8-K

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) October 23, 2009

GRUBB & ELLIS COMPANY

(Exact name of registrant as specified in its charter)

Delaware	1-8122	94-1424307
(State or other	(Commission	(IRS Employer
jurisdiction of	File Number)	Identification No.)
formation)

1551 North Tustin Avenue, Suite 300, Santa Ana, California 92705

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (714) 667-8252

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS

EX-3.1

EX-99.1

EX-99.2

EX-99.3

Item 3.02 Unregistered Sales of Equity Securities.

     On October 23, 2009, Grubb & Ellis Company (the “Company”) announced that it had entered into definitive agreements with qualified institutional buyers and accredited investors to effect the sale of 900,000 shares of a new issuance of a 12% cumulative participating perpetual convertible preferred stock, par value $0.01 per share (“Preferred Stock”), for $90 million in gross proceeds (the “Offering”). The Company also granted the initial purchaser a 45-day option to purchase up to an additional 100,000 shares of Preferred Stock. The Preferred Stock was offered in reliance on exemptions from the registration requirements of the Securities Act of 1933 (the “Securities Act”) that apply to offers and sales of securities that do not involve a public offering. As such, the Preferred Stock was offered and will be sold only to (i) “qualified institutional buyers” (as defined in Rule 144A under the Securities Act), (ii) a limited number of institutional “accredited investors” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and (iii) a limited number of individual “accredited investors” (as defined in Rule 501(a)(4), (5) or (6) of the Securities Act).

     The closing of the Offering is scheduled to occur on November 6, 2009, and the Company intends to use proceeds from the Offering to repay in full its credit facility at the agreed reduced principal amount equal to approximately 65% of the principal amount outstanding under such facility. The balance of the Offering proceeds will be used for general working capital purposes and transactions costs. Upon the closing of the Offering, the $5 million subordinated loan provided on October 2, 2009 to the Company by an affiliate of its largest stockholder will be converted into the Preferred Stock at the Offering price and accrued interest will be paid with respect to the subordinated loan.

     All of the terms of the Preferred Stock are set forth in a Certificate of Powers, Designations, Preferences and Rights to be filed by the Company with the Secretary of State of the State of Delaware for the purpose of amending the Company’s Certificate of Incorporation to fix the rights, preferences, privileges, qualifications, restrictions and limitations of the Preferred Stock (the “Certificate of Designations”).

     The Certificate of Designations provides, among other things, that upon the closing of the Offering, each share of Preferred Stock is initially convertible, at the holder’s option, into the Company’s common stock, par value $.01 per share (the “Common Stock”) at a conversion rate of 31.322 shares of Common Stock for each share of Preferred Stock. If the Company’s Certificate of Incorporation is amended to increase the number of authorized shares (as more fully discussed in the immediately following paragraph), the Preferred Stock will be convertible, at the holder’s option, into Common Stock at a conversion rate of 60.606 shares of Common Stock for each share of Preferred Stock, which represents a conversion price of approximately $1.65 per share of Common Stock, and a 10.0% premium to the closing price of the Common Stock on October 22, 2009.

     The Company has agreed to seek as soon as practicable the approval of the stockholders holding at least a majority of the shares of the Common Stock voting separately as a class, and a majority of all shares of the Company’s Common Stock entitled to vote as a single class, which includes the Common Stock issuable upon the conversion of the Preferred Stock, to amend the Company’s Certificate of Incorporation to increase the Company’s authorized capital stock to 220,000,000 shares of capital stock, 200,000,000 of which shall be Common Stock and 20,000,000 of which shall be preferred stock issuable in one or more series or classes, and to permit the election by the holders of the Preferred Stock of two (2) directors in the event that the Company is in arrears

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with respect to the Company’s Preferred Stock for six or more quarters. If such amendment is not effective prior to 120 days after the date the Company first issues the Preferred Stock, (i) holders of Preferred Stock may require the Company to repurchase all, or a specified whole number, of their Preferred Stock at a repurchase price equal to 110% of the sum of the initial liquidation preference plus accumulated but unpaid dividends, and (ii) the annual dividend rate with respect to the Preferred Stock will increase by two percent (2%); provided, however, holders of Preferred Stock who do not vote in favor of the amendment will not be able to exercise such repurchase right, or be entitled to such two percent (2%) dividend increase.

     The terms of the Preferred Stock provide for cumulative dividends from and including the date of original issuance in the amount of $12.00 per share each year. Dividends on the Preferred Stock will be payable when, as and if declared, quarterly in arrears, on March 31, June 30, September 30 and December 31, beginning on December 31, 2009. In addition, in the event of any cash distribution to holders of the Common Stock, holders of Preferred Stock will be entitled to participate in such distribution as if such holders had converted their shares of Preferred Stock into Common Stock.

     If the Company fails to pay the quarterly Preferred Stock dividend in full for two consecutive quarters, the dividend rate will automatically be increased by .50% of the initial liquidation preference per share per quarter (up to a maximum amount of increase of 2% of the initial liquidation preference per share) until cumulative dividends have been paid in full. In addition, subject to certain limitations, in the event the dividends on the Preferred Stock are in arrears for six or more quarters, whether or not consecutive, subject to the passage of the amendment to the Company’s Certificate of Incorporation discussed above, holders representing a majority of the shares of Preferred Stock voting together as a class with holders of any other class or series of preferred stock upon which like voting rights have been conferred and are exercisable will be entitled to nominate and vote for the election of two additional directors to serve on the board of directors until all unpaid dividends with respect to the Preferred Stock and any other class or series of preferred stock upon which like voting rights have been conferred or are exercisable have been paid or declared and a sum sufficient for payment has been set aside therefor.

     During the six month period following the closing of the Offering, if the Company issues any securities, other than certain permitted issuances, and the price per share of the Common Stock (or the equivalent for securities convertible into or exchangeable for Common Stock) is less than the then current conversion price of the Preferred Stock, the conversion price will be reduced pursuant to a weighted average anti-dilution formula.

     Holders of Preferred Stock may require the Company to repurchase all, or a specified whole number, of their Preferred Stock upon the occurrence of a “Fundamental Change” (as defined in the Certificate of Designations) with respect to any Fundamental Change that occurs (i) prior to November 15, 2014, at a repurchase price equal to 110% of the sum of the initial liquidation preference plus accumulated but unpaid dividends, and (ii) from November 15, 2014 until prior to November 15, 2019, at a repurchase price equal to 100% of the sum of the initial liquidation preference plus accumulated but unpaid dividends. On or after November 15, 2014, the Company may, at its option, redeem the Preferred Stock, in whole or in part, by paying an amount equal to 110% of the sum of the initial liquidation preference per share plus any accrued and unpaid dividends to and including the date of redemption.

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     In the event of certain events that constitute a “Change in Control” (as defined in the Certificate of Designations) prior to November 15, 2014, the conversion rate of the Preferred Stock will be subject to increase. The amount of the increase in the applicable conversion rate, if any, will be based on the date in which the Change in Control becomes effective, the price to be paid per share with respect to the Common Stock and the transaction constituting the Change in Control.

     The Company has agreed to enter into a registration rights agreement (the “Registration Rights Agreement”) with one of the lead investors (and its affiliates) with respect to the shares of Preferred Stock, and the Common Stock issuable upon the conversion of such Preferred Stock, that was acquired by such lead investor (and affiliates) in the Offering. No other purchasers of the Preferred Stock in the Offering will have the right to have their shares of Preferred Stock, or shares of Common Stock issuable upon conversion of such Preferred Stock, registered. In addition, subject to certain limitations, the lead investor who acquired the registration rights also has certain preemptive rights in the event the Company issues for cash consideration any Common Stock or any securities convertible into or exchangeable for Common Stock (or any rights, warrants or options to purchase any such Common Stock) during the six-month period subsequent to the closing of the Offering. Such preemptive right is intended to permit such lead investor to maintain its pro rata ownership of the Preferred Stock acquired in the Offering.

     The Company and each of its directors and certain of its executive officers have agreed to a 180-day lockup with respect to all of their securities in the Company.

     Generally, the New York Stock Exchange (“NYSE”) rules require stockholder approval prior to the issuance of Common Stock, or securities convertible into or exercisable for Common Stock, and certain transactions, including any transaction with (1) a director, officer or substantial securityholder of the Company (each a “Related Party”), (2) a subsidiary, affiliate or other closely related person of a Related Party, or (3) any company or entity in which a Related Party has a substantial direct or indirect interest, if the number of shares of Common Stock to be issued, or if the number of shares of Common Stock into which the securities may be convertible or exercisable, exceeds either one percent (1%) of the number of shares of Common Stock or one percent (1%) of the voting power outstanding before the issuance (or five percent (5%) if the Related Party has no other relationship other than being a substantial stockholder and the issuance relates to a sale of stock at a price greater than or equal to each of the book and market values of the Company’s Common Stock). Under the NYSE rules, the Company would ordinarily be required to obtain prior stockholder approval of the issuance of the Preferred Stock as a consequence of the participation of certain of the lead investors in the Offering. The Company has not sought or obtained such stockholder approval, and due to its exigent need for financing, applied to the NYSE for an exception from the stockholder approval requirements that could otherwise be implicated by this transaction under the NYSE’s financial hardship exception, which has also been approved by the Company's Audit Committee, as required. The Company expects the NYSE exception to be effective as of November 6, 2009.

     Holders of the Preferred Stock are entitled to voting rights equal to the number of shares of Common Stock into which the Preferred Stock is convertible, on an “as if” converted basis, except as otherwise provided by law. The holders of the Preferred Stock vote together with the holders of Common Stock as one class on all matters on which holders of Common Stock vote, and vote as a separate class with respect to certain matters.

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     Upon any liquidation, dissolution or winding up of the Company, holders of the Preferred Stock will be entitled, prior to any distribution to holders of any securities ranking junior to the Preferred Stock, including but not limited to the Common Stock, and on a pro rata basis with other preferred stock of equal ranking, a cash liquidation preference equal to the greater of (i) 110% of the sum of the initial liquidation preference per share plus accrued and unpaid dividends thereon, if any, from November 6, 2009, the date of the closing of the Offering, and (ii) an amount equal to the distribution amount each holder of Preferred Stock would have received had all shares of Preferred Stock been converted to Common Stock.

     In connection with the Offering, investors were advised, among other things, that the Company currently provides property and management services for approximately 300 million square feet of commercial and multifamily real estate. In addition, as of June 30, 2009, the Company had raised more than $4.5 billion in investor equity for various investment programs service 1998. In doing so, the Company has completed approximately $12 billion of acquisitions and dispositions over the past 11 years, and its current portfolio of assets under management exceeds $6.9 billion. Investors were also advised that the Company currently expects to generate gross revenue between $132 and $136 million and adjusted earnings before interest, taxes, depreciation and amortization (“EBITDA”) between $1 million and $2 million for the third quarter of 2009. In addition, investors were also advised that the Company currently expects to generate gross revenue between $149 million and $161 million and adjusted EBITDA between $6 million and $10 million for the fourth quarter of 2009. In connection with fiscal year 2010, investors were advised that the Company currently expects to generate gross revenue between $640-$695 million and adjusted EBITDA of $22-$30 million.

     JMP Securities acted as the exclusive placement agent in connection with the Offering, and in connection therewith will receive customary indemnification from the Company. Upon the closing of the sale of the $90 million of Preferred Stock, the Company expects to receive net proceeds of approximately $85.5 million after deducting the initial purchaser’s discounts and estimated offering expenses.

     The foregoing is a summary of the terms and conditions of each of the Certificate of Designations and the Registration Rights Agreement and does not purport to be a complete discussion of either the Certificate of Designations or the Registration Rights Agreement, and the foregoing is qualified in its entirety by reference to the full text of each of the Certificate of Designations and Registration Rights Agreement, each of which is annexed to this Current Report on Form 8-K as Exhibits 3.1 and 99.1, respectively.

Item 3.03 Material Modification to Rights of Security Holders.

     The information included in Item 3.02 of this Form 8-K regarding the Preferred Stock is incorporated by reference into this Item 3.03.

Item 8.01 Other Events.

     On October 23, 2009, the Company issued a press release entitled, “Grubb & Ellis Company Announces $90 Million Preferred Equity Transaction,” which is filed herewith as Exhibit 99.3 and is incorporated by reference into this Item 8.01.

     The press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the Preferred Stock in any state in which the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state.

Forward-looking Statements

     This Form 8-K contains “forward-looking statements” within the meaning of Section 21E of the Securities Exchange Act of 1934. All statements included in this Form 8-K that address

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activities, events or developments that the Company expects, believes or anticipates, will or may occur in the future are forward-looking statements. Forward-looking statements can be identified by such forward-looking terminology as “expects,” “intends,” “plans,” “anticipates,” “believes,” “seeks,” “estimates,” and words or phrases of similar import. The Company intends that all forward-looking statements be subject to the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995.

Item 9.01 Financial Statements and Exhibits.

(d) The following are filed as Exhibits to this Current Report on Form 8-K:

3.1	Form of Certificate of the Powers, Designations, Preferences and Rights of the 12% Cumulative Participating Perpetual Convertible Preferred Stock ($0.01 par value) (liquidation preference $100 per share) of Grubb & Ellis Company.
99.1	Form of Registration Rights Agreement by and among Grubb & Ellis Company and the persons listed on the Schedule of Initial Holders attached thereto as Schedule A.
99.2	Form of Purchase Agreement by and between Grubb & Ellis Company and the accredited investors set forth on Schedule A attached thereto.
99.3	Press Release issued by Grubb & Ellis Company on October 23, 2009.

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SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly authorized and caused the undersigned to sign this Report on the Registrant’s behalf.

GRUBB & ELLIS COMPANY
By:	/s/ Richard W. Pehlke
	Richard W. Pehlke
	Chief Financial Officer and Executive Vice President

Dated: October 26, 2009

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EX-3.1

Exhibit 3.1

FORM OF
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE

12% CUMULATIVE PARTICIPATING PERPETUAL CONVERTIBLE PREFERRED STOCK
($0.01 PAR VALUE)
(LIQUIDATION PREFERENCE $100 PER SHARE)

OF

GRUBB & ELLIS COMPANY

PURSUANT TO SECTION 151(g) OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE

     THE UNDERSIGNED, being the Secretary of Grubb & Ellis Company, a Delaware corporation (the “Company”), DOES HEREBY CERTIFY that, pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware, the following resolutions were duly adopted by the Board of Directors of the Company, and pursuant to authority conferred upon the Board of Directors by the provisions of the Certificate of Incorporation of the Company, as amended (the “Certificate of Incorporation”), the Board of Directors of the Company adopted resolutions fixing the designation and the relative powers, preferences, rights, qualifications, limitations and restrictions of such stock. These composite resolutions are as follows:

     FIRST, that pursuant to authority expressly granted to and vested in the Board of Directors of the Company by the provisions of the Certificate of Incorporation, the issuance of a series of preferred stock, par value $0.01 per share, which shall consist of up to 900,000 of the 10,000,000 shares of preferred stock which the Company now has authority to issue, be, and the same hereby is, authorized, and the Board hereby fixes the powers, designations, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and restrictions thereof (in addition to the powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, set forth in the Certificate of Incorporation which may be applicable to the preferred stock of this series) as follows:

     1. Number of Shares and Designation. 900,000 shares of the preferred stock, par value $0.01 per share, of the Company are hereby constituted as a series of the preferred stock designated as 12% Cumulative Participating Perpetual Convertible Preferred Stock which, if necessary, shall also include any Replacement Preferred Stock (the “Preferred Stock”).

