Exhibit 99.8
EXECUTION COPY
PREFERRED STOCK EXCHANGE AGREEMENT
This Preferred Stock Exchange Agreement (this "AGREEMENT") is
entered into as of the 26th day of July, 2000, by and between CRIIMI MAE
Inc., a Maryland corporation (the "COMPANY") and Fortis Proprietary Capital
Inc., formerly known as MeesPierson Investments Inc., and which name was
effectively changed on June 23, 2000 ("FORTIS").
RECITALS
WHEREAS, Fortis owns 100,000 shares of the Company's Series D
Cumulative Convertible Preferred Stock, par value $0.01 per share (the
"SERIES D PREFERRED STOCK");
WHEREAS, the Company has authorized the issuance of up to 203,000
shares of a series of preferred stock designated as "Series E Cumulative
Convertible Preferred Stock," par value $0.01 per share (the "SERIES E
PREFERRED STOCK"), 100,000 shares of which are available for issuance;
WHEREAS, the terms and conditions of the Series E Preferred Stock
are as set forth in the Articles Supplementary to the Articles of
Incorporation of the Series E Preferred Stock, as amended on April 10, 2000
(the "SERIES E ARTICLES SUPPLEMENTARY"), a copy of which is attached hereto
as EXHIBIT A, and incorporated herein by reference, which terms and
conditions are (i) to be further amended consistent with the Articles of
Amendment to Articles Supplementary to the Articles of Incorporation in
respect of Series E Cumulative Convertible Preferred Stock, a copy of which
is attached hereto as EXHIBIT B, and (ii) intended by agreement to be further
amended and supplemented on the Effective Date (as defined in the Series E
Articles Supplementary) substantially in accordance with (a) the term sheet
attached hereto as EXHIBIT C and incorporated herein by reference (and
consistent with the term sheet attached as EXHIBIT 3 to the Company's plan of
reorganization which addresses all shares of Series E Preferred Stock as
opposed to those issuable solely in exchange for the Series D Preferred
Stock), which term sheet has been agreed to by the parties hereto, and (b)
the Series E Preferred Stock Articles set forth as Exhibit B to the Articles
of Amendment and Restatement to become effective on the Effective Date (which
Articles of Amendment and Restatement will be attached as an exhibit to the
Company's Disclosure Statement), a copy of which Series E Preferred Stock
Articles is attached hereto as EXHIBIT D and incorporated herein by
reference; and
WHEREAS, principally for the purpose of effecting certain
amendments to the Articles Supplementary to the Articles of Incorporation for
the Series D Preferred Stock, Fortis desires to exchange each share of its
Series D Preferred Stock for one share of Series E Preferred Stock and the
Company desires to issue the Series E Preferred Stock in exchange for such
Series D Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
subject to the conditions herein set forth, the parties agree as follows:
1. EXCHANGE.
(a) EXCHANGE. On July 26, 2000 (the "EXCHANGE
DATE"), a certificate representing 100,000 shares of Series E Preferred Stock
shall be delivered to Fortis upon receipt of certificate(s) representing
100,000 shares of Series D Preferred Stock duly endorsed by Fortis for
transfer to the Company for cancellation.
(b) CANCELLATION OF THE SERIES D PREFERRED
STOCK. Upon issuance and delivery of 100,000 shares of Series E Preferred
Stock by the Company to Fortis, the Series D Preferred Stock shall be
cancelled for all purposes.
2. ACCRUED AND UNPAID DIVIDENDS. Accrued and unpaid dividends on the
shares of the Series D Preferred Stock through the Exchange Date shall
continue to exist as accrued and unpaid dividends under the Articles
Supplementary to the Articles of Incorporation for the Series D Preferred
Stock, and as such, the claim of Fortis for accrued and unpaid dividends
shall continue to be of the same extent, priority and validity as before the
Exchange Date.
3. TREATMENT OF SERIES E PREFERRED STOCK UNDER PLAN OF
REORGANIZATION. Any and all plans of reorganization filed by the Company
shall provide for treatment of the Series E Preferred Stock substantially in
accordance with the term sheet attached hereto as EXHIBIT C (and consistent
with the term sheet attached as EXHIBIT 3 to the Company's plan of
reorganization which addresses all shares of Series E Preferred Stock as
opposed to those issuable solely in exchange for the Series D Preferred
Stock) and the Series E Preferred Stock Articles attached hereto as EXHIBIT
D, unless the holder of the Series E Preferred Stock consents to different
treatment.
4. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws of the State of Maryland, except where
federal bankruptcy law applies. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the United States Bankruptcy Court for the
District of Maryland, Greenbelt Division, with respect to any suit, action,
proceeding or judgment relating to or arising out of this Agreement.
5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[The next page is the signature page]
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IN WITNESS WHEREOF, the undersigned through each of their
respective duly authorized officers have executed this Preferred Stock
Exchange Agreement effective as of the date first set forth above.
CRIIMI MAE INC.
By: /S/
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President/General
Counsel
FORTIS PROPRIETARY CAPITAL INC.
By: /S/
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President/CEO
By: /S/
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
EXHIBIT A
The Articles Supplementary to the Articles of Incorporation of the
Series E Preferred Stock, as amended on April 10, 2000 (incorporated by
reference to Exhibits 99.1 and 99.2 to a Current Report on Form 8-K filed
with the Securities and Exchange Commission on April 10, 2000).
EXHIBIT B
Articles of Amendment to Articles Supplementary to Articles of
Incorporation of the Series E Preferred Stock (incorporated by reference to
Exhibit 3.2 to a Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 14, 2000).
