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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CRIIMI MAE INC.
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(Exact name of registrant as specified in its charter)
Maryland 52-1622022
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(State of incorporation or (IRS Employer
organization) Identification No.)
11200 Rockville Pike
Rockville, Maryland 20852
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(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Exchange On Which
Title of Class: Class Is to Be Registered:
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Series B Cumulative New York Stock Exchange
Convertible Preferred Stock,
par value $.01 per share
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Reference is made to the Registrant's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on July 13, 1994
(Commission File Number 33-54267), as amended by Post-Effective Amendment No. 1
thereto dated February 1, 1996, and as supplemented by a Preliminary Prospectus
Supplement thereto, dated July 17, 1996, filed with the Securities and Exchange
Commission on July 18, 1996 (the "Registration Statement"), which is hereby
incorporated by reference.
ITEM 2. EXHIBITS.
1. -- Registration Statement (Incorporated herein by reference).
2. -- Form of Articles Supplementary with respect to
Series B Cumulative Convertible Preferred Stock
3. -- Form of specimen certificate representing Series B
Cumulative Convertible Preferred Stock
4.* -- Articles of Incorporation, as amended, of CRIIMI MAE Inc.
5.* -- Bylaws, as amended, of CRIIMI MAE Inc.
6.** -- Form of Articles Supplementary with respect to
Series A Cumulative Convertible Preferred Stock
7.** -- Form of specimen certificate representing Series A
Cumulative Convertible Preferred Stock
8.* -- Form of specimen certificate representing Common Stock
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* Incorporated by reference to CRIIMI MAE's Registration Statement.
** Incorporated by reference to CRIIMI MAE's Form 8-K filed
with the Commission on July 2, 1996.
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SIGNATURE
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
CRIIMI MAE INC.
Dated: July 18, 1996 By: /s/ Cynthia O. Azzara
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Cynthia O. Azzara
Chief Financial Officer
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INDEX TO EXHIBITS
FORM 8-A
Page
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1. -- Registration Statement.
2. -- Form of Articles Supplementary with respect to
Series B Cumulative Convertible Preferred Stock
3. -- Form of specimen certificate representing Series B
Cumulative Convertible Preferred Stock
4.* -- Articles of Incorporation, as amended, of
CRIIMI MAE Inc.
5.* -- Bylaws, as amended, of CRIIMI MAE Inc.
6.** -- Form of Articles Supplementary with respect to
Series A Cumulative Convertible Preferred Stock
7.** -- Form of specimen certificate representing Series A
Cumulative Convertible Preferred Stock
8.* -- Form of specimen certificate representing Common
Stock
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* Incorporated by reference to CRIIMI MAE's Registration Statement.
** Incorporated by reference to CRIIMI MAE's Form 8-K filed with
the Commission on July 2, 1996.
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Exhibit 2.
FORM
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ARTICLES SUPPLEMENTARY
TO THE
ARTICLES OF INCORPORATION
OF
CRIIMI MAE INC.
CRIIMI MAE INC., a Maryland corporation (the "Corporation"), by and
through its undersigned President, does hereby certify that:
A. On July 17, 1996, the Board of Directors of the Corporation (the
"Board of Directors"), pursuant to Section 2-105 of the Maryland General
Corporation Law (the "GCL") and Article SIXTH of the Articles of Incorporation
of the Corporation duly classified 3,000,000 unissued shares of the
Corporation's preferred stock, $.01 par value per share ("Preferred Stock"),
into a class of preferred stock designated "Series B Cumulative Convertible
Preferred Stock" (the "Series B Preferred Stock") and established and fixed the
preferences, conversion or other rights, voting powers, restrictions or terms or
conditions of redemption of such shares of stock, and authorized the execution
and delivery of these Articles Supplementary to the Maryland State Department of
Assessments and Taxation for filing pursuant to Section 2-208 of the GCL.
B. The terms of the Series B Preferred Stock, as set by the Board of
Directors, are as follows:
1. Definitions. For the purposes of these Articles Supplementary, the
following terms shall have the meanings indicated:
"Base Common Dividend Rate" shall mean $.30 per share of Common Stock,
subject to adjustment as described in Section 4(d).
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York or Maryland are
authorized or obligated by law or executive order to close.
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"Common Stock" shall mean the common stock of the Corporation, par
value $.01 per share.
"Conversion Ratio" shall equal ____.
"Conversion Premium" shall equal five percent (5%).
"Conversion Price" shall mean $___ per share of Common Stock, subject
to adjustment as described in Section 10(f).
"Liquidation Value" with respect to a share of Series B Preferred
Stock shall mean $25.00.
"Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Redemption Price" with respect to a share of Series B Preferred Stock
shall mean $25.00.
"Subsidiary" of any Person means any corporation or other entity of
which a majority of the voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such Person.
2. Designation and Number. The shares of such series of Preferred
Stock shall be designated as "Series B Cumulative Convertible Preferred Stock"
(the "Series B Preferred Stock"). The number of shares initially constituting
the Series B Preferred Stock shall be 3,000,000, which number may be decreased
(but not increased) by the Board of Directors without a vote of the holders of
Series B Preferred Stock; provided, however, that such number may not be
decreased below the number of then outstanding shares of Series B Preferred
Stock.