     2. Definitions. For purposes of the Preferred Stock, in addition to those terms otherwise defined herein, the following terms shall have the meanings indicated:

     “Affiliate” of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control,” when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

     “Board of Directors” shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder.

     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Transfer Agent.

     “Business Combination” shall have the meaning specified in Section 8(f).

     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York, New York are authorized or obligated by law or executive order to close or be closed.

     “Capital Stock” has the meaning specified in Section 8(k).

     “Certificate of Designations” means this Certificate of the Powers, Designations, Preferences and Rights of the Preferred Stock.

     “Change in Control” has the meaning specified in Section 8(k).

     “Closing Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such date as reported on the New York Stock Exchange (or such other principal national securities exchange on which the Common Stock is then listed or authorized for quotation or, if not so listed or authorized for quotation, the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose).

     “Commission” shall mean the Securities and Exchange Commission.

     “Common Stock” shall mean the common stock, par value $0.01 per share, of the Company at the date hereof. Subject to the provisions of Section 8(f), shares issuable on conversion of the Preferred Stock shall include only shares of such class or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

     “Company” shall mean Grubb & Ellis Company, a Delaware corporation, and shall include its successors and assigns.

     “Conversion Notice” has the meaning specified in Section 8(c).

     “Conversion Price” shall mean $100 divided by the Conversion Rate then in effect.

     “Conversion Rate” shall have the meaning specified in Section 8(a) and shall be adjusted, without limitation, as a result of any adjustment to the Conversion Rate pursuant to Section 8 hereof.

     “Convertible Securities” shall have the meaning specified in Section 8(e)(v).

     “Delayed Dividends” has the meaning specified in Section 3(f).

     “Deposit Bank” has the meaning specified in Section 6(b).

     “Depositary” means, with respect to the Preferred Stock issuable or issued in the form of a Global Certificate, the person specified in Section 15 as the Depositary with respect to the Preferred Stock, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Certificate, and thereafter “Depositary” shall mean or include such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors.

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     “Dilutive Issuances” shall have the meaning specified in Section 8(e)(v).

     “Dividend Payment Date” shall have the meaning specified in Section 3(a).

     “Dividend Payment Record Date” shall have the meaning specified in Section 3(a).

     “Dividend Periods” shall mean quarterly dividend periods commencing on the last day of March, June, September and December of each year and ending on and including the day preceding the last day of the next succeeding Dividend Period.

     “effective date” shall have the meaning specified in Section 8(m).

     “Event” shall have the meaning specified in Section 12(f).

     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

     “Fundamental Change” shall have the meaning specified in Section 8(k).

     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 8(k).

     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 8(k).

     “Fundamental Change Repurchase Right” shall have the meaning specified in Section 8(k).

     “Global Certificate” shall have the meaning specified in Section 15.

     “holder,” “holder of shares of Preferred Stock,” or “holder of the Preferred Stock,” as applied to any share of Preferred Stock, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time a particular share of Preferred Stock is registered on the Company’s stock records, which shall include the books of the Transfer Agent in respect of the Company and any stock transfer books of the Company.

     “initial liquidation preference per share” shall have the meaning specified in Section 5(a).

     “Issue Date” shall mean the first date on which shares of the Preferred Stock are issued.

     “Liquidation” has the meaning specified in Section 5(a).

     “Officers’ Certificate”, when used with respect to the Company, shall mean a certificate signed by (a) one of the President, the Chief Executive Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title “Vice President”) and (b) by one of the Treasurer or any Assistant Treasurer, Secretary or any Assistant Secretary or Controller of the Company, which is delivered to the Transfer Agent.

     “Parity Preferred” shall have the meaning specified in Section 10(c).

     “person” shall mean a corporation, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, a limited liability company, an unincorporated organization or a government or an agency or a political subdivision thereof.

     “Preferred Director Voting Rights” shall have the meaning specified in Section 12(b).

     “Preferred Directors” shall have the meaning specified in Section 12(b).

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     “Preferred Dividend Default” shall have the meaning specified in Section 12(b).

     “Preferred Stock” has the meaning specified in Section 1.

     “redemption price” shall have the meaning specified in Section 6(a).

     “Replacement Preferred Stock” shall have the meaning specified in Section 4(a), and any certificates representing Replacement Preferred Stock will be legended as such.

     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

     “spin-off” shall have the meaning specified in Section 8(e)(iii).

     “stock price” shall have the meaning specified in Section 8(m).

     “stockholder approval failure date” shall have the meaning specified in Section 9(b).

     “stockholder approval failure repurchase right” shall have the meaning specified in Section 9(b).

     “subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

     “termination of trading” has the meaning specified in Section 8(k).

     “Trading Day” means a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Company’s Common Stock is not listed on the New York Stock Exchange, then a day during which trading in securities generally occurs on the principal U.S. securities exchange on which the Common Stock is listed or, if the Common Stock is not listed on a U.S. national or regional securities exchange, then on the principal other market on which the Common Stock is then traded or quoted.

     “Transfer Agent” means Computershare Investor Services, L.L.C. or such other agent or agents of the Company as may be designated by the Board of Directors of the Company as the transfer agent for the Preferred Stock.

     “Voting Stock” has the meaning specified in Section 8(k).

     3. Dividends.

     (a) Holders of the Preferred Stock are entitled to receive, when, as and if declared by the Board of Directors, out of the funds of the Company legally available therefor, cash dividends at the annual rate of $12.00 per share of Preferred Stock, payable in equal quarterly installments on March 31, June 30, September 30 and December 31 (each, a “Dividend Payment Date”), commencing December 31, 2009 (and, in the case of any accrued but unpaid dividends, at such additional times and for such interim periods, if any, as determined by the Board of Directors). If December 31, 2009 or any other Dividend Payment Date shall be on a day other than a Business Day, then the Dividend Payment Date shall be on the next succeeding Business Day. Dividends on the Preferred Stock will be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Company legally available for the payment of such dividends and whether or not such dividends are authorized or declared, and will be payable to holders of record as they appear on the stock books of the Company at the close of business on such record dates (each such date, a “Dividend Payment Record Date”), which shall be not more than 30 days nor less than 10 days preceding the Dividend Payment Dates thereof, as shall be fixed by the Board of Directors.

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     (b) Dividends on the Preferred Stock shall accrue (whether or not declared) on a daily basis from the Issue Date subject to the terms of Section 3(c) hereof, and accrued dividends for each Dividend Period shall accumulate to the extent not paid on the Dividend Payment Date first following the Dividend Period for which they accrue. Upon conversion of shares of Preferred Stock (in accordance with the provisions with Section 8 hereof), accrued and unpaid dividends on such shares shall be paid in cash or, at the Company’s election, exchanged for a number of shares of Common Stock equal to the dollar value of such accrued and unpaid dividends divided by the Conversion Price then in effect at the time of such conversion. As used herein, the term “accrued” with respect to dividends includes both accrued and accumulated dividends.

     (c) The amount of dividends payable per share for each full Dividend Period for the Preferred Stock shall be computed by dividing the annual dividend rate by four (rounded down to the nearest one one-hundredth (1/100) of one cent). The amount of dividends payable for the initial Dividend Period on the Preferred Stock, or any other period shorter or longer than a full Dividend Period on the Preferred Stock, shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Holders of shares of Preferred Stock called for redemption on a redemption date falling between the close of business on a Dividend Payment Record Date and the opening of business on the corresponding Dividend Payment Date shall, in lieu of receiving such dividend on the Dividend Payment Date fixed therefor, receive such dividend payment together with all other accrued and unpaid dividends (at 110% of such dividends) on the date fixed for redemption (unless such holders convert such shares in accordance with Section 8 hereof). Holders of shares of Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Preferred Stock which may be in arrears.

     (d) So long as any shares of Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on any class or series of stock of the Company ranking, as to dividends, on a parity with the Preferred Stock, for any period 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 Preferred Stock for all Dividend Periods terminating on or prior to the applicable Dividend Payment Date. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, upon the shares of Preferred Stock and any other class or series of stock ranking on a parity as to dividends with Preferred Stock, all dividends declared upon shares of Preferred Stock and all dividends declared upon such other stock shall be declared pro rata so that the amounts of dividends per share declared on the Preferred Stock and such other stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of Preferred Stock and on such other stock bear to each other.

     (e) So long as any shares of the Preferred Stock are outstanding, no other stock of the Company ranking on a parity with the Preferred Stock as to dividends or upon liquidation, dissolution or winding up shall be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund or otherwise for the purchase or redemption of any shares of any such stock) by the Company or any Subsidiary unless (i) the full cumulative dividends, if any, accrued on all outstanding shares of Preferred Stock shall have been paid or set apart for payment for all past Dividend Periods and (ii) sufficient funds shall have been set apart for the payment of the dividend for the current Dividend Period with respect to the Preferred Stock.

     (f) So long as any shares of the Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Common Stock or other stock ranking junior to the Preferred Stock, as to dividends and upon liquidation, dissolution or winding up) shall be declared or paid or set apart for payment and no other distribution shall be declared or made or set apart for payment, in each case upon the Common Stock or any other stock of the Company ranking junior to the Preferred Stock as to dividends or upon liquidation, dissolution or winding up, nor shall any Common Stock nor any other such stock of the Company ranking junior to the Preferred Stock as to dividends or upon liquidation, dissolution or winding up be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund or otherwise for the purchase or redemption of any shares of any such stock) by the Company or any Subsidiary (except (A) by conversion into or exchange for stock of the Company ranking junior to the Preferred Stock as to dividends and upon liquidation, dissolution or winding up; (B) repurchases of unvested shares of the Company’s capital stock at cost upon termination of employment or consultancy of the holder thereof, provided such repurchases are approved by the Board of Directors of the Company in good faith or (C) with respect

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to any withholding in connection with the payment of exercise prices or withholding taxes relating to employee equity awards) unless, in each case (i) the full cumulative dividends, if any, accrued on all outstanding shares of Preferred Stock and any other stock of the Company ranking on a parity with the Preferred Stock as to dividends shall have been paid or set apart for payment for all past Dividend Periods and all past dividend periods with respect to such other stock and (ii) sufficient funds shall have been set apart for the payment of the dividend for the current Dividend Period with respect to the Preferred Stock and for the current dividend period with respect to any other stock of the Company ranking on a parity with the Preferred Stock as to dividends. In addition, in the event of any cash distribution to holders of Common Stock, holders of Preferred Stock shall be entitled to participate in such distribution as if such holders of Preferred Stock had converted their shares of Preferred Stock into Common Stock, calculated on the record date for determination of holders entitled to receive such distribution.

     (g) Dividends in arrears on the Preferred Stock in respect of a dividend period not declared for payment (“Delayed Dividends”) may be declared by the Board of Directors and paid on any date fixed by the Board of Directors, whether or not a Dividend Payment Date, to the Holders of record as they appear on the stock register of the Company on a record date selected by the Board of Directors, which shall (a) not precede the date the Board of Directors declares the dividend payable and (b) not be more than 30 days prior to the date the dividend is paid.

     4. Dividend Rate Adjustments.

     (a) Dividend Rate Adjustments—Failure to Amend the Certificate of Incorporation. If certain amendments to the Certificate of Incorporation as described in Section 9 have not been approved by the stockholders of the Company and do not become effective by the 120-day anniversary of the Issue Date, then the annual dividend rate will increase by two percent (2%) of the initial liquidation preference per annum per share of Preferred Stock until such time as the amendments to the Certificate of Incorporation are approved and become effective; provided, however, holders of Preferred Stock who do not approve such amendments to the Certificate of Incorporation described in Section 9 shall automatically be deemed to have their shares of Preferred Stock exchanged for a like number of shares of a replacement preferred stock of the Company that shall be identical in all respects to the Preferred Stock issued by the Company on the Issue Date, other than such replacement preferred stock shall not be entitled (i) to such dividend rate increase, and (ii) to exercise the stockholder approval failure repurchase right (the “Replacement Preferred Stock”).

     (b) Dividend Rate Adjustments—Failure to Pay Dividends. If the Company fails to pay the quarterly dividend on the Preferred Stock in full for two (2) consecutive quarters, the dividend rate will automatically increase by 0.50% of the initial liquidation preference per share of the Preferred Stock per quarter (up to a maximum aggregate increase of two percent (2%) of the initial liquidation preference per annum per share of the Preferred Stock) until cumulative dividends have been paid in full.

     5. Liquidation Preference.

     (a) In the event of any voluntary or involuntary dissolution, liquidation or winding up of the Company (for the purposes of this Section 5, a “Liquidation”), prior to any payment or distribution of assets shall be made to the holders of Common Stock or the holders of any other securities of the Company ranking junior to the Preferred Stock upon Liquidation, but after payment of or provision for the Company’s debts, and other liabilities or other securities of the Company ranking senior to the Preferred Stock upon Liquidation, the holder of each share of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company legally available for distribution to its stockholders, and on a pro-rata basis with other preferred stock of equal ranking, a cash amount equal to liquidation preference equal to the greater of (i) 110% of the sum of (A) the initial liquidation preference per share plus (B) accrued and unpaid dividends thereon, if any, from the Issue Date through the date of such distribution of the assets, and (ii) an amount equal to the distribution amount such holder of Preferred Stock would have received had all shares of Preferred Stock been converted into Common Stock. The holders of any class or series of preferred stock ranking on a parity with the Preferred Stock as to Liquidation shall be entitled to receive the full respective liquidation preferences (including any premium) to which they are entitled and shall receive all accrued and unpaid dividends with respect to their respective shares through and including the date of distribution. The term “initial liquidation preference per share” shall mean, with respect to each share of Preferred Stock, $100, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to the Preferred Stock.

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     (b) If upon any Liquidation of the Company, the assets available for distribution to the holders of Preferred Stock and any other securities of the Company ranking on a parity with the Preferred Stock upon Liquidation which shall then be outstanding shall be insufficient to pay the holders of all outstanding shares of Preferred Stock and all other such parity securities the full amounts of the liquidating distribution to which they shall be entitled (including all dividends accrued and unpaid), then the holders of each series of such securities will share ratably in any such distribution of assets in proportion to their full respective liquidating distributions to which such holders would otherwise be respectively entitled. After payment of any such liquidating preference and accrued dividends, the holders of shares of the Preferred Stock will not be entitled to any further participation in any distribution of assets by the Company.

     (c) For purposes of this Section 5, a Liquidation shall not include (i) any consolidation or merger of the Company with or into any other person, corporation, trust or other entity or (ii) a voluntary sale, lease, transfer, conveyance or other disposition of all or substantially all of the Company’s assets to another corporation unless in connection therewith the Liquidation of the Company is specifically approved by all requisite corporate action.

     (d) The holder of any shares of Preferred Stock shall not be entitled to receive any payment owed for such shares under this Section 5 until such holder shall cause to be delivered to the Company (i) the certificate(s) representing such shares of Preferred Stock and (ii) transfer instrument(s) reasonably satisfactory to the Company and sufficient to transfer such shares of Preferred Stock to the Company free of any adverse interest. No interest shall accrue on any payment upon Liquidation after the due date thereof.