EXHIBIT C
CONVERTIBLE PREFERRED STOCK TERM SHEET
ISSUER: CRIIMI MAE Inc. ("CRIIMI MAE", "CMI" or the "COMPANY")
HOLDER: Fortis Proprietary Capital Inc. ("FORTIS")
ISSUE AMOUNT: $10 million
LIQUIDATION VALUE: $100 per share
SECURITIES: 100,000 shares of Series E Floating Rate Convertible
Preferred Shares, ("PREFERRED SHARES")
DIVIDEND: 1. From July 26, 2000 through the Effective Date of the
Company's Reorganization Plan (the "EFFECTIVE DATE"),
cumulative, floating-rate dividends based upon 3-month
LIBOR plus 75 basis points, accruing quarterly, and
payable, on the Effective Date, in common stock, which
will not require registration to trade ("DIVIDEND
SECURITIES").
2. After the Effective Date, cumulative, floating rate
dividends based upon 3-month LIBOR plus 250 basis
points, payable quarterly in cash or Dividend
Securities at CMI's option.
3. Unpaid dividends shall compound quarterly.
DIVIDEND SHARE The amount of shares received as Dividend Securities will
AMOUNT: be equal to the dividend dollar amount divided by the
average of the five (5) closing trade prices of the common
stock for the five (5) previous trading days prior to the
dividend payment date.
CONVERSION The Preferred Shares will become convertible into CRIIMI
FEATURE: MAE common stock at the option of Fortis beginning three
months after the Effective Date in accordance with the
following schedule:
1. Up to 25,000 Preferred Shares may be converted
beginning at the end of 3 months, 9 months, 12 months
and 15 months after the Effective Date without regard
to the price of CRIIMI MAE's common stock.
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2. Beginning 4 months after the Effective Date and
ending 8 months after the Effective Date, Fortis may
convert up to 7,500 additional Preferred Shares in
any 21 trading day period so long as the price of the
common stock remained above $3.00 per share for each
of the previous 21 trading days.
3. Beginning 10 months after the Effective Date, Fortis
may convert up to 5,000 additional Preferred Shares in
any 21 trading day period so long as the price of the
common stock remained above $3.00 per share for each
of the previous 21 trading days.
4. In no event may Fortis convert (i) more than 25,000
Preferred Shares in any 21 trading day period, or
(ii) Preferred Shares resulting in Fortis owning 5%
or more of CMI's then outstanding common stock.
CONVERSION PRIOR TO THE EFFECTIVE DATE. In the event that
the Effective Date does not occur on or before December
31, 2000, then 5,000 Preferred Shares shall become
convertible at the option of Fortis into fully paid and
non-assessable shares of CMI common stock in January 2001
and in each month thereafter until the Effective Date. In
no event may Fortis convert (i) more than 5,000 Preferred
Shares (or less than 1,000 Preferred Shares at any one
time) during any calendar month or (ii) any Preferred
Shares into CMI common stock if such conversion would
result in Fortis owning 5% or more of CMI's then
outstanding common stock.
CONVERSION
SETTLEMENT: Upon conversion, Fortis shall receive the common shares
and accrued and unpaid dividends on the Series E
Preferred Shares within five business days following
completion of the Conversion Pricing Period.
CONVERSION PRICE: Fortis may convert its Preferred Shares into
common stock, which will not require registration to
trade, at a price per share equal to the Closing Trade
Price for a Valid Trading Day within the Conversion
Pricing Period mutually acceptable to CMI and Fortis or,
if no Closing Trade Price is mutually acceptable to CMI
and Fortis, the Average Closing Trade Price of CMI common
stock over the applicable Conversion Pricing Period.
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CLOSING TRADE The last trade price for CMI common shares (a) as reported
PRICE: on the stock exchange composite tape, or (b) if the CMI
common stock is traded over-the-counter, the last reported
bid quotation for the common stock or the survivor common
stock as the case may be, for such trading day.
AVERAGE CLOSING Calculated by dividing (i) the sum of the closing trade
TRADE PRICE: prices as reported on the stock exchange composite tape for
CMI common stock on each Valid Trading Day during the
applicable Conversion Pricing Period, by (ii) the total
number of Valid Trading Days in such Conversion Pricing
Period.
CONVERSION 21 trading days preceding the date of delivery of the
PRICING notice of conversion, subject to earlier termination as
PERIOD: agreed upon by CMI and Fortis.
VALID Any trading day during a Conversion Pricing Period in which
TRADING DAY: either (i) the Minimum Daily Price has been exceeded, or
(ii) the Minimum Daily Price has not been exceeded and
Fortis and CMI agree to include such day as a Valid Trading
Day in such Conversion Pricing Period.
MINIMUM Either (i) 75% of the Closing Trade Price for the trading
DAILY PRICE: day immediately preceding either the date of delivery of
the Holder Conversion Notice to the Company or the
Mandatory Conversion Date, as the case may be, or (ii) an
amount agreed upon by Fortis and CMI at the beginning of
any Conversion Pricing Period, that shall be applicable
for every trading day during a Conversion Pricing Period.
MANDATORY Any outstanding Preferred Shares will be converted on the
CONVERSION: second anniversary of the Effective Date.
OPTIONAL Upon thirty (30) days prior written notice to Fortis, the
REDEMPTION: convertible preferred will be redeemable, in whole or in
part, at anytime at CRIIMI MAE's discretion at 106% plus
accrued and unpaid dividends.
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EXHIBIT D
The Series E Preferred Stock Articles set forth as EXHIBIT B to
the Articles of Amendment and Restatement to become effective on the
Effective Date (incorporated by reference to Exhibit B to Exhibit E to
Exhibit 99.6 filed herewith).