3. Rank The Series B Preferred Stock shall, with respect to dividend
rights and rights upon liquidation, dissolution or winding up, rank (i) senior
to the Common Stock, and to all other capital stock of the Corporation the terms
of which specifically provide that such capital stock ranks junior to the Series
B Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Corporation, (ii) on a parity with
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the Corporation's Series A Cumulative Convertible Preferred Stock, par value
$.01 per share (the "Series A Preferred Stock"), and all other capital stock of
the Corporation the terms of which specifically provide that such capital stock
ranks on a parity with the Series B Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Corporation
and (iii) junior to all capital stock of the Corporation the terms of which
specifically provide that such capital stock ranks senior to the Series B
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Corporation.
4. Dividends and Distributions. (a) The cash dividend rate on shares
of the Series B Preferred Stock shall equal the sum of (i) $___ per share per
quarter (equal to $___ per annum) plus (ii) the product of (x) the excess over
the Base Common Dividend Rate, if any, of the quarterly cash dividend declared
or paid in respect of each Common Share for the applicable quarter, (y) the
Conversion Ratio and (z) one plus the Conversion Premium. The holders of shares
of Series B Preferred Stock, in preference to the holders of shares of Common
Stock and of any other shares of capital stock of the Corporation ranking junior
to the Series B Preferred Stock as to payment of dividends, shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Corporation legally available therefor, cumulative cash dividends,
payable in quarterly installments on the last Business Day of each calendar
quarter in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date") commencing on September 30, 1996. Each such quarterly
dividend shall be fully cumulative, to the extent not paid, and shall accrue
(whether or not earned or declared), without interest, from the date of issuance
of the Series B Preferred Stock, and thereafter from the first day of the
quarterly period in which such dividend may be payable as herein provided.
Dividends payable for each quarterly dividend period (including the initial
Quarterly Dividend Payment Date) shall be computed by dividing the annual
dividend by four. Dividends payable with respect to any partial dividend period
(other than the initial Quarterly Dividend Payment Date) shall be computed on
the basis of a 360-day year of twelve 30-day months.
(b) Dividends paid on the shares of the Series B Preferred Stock in
an amount less than the total amount of such dividends at
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the time accrued and payable on such shares shall be allocated among all such
shares of Series B Preferred Stock and all other shares of capital stock of the
Corporation ranking on a parity as to dividends with the Series B Preferred
Stock, including, without limitation, the Series A Preferred Stock ("Dividend
Parity Stock"), at the time outstanding pro rata so that the amount of dividends
declared per share of Series B Preferred Stock and the Dividend Parity Stock
shall in all cases bear to each other the same ratio that accrued dividends per
share on the Series B Preferred Stock and the Dividend Parity Stock bear to each
other. The Board of Directors may fix a record date for the determination of
holders of shares of the Series B Preferred Stock entitled to receive payment of
a dividend declared thereon, which record date shall be no more than sixty days
nor less than ten days prior to the date fixed for the payment thereof.
(c) Any dividend payment made on shares of the Series B Preferred
Stock shall first be credited against the earliest accrued but unpaid dividend
due with respect to shares of the Series B Preferred Stock which remains
payable.
(d) In case the Corporation shall (A) pay a dividend or make a
distribution on any class of its capital stock in shares of its Common Stock,
(B) subdivide or reclassify its outstanding shares of Common Stock into a
greater number of shares or (C) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares, the Base Common Dividend Rate in
effect immediately prior thereto shall be adjusted retroactively as provided
below so that the Base Common Dividend Rate thereafter shall be determined by
multiplying the Base Common Dividend Rate at which the shares of the Series B
Preferred Stock were theretofore convertible by a fraction of which the
denominator shall be the number of shares of Common Stock outstanding
immediately following such action and of which the numerator shall be the number
of shares of Common Stock outstanding immediately prior thereto. Such
adjustment shall be made whenever any event listed above shall occur and shall
become effective retroactively immediately after the record date in the case of
a dividend and immediately after the effective date in the case of a
subdivision, combination or reclassification. Notwithstanding anything to the
contrary in this Section 4(d), Common Shares issued pursuant to CRIIMI MAE's
dividend reinvestment plan shall not result in any adjustment to the Base Common
Dividend Rate.
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(e) The holders of shares of the Series B Preferred Stock shall not
be entitled to receive any dividends or other distributions except as expressly
provided herein.
5. Voting Rights. So long as the Series B Preferred Stock remains
outstanding, the holders of shares of the Series B Preferred Stock shall have
the following voting rights:
(a) The holders of shares of Series B Preferred Stock shall have no
voting rights except as set forth below or as otherwise from time to time
required by law.