     (e) Written notice of any such voluntary or involuntary liquidation, dissolution or winding up of the Company, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not fewer than 30 or more than 60 days prior to the payment date stated therein, to each record holder of shares of Preferred Stock at the respective addresses of such holders as the same shall appear on the stock transfer records of the Company. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Preferred Stock will have no right or claim to any of the remaining assets of the Company.

     6. Redemption at the Option of the Company.

     (a) Preferred Stock may not be redeemed at the option of the Company prior to November 15, 2014. On or after November 15, 2014, upon the affirmative vote of the disinterested members of the Board of Directors, the Company may, at its option, redeem the shares of Preferred Stock, in whole or in part, out of funds legally available therefor, at any time or from time to time, subject to the notice provisions and provisions for partial redemption described below, at a price (the “redemption price”) equal to 110% of the sum of (i) the initial liquidation preference per share, plus (ii) all accrued and unpaid dividends, if any, to and including the redemption date, whether or not earned or declared, if the following conditions are satisfied as of the date of the redemption notice and on the redemption date:

(i)	the stockholders have approved the amendments to the Certificate of Incorporation described in Section 9 below, and such amendments have been filed and become effective;
(ii)	the number of authorized, but unissued and otherwise unreserved, shares of Common Stock are sufficient to allow for conversion of all of the Preferred Stock outstanding as of such date;
(iii)	the shares of Common Stock issuable upon conversion of the Preferred Stock outstanding as of such date are freely tradable for non-affiliates of the Company;
(iv)	the Common Stock is listed on a national stock exchange;
(v)	the issuance of Common Stock issuable upon conversion of all of the Preferred Stock outstanding as of such date would be not be in violation of the rules and regulations of the New York Stock Exchange; and

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(vi) no pending or proposed fundamental change described under Section 8 has been publicly announced prior to such date that has not been consummated or terminated.

     If the applicable redemption date is a Dividend Payment Date, the quarterly payment of dividends becoming due on such date shall be payable to the holders of such shares of Preferred Stock registered as such on the relevant record date subject to the terms and provisions of Section 3. If the applicable redemption date falls after a Dividend Record Date and on or prior to the corresponding Dividend Payment Date, (a) the Company shall pay 110% of the full amount of accumulated and unpaid dividends payable on such Dividend Payment Date only to the holder of record at the close of business on the corresponding Dividend Record Date and (b) the redemption price payable on the redemption date shall include only 110% of the initial liquidation preference per share of the Preferred Stock, but shall not include any amount in respect of dividends declared and payable on such corresponding Dividend Payment Date.

     No sinking fund, mandatory redemption or other similar provision shall apply to the Preferred Stock.

     (b) In case the Company shall desire to exercise the right to redeem the shares of Preferred Stock, in whole or in part, pursuant to Section 6(a), it shall fix a date for redemption, and it, or at its request (which must be received by the Transfer Agent at least ten (10) Business Days prior to the date the Transfer Agent is requested to give notice as described below unless a shorter period is agreed to by the Transfer Agent) the Transfer Agent in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such redemption at least fifteen (15) and not more than forty-five (45) days prior to the date fixed for redemption to the holders of the shares of Preferred Stock so to be redeemed at their last addresses as the same appear on the Company’s stock records (provided that if the Company shall give such notice, it shall also give such notice, and notice of the shares of Preferred Stock to be redeemed, to the Transfer Agent). Such mailing shall be by first class mail, postage pre-paid. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any share of Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other share of Preferred Stock.

     In addition to any information required by law, each such notice of redemption shall specify the following:

• the number of shares of Preferred Stock to be redeemed,

• the date fixed for redemption,

• the redemption price at which such shares of Preferred Stock are to be redeemed,

• the place or places of payment, and that payment will be made upon presentation and surrender of the certificate or certificates representing such shares of Preferred Stock,

• that 110% of unpaid dividends accrued to, and including the date fixed for redemption will be paid as specified in said notice,

• that on and after said date dividends thereon or on the portion thereof to be redeemed will cease to accrue, and

• the then current Conversion Rate and approximate Conversion Price and the date on which the right to convert such shares of Preferred Stock into Common Stock will expire.

     On or prior to the redemption date specified in the notice of redemption given as provided in this Section 6(b), the Company will deposit with a bank or trust company having an office or agency in the Borough of Manhattan, The City of New York and having a combined capital and surplus of at least $[                    ] (the “Deposit Bank”) an amount of money sufficient to redeem on the redemption date all the shares of Preferred Stock so called for redemption (other than those theretofore surrendered for conversion into Common Stock) at the appropriate redemption price; provided that if such payment is made on the redemption date it must be received by the Deposit

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Bank by 10:00 a.m. New York City time, on such redemption date. If any shares of Preferred Stock called for redemption are converted pursuant hereto, any money deposited with the Deposit Bank or so segregated and held in trust for the redemption of such shares of Preferred Stock shall be paid to the Company upon its request, or, if then held by the Company shall be discharged from such trust. The Company shall be entitled to make any deposit of funds contemplated by this Section 6 under arrangements designed to permit such funds to generate interest or other income for the Company, and the Company shall be entitled to receive all interest and other income earned by any funds while they shall be deposited as contemplated by this Section 6, provided that the Company shall maintain on deposit funds sufficient to satisfy all payments which the deposit arrangement shall have been established to satisfy. If the conditions precedent to the disbursement of any funds deposited by the Company pursuant to this Section 6 shall not have been satisfied within two years after the establishment of such funds, then (i) such funds shall be returned to the Company upon its request, (ii) after such return, such funds shall be free of any trust which shall have been impressed upon them, (iii) the person entitled to the payment for which such funds shall have been originally intended shall have the right to look only to the Company for such payment, subject to applicable escheat laws, and (iv) the trustee which shall have held such funds shall be relieved of any responsibility for such funds upon the return of such funds to the Company.

     If fewer than all the outstanding shares of Preferred Stock are to be redeemed, shares to be redeemed shall be selected by the Company from outstanding shares of Preferred Stock not previously called for redemption by lot or pro rata (as near as may be) or by any other equitable method determined by the Company in its sole discretion.

     (c) If notice of redemption has been given as above provided, on and after the date fixed for redemption (unless the Company shall default in the payment of the redemption price, dividends on such shares of Preferred Stock so called for redemption shall cease to accrue and such shares of Preferred Stock shall be deemed no longer outstanding and the holders thereof shall have no right in respect of such shares of Preferred Stock except the right to receive the redemption price thereof, without interest thereon. On presentation and surrender of the certificate or certificates representing such shares of Preferred Stock at a place of payment specified in said notice, such shares of Preferred Stock to be redeemed shall be redeemed by the Company at the applicable redemption price.

     If fewer than all the shares of Preferred Stock represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof.

     (d) In connection with any redemption of Preferred Stock, the Company may arrange for the purchase and conversion of any Preferred Stock by an agreement with one or more investment bankers or other purchasers to purchase such Preferred Stock by paying to the Deposit Bank in trust for the holders of Preferred Stock, on or before the date fixed for redemption, an amount not less than the applicable redemption price of such Preferred Stock. Notwithstanding anything to the contrary contained in this Section 6, the obligation of the Company to pay the redemption price of such Preferred Stock, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, a copy of which will be filed with the Deposit Bank prior to the date fixed for redemption, any certificate representing the Preferred Stock so converted not duly surrendered for conversion by the holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained in Section 8) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the date fixed for redemption (and the right to convert any such Preferred Stock shall be deemed to have been extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Company, the Deposit Bank shall hold and dispose of any such amount paid to it in the same manner as it would monies deposited with it by the Company for the redemption of Preferred Stock.

     7. Shares to Be Retired. Any share of Preferred Stock converted, redeemed or otherwise acquired by the Company shall be retired and canceled and shall upon cancellation be restored to the status of authorized but unissued shares of preferred stock, subject to reissuance by the Board of Directors as shares of preferred stock of one or more series.

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     8. Conversion.

     (a) Upon the effectiveness of the amendment to the Certificate of Incorporation described in Section 9 below and upon compliance with the provisions of this Section 8, a holder of any shares of Preferred Stock shall thereafter have the right, at such holder’s option (except that, with respect to any shares of Preferred Stock which shall be called for redemption, such right shall terminate at the close of business on the Trading Day immediately preceding the date fixed for redemption of such shares of Preferred Stock unless the Company shall default in payment due upon redemption thereof), to convert such shares at any time at the conversion rate (the “Conversion Rate”) of 60.606 fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) per share of Preferred Stock, as adjusted in accordance with this Section 8, by surrender of the certificate or certificates representing such share of Preferred Stock so to be converted in the manner provided in Section 8(c). Upon the effectiveness of the amendment of the Certificate of Incorporation described in Section 9 below, the initial “Conversion Price” shall mean approximately $1.65 per share. Prior to the effectiveness of the amendment to the Certificate of Incorporation described in Section 9 below and upon compliance with the provisions of this Section 8, a holder of any shares of Preferred Stock shall have the right, at such holder’s option (except that, with respect to any shares of Preferred Stock which shall be called for redemption, such right shall terminate at the close of business on the Trading Day immediately preceding the date fixed for redemption of such shares of Preferred Stock unless the Company shall default in payment due upon redemption thereof), to convert such shares at any time at the Conversion Rate of 31,322 fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) per share of Preferred Stock, as adjusted in accordance with this Section 8, by surrender of the certificate or certificates representing such share of Preferred Stock so to be converted in the manner provided in Section 8(c). Prior to the effectiveness of the amendment of the Certificate of Incorporation described in Section 9 below, the initial “Conversion Price” shall mean approximately $[                    ] per share. A holder of the Preferred Stock is not entitled to any rights of a holder of Common Stock until such holder has converted his Preferred Stock to Common Stock, and only to the extent such Preferred Stock is deemed to have been converted to Common Stock under this Section 8.

     (b) In no event the Company may issue shares of Common Stock upon conversion of the Preferred Stock if such issuance would cause the aggregate outstanding shares of Common Stock to exceed the total authorized number of shares of Common Stock.

     (c) In order to exercise the conversion right if a holder’s Preferred Stock is represented by physical certificates, the holder of the Preferred Stock to be converted shall surrender the certificate or certificates (with the notice of conversion (the “Conversion Notice”), the form of which is set forth in Section 17(a), on the reverse of the certificate or certificates duly completed) representing the number of shares to be so converted, duly endorsed, at an office or agency of the Transfer Agent in the Borough of Manhattan, The City of New York, and shall give written notice of conversion to the office or agency that the holder elects to convert such number of shares of Preferred Stock specified in said notice. Such notice shall also state the name or names (with address) in which the certificate or certificates for shares of Common Stock which shall be of Common Stock issuable on such conversion shall be issued, and shall be accompanied by transfer taxes, if required pursuant to Section 8(h). If a holder’s shares of Preferred Stock are represented by a global Preferred Stock certificate, such holder must comply with the Depositary’s procedures for converting a beneficial interest in such global Preferred Stock, and shall pay any transfer taxes, if required pursuant to Section 8(h). Each such share of Preferred Stock surrendered for conversion shall, unless the shares of Common Stock issuable on conversion are to be issued in the same name in which such share of Preferred Stock is registered, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the holder or his duly authorized attorney.

     As promptly as practicable, but in any event within three (3) Business Days, after satisfaction of the requirements for conversion set forth above, the Company shall issue and shall deliver to such holder or, if shares of Common Stock issuable on conversion are to be issued in a name other than that in which such share of Preferred Stock to be converted is registered (as if such transfer were a transfer of the share of Preferred Stock so converted), to such other person, the certificate or certificates representing the number of shares of Common Stock issuable, or the cash payment to be made, upon the conversion of such share of Preferred Stock or a portion thereof in accordance with the provisions of this Section 8 and a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such conversion, as provided in Section 8(d) (which payment, if any, shall be paid no later than three (3) Business Days after satisfaction of the requirements for conversion set forth above).

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     Each conversion shall be deemed to have been effected on the date on which the requirements set forth above in this Section 8(c) have been satisfied as to such share of Preferred Stock so converted, and the person in whose name any certificate or certificates for the shares of Common Stock shall be issuable upon such conversion shall be deemed to have become on said date the holder of record of the shares represented thereby; provided, however, that if any such surrender occurs on any date when the stock transfer books of the Company shall be closed, the conversion shall be effected on the next succeeding day on which such stock transfer books are open, and the person in whose name the certificates are to be issued shall be the record holder thereof for all purposes, but such conversion shall be at the Conversion Price in effect on the date upon which certificate or certificates representing such shares of Preferred Stock shall be surrendered. All shares of Common Stock delivered upon conversion of the Preferred Stock will, upon delivery, be duly authorized, validly issued and fully paid and nonassessable, free of all liens and charges and not subject to any preemptive rights. If less than the full number of shares of Preferred Stock, evidenced by the surrendered certificate(s), is being converted, the Company shall deliver or cause to be delivered a new certificate or certificates, of like tenor, for the number of shares evidenced by the surrendered certificate less the number of shares being converted.

     Upon conversion of shares of Preferred Stock (in accordance with the provisions with this Section 8), accrued and unpaid dividends on such shares shall be paid in cash or, at the Company’s election, exchanged for a number of shares of Common Stock equal to the dollar value of such accrued and unpaid dividends divided by the Conversion Price then in effect at the time of such conversion. Such cash or shares, as applicable, shall be delivered in accordance with the second paragraph of this Section 8(c).

     (d) In connection with the conversion of any shares of Preferred Stock, a portion of such shares may be converted; however, no fractional shares of Common Stock or scrip representing fractional shares shall be issued upon conversion of the Preferred Stock. If any fractional share of stock otherwise would be issuable upon the conversion of the Preferred Stock, the Company shall make a payment therefore in cash to the holder of the Preferred Stock based on the current market value of the Common Stock. The current market value of a share of Common Stock shall be the Closing Sale Price on the first Trading Day immediately preceding the day on which the Preferred Stock (or a specified portion thereof) is deemed to have been converted. If more than one share 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 Preferred Stock so surrendered.

     (e) The Conversion Rate shall be adjusted from time to time by the Company as follows; provided that any adjustments made to the Conversion Rate prior to the amendments to the Certificate of Incorporation (as described in Section 9) shall also be applied to the Conversion Rate in effect following such amendments as if the latter Conversion Rate were in effect as of the Issue Date:

     (i) If the Company issues shares of Common Stock as a dividend or distribution on shares of Common Stock to all holders of Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

     CR₁ = CR₀ x OS₁/OS₀

     where

CR₀ = the Conversion Rate in effect immediately prior to the ex-dividend date for such dividend or distribution, or the effective date of such share split or share combination;

CR₁ = the new Conversion Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, or the effective date of such share split or share combination;

OS₁ = the number of shares of Common Stock outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination; and

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OS₀ = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination.

