SERIES B PREFERRED STOCK CERTIFICATE DESIGNATION
Published on August 16, 2001
EXHIBIT 99.D.8
CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES
OF SERIES B PREFERRED STOCK OF
SUNSOURCE INC.
Pursuant to Section 151 of the Delaware General Corporate Law
("DGCL"), SunSource Inc. (the "Corporation" or the "Company") certifies as
follows:
FIRST. The resolutions set forth below have not been modified,
altered or amended and are presently in full force and effect.
SECOND. That pursuant to the authority contained in Section 4.2
of the Corporation's Amended and Restated Certificate of Incorporation and in
accordance with the provisions of Section 151 of the DGCL, the Corporation's
Board of Directors (the "Board") duly adopted the following resolutions on
August __, 2001 designating the rights and preferences of a series of shares of
the Corporation's Preferred Stock designated "Series B Preferred Stock:"
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation (the "Board") by Section 4.2 of the
Amended and Restated Certificate of Incorporation, the Board hereby designates
and authorizes for issuance and fixes and determines the powers, preferences,
rights and limitations of a series of Preferred Stock, which shall consist of
_______ shares and shall be designated as Series B Preferred Stock (the "Series
B Preferred Stock"), and shall have the powers, preferences, rights and
limitations as set forth in the Certificate of Designations, Preferences and
Rights of the Series B Preferred Stock as follows:
1. DESIGNATION OF SERIES B PREFERRED STOCK. A total of _______
shares of the Corporation's Preferred Stock shall be designated as "Series B
Preferred Stock (the "Series B Preferred Stock")." The par value of the Series B
Preferred Stock shall be $.01 per share. The number of shares that may be issued
may be decreased, at any time and from time to time, by resolution of the Board;
provided that no decrease shall reduce the number of shares of Series B
Preferred Stock to a number less than the number of such shares then
outstanding. The Series B Preferred Stock shall rank pari passu to the Common
Stock and shall rank senior to the Series A Junior Participating Preferred
Shares as to dividends and upon liquidation, dissolution or winding up. As used
herein, the term "Preferred Stock" used without reference to the Series B
Preferred Stock means the shares of Preferred Stock, without distinction as to
series. Unless otherwise set forth herein, it is intended that the Series B
Preferred Stock shall powers and rights identical to the Common Stock.
2. DIVIDENDS. The holders of the Series B Preferred Stock shall
receive per share, when and as declared in the discretion of the Board of
Directors, and to the same extent as the holders of the Common Stock, such
dividends as the Board of Directors may from time to time determine, out of any
funds that are legally available therefor. In the case of a declaration of a
dividend described in the preceding sentence, the holders of shares of Series B
Preferred Stock shall participate with holders of shares of the Common Stock
based on the number of shares of
Common Stock held by each class of holders assuming conversion into Common Stock
of all the Series B Preferred Stock.
3. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, or in the event of its insolvency, the assets of the Corporation
available for distribution to holders of the Corporation's capital stock of all
classes, whether such assets are capital, surplus or earnings, if any, shall be
distributed among the holders of the Series B Preferred Stock and the Common
Stock, on a pari passu basis, in proportion to the shares of Common Stock then
held by them assuming conversion into Common Stock of all the Series B Preferred
Stock. Whenever the distribution provided for in this Section 3 shall be payable
in whole or in part in property other than cash, the value of any property
distributed shall be the fair market value of such property as reasonably
determined in good faith by the Board of Directors of the Corporation.
4. VOTING POWER. Except as otherwise required by law, (i) each
holder of Series B Preferred Stock shall be entitled to vote on all matters
submitted to a vote of the stockholders of the Corporation (including election
of directors to the extent not otherwise expressly provided for) and shall be
entitled to that number of votes equal to the number of shares of Common Stock
into which such holder's shares of Series B Preferred Stock would be converted
into pursuant to the provisions of Section 5 hereof, and (ii) the holders of
shares of Series B Preferred Stock and Common Stock shall vote together (or
render written consents in lieu of a vote) as a single class on all matters
submitted to the stockholders of the Corporation.
5. AUTOMATIC CONVERSION.
5.1 EVENTS CAUSING CONVERSION. Immediately following the
consummation of the merger of the Corporation and Allied Capital Lock
Acquisition Corporation pursuant to the Agreement and Plan of Merger dated as of
June 18, 2001 by and among Allied Capital Corporation, Allied Capital Lock
Acquisition Corporation and the Corporation, as it may be amended from time to
time, (the "Merger"), each outstanding share of Series B Preferred Stock shall
be converted automatically into one fully paid, non-assessable share of Common
Stock, without any further action by the holders of such share. As soon as
practicable following the consummation of the Merger, the Corporation shall
issue to each holder of shares of Series B Preferred Stock outstanding
immediately prior to the Merger certificates evidencing that number of shares of
Common Stock that such holder is entitled to pursuant to the preceding sentence,
subject to the certificates formerly evidencing such Series B Preferred Stock.
5.2 CONSOLIDATION, MERGER, ETC. In case the Corporation
shall at any time (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
then in each such case the number of shares of Common Stock that each share of
Series B Preferred Stock is convertible into, as set forth in Section 5.1, shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
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5.3 RESERVATION OF COMMON STOCK. The Corporation shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of the
shares of the Series B Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series B Preferred Stock, and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series B
Preferred Stock, the Corporation shall take such action as may be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
6. STATUS OF CONVERTED OR REPURCHASED SERIES B PREFERRED STOCK. Any
share or shares of Series B Preferred Stock acquired by the Corporation by
reason of redemption, purchase, conversion or otherwise shall be returned to the
status of authorized but unissued shares of undesignated Preferred Stock. Upon
the cancellation of all outstanding shares of Series B Preferred Stock, the
provisions of this Certificate of Designation, Rights and Preferences of the
Series B Preferred Stock shall terminate and have no further force and effect.
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IN WITNESS WHEREOF, the Corporation has executed this Certificate of
Designation, Rights and Preferences of the Series B Preferred Stock as of August
__, 2001.
SUNSOURCE INC.
By:____________________________