(b) The affirmative vote or consent, in person or by proxy, in
writing or at a special or annual meeting of stockholders called for the
purpose, of the holders of at least:
(i) two-thirds of the outstanding shares of Series B Preferred Stock,
voting separately as a class, shall be necessary to authorize, create or
increase the authorized or issued amount of, any class or series of the
Corporation's capital stock ranking prior to the Series B Preferred Stock
with respect to payment of dividends or distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Corporation into any such capital stock, or create, authorize
or issue any obligation or security convertible into or evidencing the
right to purchase any such capital stock;
(ii) a majority of the outstanding shares of Series B Preferred
Stock, voting separately as a class, shall be necessary to authorize,
create or increase the authorized or issued amount of, any class or series
of the Corporation's capital stock ranking on a parity with the Series B
Preferred Stock with respect to payment of dividends or distribution of
assets upon liquidation, dissolution or winding up or reclassify any
authorized capital stock of the Corporation into any such capital stock, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such capital stock; or
(iii) two-thirds of the outstanding shares of Series B Preferred
Stock, voting separately as a class, shall be
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necessary to amend, alter or repeal any of the provisions of the Articles
of Incorporation or the Articles Supplementary to the Articles of
Incorporation for the Series B Preferred Stock, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series B
Preferred Stock or the holders thereof;
provided, however, with respect to the occurrence of any of the Events
set forth in Section 5(b)(iii), so long as the Series B Preferred Stock remains
outstanding with the terms thereof materially unchanged, taking into account
that upon the occurrence of an Event, the Corporation may not be the surviving
entity, the occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power of holders
of the Series B Preferred Stock; and provided, further, that (x) any increase in
the amount of authorized Common Stock or the authorization, creation or issuance
of any other class or series of capital stock or (y) any increase in the amount
of authorized shares of any other class or series of capital stock, in each case
ranking on a parity with or junior to the Series B Preferred Stock with respect
to the payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
(c) During any period in which dividends on the Series B Preferred
Stock are cumulatively in arrears for not less than six quarterly dividend
payments (whether or not consecutive), then the number of directors constituting
the Board of Directors shall, without further action, be increased by two and
the holders of shares of the Series B Preferred Stock shall have, in addition to
the other voting rights set forth herein, the exclusive right, voting separately
as a single class, to elect the directors of the Corporation to fill such newly
created directorships, the remaining directors to be elected by the other
classes of stock entitled to vote therefor at each meeting of stockholders held
for the purpose of electing directors. Such additional voting rights shall
continue until such time as all dividends accumulated on the Series B Preferred
Stock shall have been paid in full, at which time such additional directors
shall cease to be directors and such additional voting right of the holders of
Series B Preferred Stock shall
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terminate subject to revesting in the event of each and every subsequent event
of the character indicated above. In no event shall the holders of Series B
Preferred Stock voting separately as a class be entitled to elect a total of
more than two directors to the Board of Directors pursuant to this Section 5(c).
(d)
(i) The foregoing rights of holders of shares of Series B Preferred
Stock to take any actions as provided in this Section 5 may be exercised at
any annual meeting of stockholders or at a special meeting of stockholders
held for such purpose as hereinafter provided or at any adjournment
thereof, or by the written consent, delivered to the Secretary of the
Corporation, of the holders of the minimum number of shares required to
take such action.
So long as such right to vote continues (and unless such right has
been exercised by written consent of the minimum number of shares required
to take such action), the Chairman of the Board of Directors may call, and
upon the written request of holders of record of 20% of the outstanding
shares of Series B Preferred Stock addressed to the Secretary of the
Corporation at the principal office of the Corporation, shall call, a
special meeting of the holders of shares entitled to vote as provided
herein. Such meeting shall be held within 60 days after delivery of such
request to the Secretary, at the place and upon the notice provided by law
and in the by-laws of the Corporation for the holding of meetings of
stockholders.
(ii) At each meeting of stockholders at which the holders of shares
of Series B Preferred Stock shall have the right, voting separately as a
single class to elect directors of the Corporation as provided in this
Section 5 or to take any action, the presence in person or by proxy of the
holders of record of a majority of the total number of shares of Series B
Preferred Stock then outstanding and entitled to vote on the matter shall
be necessary and sufficient to constitute a quorum. At any such meeting or
at any adjournment thereof:
(A) the absence of a quorum of the holders of shares of Series B
Preferred Stock shall not prevent the election
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of directors other than those to be elected by the holders of shares of
Series B Preferred Stock and the absence of a quorum of the holders of
shares of any other class or series of capital stock shall not prevent
the election of directors to be elected by the holders of shares of
Series B Preferred Stock or the taking of any action as provided in this
Section 5; and
(B) in the absence of a quorum of the holders of shares of Series B
Preferred Stock, a majority of the holders of such shares present in
person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of Series B Preferred Stock
from time to time and place to place without notice other than
announcement at the meeting until a quorum shall be present.
For the taking of any action as provided in Sections 5(b) and 5(c) by
the holders of Series B Preferred Stock, each such holder shall have one
vote for each share of such stock standing in such holder's name on the
transfer books of the Corporation as of any record date fixed for such
purpose or, if no such date be fixed, at the close of business on the
Business Day next preceding the day on which notice is given, or if notice
is waived, at the close of business on the Business Day next preceding the
day on which the meeting is held.
Each director elected by the holders of shares of Series B Preferred
Stock as provided in Section 5(c) shall, unless his or her term shall
expire earlier upon payment in full by the Corporation of all accumulated
dividends on the Series B Preferred Stock, hold office until the annual
meeting of stockholders next succeeding his election or until his
successor, if any, is elected and qualified.
In case any vacancy shall occur among the directors elected by the
holders of shares of Series B Preferred Stock as provided in Section 5(c),
such vacancy may be filled for the unexpired portion of the term by vote of
the remaining director theretofore elected by such holders (if there is a
remaining director), or such director's successor in office. If any such
vacancy is not so filled within 20 days after the creation
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thereof or if both directors so elected by the holders of Series B
Preferred Stock shall cease to serve as directors before their terms shall
expire, the holders of the Series B Preferred Stock then outstanding and
entitled to vote for such directors may, by written consent as herein
provided, or at a special meeting of such holders called as provided
herein, elect successors to hold office for the unexpired terms of such
directors whose places shall be vacant.