     Any adjustment made pursuant to this paragraph (i) shall become effective at the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this paragraph (i) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

     (ii) If the Company distributes to all holders of Common Stock any rights, warrants or options entitling them, for a period expiring not more than 60 days after the date of issuance of such rights, warrants or options, to subscribe for or purchase shares of Common Stock at a price per share that is less than the Closing Sale Price per share of Common Stock on the Business Day immediately preceding the time of announcement of such distribution, the Company shall adjust the conversion rate based on the following formula:

     CR₁ = CR₀ x (OS₀+X)/(OS₀+Y)

     where

CR₀ = the Conversion Rate in effect immediately prior to the ex-dividend date for such distribution;

CR₁ = the new Conversion Rate in effect immediately on and after the ex-dividend date for such distribution;

OS₀ = the number of shares of Common Stock outstanding immediately prior to the ex-dividend date for such distribution;

X = the aggregate number of shares of Common Stock issuable pursuant to such rights, warrants or options; and

Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the Closing Sale Price per share of Common Stock on the Business Day immediately preceding the time of announcement for the issuance of such rights, warrants or options.

     For purposes of this paragraph (ii), in determining whether any rights, warrants or options entitle the holders of shares of Common Stock to subscribe for or purchase shares of Common Stock at less than the applicable Closing Sale Price per share of Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Common Stock, there shall be taken into account any consideration the Company receives for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors. If any right, warrant or option described in this paragraph (ii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Company shall adjust the new Conversion Rate to the Conversion Rate that would then be in effect if such right, warrant or option had not been so issued.

     (iii) If the Company distributes shares of its capital stock, evidence of indebtedness, assets or property, other than cash, to all holders of Common Stock, excluding (A) dividends, distributions, rights, warrants or options referred to in paragraph (i) or (ii) above; (B) dividends or distributions paid exclusively in cash; and (C) spin-offs, as described below in this paragraph (iii) then the Company shall adjust the conversion rate based on the following formula:

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CR₁ = CR₀ x SP₀/(SP₀ — FMV)

where

CR₀ = the Conversion Rate in effect immediately prior to the ex-dividend date for such distribution;

CR₁ = the new Conversion Rate in effect immediately on and after the ex-dividend date for such distribution;

SP₀ = the average of the Closing Sale Price per share of Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the ex-dividend date for such distribution; and

FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date or the ex-dividend date for such distribution;

provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP⁰” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Preferred Stock shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Company are distributed to holders of Common Stock, for each share of Preferred Stock, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Company such holder of Preferred Stock would have received had such holder of Preferred Stock owned a number of shares of Common Stock into which such Preferred Stock is then convertible at the conversion rate in effect on the ex-dividend date for such distribution.

     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution.

     If the Company distributes to all holders of Common Stock capital stock of any class or series, or similar equity interest, of or relating to one of the Company’s subsidiaries or other business unit (a “spin-off”) the Conversion Rate in effect immediately before the 10th Trading Day from and including the effective date of the spin-off shall be adjusted based on the following formula:

CR₁ = CR₀ x (FMV₀+MP₀ )/ MP₀

where

CR₀ = the Conversion Rate in effect immediately prior to the 10th Trading Day immediately following, and including, the effective date of the spin-off;

CR₁ = the new Conversion Rate in effect immediately on and after the 10th Trading Day immediately following, and including, the effective date of the spin-off;

FMV₀ = the average of the Closing Sale Prices per share of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after the effective date of the spin-off; and

MP₀ = the average of the Closing Sale Prices per share of Common Stock over the first 10 consecutive Trading Days after the effective date of the spin-off.

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     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph shall occur on the 10th Trading Day from and including the effective date of the spin-off; provided that in respect of any conversion within the 10 Trading Days following the effective date of any spin-off, references within this paragraph (iii) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such spin-off and the Conversion Date in determining the applicable conversion rate.

     If any such dividend or distribution described in this paragraph (iii) is declared but not paid or made, the new Conversion Rate shall be re-adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

     (iv) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, the Conversion Rate shall be adjusted based on the following formula:

CR₁ = CR₀ × (AC + (SP₁ × OS₁))/(SP ₁ × OS₀)

where

CR₀ = the Conversion Rate in effect on the day immediately following the date such tender or exchange offer expires;

CR₁ = the Conversion Rate in effect on the second day immediately following the date such tender or exchange offer expires;

AC = the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;

OS₀ = the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires;

OS₁ = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and

SP₁ = the Closing Sale Price per share of Common Stock for the Trading Day immediately following the date such tender or exchange offer expires.

     If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made.

     Any adjustment to the Conversion Rate made pursuant to this paragraph (iv) shall become effective on the second day immediately following the date such tender offer or exchange offer expires. If the Company or one of its subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the Company shall re-adjust the new Conversion Rate to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.

     (v) For six (6) months following the Issue Date, if the Company issues any Common Stock at a price that is less than the then current Conversion Price of the Preferred Stock, or any securities convertible into or exchangeable for, directly or indirectly, Common Stock (such securities, “Convertible

14

Securities”) or any rights, warrants or options to purchase any such Common Stock or Convertible Securities with a conversion price or exercise price that is less than the then current Conversion Price of the Preferred Stock (all such issuances of securities, “Dilutive Issuances”), then the Conversion Price will be reduced concurrently with such issue or sale, according to the following formula:

CP₁ = CP₀ × (A + B) ÷ (A + C)

where

CP₁ = the Conversion Price in effect immediately after such Dilutive Issuances;

CP₀ = the conversion price in effect immediately prior to such Dilutive Issuances;

A = the number of shares of Common Stock outstanding immediately prior to such Dilutive Issuances, treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of options outstanding immediately prior to such issue or upon conversion, exercise or exchange of Convertible Securities outstanding immediately prior to such issue;

B = the number of shares of Common Stock that would have been issued if such Dilutive Issuances had been at a price per share of Common Stock (or equivalent) equal to CP₀; and

C = the number of shares of Common Stock issued (or the number of shares of Common Stock issuable upon the exercise of rights, warrants or options to purchase Common Stock or Convertible Securities and/or upon the conversion, exercise or exchange of Convertible Securities, as the case may be) in such Dilutive Issuances.

     Notwithstanding anything to the contrary set forth above with respect to Conversion Price adjustments for Dilutive Issuances, no adjustment will be made to the Conversion Price of the Preferred Stock with regard to:

• securities issued (other than for cash) in connection with a strategic merger, alliance, joint venture, acquisition, consolidation, licensing or partnering agreement;

• Common Stock issued in connection with any credit facility obtained by the Company; or

• Common Stock issued and grants of options to purchase Common Stock pursuant to an employment agreement or arrangement or an equity compensation plan approved by the Board of Directors.

     If the Conversion Price is adjusted as described above, then the Conversion Rate shall be adjusted based on the following formula:

CR₁ = CR₀ × CP₀/CP₁

where

CR₀ = the Conversion Rate in effect immediately prior to the Conversion Price adjustment;

CR₁ = the Conversion Rate in effect immediately following the Conversion Price adjustment;

CP₀ = the Conversion Price in effect immediately prior to such adjustment; and

CP₁ = the Conversion Price in effect immediately after such adjustment.

     (vi) If the Company has in effect a rights plan while any shares of Preferred Stock remain outstanding, holders of shares of Preferred Stock shall receive, upon a conversion of such shares in respect of which the Company has elected to deliver shares of Common Stock, in addition to such shares of Common Stock, rights under the Company’s stockholder rights agreement unless, prior to conversion, the

15

rights have expired, terminated or been redeemed or unless the rights have separated from Common Stock. If the rights provided for in any rights plan that the Company’s Board of Directors may adopt have separated from the Common Stock in accordance with the provisions of the rights plan so that holders of shares of Preferred Stock would not be entitled to receive any rights in respect of Common Stock that the Company elects to deliver upon conversion of shares of Preferred Stock, the Company shall adjust the Conversion Rate at the time of separation as if the Company had distributed to all holders of the Company’s capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (iii) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights.

     (vii) In no event shall the Conversion Price be reduced below $0.01, subject to adjustment for share splits and combinations and similar events.

     (viii) The Company shall not make any adjustment to the Conversion Rate if holders of shares of Preferred Stock are permitted to participate, on an as-converted basis, in the transactions described in paragraphs (i) through (iv), and paragraph (vi) above.

     (ix) The Conversion Rate shall not be adjusted except as specifically set forth in this Section 8. Without limiting the foregoing, the conversion rate shall not be adjusted for (A) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities or the investment of additional optional amounts in shares of Common Stock under any plan; (B) the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any of the Company’s present or future employee, director, trustee or consultant benefit plans, employee agreements or arrangements or programs; (C) the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the Issue Date; (D) a change in the par value of Common Stock; (E) accumulated and unpaid dividends or distributions on the Preferred Stock, except as otherwise provided in this Certificate of Designations; or (F) the issuance of shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of the Company’s Common Stock or the payment of cash upon repurchase or redemption thereof, except as otherwise provided in this Section 8.

     (x) No adjustment in the Conversion Rate shall be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the conversion rate by at least 1%, then the adjustment that is not made shall be carried forward and taken into account in any future adjustment. In addition, the Company will make any carry forward adjustments not otherwise effect (A) on each anniversary of the Issue Date, (B) upon conversion of any shares of Preferred Stock (but only with respect to such converted Preferred Stock) and (C) if the shares of the Preferred Stock are called for redemption. All required calculations shall be made to the nearest cent or 1/10,000th of a share, as the case may be.

     (xi) To the extent permitted by law, the Company may, from time to time, increase the Conversion Rate for a period of at least 20 days if its Board of Directors determines that such an increase would be in Company’s best interests. Any such determination by the Company’s Board of Directors will be conclusive. In addition, the Company may increase the Conversion Rate if its Board of Directors deems it advisable to avoid or diminish any income tax to common stockholders resulting from any distribution of Common Stock or similar event. The Company will give holders of shares of the Preferred Stock at least 15 Business Days’ notice of any increase in the Conversion Rate.

     (xii) Except as described in this Section 8, the Company shall not adjust the Conversion Rate for any issuance of shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of Common Stock or rights to purchase shares of Common Stock or such convertible, exchangeable or exercisable securities.

     (xiii) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Transfer Agent an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate

16

setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each holder of the Preferred Stock at his last address appearing on the Company’s stock records, within ten (10) days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

     (xiv) In any case in which this Section 8(e) provides that an adjustment shall become effective immediately after a record date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any share of Preferred Stock converted after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder of Preferred Stock any amount in cash in lieu of any fraction pursuant to Section 8(d).

     (xv) For purposes of this Section 8(e), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.

     (f) In the event that the Company shall be a party to any of the following transactions (each, a “Business Combination”): (i) any recapitalization, reclassification or change of shares of Common Stock (other than as a result of a subdivision or combination of Common Stock), (ii) any consolidation, merger or combination of the Company into any other person, or any consolidation, merger or combination of another person into the Company (other than a merger that does not result in a reclassification, conversion, exchange or cancellation of Common Stock), (iii) any sale, transfer, conveyance or lease to another person of all or substantially all of the property and assets of the Company (other than to one or more of its subsidiaries) or (iv) any statutory share exchange; in each case, as a result of which shareholders of Common Stock shall be entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for the Common Stock, then appropriate provision shall be made so that the holder of each share of Preferred Stock then outstanding shall have the right thereafter to convert such Preferred Stock only into the kind and amount of stock, other securities or other property or assets (including cash or any combination thereof) that the holders of the Preferred Stock would have owned or been entitled to receive upon such Business Combination as if such holder of shares of Preferred Stock held a number of shares of Common Stock equal to the Conversion Rate in effect on the effective date for such Business Combination, multiplied by the number of shares of Preferred Stock held by such holder of shares of Preferred Stock. If such Business Combination also constitutes a specified Change in Control (as described in Section 8(m)), such holder of shares of Preferred Stock converting such shares will not receive additional shares if such holder does not convert its shares of Preferred Stock “in connection with” the relevant Change in Control (as described in Section 8(m)). In the event that the Company’s common stockholders have the opportunity to elect the form of consideration to be received in such Business Combination, the Company will make adequate provision whereby the holders of shares of Preferred Stock shall have a reasonable opportunity to determine the form of consideration into which all of the shares of the Preferred Stock, treated as a single class, shall be convertible from and after the effective date of such Business Combination. Such determination shall be based on the weighted average of elections made by the holders of shares of the Preferred Stock who participate in such determination, shall be subject to any limitations to which all of the Company’s common stockholders are subject, such as pro rata reductions applicable to any portion of the consideration payable in such Business Combination, and shall be conducted in such a manner as to be completed by the date which is the earliest of (1) the deadline for elections to be made by the Company’s common stockholders and (2) two Business Days prior to the anticipated effective date of the Business Combination.

     The Company will provide notice of the opportunity to determine the form of such consideration, as well as notice of the determination made by the holders of shares of the Preferred Stock (and the weighted average of elections), by posting such notice with DTC and providing a copy of such notice to the Transfer Agent. If the effective date of a Business Combination is delayed beyond the initially anticipated effective date, the holders of shares of the Preferred Stock will be given the opportunity to make subsequent similar determinations in regard to such delayed effective date. The Company may not become a party to any such transaction unless its terms are

17

consistent with the preceding. None of the foregoing provisions shall affect the right of a holder of shares of Preferred Stock to convert such holder’s shares of Preferred Stock into shares of Common Stock prior to the effective date.

     (g) The entity formed by such consolidation or resulting from such merger or that acquires such assets or that acquires the Company’s shares, as the case may be, shall make provision in its certificate or articles of incorporation or other constituent document to establish such right. Such certificate or articles of incorporation or other constituent document shall provide for adjustments that, for events subsequent to the effective date of such certificate or articles of incorporation or other constituent document, shall be as nearly equivalent as may be practicable to the relevant adjustments provided for in this Section 8. The above provisions shall similarly apply to successive transactions of the type described in this Section 8(g).

     (h) The issue of stock certificates representing the shares of Common Stock on conversions of the Preferred Stock shall be made without charge to the converting holder of the Preferred Stock for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than the name in which the shares of Preferred Stock with respect to which such shares of Common Stock are issued are registered, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.

     (i) The Company covenants that all shares of Common Stock which may be delivered upon conversion of shares of Preferred Stock will upon delivery be duly and validly issued and fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights.

     The Company covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock or its issued shares of Common Stock held in its treasury, or both, a sufficient number of shares of Common Stock for the purpose of effecting conversions of shares of Preferred Stock not theretofore converted into Common Stock. For purposes of this reservation of Common Stock, the number of shares of Common Stock which shall be deliverable upon the conversion of all outstanding shares of Preferred Stock shall be computed as if at the time of computation all outstanding shares of Preferred Stock were held by a single holder. The issuance of shares of Common Stock upon conversion of shares of Preferred Stock is authorized in all respects.

     The Company shall from time to time, in accordance with the laws of the State of Delaware, use its best efforts to increase the authorized number of shares of Common Stock if at any time the number of shares of authorized and unissued Common Stock shall not be sufficient to permit the conversion of all the then outstanding shares of Preferred Stock.

     Before taking any action which would cause an adjustment reducing the Conversion Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Preferred Stock, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Price.

     The Company covenants that if any shares of Common Stock to be issued or provided for pursuant to this Certificate hereunder require registration with or approval of any governmental authority under any Federal or State law before such shares may be validly issued or provided for pursuant to this Certificate, the Company will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be.

