EXHIBIT 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment, to the Rights Agreement (the "First Amendment"), made
and entered into as of the 14th day of March 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. 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.
3. The Rights are currently redeemable.
4. The Rights Agreement provides that an "Acquiring Person" shall mean any
Person (as defined in the Rights Agreement) who or which, together will all
Affiliates and Associates (as defined in the Rights Agreement) of such Person,
shall be the Beneficial Owner (as defined in the Rights Agreement) of 5% or more
of the Company's common stock, subject to certain enumerated exceptions.
5. This First Amendment amends the definition of "Beneficial Owner" defined
in Section 1(c) of the Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency off which is hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Amendatory Provision: The definition of "Beneficial Owner" defined in
Section 1(c) is deleted in its entirety and is amended by inserting in lieu
thereof the following:
"(c) A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has, directly or indirectly, the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other than
these Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange;
(iii) which such Person or any of such Person's Affiliates or
Associates has, directly or indirectly, the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, any
security under this subparagraph (iii) if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable
proxy or consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2)
is not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iv) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent contemplated by
the proviso to Section 1(c)(iii)) or disposing of any securities of the
Company; or
(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 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 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 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 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 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 First Amendment to
be duly executed and attested, all as of the day and year first above written.
CRIIMI MAE INC.
/s/Xxxxx X. Xxxxxx /s/Xxxxxxx X. Xxxxxxx
------------------------------- -----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Chairman of the Board
REGISTRAR AND TRANSFER
COMPANY, as Rights Agent
/s/Xxxx Xxxx Xxxxxxx /s/Xxxxxxx X. Tatler
------------------------------- ------------------------------
Name: Xxxx Xxxx Xxxxxxx Name: Xxxxxxx X. Tatler
Title: Executive Vice President Title: Vice President