Any director elected by the holders of shares of Series B Preferred
Stock voting separately as a single class may be removed from office with
or without cause by the vote or written consent of the holders of at least
a majority of the outstanding shares of Series B Preferred Stock. A
special meeting of the holders of shares of Series B Preferred Stock may be
called in accordance with the procedures set forth in Section 5(d)(i).
6. Certain Restrictions. (a) If shares of Series B Preferred Stock
are outstanding, unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series B Preferred Stock for all past dividend
periods and the then current dividend period, other than pursuant to Section
4(b), the Corporation will not declare, make, pay or set apart for payment or
distribution any dividends or other distributions (other than in Common Stock or
other capital shares ranking junior to the Series B Preferred Stock as to
dividends and upon liquidation, dissolution or winding up) on the Common Stock
or any other series or class of capital stock ranking, as to dividends, junior
to the Series B Preferred Stock for any period. No full dividends shall be paid
or declared and set apart for payment on any Dividend Parity Stock for any
period unless full cumulative dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Series B Preferred Stock for
all dividend payment periods terminating on or prior to the date of payment of
such full cumulative dividends. No full dividends shall be paid or declared and
set apart for payment on the Series B Preferred Stock for any period unless full
cumulative dividends have been, or contemporaneously are, paid or declared and
set apart for payment on any Dividend Parity Stock for all dividend payment
periods
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terminating on or prior to the date of payment of such full cumulative
dividends.
(b) If shares of Series B Preferred Stock are outstanding, unless
full cumulative dividends have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for such
payment on the Series B Preferred Stock for all past dividend periods and the
then current dividend period, the Corporation shall not redeem, purchase or
otherwise acquire for any consideration (or pay or make available money for a
sinking fund for the redemption of) any Common Stock or any other series or
class of capital stock ranking, as to dividends or upon liquidation, dissolution
or winding up, on a parity with or junior to the Series B Preferred Stock
(except by conversion into or exchange for Common Stock or other capital stock
of the Corporation ranking junior to the Series B Preferred Stock as to
dividends and upon liquidation, dissolution or winding up); provided, however,
the foregoing shall not prevent the purchase or acquisition of any shares of
capital stock of the Corporation by the Corporation (i) in order to preserve the
status of the Corporation as a real estate investment trust ("REIT") or (ii)
pursuant to a purchase or exchange offer made on comparable terms to all holders
of outstanding shares of capital stock of the Corporation.
(c) The Corporation shall not permit any Subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
capital stock of the Corporation unless the Corporation could, pursuant to
Section 6(b), purchase or otherwise acquire such shares at such time and in such
manner.
7. Redemption. (a) The Series B Preferred Stock shall not be
redeemable in whole or in part prior to the tenth yearly anniversary of the date
of issuance of the Series B Preferred Stock. On or after the tenth yearly
anniversary of the date of issuance of the Series B Preferred Stock, to the
extent the Corporation shall have funds legally available therefor, the Series B
Preferred Stock shall be subject to redemption in whole or in part, in cash, at
the option of the Corporation on any Quarterly Dividend Payment Date, at the
Redemption Price, together in each case with an amount equal to accrued and
unpaid dividends to (and including) the date fixed for redemption. On and after
the date fixed for redemption, provided that the Redemption Price (including any
accrued and unpaid
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dividends to (and including) the date fixed for redemption) has been duly paid
or deposited in trust for the benefit of the holders of the Series B Preferred
Stock, dividends shall cease to accrue on the Series B Preferred Stock called
for redemption, such shares shall no longer be deemed to be outstanding and all
rights of the holders of such shares as stockholders of the Corporation shall
cease, except the right to receive the moneys payable upon such redemption,
without interest thereon, upon surrender of the certificates evidencing such
shares. Any moneys deposited in trust by the Corporation which shall not be
required for redemption because of the exercise of any right of conversion by
the holders of the Series B Preferred Stock, shall be repaid to the Corporation
forthwith. Any moneys deposited in trust by the Corporation and unclaimed at the
end of two years from the date fixed for such redemption shall be repaid to the
Corporation upon its written request, after which repayment the holders of the
shares of Series B Preferred Stock so called for redemption shall look only to
the Corporation for the payment thereof.
(b) Notice of any redemption pursuant to Section 7(a) shall be given
to the holders of shares of Series B Preferred Stock once not less than 30 or
more than 60 days prior to the date fixed for redemption. Notice of redemption
shall be given by first class mail to each such holder's address as shown on the
stock books of the Corporation and will specify (i) the date fixed for
redemption, (ii) the number of shares of Series B Preferred Stock to be
redeemed, (iii) the Redemption Price, (iv) the place or places where
certificates for shares of Series B Preferred Stock are to be surrendered for
payment of the Redemption Price, (v) that dividends on the shares of Series B
Preferred Stock to be redeemed will cease to accrue on the date fixed for
redemption, and (vi) the date upon which the holders' conversion rights will
terminate. If less than all shares of Series B Preferred Stock then outstanding
are to be redeemed, the shares of Series B Preferred Stock will be redeemed pro
rata from among the holders of shares of Series B Preferred Stock then
outstanding.