     (j) In case:

     (i) the Company shall declare a dividend (or any other distribution) on its Common Stock; or

     (ii) the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or

18

     (iii) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or

     (iv) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

the Company shall cause to be filed with the Transfer Agent and to be mailed to each holder of the Preferred Stock at his address appearing on the Company’s stock records, as promptly as possible but in any event at least fifteen (15) days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.

     (k) If a Fundamental Change (as defined below) occurs on or prior to November 15, 2019, each holder of shares of the Preferred Stock will have the right to require the Company to repurchase for cash all, or a specified whole number, of such holder’s shares of Preferred Stock (the “Fundamental Change Repurchase Right”) on the date specified by the Company that is not later than 15 days after the date the Company gives notice of the consummation of the Fundamental Change (the “Fundamental Change Repurchase Date”), at a repurchase price equal to (i) 110% of the sum of the initial liquidation preference per share plus accrued and unpaid dividends to but excluding the Fundamental Change Repurchase Date in the event the Fundamental Change occurs prior to November 15, 2014, and (ii) 100% of the sum of the initial liquidation preference per share plus accrued and unpaid dividends to but excluding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). If such Fundamental Change Repurchase Date is after a Dividend Payment Record Date but on or prior to a Dividend Payment Date, however, then 110% of the dividend payable on such date will be paid to the holder of record of the Preferred Stock at the close of business on the relevant record date.

     The Company will give notice by mail or by publication (with subsequent prompt notice by mail) to holders of the Preferred Stock and will post such notice with DTC and provide a copy of such notice to the Transfer Agent of the anticipated effective date of any proposed Fundamental Change which will occur on or prior to November 15, 2019. The Company must make this mailing or publication at least 15 days before the anticipated effective date of the Fundamental Change. In addition, no later than the third Business Day after the completion of such Fundamental Change, the Company must make an additional notice announcing such completion.

     The term “Fundamental Change” generally will be deemed to occur upon a Change in Control or a termination of trading prior to November 15, 2019. A “Change in Control” will be deemed to have occurred when:

(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to either of the foregoing), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that a person will be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 50% or more of the total voting power of the Company’s Voting Stock (as defined below) (other than as a result of any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity); or

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(2)

(A) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to either of the foregoing), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that a person will be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of a majority of the total voting power of the Company’s Voting Stock (other than as a result of any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity), and (B) a termination of trading shall have occurred; or

(3)

the Company’s consolidation or merger with or into any other person, any merger of another person into the Company, or any sale, transfer, assignment, lease, conveyance or other disposition, directly or indirectly, of all or substantially all the Company’s assets and the assets of the Company’s subsidiaries, considered as a whole (other than a disposition of such assets as an entirety or virtually as an entirety to a wholly-owned subsidiary) shall have occurred, other than:

A.

any transaction (a) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s capital stock, and (b) pursuant to which holders of the Company’s capital stock immediately prior to the transaction are entitled to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving person immediately after the transaction; or

B.

any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or

(4)

during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new directors whose nomination, election or appointment by such board or whose nomination for election by the Company’s stockholders was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election, nomination or appointment was previously so approved) cease for any reason to constitute 50% or more of the Board of Directors then in office; or

(5)

the Company’s stockholders shall have approved any plan of liquidation or dissolution.

     “Capital Stock” of any person means any and all shares, interests, participations or other equivalents (however designated) of corporate stock or other equity participations, including partnership interests, whether general or limited, of such person and any rights (other than debt securities convertible and exchangeable into an equity interest), warrants or options to acquire an equity interest in such person.

     A “termination of trading” will be deemed to have occurred if Common Stock is not listed for trading on a U.S. national securities exchange or market, including, but not limited to, the over-the-counter market or bulletin board.

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     “Voting Stock” of any person means Capital Stock of such person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such person, whether at all times or only for so long as no senior class of securities has such voting power by reason of any contingency.

(l) (i) A holder of Preferred Stock that has elected to convert such shares rather than require the Company to repurchase such shares pursuant to the Fundamental Change Repurchase Right shall not be able to exercise the Fundamental Change Repurchase Right.

     (ii) Within 15 days after the occurrence of a Fundamental Change, the Company shall provide to the holders of Preferred Stock and the Company’s Transfer Agent a notice of the occurrence of the Fundamental Change and of the resulting repurchase right. Such notice shall state (a) the events constituting the Fundamental Change; (b) the date of the Fundamental Change; (c) the last date on which the holders of Preferred Stock may exercise the Fundamental Change Repurchase Right; (d) the Fundamental Change Repurchase Date; (e) that Preferred Stock as to which the Fundamental Change Repurchase Right has been exercised will be repurchased only if the notice of exercise of the Fundamental Change Repurchase Right has not been properly withdrawn; and (f) the procedures that the holders of Preferred Stock must follow to exercise the Fundamental Change Repurchase Right.

     (iii) The Company shall also issue a press release for publication on the Dow Jones & Company, Inc., Business Wire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Company’s website, in any event prior to the opening of business on the first Trading Day following any date on which the Company provides such notice to the holders of Preferred Stock.

     (iv) The Fundamental Change Repurchase Date shall be a date no less than 20 days nor more than 35 days after the date on which the Company gives the notice described in Section 8(l)(ii). To exercise the Fundamental Change Repurchase Right, the holder of Preferred Stock shall deliver, on or before the close of business on the Fundamental Change Repurchase Date, the Preferred Stock to be repurchased, duly endorsed for transfer, together with a completed written repurchase notice completed, to the Company’s transfer agent. The repurchase notice shall state (a) the relevant Fundamental Change Repurchase Date; (b) the number of shares of Preferred Stock to be repurchased; and (c) that the Preferred Stock is to be repurchased pursuant to the applicable provisions of the Preferred Stock. Notwithstanding the foregoing, if the Preferred Stock is held in global form, the repurchase notice shall comply with applicable DTC procedures.

     (v) Holders of Preferred Stock may withdraw any notice of exercise of their Fundamental Change Repurchase Right (in whole or in part) by a written notice of withdrawal delivered to the Company’s transfer agent prior to the close of business on the Business Day prior to the Fundamental Change Repurchase Date. The notice of withdrawal shall state (a) the number of withdrawn shares of Preferred Stock; (b) if certificated shares of Preferred Stock have been issued, the certificate numbers of the withdrawn shares of Preferred Stock; and (c) the number of shares of the Preferred Stock, if any, which remain subject to the repurchase notice. Notwithstanding the foregoing, if the Preferred Stock is held in global form, the notice of withdrawal shall comply with applicable DTC procedures.

     (vi) Preferred Stock as to which the Fundamental Change Repurchase Right has been properly exercised and for which the repurchase notice has not been properly withdrawn shall be repurchased in accordance with the Fundamental Change Repurchase Right on the Fundamental Change Repurchase Date.

     (vii) Payment of the applicable Fundamental Change Repurchase Price is conditioned upon delivery of the certificate or certificates for the Preferred Stock to be repurchased. If less than the full number of shares of Preferred Stock evidenced by the surrendered certificate or certificates is being repurchased, a new certificate or certificates, of like tenor, for the number of shares evidenced by the surrendered certificate or certificates, less the number of shares being repurchased, will be issued promptly to the holder.

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     (m) If a Change in Control described in the clauses (2) or (3) of the definition of Change in Control set forth above occurs prior to November 15, 2014, the Company will increase the conversion rate, to the extent described below, by a number of additional shares if a holder elects to convert shares of Preferred Stock in connection with any such transaction by increasing the Conversion Rate applicable to such shares if and as required below; provided, however, that the Company will not adjust the conversion rate if a Change in Control described in clause (3) of the definition of Change in Control occurs and 90% of the consideration (excluding cash payments for fractional shares) in the transaction or transactions constituting the Change in Control consists of shares of common stock that are, or upon issuance will be, traded on the New York Stock Exchange or approved for trading on a Nasdaq market and, as a result of such transaction or transactions, the Preferred Stock becomes convertible solely into such common stock and other consideration payable in such transaction or transactions.

     A conversion of shares of Preferred Stock by a holder will be deemed for these purposes to be “in connection with” a Change in Control if the holder’s written conversion notice is received by the Company at the Company’s principal office or by the Transfer Agent on or subsequent to the date 10 Trading Days prior to the date announced by the Company as the anticipated effective date of the Change in Control but before the close of business on the Business Day immediately preceding the related date on which the Change in Control becomes effective (the “effective date”). Any adjustment to the conversion rate will have the effect of increasing the amount of any cash, securities or other assets otherwise due to holders of shares of Preferred Stock upon conversion.

     Any increase in the applicable Conversion Rate will be determined by reference to the table below and is based on the Change in Control effective date and the price (the “stock price”) paid per share of Common Stock in the transaction constituting the Change in Control. If holders of Common Stock receive only cash in the transaction, the stock price shall be the cash amount paid per share of Common Stock. Otherwise, the stock price shall be equal to the average Closing Sale Price per share of Common Stock over the five Trading-Day period ending on the Trading Day immediately preceding the effective date.

     The following table sets forth the additional number of shares, if any, of Common Stock issuable upon conversion of each share of Preferred Stock in connection with such a Change in Control, as specified above.

Additional Shares Upon a Change in Control

	Effective Date
Stock Price on	November 1,	November 1,	November 1,	November 1,	November 1,	November 1,
Effective Date	2009	2010	2011	2012	2013	2014
$1.50	11.112	10.365	9.477	8.589	7.701	6.813
$2.00	7.284	6.768	5.686	4.604	3.522	2.440
$2.50	5.093	4.722	3.571	2.420	1.268	0.117
$3.00	3.700	3.426	2.570	1.713	0.857	0.000
$3.50	2.755	2.547	1.910	1.274	0.637	0.000
$4.00	2.083	1.923	1.442	0.962	0.481	0.000
$4.50	1.586	1.462	1.097	0.731	0.366	0.000
$5.00	1.213	1.118	0.839	0.559	0.280	0.000

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The actual stock price and effective date may not be set forth in the foregoing table, in which case:

• If the actual stock price on the effective date is between two stock prices in the table or the actual effective date is between two effective dates in the table, the amount of the Conversion Rate adjustment will be determined by a straight-line interpolation between the adjustment amounts set forth for such two stock prices or such two effective dates on the table based on a 360-day year, as applicable.

• If the stock price on the effective date equals or exceeds $5.00 per share (subject to adjustment as described below), no adjustment in the applicable Conversion Rate will be made.

• If the stock price on the effective date is less than $1.50 per share (subject to adjustment as described below), no adjustment in the applicable Conversion Rate will be made.

     The stock prices set forth in the first column of the table above will be adjusted as of any date on which the Conversion Rate of shares of Preferred Stock is adjusted. The adjusted stock prices will equal the stock prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the stock price adjustment and the denominator of which is the Conversion Rate as so adjusted. The Conversion Rate adjustment amounts set forth in the table above will be adjusted in the same manner as the Conversion Rate other than by operation of an adjustment to the Conversion Rate by virtue of the adjustment to the conversion rate as described above.

     The additional shares, if any, or any cash delivered to satisfy the Company’s obligations to holders that convert their shares of Preferred Stock in connection with a Change in Control will be delivered upon the later of the settlement date for the conversion and promptly following the effective date of the Change in Control transaction.

     Notwithstanding the foregoing, in no event will the Conversion Rate exceed [___] shares of Common Stock per share of Preferred Stock solely as a result of the application of this Section 8(m), which maximum amount is subject to adjustments in the same manner as the Conversion Rate as set forth elsewhere in this Section 8.

     9. Amendments to the Certificate of Incorporation.

     (a) The Company hereby agrees that, as promptly as practicable after the Issue Date (but in no event later than 120 days after such date), it will seek the approval of stockholders holding at least a majority of the shares of the Company’s Common Stock (including the Common Stock issuable upon conversion of the Preferred Stock) and the Common Stock voting separately as a class to amend the Certificate of Incorporation in order to (i) increase the Company’s authorized capital stock to 220,000,000 shares of capital stock, 200,000,000 of such shares being Common Stock, par value $0.01 per share and 20,000,000 of such shares being preferred stock, par value $0.01 per share, issuable in one or more series or classes, and (ii) increase the size of the Board of Directors to provide for an adequate number of directors to permit the election of the Preferred Directors in the event that the Company is in arrears with respect to the Preferred Stock for six or more quarters to provide for the Preferred Directors. If the amendments to the Certificate of Incorporation are approved, subject to certain limitations, if dividends on the Preferred Stock are in arrears for six or more quarters, whether or not consecutive, holders representing a majority of shares of the Preferred Stock (voting together as a class with the holders of all other classes or series of preferred stock upon which like voting rights have been conferred and are exercisable) shall be entitled to nominate and vote for the election of two additional directors to serve on the Board of Directors, until all unpaid dividends with respect to the Preferred Stock and any other class or series of preferred stock upon which like voting rights have been conferred and are exercisable have been paid or declared and a sum sufficient for payment is set aside for such payment.

     (b) If the amendments to the Certificate of Incorporation have not been approved by the Company’s stockholders and become effective by the 120-day anniversary of the Issue Date (the “stockholder approval failure date”), then the annual dividend rate will increase by two percent (2%) per annum of the initial liquidation preference per share of Preferred Stock until such time as the amendments to the Certificate of Incorporation are

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approved and become effective. Holders of Preferred Stock who do not approve such amendments to the Certificate of Incorporation shall automatically be deemed to have exchanged all of their shares of Preferred Stock for a like number of shares of Replacement Preferred Stock.

     In addition, if an amendment is not effective prior to 120 days after the Issue Date, holders of Preferred Stock may require the Company to repurchase all, or a specified whole number, of share of their Preferred Stock at a repurchase price equal to 110% of the sum of (i) the initial liquidation preference plus (ii) accumulated but unpaid dividends to but excluding the stockholder approval failure date (the “stockholder approval failure repurchase right”). The Company will give notice by mail or by publication (with subsequent prompt notice by mail) to holders of Preferred Stock and will post such notice with DTC and provide a copy of such notice to the Transfer Agent of the stockholder approval failure date.

     A holder of Preferred Stock that has elected to convert its shares of Preferred Stock rather than require the Company to repurchase its shares of Preferred Stock pursuant to the stockholder approval failure date will not be able to exercise the stockholder approval failure repurchase right.

     A holder of Preferred Stock who does not approve of the amendments to the Certificate of Incorporation described in this Section 9 shall automatically be deemed to have exchanged all of their shares of Preferred Stock for a like number of shares of Replacement Preferred Stock.

     Within 15 days after the occurrence of the stockholder approval failure date, the Company will provide to the holders of Preferred Stock and the Transfer Agent a notice of the occurrence of the stockholder approval failure date and the resulting repurchase offer. Such notice will state:

• the events constituting the stockholder approval failure;

• the date of the stockholder approval failure;

• the last date on which the holders of Preferred Stock may exercise the stockholder approval failure repurchase right;

• the stockholder approval failure repurchase date;

• the name and address of the paying agent and the repurchase agent;

• that Preferred Stock as to which the stockholder approval failure repurchase right has been exercised will be repurchased only if the notice of exercise of the stockholder approval failure repurchase right has not been properly withdrawn; and

• the procedures that the holders of Preferred Stock must follow to exercise the stockholder approval failure repurchase right.

     The Company will also issue a press release for publication on the Dow Jones & Company, Inc., Business Wire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Company’s website, in any event prior to the opening of business on the first Trading Day following any date on which the Company provides such notice to the holders of Preferred Stock.

