Exhibit 4.1
EXECUTION COPY
AMENDED AND RESTATED FIRST AMENDMENT TO RIGHTS AGREEMENT
This Amended and Restated First Amendment to Rights Agreement (the "Amended
and Restated First Amendment"), made and entered into as of the 10th day of June
2002, effective as of March 14, 2002, is by and between CRIIMI MAE INC., a
Maryland corporation (the "Company") and REGISTRAR AND TRANSFER COMPANY, a New
Jersey corporation, as Rights Agent (the "Rights Agent").
RECITALS
1. On January 23, 2002, the Company and the Rights Agent entered into the
Rights Agreement (the "Rights Agreement").
2. On March 14, 2002, the Company and the Rights Agent entered into the
First Amendment to Rights Agreement (the "First Amendment"), whereby the
following clause (v) (the "Fifth Exception") was added to the definition of
"Beneficial Owner" contained in Section 1 of the Rights Agreement:
(v) any such Person who has reported or is required to report such
ownership (but less than 20%) on Schedule 13G under the Securities Exchange
Act of 1934, as amended and in effect on the date of this Agreement (the
"Exchange Act"), but only so long as (w) such Person satisfies both of the
criteria set forth in Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii) of the
General Rules and Regulations under the Exchange Act, (x) such Person has
not reported and is not required to report such ownership on Schedule 13D
under the Exchange Act, (y) such Person does not have a right to dividends
or proceeds from the sale of Common Shares or otherwise have an interest in
Common Shares such that such Person is deemed the owner of 5% or more of
the Common Shares outstanding for purposes of Section 382 of the Internal
Revenue Code (the "Code") and (z) such Person is not a member of a group of
Persons who have a formal or informal understanding among themselves to
make a coordinated acquisition of Common Shares or is otherwise a member of
a group such that such group constitutes an "entity" (as defined in Section
1.382-3(a)(1) of the Code) that is deemed the owner of 5% or more of the
Common Shares outstanding for purposes of Section 382 of the Code.
3. The Company intended that the Fifth Exception should have been added to
the first sentence of the definition of "Acquiring Person" contained in Section
1 of the Rights Agreement rather than to the definition of "Beneficial Owner";
and therefore, the Company desires to amend and restate the First Amendment to
clarify that that no change should have been made to the definition of
"Beneficial Owner" and that the Fifth Exception should have been and was
intended to be added to the definition of "Acquiring Person".
4. Pursuant to Section 27 of the Rights Agreement, the Company may amend
the Rights Agreement without the approval of any holders of Rights Certificates
(as defined in the Rights Agreement) as the Company may deem necessary or
desirable until such time as the Rights (as defined in the Rights Agreement) are
no longer redeemable.
5. The Rights are currently redeemable.
6. This Amended and Restated First Amendment amends and restates the First
Amendment in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Amendatory Provision: The definition of "Acquiring Person" defined in
Section 1(c) of the Rights Agreement is hereby amended by inserting the
following clause (v) in full at the end of the first sentence of the definition
of "Acquiring Person":
and (v) any such Person who has reported or is required to report such
ownership (but less than 20%) on Schedule 13G under the Securities Exchange
Act of 1934, as amended and in effect on the date of this Agreement (the
"Exchange Act"), but only so long as (w) such Person satisfies both of the
criteria set forth in Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii) of the
General Rules and Regulations under the Exchange Act, (x) such Person has
not reported and is not required to report such ownership on Schedule 13D
under the Exchange Act, (y) such Person does not have a right to dividends
or proceeds from the sale of Common Shares or otherwise have an interest in
Common Shares such that such Person is deemed the owner of 5% or more of
the Common Shares outstanding for purposes of Section 382 of the Internal
Revenue Code (the "Code") and (z) such Person is not a member of a group of
Persons who have a formal or informal understanding among themselves to
make a coordinated acquisition of Common Shares or is otherwise a member of
a group such that such group constitutes an "entity" (as defined in Section
1.382-3(a)(1) of the Code) that is deemed the owner of 5% or more of the
Common Shares outstanding for purposes of Section 382 of the Code.
2. Existing Agreement. Except as expressly amended hereby, all of the
terms, covenants and conditions of the Rights Agreement (i) are ratified and
confirmed; (ii) shall remain unamended and not waived; and (iii) shall continue
in full force and effect.
3. Governing Law. This Amended and Restated First Amendment shall be
governed by the internal laws of the State of Maryland without giving effect to
the principles of conflict of laws thereof.
4. Counterparts. This Amended and Restated First Amendment may be executed
in one or more counterparts, each of which shall be deemed an original, and all
of which taken together, shall constitute one and the same instrument.
5. Enforceability. If any provision of this Amended and Restated First
Amendment shall be held to be illegal, invalid or unenforceable under any
applicable law, then such contravention or invalidity shall not invalidate the
entire Amended and Restated First Amendment or the Rights Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render
it legal, valid and enforceable, then this Amended and Restated First
Amendment and the Rights Agreement shall be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated First Amendment to be duly executed and attested, all as of the day and
year first above written.
CRIIMI MAE INC.
Attest: /s/Xxxxx Xxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Chairman of the Board
REGISTRAR AND TRANSFER
COMPANY, as Rights Agent
Attest: /s/Xxxx Xxxx Xxxxxxx By: /s/Xxxxxxx X. Tatler
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Name: Xxxx Xxxx Xxxxxxx Name: Xxxxxxx X. Tatler
Title: Executive Vice President/ Title: Vice President
Assistant Secretary