(c) If a notice of redemption has been given pursuant to this Section
7, and any holder of shares of the Series B Preferred Stock shall, prior to the
close of business on the fifth day preceding the date fixed for redemption, give
written notice to the Corporation pursuant to Section 10 below of the conversion
of any or all of the
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shares to be redeemed held by the holder (accompanied by a certificate or
certificates for such shares, duly endorsed, or assigned to the Corporation, and
any necessary transfer tax payment, as required by Section 10 below), then such
redemption shall not become effective as to such shares to be converted and such
conversion shall become effective as provided in Section 10 below, whereupon any
funds deposited by the Corporation for the redemption of such shares shall
(subject to any right of the holder of such shares to receive the dividend
payable thereon as provided in Section 10 below) immediately upon such
conversion be returned to the Corporation or, if then held in trust by the
Corporation, shall be discharged from the trust.
8. Reacquired Shares. Any shares of Series B Preferred Stock
converted, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares of Series B Preferred Stock shall upon their
cancellation, and upon the filing of an appropriate certificate with the
Maryland State Department of Assessments and Taxation, become authorized but
unissued shares of Preferred Stock and may be reissued as part of another series
of Preferred Stock subject to the conditions or restrictions on issuance set
forth herein, to the extent any Series B Preferred Stock remains outstanding.
9. Liquidation, Dissolution or Winding Up. (a) Upon any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation then, before any distribution or payment shall be made to the
holders of any shares of Common Stock or any other class or series of capital
stock of the Corporation ranking junior to the Series B Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Corporation, the holders of Series B Preferred Stock shall be entitled to
receive out of assets of the Corporation legally available for distribution to
stockholders, liquidating distributions in the amount of the Liquidation Value
per share, plus an amount equal to all dividends accrued and unpaid thereon as
of the date of liquidation, dissolution or winding up. After payment of the
full amount of the liquidating distributions to which they are entitled, the
holders of Series B Preferred Stock will have no right or claim to any of the
remaining assets of the Corporation. In the event that, upon any such voluntary
or involuntary
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liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series B Preferred Stock and the corresponding amounts
payable on all shares of other classes or series of capital stock of the
Corporation ranking on a parity with the Series B Preferred Stock in the
distribution of assets upon liquidation, dissolution or winding up, then the
holders of the Series B Preferred Stock and all other such classes or series of
capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
(b) Neither the consolidation, merger or other business combination
of the Corporation with or into any other Person, nor the sale, lease or
conveyance of all or substantially all of the property or business of the
Corporation shall be deemed to constitute a liquidation, dissolution or winding
up of the Corporation for purposes of this Section 9.
10. Conversion. (a) Holders of shares of Series B Preferred Stock
shall have the right, exercisable at any time, except in the case of shares of
Series B Preferred Stock called for redemption (as described in Section 7
above), to convert shares of Series B Preferred Stock into fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) at the Conversion Price. The number of shares of
Common Stock into which a share of Series B Preferred Stock shall be convertible
shall be determined by dividing the Liquidation Value by the Conversion Price.
In the case of shares of the Series B Preferred Stock called for redemption,
conversion rights shall expire at the close of business on the fifth Business
Day immediately preceding the date fixed for redemption. No payment or
adjustment for accrued dividends on the shares of Series B Preferred Stock is to
be made on conversion, but holders of record of shares of Series B Preferred
Stock on a record date applicable to a Quarterly Dividend Payment Date shall be
entitled to receive such quarterly dividend payment notwithstanding the
conversion of such shares prior to the Quarterly Dividend Payment Date.
(b) Holders of Series B Preferred Stock may convert such Series B
Preferred Stock into Common Stock by surrendering to the Corporation at the
principal office of the Corporation in the State
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of Maryland (the "Transfer Agent") or at the office of any agent or agents of
the Corporation, as may be designated by the Board of Directors, the certificate
of such Series B Preferred Stock to be converted accompanied by a written notice
stating that such holder elects to convert all or a specified whole number of
such shares in accordance with the provisions of this Section 10 and specifying
the name or names in which such holder wishes the certificate or certificates
for shares of Common Stock to be issued (a "Conversion Notice"). In case a
Conversion Notice shall specify a name or names other than that of such holder,
such Conversion Notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or names.
Other than such taxes, the Corporation will pay any and all issue and other
taxes (other than taxes based on income) that may be payable in respect of any
issue or delivery of shares of Common Stock on conversion of Series B Preferred
Stock pursuant hereto.
(c) As promptly as practicable, and in any event within five Business
Days after the date of delivery of the shares of Series B Preferred Stock to be
converted (and the Conversion Notice), the Corporation shall deliver or cause to
be delivered (i) certificates representing the number of validly issued, fully
paid and nonassessable full shares of Common Stock to which the holder of shares
of Series B Preferred Stock being converted shall be entitled and (ii) if less
than the full number of shares of Series B Preferred Stock evidenced by the
surrendered certificate or certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares evidenced by such
surrendered certificate or certificates less the number of shares being
converted. All conversions shall be deemed to have been made at the close of
business on the date of delivery of the Conversion Notice, so that the rights of
the holder thereof as to the shares being converted shall cease except for the
right to receive shares of Common Stock in accordance herewith, and the Person
entitled to receive the shares of Common Stock shall be treated for all purposes
as having become the record holder of such shares of Common Stock at such time.