     The stockholder approval failure repurchase date will be a date not less than 20 days nor more than 35 days after the date on which the Company gives the above notice. To exercise the stockholder approval failure repurchase right, each holder of Preferred Stock must deliver, on or before the close of business on the stockholder approval failure repurchase date, the Preferred Stock to be repurchased, duly endorsed for transfer, together with a completed written stockholder approval failure notice, to the Transfer Agent. The stockholder approval failure notice will state:

• the relevant stockholder approval failure repurchase date;

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• the number of shares of Preferred Stock to be repurchased;

• evidence that the shares tendered for repurchase were voted to approve the Certificate of Incorporation; and

• that the Preferred Stock is to be repurchased pursuant to the applicable provisions of the Preferred Stock.

     If the Preferred Stock is held in global form, the repurchase notice must comply with applicable DTC procedures.

     Holders of Preferred Stock may withdraw any notice of exercise of their stockholder approval failure repurchase right (in whole or in part) by a written notice of withdrawal delivered to the Company’s transfer agent prior to the close of business on the Business Day prior to the stockholder approval failure repurchase date. The notice of withdrawal must state:

• the number of withdrawn shares of Preferred Stock;

• if certificated shares of Preferred Stock have been issued, the certificate numbers of the withdrawn shares of Preferred Stock; and

• the number of shares of Preferred Stock, if any, which remain subject to the repurchase notice.

     If the Preferred Stock is held in global form, the notice of withdrawal must comply with applicable DTC procedures.

     Preferred stock as to which the stockholder approval failure repurchase right has been properly exercised and for which the repurchase notice has not been properly withdrawn will be repurchased in accordance with the stockholder approval failure repurchase right on the stockholder approval failure repurchase date. Payment of the stockholder approval failure repurchase price is conditioned upon delivery of the certificate or certificates for the Preferred Stock to be repurchased. If less than the full number of shares of Preferred Stock evidenced by the surrendered certificate or certificates is being repurchased, a new certificate or certificates, of like tenor, for the number of shares evidenced by the surrendered certificate or certificates, less the number of shares being repurchased, will be issued promptly to the holder.

     (c) The Company hereby agrees that, until the stockholders have approved the amendments to the Certificate of Incorporation described above and such amendments have become effective, it will not enter into any agreement, including agreements relating to the Company’s indebtedness or any future series of preferred stock, that would restrict or prevent the Company’s ability to pay cash upon any exercise of the stockholder approval failure repurchase right.

     10. Ranking.

     The Preferred Stock will rank, with respect to distribution rights and rights upon the Company’s liquidation, winding-up or dissolution:

(a)	junior to all of the Company’s existing and future debt obligations, including convertible or exchangeable debt securities;
(b)	senior to the Company’s Common Stock and to any other of the Company’s equity securities that by their terms rank junior to the Preferred Stock with respect to distribution rights or payments upon the Company’s liquidation, winding-up or dissolution;
(c)	on a parity with other series of the Company’s preferred stock or other equity securities that the Company may later authorize and that by their terms are on a parity with the Preferred Stock (“Parity Preferred”); and

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(d) junior to any equity securities that the Company may later authorize and that by their terms rank senior to the Preferred Stock.

     While any shares of Preferred Stock are outstanding, the Company may not authorize or issue any equity securities that rank senior to the Preferred Stock without the affirmative vote of holders representing at least a majority of the outstanding Preferred Stock. In addition, so long as 25% of the shares of Preferred Stock issued on the Issue Date are outstanding, the Company may not authorize or issue any equity securities that rank on a parity with the Preferred Stock without         .the affirmative vote of holders representing at least a majority of the outstanding Preferred Stock.

     11. Maturity. The Preferred Stock has no maturity date and the Company is not required to redeem the Preferred Stock at any time, subject to Sections 8(k) and 9(b). Accordingly, the Preferred Stock will remain outstanding indefinitely, subject to Sections 8(k) and 9(b), unless a holder of shares of the Preferred Stock decides to convert such shares or to cause the Company to repurchase such shares in connection with certain Change in Control events or the failure to obtain the stockholder approval of the amendments described in Section 9 above, or the Company decides to redeem such shares, each in accordance with the terms set forth herein.

     12. Voting Rights.

     (a) Holders of the Preferred Stock shall vote on an “as if” converted basis with holders of Common Stock as a single class on all matters subject to a vote by the holders of Common Stock, except as provided under Delaware law.

     (b) Subject to amending the Certificate of Incorporation as described in Section 9, whenever dividends on any shares of Preferred Stock shall be in arrears for six or more consecutive or non-consecutive quarters (a “Preferred Dividend Default”), the holders representing a majority of outstanding shares of Preferred Stock (voting together as a single class with all other classes or series of Parity Preferred), shall be entitled to nominate and vote for the election (“Preferred Director Voting Rights”) of a total of two additional directors of the Company (the “Preferred Directors”) until all dividends accumulated on such Preferred Stock and Parity Preferred for the past dividend periods shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment; provided that the election of any such directors will not cause the Company to violate the corporate governance requirement of the New York Stock Exchange (or any other exchange or automated quotation system on which the Company’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent directors; and provided further that the Board of Directors will, at no time, include more than two Preferred Directors. In such case, the entire Board of Directors will be increased by two directors.

     (c) The Preferred Directors will be elected by holders representing a majority of shares of Preferred Stock for a one-year term and each Preferred Director will serve until his or her successor is duly elected and qualifies or until such Preferred Director’s right to hold the office terminates, whichever occurs earlier, subject to such Preferred Director’s earlier death, disqualification or removal. The election will take place at (i) either (a) a special meeting called in accordance with Section 12(d) below if the request is received more than 75 days before the date fixed for the Company’s next annual or special meeting of stockholders or (b) the next annual or special meeting of stockholders if the request is received within 75 days of the date fixed for the Company’s next annual or special meeting of stockholders, and (ii) at each subsequent annual meeting of stockholders, or special meeting held in place thereof, until all such dividends in arrears on the Preferred Stock and each such class or series of outstanding Parity Preferred have been paid in full. A dividend in respect of Preferred Stock shall be considered timely made if made within two Business Days after the applicable Dividend Payment Date if at the time of such late payment date there shall not be any prior quarterly dividend periods in respect of which full dividends were not timely made at the applicable Dividend Payment Date.

     (d) At any time when such Preferred Director Voting Rights shall have vested, a proper officer of the Company shall call or cause to be called, upon written request of holders of record of at least 15% of the outstanding shares of Preferred Stock and Parity Preferred, a special meeting of the holders of Preferred Stock and each class or series of Parity Preferred by mailing or causing to be mailed to such holders a notice of such special meeting to be held not fewer than ten or more than 75 days after the date such notice is given. The record date for

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determining holders of the Preferred Stock and Parity Preferred entitled to notice of and to vote at such special meeting will be the close of business on the third Business Day preceding the day on which such notice is mailed. At any such annual or special meeting, all of the holders of the Preferred Stock and Parity Preferred, by majority vote, voting together as a single class without regard to class or series will be entitled to elect two directors on the basis of one vote per $100.00 of liquidation preference to which such Preferred Stock and Parity Preferred are entitled by their terms (excluding amounts in respect of accumulated and unpaid dividends) and not cumulatively. The holder or holders of one-third of the Preferred Stock and Parity Preferred voting as a single class then outstanding, present in person or by proxy, will constitute a quorum for the election of the Preferred Directors except as otherwise provided by law. Notice of all meetings at which holders of the Preferred Stock and the Parity Preferred shall be entitled to vote will be given to such holders at their addresses as they appear in the transfer records. At any such meeting or adjournment thereof in the absence of a quorum, subject to the provisions of any applicable law, a majority of the holders of the Preferred Stock and Parity Preferred voting as a single class present in person or by proxy shall have the power to adjourn the meeting for the election of the Preferred Directors, without notice other than an announcement at the meeting, until a quorum is present. If a Preferred Dividend Default shall terminate after the notice of a special meeting has been given but before such special meeting has been held, the Company shall, as soon as practicable after such termination, mail or cause to be mailed notice of such termination to holders of the Preferred Stock and the Parity Preferred that would have been entitled to vote at such special meeting.

     (e) If and when all accumulated dividends on such Preferred Stock and all classes or series of Parity Preferred for the past dividend periods shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment, the right of the holders of Preferred Stock and the Parity Preferred to elect such additional two directors shall immediately cease (subject to revesting in the event of each and every Preferred Dividend Default), and the term of office of each Preferred Director so elected shall immediately terminate and the entire Board of Directors shall be reduced accordingly. Any Preferred Director may be removed at any time with or without cause by the vote of, and shall not be removed otherwise than by the vote of, the holders of record of a majority of the outstanding Preferred Stock and the Parity Preferred entitled to vote thereon when they have the Preferred Director Voting Rights set forth in Section 12(b) (voting as a single class). So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Director may be filled by written consent of the Preferred Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Preferred Stock when they have the voting rights described above (voting as a single class with all other classes or series of Parity Preferred); provided that the filling of each vacancy will not cause the Company to violate the corporate governance requirement of the New York Stock Exchange (or any other exchange or automated quotation system on which the Company’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent directors. Each of the Preferred Directors shall be entitled to one vote on any matter.

     (f) So long as any shares of Preferred Stock remain outstanding, the affirmative vote or consent of holders representing at least a majority of the outstanding shares of Preferred Stock voting as a separate class will be required to: (i) authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of capital stock ranking senior to the Preferred Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up of the affairs of the Company or reclassify any authorized shares of capital stock of the Company into 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 (ii) amend, alter or repeal the provisions of the Certificate of Incorporation or the terms of the Preferred Stock, whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise (an “Event”), so as to materially and adversely affect any right, preference, privilege or voting power of the Preferred Stock; provided however, with respect to the occurrence of any of the Events set forth in (ii) above, so long as the Preferred Stock remains outstanding with the terms thereof materially unchanged, taking into account that, upon the occurrence of an Event, the Company may not be the surviving entity, the occurrence of such Event shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting power of Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the Events set forth in (ii) above. In addition, holders of the Preferred Stock will not have any voting rights with respect to the events described in (ii) above, if such holders receive the greater of (i) the full trading price of the Preferred Stock on the date of an Event set forth in (ii) above or (ii) 110% of the sum of the initial liquidation preference per share of the Preferred Stock plus accrued and unpaid dividends thereon pursuant to the occurrence of any of the Events set forth in (ii) above.

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So long as 25% of the shares of the Preferred Stock issued on the Issue Date remain outstanding, the Company will not, without the consent or the affirmative vote of holders representing at least a majority of the outstanding shares of Preferred Stock voting as a separate class, authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of stock ranking on a parity with such Preferred Stock with respect to payment of dividends, or the distribution of assets upon the liquidation, winding-up or dissolution of the Company’s affairs, or reclassify any of the Company’s authorized capital stock into any such shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares.

     (g) Without the consent of the holders of the Preferred Stock, so long as such action does not adversely affect the special rights, preferences, privileges and voting powers of the Preferred Stock, taken as a whole, the Company may amend, alter, supplement, or repeal any terms of the Preferred Stock for the following purposes:

• to cure any ambiguity, or to cure, correct, or supplement any provision contained in this Certificate of Designations that may be ambiguous, defective, or inconsistent, so long as such change does not adversely affect the rights of any holder of Preferred Stock, or

• to make any provision with respect to matters or questions relating to the Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations, so long as such change does not adversely affect the rights of any holder of Preferred Stock.

     (h) The foregoing voting provisions of this Section 12 shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Preferred Stock shall have been redeemed or called for redemption upon proper notice and sufficient funds, in cash, shall have been deposited in trust to effect such redemption.

     (i) In any matter in which the Preferred Stock may vote (as expressly provided herein), each share of Preferred Stock shall be entitled to one vote per $100.00 of liquidation preference. Where the holders of the Preferred Stock are entitled to vote as a class with holders of any other class or series of preferred stock having similar voting rights that are exercisable, each class or series shall have the number of votes proportionate to the aggregate liquidation preference of its outstanding shares.

     13. Record Holders. The Company and the Transfer Agent may deem and treat the record holder of any shares of Preferred Stock as the true and lawful owner thereof for all purposes and neither the Company nor the Transfer Agent shall be affected by any notice to the contrary.

     14. Notice. Except as may otherwise be provided for herein, all notices referred to herein shall be in writing, and all notices hereunder shall be deemed to have been given upon receipt, in the case of a notice of conversion given to the Company as contemplated in Section 8(c) hereof, or, in all other cases, upon the earlier of receipt of such notice or three Business Days after the mailing of such notice if sent by registered mail (unless first-class mail shall be specifically permitted for such notice under the terms of this resolution) with postage prepaid, addressed, if to the Company, to its offices at 1551 N. Tustin Avenue, Suite 300, Santa Ana, California 92705 (Attention: Corporate Secretary) or to an agent of the Company designated as permitted by this certificate, or, if to any holder of the Preferred Stock, to such holder at the address of such holder of the Preferred Stock as listed in the Company’s stock records or to such other address as the Company or holder, as the case may be, shall have designated by notice similarly given.

     15. Global Preferred Stock; Certificates. So long as the shares of Preferred Stock are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, all shares of Preferred Stock that are so eligible may be represented by a Preferred Stock certificate in global form (the “Global Certificate”) registered in the name of the Depositary or the nominee of the Depositary, except as otherwise specified below. The transfer and exchange of beneficial interests in the Global Certificate shall be effected through the Depositary in accordance with this Certificate and the procedures of the Depositary therefor.

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     The shares of Preferred Stock will initially be represented by one or more Global Certificates, except that shares of Preferred Stock that will initially be issued to certain accredited investors that are not qualified institutional buyers within the meaning of Rule 144A under the Securities Act will be issued in certificated form.

     Transfers of interests in a Global Certificate will be made in accordance with the standing instructions and procedures of the Depository and its participants. The Transfer Agent shall make appropriate endorsements to reflect increases or decreases in the Global Certificate as set forth on the face of the Global Certificate to reflect any such transfers.

     Except as otherwise provided for in this Section 15, beneficial owners of an interest in a Global Certificate shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Certificates.

     Notwithstanding any other provisions of this Certificate (other than the provisions set forth in this Section 15), a Global Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee to a successor Depositary or a nominee of such successor Depositary.

     The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Certificates. Initially, the Global Certificate shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with a custodian for Cede & Co.

     If at any time the Depositary for a Global Certificate notifies the Company that it is unwilling or unable to continue as Depositary for such Global Certificate, the Company may appoint a successor Depositary with respect to such Global Certificate. If a successor Depositary for the Preferred Stock is not appointed by the Company within 90 days after the Company receives such notice, the Company will execute, and the Transfer Agent will authenticate and deliver, Preferred Stock in certificated form, in an aggregate principal amount equal to the principal amount of the Global Certificate, in exchange for such Global Certificate.

     Preferred Stock in definitive form issued in exchange for all or a part of a Global Certificate pursuant to this Section 15 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Transfer Agent. Upon execution and authentication, the Transfer Agent shall deliver such Preferred Stock in certificated form to the Persons in whose names such Preferred Stock in definitive form are so registered.

