neither any amendment or repeal of any Section of this Article
VII, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of this
Article VII, in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this Article VII, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws.
ARTICLE X
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law which might otherwise permit a lesser vote or not vote, but in
addition to any vote of the holders of any class or series of stock of this
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the then
outstanding voting securities of the Corporation, voting together as a single
class, shall be required for the amendment, repeal or modification of the
provisions of Sections 2, 5, 6 and 7 of Article SIXTH, Article SEVENTH, Article
EIGHTH or this Article TEN of this Certificate of Incorporation.
ARTICLE XI
The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
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Frank J. Rauktis Cohen & Grigsby, P.C.
15th Floor, 11 Stanwix Street
Pittsburgh, PA 15222
IN WITNESS WHEREOF, Source Interlink Companies, Inc. has caused this
Certificate of Incorporation to be signed by the Incorporator on this 27th day
of January, 2005.
By:
/s/ Frank J. Rauktis
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Frank J. Rauktis
Incorporator
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