The Corporation shall not be required to convert, and no surrender of shares of
Series B Preferred Stock shall be effective for that purpose, while the transfer
books of the Corporation for the Common Stock are closed for any purpose (but
not for any period in excess of 10 calendar days); but the surrender of shares
of Series B Preferred Stock for conversion during any period while such
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<PAGE>
books are so closed shall become effective for conversion immediately upon the
reopening of such books, as if the conversion had been made on the date such
shares of Series B Preferred Stock were surrendered, and at a rate of conversion
which assumes the conversion took place during the period immediately prior to
the closing of such books.
(d) No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon conversion of shares of the Series B
Preferred Stock. If more than one share of the Series B Preferred Stock shall
be surrendered for conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares of the Series B Preferred Stock so
surrendered. Instead of any fractional share of Common Stock otherwise issuable
upon conversion of any shares of the Series B Preferred Stock, the Corporation
shall pay a cash adjustment in respect to such fraction in an amount equal to
the same fraction of Sale Price (as defined below) of the Common Stock at the
close of business on the day of conversion. In the absence of a Sale Price, the
Board of Directors shall in good faith determine the current market price on the
basis of such quotation as it considers appropriate. As used herein, "Sale
Price" means the closing sales price of the Common Stock (or if no sale price is
reported, the average of the high and low bid prices) as reported by the
principal national or regional stock exchange on which the Common Stock is
listed or, if the Common Stock is not listed on a national or regional stock
exchange, as reported by the Nasdaq Stock Market and if not so reported, then as
reported by the National Quotation Bureau Incorporated.
(e) The Corporation shall reserve out of its authorized but unissued
Common Stock or its Common Stock held in treasury enough shares of Common Stock
to permit the conversion of all of the then-outstanding shares of the Series B
Preferred Stock. For the purposes of this Section 10(e), the full number of
shares of Common Stock, then issuable upon the conversion of all then-
outstanding shares of the Series B Preferred Stock shall be computed as if at
the time of computation, all outstanding shares of the Series B Preferred Stock
were held by a single holder. The Corporation shall from time to time, in
accordance with the laws of the State of Maryland, increase the authorized
amount of its Common Stock if at
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<PAGE>
any time the authorized amount of its Common Stock remaining unissued shall not
be sufficient to permit the conversion of all shares of the Series B Preferred
Stock (as provided herein) at the time outstanding. If any shares of Common
Stock required to be reserved for issuance upon conversion of shares of the
Series B Preferred Stock hereunder require registration with or approval of any
governmental authority under any federal or state law before the shares may be
issued upon conversion, the Corporation will in good faith and as expeditiously
as possible endeavor to cause the shares to be so registered or approved. All
shares of Common Stock issued upon conversion of the shares of the Series B
Preferred Stock shall be validly issued, fully paid and nonassessable.
(f) The Conversion Price shall be subject to adjustment as follows:
(i) In case the Corporation shall (A) pay a dividend or make a
distribution on any class of its capital stock in shares of its Common Stock,
(B) subdivide or reclassify its outstanding shares of Common Stock into a
greater number of shares or (C) combine or reclassify its outstanding shares
of Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior thereto shall be adjusted retroactively as provided
below so that the Conversion Price thereafter shall be determined by
multiplying the Conversion Price at which the shares of the Series B Preferred
Stock were theretofore convertible by a fraction of which the denominator
shall be the number of shares of Common Stock outstanding immediately
following such action and of which the numerator shall be the number of shares
of Common Stock outstanding immediately prior thereto. Such adjustment shall
be made whenever any event listed above shall occur and shall become effective
retroactively immediately after the record date in the case of a dividend and
immediately after the effective date in the case of a subdivision, combination
or reclassification. Notwithstanding anything to the contrary in this Section
10(f)(i), Common Shares issued pursuant to CRIIMI MAE's dividend reinvestment
plan shall not result in any adjustment to the Conversion Price.
(ii) In case the Corporation shall issue rights or warrants to all
holders of its Common Stock entitling them (for a period expiring within 45
days after the record date therefor)
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<PAGE>
to subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share of Common Stock (as determined in
accordance with the provisions of Section 10(f)(iv) below) at the record date
therefor (the "Current Market Price"), or in case the Corporation shall issue
other securities convertible into or exchangeable for Common Stock for a
consideration per share of Common Stock deliverable upon conversion or
exchange thereof less than the Current Market Price, then the Conversion
Price in effect immediately prior thereto shall be adjusted retroactively as
provided below so that the Conversion Price thereafter shall be determined by
multiplying (A) the Conversion Price at which shares of the Series B Preferred
Stock were theretofore convertible by (B) a fraction of which the denominator
shall be the sum of (1) the number of shares of Common Stock outstanding on
the date of issuance of the convertible or exchangeable securities, rights or
warrants and (2) the number of additional shares of Common Stock offered for
subscription or purchase, and of which the numerator shall be the sum of (1)
the number of shares of Common Stock outstanding on the date of issuance of
such convertible or exchangeable securities, rights or warrants and (2) the
number of additional shares of Common Stock which the aggregate offering price
of the number of shares of Common Stock so offered would purchase at the
Current Market Price per share of Common Stock (as determined in accordance
with the provisions of Section 10(f)(iv) below). Such adjustment shall be
made whenever such convertible or exchangeable securities, rights or warrants
are issued, and shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive such
securities. However, upon the expiration of any right or warrant to purchase
Common Stock, the issuance of which resulted in an adjustment in the
Conversion Price pursuant to this Section 10(f)(ii), if any such right or
warrant shall expire and shall not have been exercised, the Conversion Price
shall be recomputed immediately upon such expiration and effective immediately
upon such expiration shall be increased to the price it would have been (but
reflecting any other adjustments to the Conversion Price made pursuant to the
provisions of Section 10(f) after the issuance of such rights or warrants) had
the adjustment of the Conversion Price made upon the issuance of such rights
or warrants been made on the basis of offering for subscription or purchase
only that number of shares
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<PAGE>
of Common Stock actually purchased upon the exercise of such rights or
warrants actually exercised.