     At such time as all interests in a Global Certificate have been redeemed, converted, exchanged, repurchased or canceled for Preferred Stock in definitive form, or transferred to a transferee who receives Preferred Stock in definitive form, such Global Certificate shall be, upon receipt thereof, canceled by the Transfer Agent in accordance with standing procedures and instructions existing between the custodian and Depositary. At any time prior to such cancellation, if any interest in a Global Certificate is exchanged for Preferred Stock in certificated form, redeemed, converted, exchanged, repurchased by the Company or canceled, or transferred for part of a Global Certificate, the principal amount of such Global Certificate shall, in accordance with the standing procedures and instructions existing between the custodian and the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Certificate, by the Transfer Agent or the custodian, at the direction of the Transfer Agent, to reflect such reduction or increase.

     16. Legends.

     (a) Except as otherwise permitted by this Section 16, (i) each Preferred Stock certificate (including each Preferred Stock certificate issued upon the transfer of any shares of Preferred Stock) and (ii) each Common Stock certificate issued upon the conversion of any Preferred Stock shall be stamped or otherwise imprinted with a legend in substantially the following form:

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NEITHER THIS SECURITY NOR THE COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR THE COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF (A) THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), OR (C) IT IS AN INDIVIDUAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a) (4), (5) OR (6) UNDER THE SECURITIES ACT; (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY OR ANY COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, BEFORE THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), ONLY (A) TO GRUBB & ELLIS COMPANY (THE “ISSUER”), (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) UNDER THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRANSFER AGENT’S RIGHT BEFORE ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED ON THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(B) ABOVE OR ON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).

     (b) The restrictions imposed on the transferability of restricted Preferred Stock set forth in the legend in Section 16(a) shall cease and terminate as to any particular shares of Preferred Stock (i) when a registration statement with respect to the sale of such securities shall have been declared effective under the Securities Act, (ii) when such securities are sold pursuant to Rule 144 or Rule 144A (or any similar provision then in force) under the Securities Act, or (iii) when such restrictions are no longer required or necessary in order to protect the Company against a violation of the Securities Act upon any sale or other disposition of such securities without registration thereunder, including, without limitation, when such securities are eligible for resale under Rule 144 without volume or manner of sale requirements and without current public information requirements. Whenever such restrictions shall cease and terminate as to any shares of Preferred Stock, the holder shall be entitled to receive from the Company, without expense, new securities of like tenor not bearing the legend set forth in this Section 16.

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     17. Form of Notice of Conversion; Form of Assignment.

     (a) The following is the form of Conversion Notice to be set forth on the reverse of the Preferred Stock certificate:

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[FORM OF CONVERSION NOTICE]

CONVERSION NOTICE

To:

The undersigned registered owner of the Preferred Stock hereby irrevocably exercises the option to convert the Preferred Stock, or the portion hereof below designated, into shares of Common Stock in accordance with the terms of the Certificate of Designations, and directs that the shares issuable and deliverable upon such conversion, together with any check in payment for fractional shares and any Preferred Stock representing any unconverted amount of shares hereof, as well as any cash or shares of Common Stock representing accrued and unpaid dividends on the shares of Preferred Stock being converted, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of the Preferred Stock not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto.

Date:
	Signature(s)
Signature Guarantee	Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

Fill in for registration of shares if to be issued, and Preferred Stock if to be delivered, other than to and in the name of the registered holder:

	Number of Shares to be
	converted (if less than all):
Name
Street Address	Social Security or other
	Taxpayer Identification Number
City, State and Zip Code

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     (b) The following is the form of Assignment to be set forth on the reverse of the Preferred Stock certificate:

[FORM OF ASSIGNMENT]

ASSIGNMENT

     For value received,                                          hereby sell(s), assign(s) and transfer(s) unto                                         

PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE

the Preferred Stock, and hereby irrevocably constitutes and appoints                                          attorney to transfer the said Preferred Stock on the books of the Company with full power of substitution in the premises.

Unless the appropriate box below is checked, the undersigned confirms that such Preferred Stock is not being transferred to the Company or an “affiliate” of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an “Affiliate”).

o The transferee is an Affiliate of the Company

o The transferee is the Company

Date:
	Signature(s)
Signature Guarantee	Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

NOTICE: The signature on the conversion notice, or the assignment must correspond with the name as written upon the face of the Preferred Stock in every particular without alteration or enlargement or any change whatever.

SECOND: This Certificate of Designations does not provide for an exchange, reclassification or cancellation of issued shares.

THIRD: The date of adoption of this Certificate of Designations was [                ], 2009.

FOURTH: This Certificate of Designations was duly adopted by the Board of Directors of the Company.

FIFTH: No stockholder action was required.

[Remainder of Page Intentionally Left Blank]

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     IN WITNESS WHEREOF, the Company has caused this certificate to be signed and attested this [                    ] day of [                                        ], 2009.

GRUBB & ELLIS COMPANY
By:
	Name: Richard W. Pehlke
	Title: Chief Financial Officer

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EX-99.1

Exhibit 99.1

FORM OF
REGISTRATION RIGHTS AGREEMENT

     THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of October [___], 2009, by and among Grubb & Ellis Company, a Delaware corporation (the “Company”), and the persons listed on the Schedule of Initial Holders attached hereto as Schedule A (each, an “Initial Holder” and, collectively, the “Initial Holders”).

     THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis of the following facts, intentions, and understandings:

     A. The Company and JMP Securities LLC, a Delaware limited liability company (“JMP”), have entered into that certain Purchase Agreement, dated as of October [___], 2009 (the “Rule 144A Purchase Agreement”), and, upon the terms and subject to the conditions of the Rule 144A Purchase Agreement, the Company has agreed to issue and sell, and JMP has agreed to purchase, [                    ] shares of the [___]% cumulative participating perpetual convertible preferred stock, par value $0.01 per share, of the Company (the “Preferred Stock”).

     B. JMP and the Initial Holders identified as “qualified institutional buyers” on Schedule A attached hereto have entered into arrangements pursuant to which JMP has agreed to resell, and such Initial Holders have agreed to purchase, such numbers of shares of the Preferred Stock as set forth opposite such Initial Holders’ respective names on Schedule A attached hereto.

     C. The Company, the Initial Holders identified as “accredited investors” on Schedule A attached hereto, and certain other purchasers have entered into that certain Purchase Agreement, dated as of October [___], 2009 (the “Accredited Investor Purchase Agreement”), and, upon the terms and subject to the conditions of the Accredited Investor Purchase Agreement, the Company has agreed to issue and sell, and such Initial Holders have agreed to purchase, such numbers of shares of the Preferred Stock as set forth opposite such Initial Holders’ respective names on Schedule A attached hereto.

     D. To induce the Initial Holders to purchase the Securities (as defined below), whether from JMP or directly from the Company pursuant to the Accredited Investor Purchase Agreement, the Company has agreed to provide the Initial Holders and their Permitted Assigns (as defined below) with the benefit of (i) certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), on the terms and subject to the conditions set forth herein, and (ii) certain preemptive rights to purchase additional Common Equity (as defined below), on the terms and subject to the conditions set forth herein.

     NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Initial Holders hereby agree, for the benefit of (i) the Initial Holders and (ii) any Permitted Assigns of the Initial Holders to whom the Initial Holders may transfer the Securities or the Underlying Common Stock (as defined below) from time to time (each of such Initial Holders and their Permitted Assigns, a “Holder” and together the “Holders”), as follows:

     SECTION 1. Definitions. As used in this Agreement, the following terms shall have the following meanings:

     “Accredited Investor Purchase Agreement” has the meaning set forth in the preamble of this Agreement.

     “Affiliate” means with respect to any specified person, an “affiliate,” as defined in Rule 144, of such person.

     “Amendment Effectiveness Deadline” has the meaning set forth in Section 2(d) hereof.

     “Board of Directors” means either the board of directors of the Company or any committee of the Board of Directors authorized to act for it with respect to this Agreement.

     “Business Day” means any day, except a Saturday, Sunday or legal holiday on which banking institutions in The City of New York are authorized or obligated by law or executive order to close.

     “Certificate of Designations” means the Certificate of the Powers, Designations, Preferences and Rights of the Preferred Stock.

     “Common Equity” has the meaning set forth in Section 8.

     “Common Equity Sale” has the meaning set forth in Section 8.

     “Common Stock” means the common stock of the Company, $0.01 par value per share, as it exists on the date of this Agreement and any shares of any class or classes of capital stock resulting from any reclassification or reclassifications thereof.

     “Convertible Securities” has the meaning set forth in Section 8.

     “Deferral Notice” has the meaning set forth in Section 3(h) hereof.

     “Deferral Period” has the meaning set forth in Section 3(h) hereof.

     “Effectiveness Deadline” means the earlier of (i) the 90^th calendar day following the Issue Date (or the 135^th calendar day following the Issue Date in the event that the Shelf Registration Statement is subject to review by the SEC) and (ii) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Shelf Registration Statement will not be “reviewed” or will not be subject to further review; provided that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business.

     “Effectiveness Period” means the period commencing on the first date that a Shelf Registration Statement is declared effective under the Securities Act and ending on the date that all Securities and Underlying Common Stock have ceased to be Registrable Securities.

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     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

     “Filing Deadline” has the meaning set forth in Section 2(a) hereof.

     “FINRA” means the Financial Industry Regulatory Authority, Inc.

     “Holder” has the meaning set forth in the preamble of this Agreement.

     “indemnified party” has the meaning set forth in Section 6(c).

     “indemnifying party” has the meaning set forth in Section 6(c).

     “Issue Date” means the first date of original issuance of the Securities.

     “Material Event” has the meaning set forth in Section 3(h) hereof.

     “Notice and Questionnaire” means a written notice delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire attached as Exhibit A hereto.

     “Notice Holder” means, on any date, any Holder that has delivered a Notice and Questionnaire to the Company on or prior to such date.

     “Permitted Assigns” means (i) Affiliates of the Initial Holders and (ii) entities that share a common discretionary investment advisor with the Initial Holders.

     “Preferred Stock” has the meaning set forth in the preamble of this Agreement

     “Prospectus” means a prospectus included in a Shelf Registration Statement (including, without limitation, an “issuer free writing prospectus,” as such term is defined in Rule 433 under the Securities Act and a prospectus that discloses information previously omitted pursuant to Rule 430A under the Securities Act), as amended or supplemented, and all materials incorporated by reference in such prospectus or free writing prospectus.

     “Registrable Securities” means the Securities and the Underlying Common Stock, and any security issued with respect thereto upon any share dividend, split or similar event until, in the case of any such security, the earliest of (i) one year from the latest date of original issuance of the Securities, (ii) its effective registration under the Securities Act and resale in accordance with a Shelf Registration Statement, (iii) the date on which all such securities (including, without limitation, the Securities, the Underlying Common Stock, and any security issued with respect thereto upon any share dividend, split or similar event) have been transferred in accordance with Rule 144; provided that as a result of the event or circumstance described in any of the foregoing clauses (i) through (iii), the legend with respect to transfer restrictions required under the Certificate of Designations is removed or removable in accordance with the terms of the Certificate of Designations or such legend, as the case may be, (iv) its cessation of being outstanding, or (v) the date on which neither the Initial Holders nor their Permitted Assigns hold

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any such securities (including, without limitation, the Securities, the Underlying Common Stock, and any security issued with respect thereto upon any share dividend, split or similar event).

     “Registration Default” has the meaning set forth in Section 2(e) hereof.

     “Registration Default Period” has the meaning set forth in Section 2(e) hereof.

     “Registration Delay Payment” has the meaning set forth in Section 2(e) hereof.

     “Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

     “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

     “Rule 144A Purchase Agreement” has the meaning set forth in the preamble of this Agreement.

     “SEC” means the U.S. Securities and Exchange Commission.

     “SEC Guidance” means (i) any publicly-available written or oral guidance, comments, requirements or requests of the SEC staff and (ii) the Securities Act.

     “Securities Act” has the meaning set forth in the preamble of this Agreement.

     “Securities” means the aggregate [ ] shares of Preferred Stock purchased by the Initial Holders on the date hereof, whether from JMP or directly from the Company pursuant to the Accredited Investor Purchase Agreement, as set forth opposite the Initial Holders’ respective names on Schedule A attached hereto; provided that, for purposes of this definition, any such Preferred Stock that is transferred to any person other than an Initial Holder or a Permitted Assign of an Initial Holder shall immediately and forever cease to be a “Security” upon the consummation of such transfer.

     “Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof, including amendments to such registration statement, all exhibits and all materials incorporated by reference in such registration statement.

     “Special Counsel” means Greenberg Traurig LLP or one such other successor counsel as shall be specified by the Holders of a majority of the Registrable Securities. For purposes of determining Holders of a majority of the Registrable Securities in this definition, Holders of Securities shall be deemed to be the Holders of the number of shares of Underlying Common Stock into which such Securities are or would be convertible as of the date the consent is requested.

     “Underlying Common Stock” means the Common Stock into which the Securities are convertible or issued upon any such conversion, including, without limitation, any shares of Common Stock issued upon conversion of accrued and unpaid dividends in connection with the conversion of the Securities.

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     SECTION 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared and filed with the SEC, as soon as practicable but in any event by the date 30 days after the Issue Date (the “Filing Deadline”), a registration statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by Holders thereof of all of the Registrable Securities (a “Shelf Registration Statement”); provided that in the event that the SEC notifies the Company that, as a result of the application of Rule 415 not all of the Registrable Securities may be registered for resale as a secondary offering pursuant to a single Shelf Registration Statement on the form used by the Company, the Company shall promptly inform each of the Holders and promptly use its commercially reasonable best efforts to register, and have declared effective, the maximum percentage of Registrable Securities permitted to be included on such Shelf Registration Statement (distributed pro rata among the Holders of Registrable Securities on the basis of the number of Registrable Securities owned by such Holders), and as soon as allowed by the SEC or SEC Guidance provided to the Company or to registrants of securities in general, to register the additional Registrable Securities on such additional Shelf Registration Statements as may be required to register the resale of all of the Registrable Securities; provided, however, that prior to reducing the number of shares of Registrable Securities included in the initial Shelf Registration Statement, the Company shall be obligated to use its commercially reasonable best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09. The Shelf Registration Statement shall, subject to Section 2(f), be on Form S-1 or another appropriate form permitting registration of the Registrable Securities for resale by the Holders in accordance with the methods of distribution elected by the Holders and set forth in the Shelf Registration Statement; provided, however, that in no event shall such method of distribution take the form of an underwritten offering of the Registrable Securities without the prior written consent of the Company. The Company shall use its commercially reasonable efforts to cause a Shelf Registration Statement to be declared effective under the Securities Act as promptly as is practicable but in any event by the Effectiveness Deadline, and to keep a Shelf Registration Statement continuously effective under the Securities Act until the expiration of the Effectiveness Period. Each Holder that became a Notice Holder on or prior to the date five Business Days prior to the date the initial Shelf Registration Statement is declared effective shall be named as a selling securityholder in the initial Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver or make available the Prospectus to purchasers of Registrable Securities in accordance with applicable law. Only Registrable Securities shall be included in a Shelf Registration Statement. The Company shall, by 9:30 a.m. Eastern time on the first Business Day after the effective date of a Shelf Registration Statement, file a final Prospectus with the SEC, as required by Rule 424(b).