(iii) In case the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Corporation is the continuing corporation) of any shares of capital stock of
the Corporation or its subsidiaries (other than Common Stock) or evidences of
its indebtedness or assets (excluding cash dividends payable solely in cash
that may from time to time be fixed by the Board of Directors, or dividends or
distributions in connection with the liquidation, dissolution or winding up of
the Corporation) or rights to subscribe for or purchase any of its securities
or those of its Subsidiaries (excluding those referred to in Sections 10(f)(i)
and 10(f)(ii) above), then in each such case the number of shares of Common
Stock into which each share of the Series B Preferred Stock shall thereafter
be convertible shall be determined by multiplying (A) the Conversion Price in
effect on the record date mentioned below by (B) a fraction, the numerator of
which shall be the Current Market Price per share of Common Stock on the
record date mentioned below less the then fair market value (as determined by
the Board of Directors, whose good faith determination shall be conclusive) as
of such record date of the portion of the capital stock or assets or evidences
of indebtedness so distributed or of such rights or warrants applicable to one
share of Common Stock, and the denominator of which shall be the Current
Market Price per share of Common Stock on such record date; provided, however,
that in the event the then fair market value (as so determined) of the portion
of securities so distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price per share of Common Stock on the
record date mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of the Series B
Preferred Stock shall have the right to receive the amount and kind of
securities such holder would have received had such holder converted each such
share of the Series B Preferred Stock immediately prior to the record date for
the distribution of the securities. Such adjustment shall be made whenever
any such payment or distribution is made, and shall become effective
retroactively
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<PAGE>
immediately after the record date for the determination of stockholders
entitled to receive the distribution.
(iv) For the purpose of any computation under Sections 10(f)(ii) and
10(f)(iii) above, the Current Market Price per share of Common Stock at any
date shall be deemed to be the average Sale Price for the 30 consecutive
trading days commencing 45 trading days before the day in question.
(v) No adjustment in the Conversion Price shall be required unless
the adjustment would require an increase or decrease of at least 1% of the
Conversion Price then in effect; provided, however, that any adjustment that
by reason of this Section 10(f) is not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 10(f) shall be made to the nearest cent.
(vi) In the event that, at any time as a result of an adjustment made
pursuant to Section 10(f)(i) or 10(f)(iii) above, the holder of any share of
the Series B Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other than shares of
the Common Stock, thereafter the number of such other shares so receivable
upon conversion of any share of the Series B Preferred Stock shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Common Stock contained in
Section 10(f)(i) through 10(f)(v) above, and the other provisions of this
Section 10 with respect to the Common Stock shall apply on like terms to any
such other shares.
(vii) In the event of a distribution of evidence of indebtedness or
other assets (as described in Section 10(f)(iii)) or a dividend to all holders
of Common Stock of rights to subscribe for additional shares of the CRIIMI
MAE's capital stock (other than those referred to in Section 10(f)(ii)),
CRIIMI MAE may, instead of making an adjustment of the Conversion Price, make
prior provision so that each holder who converts such shares of Series B
Preferred Stock will be entitled to receive upon such conversion, in addition
to shares of Common Stock, an appropriate
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<PAGE>
number of such rights, warrants, evidences of indebtedness or other assets.
(viii) Whenever the Conversion Price is adjusted, as herein provided,
the Corporation shall promptly file with the transfer agent for the Series B
Preferred Stock a certificate of an officer of the Corporation setting forth
the Conversion Price after the adjustment and setting forth a brief statement
of the facts requiring such adjustment and a computation thereof. The
certificate shall be conclusive evidence of the correctness of the adjustment.
The Corporation shall promptly cause a notice of the adjusted Conversion
Price to be mailed to each registered holder of shares of the Series B
Preferred Stock.
(ix) In case of any reclassification of the Common Stock, any
consolidation of the Corporation with, or merger of the Corporation into, any
other entity, any merger of another entity into the Corporation (other than a
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Corporation), any
sale or transfer of all or substantially all of the assets of the Corporation
or any compulsory share exchange, pursuant to which share exchange the Common
Stock is converted into other securities, cash or other property, then lawful
provision shall be made as part of the terms of such transaction whereby the
holder of each share of the Series B Preferred Stock then outstanding shall
have the right thereafter, during the period such share shall be convertible,
to convert such share only into the kind and amount of securities, cash and
other property receivable upon the reclassification, consolidation, merger,
sale, transfer or share exchange by a holder of the number of shares of Common
Stock of the Corporation into which a share of the Series B Preferred Stock
would have been convertible immediately prior to the reclassification,
consolidation, merger, sale, transfer or share exchange. The Corporation, the
Person formed by the consolidation or resulting from the merger or which
acquires such assets or which acquires the Corporation's shares, as the case
may be, shall make provisions in its certificate or articles of incorporation
or other constituent document to establish such rights. The certificate or
articles of incorporation or other constituent document shall provide for
adjustments, which, for events subsequent to the effective date
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<PAGE>
of the certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 10. The provisions of this Section 10(f)(ix)
shall similarly apply to successive reclassification, consolidations, mergers,
sales, transfers or share exchanges.
(g) The Corporation from time to time may reduce the Conversion Price
by any amount for any period of time if the period is at least 20 days and if
the reduction is irrevocable during the period. Whenever the Conversion Price
is so reduced, the Corporation shall mail to holders of record of the Series B
Preferred Stock a notice of the reduction at least 15 days before the date the
reduced Conversion Price takes effect, stating the reduced Conversion Price and
the period it will be in effect. A voluntary reduction of the Conversion Price
does not change or adjust the Conversion Price otherwise in effect for purposes
of Section 10(f) above.
11. Mandatory Redemption. The shares of the Series B Preferred Stock
are not subject to mandatory redemption or sinking fund requirements.
12. REIT Status. Nothing contained in these Articles Supplementary or
the Articles of Incorporation shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable to
protect the Corporation and the interests of the stockholders by preservation of
the Corporation's qualification as a REIT under the REIT Provisions (as defined
in the Articles of Incorporation), including, without limitation, the
enforcement of the provisions of Article EIGHTEENTH of the Articles of
Incorporation.
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<PAGE>
IN WITNESS WHEREOF, this instrument has been executed for and on
behalf and in the name of the Corporation by its officers thereunto duly
authorized on June 26, 1996.
CRIIMI MAE INC.
By:
------------------------------------------
Jay R. Cohen, Executive Vice President
[Seal]
Attest:
- --------------------------
Name:H. William Willoughby
Title: Secretary
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<PAGE>
THE UNDERSIGNED, Executive Vice President of the Corporation, who
executed on behalf of the Corporation Articles Supplementary of which this
Certificate is made a part, hereby acknowledges in the name and on behalf of
said Corporation the foregoing Articles Supplementary to be the corporate act of
said Corporation and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury.
By:
-------------------------------------
Jay R. Cohen, Executive President
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<PAGE>
Exhibit 3.
FORM [Front]
CRIIMI MAE INC.
- ------------- ------------
NUMBER CERTIFICATE SHARES
- ------------- ------------
This certificate is transferable in Series B Cumulative
the City of New York, New York Convertible Preferred
or New Jersey (Redeemable)
(See reverse for restrictions
on transfer and definitions)
CUSIP 226603 20 7
THIS CERTIFIES THAT is the registered
------------------------------------------
holder of fully paid and
----------------------------------------------------
non-assessable shares, par value $.01 per share, of the Series B Cumulative
Convertible Preferred Stock, of CRIIMI MAE Inc., transferable only on the books
of the Corporation by the holder hereof in person or by Attorney upon surrender
of this Certificate properly endorsed. This Certificate is not valid unless
countersigned and registered by the Transfer Agent and by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED
Registrar and Transfer Company Chairman of the Board
TRANSFER AGENT AND REGISTRAR
[SEAL 1993]
AUTHORIZED SIGNATURE Secretary
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<PAGE>
[Back]
CRIIMI MAE Inc.
Article EIGHTEENTH of the Corporation's Articles of Incorporation places
certain restrictions on the ownership of the Corporation's capital stock,
including limitations as to rights to acquire the Corporation's capital stock,
in an aggregate amount in excess of 9.8% of the outstanding capital stock of
the Corporation. The Corporation will furnish to any shareholder, upon request
and without charge, a full or summary statement of (1) the designations,
preferences, limitations, restrictions, and relative rights of the shares of
each class authorized to be issued, (2) the variations in the relative rights
and preferences between the shares of each series of preferred stock so far as
the same have been fixed and determined, and (3) the authority of the board of
directors to fix and determine the relative rights and preferences of subsequent
series. Such request may be made to the transfer agent named on the face hereof
or to the secretary of the Corporation.
--------------------------------------------------
Notice of Election to Convert
(Convertible into Common Stock)
The undersigned hereby irrevocably elects to convert shares
-------------
of the Series B Cumulative Convertible Preferred Stock by this within
certificate into shares of Common Stock of the Corporation in accordance
with the provisions of the Articles of Incorporation, as amended, of the
Corporation.
Dated:
----------------------- ----------------------------------
Signature
--------------------------------------------------
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT- Custodian
(Cust) ------- (Minor) -------
TEN ENT - as tenants by the under Uniform Gifts to Minors
entireties Act
-----------------------
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
-------------------
Please insert social security or other
identifying number of assignee
- --------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address of Assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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<PAGE>
Shares
- ---------------------------------------------------------------------
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
-------------------
- ----------------------------------------------------------------------------
Attorney to transfer the said shares on the books of the within-named
Corporation with full power of substitution in the premises.
Dated,
-----------------------
-------------------------
In presence of
- -----------------------------
Notice: The signature to this Assignment must correspond with the name as
written upon the face of the Certificate in every particular, without alteration
or enlargement, or any change whatever.
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