     (b) If a Shelf Registration Statement covering resales of the Registrable Securities ceases to be effective for any reason at any time during the Effectiveness Period (other than because all securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within 30 days of such cessation of effectiveness amend the Shelf Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement so that all Registrable Securities outstanding as of the date of such filing, or such lesser number of Registrable

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Securities in the event that the number of Securities to be registered are reduced in accordance with Section 2(a) hereof, are covered by a Shelf Registration Statement. If a new Shelf Registration Statement is filed pursuant to this Section 2(b), the Company shall use its commercially reasonable efforts to cause the new Shelf Registration Statement to become effective as promptly as is practicable after such filing and to keep the new Shelf Registration Statement continuously effective until the end of the Effectiveness Period.

     (c) The Company shall amend and supplement the Prospectus and/or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or file a new Shelf Registration Statement, if required by the Securities Act or as necessary and reasonably requested by any Holder of the Registrable Securities covered by such Shelf Registration Statement to correct any material misstatements or omissions with respect to any Holder or as necessary to name a Notice Holder as a selling securityholder pursuant to Section 2(d) below.

     (d) Each Holder may sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus only in accordance with this Section 2(d) and Section 3(h) hereof. From and after the date the initial Shelf Registration Statement is declared effective, each Holder wishing to sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus shall, if not already a selling securityholder in such Shelf Registration Statement, deliver a Notice and Questionnaire to the Company at least 10 Business Days prior to such Holder’s intended distribution of Registrable Securities under the Shelf Registration Statement. The Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered hereunder, and in any event on or before the later of (x) five Business Days after such delivery date or (y) five Business Days after the expiration of any Deferral Period in effect when the Notice and Questionnaire is delivered or put into effect within five Business Days of such delivery date:

          (i) if required by applicable law, file with the SEC a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or an amendment to any document incorporated therein by reference or file a new Shelf Registration Statement or any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in a Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver or make available such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to a Shelf Registration Statement or shall file a new Shelf Registration Statement, the Company shall use its commercially reasonable efforts to cause such post-effective amendment or new Shelf Registration Statement to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date that is 45 days after the date such post-effective amendment or new Shelf Registration Statement is required by this Section 2(d) to be filed (the “Amendment Effectiveness Deadline”); provided, however, that the Shelf Registration Statement shall include the disclosure required by Rule 430B under the Securities Act in order to enable the Company to add selling securityholders on to the Shelf Registration Statement pursuant to the filing of prospectus supplements; and provided, further, if the Company is then able to name a selling securityholder to the Shelf Registration Statement by means of either a supplement to the

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related prospectus or a post-effective amendment, the Company shall file a prospectus supplement to name the Holder as a selling securityholder in the Shelf Registration Statement;

          (ii) provide such Holder copies of any documents filed pursuant to Section 2(d)(i); and

          (iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any new Shelf Registration Statement or post-effective amendment filed pursuant to Section 2(d)(i);

provided that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(h); and provided, further, that in no event will the Company be required to file more than one such amendment to the Shelf Registration Statement or new Shelf Registration Statement in any calendar quarter for all such Holders. Notwithstanding anything contained herein to the contrary, (i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling securityholder in any Shelf Registration Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline shall be extended by ten Business Days from the expiration of a Deferral Period.

     (e) The parties hereto agree that the Holders of Registrable Securities will suffer damages, and that it would not be feasible to ascertain the extent of such damages with precision, if:

          (i) the initial Shelf Registration Statement has not been filed on or prior to the Filing Deadline,

          (ii) a Shelf Registration Statement covering all of the Registrable Securities has not been declared effective under the Securities Act on or prior to the Effectiveness Deadline,

          (iii) the Company has failed to perform its obligations set forth in Section 2(d)(i) within the time period required therein,

          (iv) a post-effective amendment to a Shelf Registration Statement filed pursuant to Section 2(d)(i) has not become effective under the Securities Act on or prior to the Amendment Effectiveness Deadline, or

          (v) the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period pursuant to Section 3(h) hereof.

Each event described in any of the foregoing clauses (i) through (v) is individually referred to herein as a “Registration Default.” For purposes of this Agreement, each Registration Default set forth above shall begin and end on the dates set forth in the table set forth below:

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Type of Registration
Default by Clause	Beginning Date	Ending Date
(i)	Filing Deadline	the date the initial Shelf Registration Statement is filed
(ii)	Effectiveness Deadline	the date a Shelf Registration Statement covering all of the Registrable Securities becomes effective under the Securities Act
(iii)	the date by which the Company is required to perform its obligations under Section 2(d)(i)	the date the Company performs its obligations set forth in Section 2(d)(i)
(iv)	the Amendment Effectiveness Deadline	the date the applicable post-effective amendment to a Shelf Registration Statement becomes effective under the Securities Act
(v)	the date on which the aggregate duration of Deferral Periods in any period exceeds the number of days permitted by Section 3(h)	termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods to be exceeded

For purposes of this Agreement, Registration Defaults shall begin on the dates set forth in the table above and shall continue until the ending dates set forth in the table above.

     Commencing on (and including) any date that a Registration Default has begun and ending on (but excluding) the next date on which there are no Registration Defaults that have occurred and are continuing (a “Registration Default Period”), the Company shall pay, as liquidated damages and not as a penalty, to Holders of Registrable Securities in respect of each day in the Registration Default Period, cash in an amount that shall accrue at a rate of 0.50% of the initial liquidation preference of the Securities per month (the “Registration Delay Payment”) with respect to any Registrable Security, from and including the date that a Registration Default begins to but excluding the date on which all such resale Registration Defaults have been cured; provided that in the case of a Registration Default Period that is in effect solely as a result of a Registration Default of the type described in clause (iii) or (iv) of the preceding paragraph, such Registration Delay Payment shall be paid only to the Holders (as set forth in the succeeding paragraph) that have delivered Notices and Questionnaires that caused the Company to incur the obligations set forth in Section 2(d), the non-performance of which is the basis of such Registration Default. Notwithstanding the foregoing, no Registration Delay Payment shall accrue as to any Registrable Security from and after the earlier of (x) the date such security is no

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longer a Registrable Security and (y) expiration of the Effectiveness Period. The rates of accrual of the Registration Delay Payment with respect to any period shall not exceed the rates provided for in this paragraph notwithstanding the occurrence of multiple concurrent Registration Defaults.

     If a Holder has converted some or all of its Securities into Common Stock, the Holder will not be entitled to receive any Registration Delay Payment with respect to such converted Securities, but shall be entitled to any Registration Delay Payments with respect to the shares of Underlying Common Stock for so long as such shares are Registrable Securities.

     The Registration Delay Payment shall be payable on each monthly anniversary of the date that the applicable Registration Default began (each, a “Monthly Anniversary Date”) during the Registration Default Period (and on the Monthly Anniversary Date next succeeding the end of the Registration Default Period if the Registration Default Period does not end on a Monthly Anniversary Date) to the Holders of the Registrable Securities entitled thereto pursuant to this Agreement; provided that any Registration Delay Payment with respect to any Security or portion thereof redeemed by the Company on a redemption date or purchased by the Company on a repurchase date prior to the Monthly Anniversary Date, shall, in any such event, be paid instead to the Holder who submitted such Security or portion thereof for redemption or purchase on the applicable redemption date or repurchase date, as the case may be, on such date; and provided, further, that, in the case of a Registration Default of the type described in clause (iii) or (iv) of the first paragraph of this Section 2(e), such Registration Delay Payment shall be paid only to the Holders entitled thereto by check mailed to the address set forth in the Notice and Questionnaire delivered by such Holder. The Registration Delay Payments pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of a Registration Default. Notwithstanding the foregoing, the parties agree that the sole damages payable for a violation of the terms of this Agreement with respect to which additional payments or liquidated damages are expressly provided shall be such Registration Delay Payment. Nothing shall preclude any Holder from pursuing or obtaining specific performance or other equitable relief with respect to this Agreement.

     All of the Company’s payment obligations set forth in this Section 2(e) that have accrued with respect to any Registrable Security at the time such security ceases to be a Registrable Security shall survive until such time as all such payment obligations with respect to such security have been satisfied in full (notwithstanding termination of this Agreement pursuant to Section 8(l)).

     The parties hereto agree that the additional payments provided for in this Section 2(e) constitute a reasonable estimate of the damages that may be incurred by Holders of Registrable Securities by reason of the failure of a Shelf Registration Statement to be filed or declared effective or available for effecting resales of Registrable Securities in accordance with the provisions hereof.

     (f) In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 promptly after such form is available, provided that the Company shall maintain the

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effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC.

     SECTION 3. Registration Procedures. In connection with the registration obligations of the Company under Section 2 hereof, the Company shall:

     (a) Before filing any Shelf Registration Statement or Prospectus or any amendments or supplements thereto with the SEC, furnish to the Initial Holders and the Special Counsel of such offering, if any, copies of all such documents proposed to be filed at least three Business Days prior to the filing of such Shelf Registration Statement or amendment thereto or Prospectus or supplement thereto (other than supplements or amendments that do nothing more than name Notice Holders and provide information with respect thereto).

     (b) Subject to Section 3(h) hereof, prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective during the Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and use its commercially reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the Holders thereof set forth in such Shelf Registration Statement as so amended or such Prospectus as so supplemented.

     (c) As promptly as practicable give notice to the Notice Holders, the Initial Holders and the Special Counsel, (i) when any Prospectus, prospectus supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed with the SEC and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has been declared effective (other than supplements or amendments that do nothing more than name Notice Holders and provide information with respect thereto), (ii) of any request, following the effectiveness of the initial Shelf Registration Statement under the Securities Act, by the SEC or any other federal or state governmental authority for amendments or supplements to any Shelf Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of any Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (v) of the occurrence of, but not the nature of or details concerning, a Material Event, which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)) state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply; provided, however, in no event shall any such notice contain any information which would constitute material, non-public information regarding the Company.

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     (d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Shelf Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case as promptly as practicable, and provide prompt notice to each Notice Holder and the Initial Holders of the withdrawal of any such order.

     (e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Holders, upon request and without charge, at least one conformed copy of each Shelf Registration Statement and any amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference.

     (f) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if any, and the Initial Holders, in connection with any sale of Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as any such person may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each such person in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein on the terms set forth herein.

     (g) Prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate with the Notice Holders and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing; prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the Shelf Registration Statement and the related Prospectus; provided that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.

     (h) Upon (A) the necessity to amend the Shelf Registration Statement or any Prospectus to comply with the Securities Act, the Exchange Act or the respective rules and regulations promulgated by the SEC thereunder or the issuance by the SEC of a stop order suspending the effectiveness of a Shelf Registration Statement or the initiation of proceedings with respect to a Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which a Shelf

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Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development with respect to the Company or a public filing with the SEC that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of a Shelf Registration Statement and the related Prospectus:

     (i) in the case of clause (B) above, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, use its commercially reasonable efforts to cause it to be declared effective as promptly as is practicable, and

     (ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability of a Shelf Registration Statement is suspended (a “Deferral Notice”); provided, however, in no event shall any such notice contain any information which would constitute material, non-public information regarding the Company.

     The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay additional amounts pursuant to Section 2(e), so long as the aggregate duration of any periods during which the availability of the Shelf Registration Statement and any Prospectus is suspended (each, a “Deferral Period”) does not exceed 60 days in the aggregate in any consecutive 12-month period. The Company shall promptly notify the Holders when the use of the Prospectus may be resumed.

     (i) If reasonably requested in writing in connection with a disposition of Registrable Securities pursuant to a Shelf Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any broker-dealers, attorneys and accountants retained by such Notice Holders, and

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any attorneys or other agents retained by a broker-dealer engaged by such Notice Holders, all relevant financial and other records, all relevant corporate documents and other relevant information as may be reasonably requested by such representative for the Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided that such persons shall first agree in writing with the Company that any non-public information shall be used solely for the purposes of satisfying “due diligence” obligations under the Securities Act and exercising rights under this Agreement and shall be kept confidential for a period of five years by such persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person or (iii) such information becomes available to any such person from a source other than the Company and such source is not bound by a confidentiality agreement; provided, further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the Special Counsel; and provided, further, that the Company shall not be required to provide commercially sensitive materials to direct competitors of the Company. Any person legally compelled to disclose any such confidential information made available for inspection shall provide the Company with prompt prior written notice of such requirement so that the Company may seek a protective order, confidentiality treatment or other appropriate remedy.

     (j) If requested by any Notice Holder, (i) incorporate as soon as practicable in the Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information regarding such Holder as required by the rules and regulations of the SEC as such Holder may reasonably request to be included therein (unless the Company reasonably objects to such inclusion and, in the opinion of counsel to the Company, such information is not required to be so incorporated) and (ii) make all required filings of such supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such filing.

     (k) Comply with all applicable rules and regulations of the SEC and make generally available to its securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Shelf Registration Statement, which statements shall be made available no later than 45 days after the end of the 12-month period or 90 days if the 12-month period coincides with the fiscal year of the Company.

     (l) As applicable, cooperate with each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Shelf Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be registered in such names as such Notice Holder may request in writing.

     (m) In connection with underwritten offerings pursuant to a Shelf Registration Statement, use commercially reasonable efforts to obtain opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the

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Holders and Special Counsel) addressed to each Notice Holder, covering the matters customarily covered in opinions requested in underwritten offerings and obtain “cold comfort” letters from the independent registered public accounting firm of the Company (and, if necessary, any other registered public accounting firm of any subsidiary of the Company, or of any person or business acquired by the Company for which financial statements and financial data are or are required to be included or incorporated by reference in the Shelf Registration Statement or the related Prospectus or in the documents incorporated or deemed to be incorporated therein) addressed to the Company and each Notice Holder, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings.

     (n) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration Statement not later than the effective date of such Shelf Registration Statement and provide the transfer agent for the Securities and the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.

     (o) Cooperate and assist in any filings required to be made with FINRA.

     (p) Cause the Underlying Common Stock covered by the Shelf Registration Statement to be listed or quoted, as the case may be, on each securities exchange or automated quotation system on which the Common Stock is then listed or quoted.

     SECTION 4. Holder’s Obligations. (a) Each Holder agrees, by acquisition of the Registrable Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required hereunder (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request. Any sale of any Registrable Securities by any Holder shall constitute a representation and warranty by such Holder that the information relating to such Holder and its plan of distribution is as set forth in the Prospectus made available or delivered by such Holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to or provided by such Holder or its plan of distribution necessary to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading. Each Holder further agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement without delivering, or, if permitted by applicable securities law, making available, to the purchaser thereof a Prospectus in accordance with the requirements of applicable securities laws. Each Holder further agrees that such Holder will not make any offer relating to the Registrable Securities pursuant to the Shelf Registration Statement that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute

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a “free writing prospectus” (as defined in Rule 405 under the Securities Act), unless it has obtained the prior written consent of the Company.

     (b) Upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to any Shelf Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 3(h)(i), or until it is advised in writing by the Company that the Prospectus may be used.

     SECTION 5. Registration Expenses. The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any Shelf Registration Statement is declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with FINRA and the SEC and (y) of compliance with federal and state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of the Special Counsel in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as Notice Holders of a majority of the Registrable Securities being sold pursuant to a Shelf Registration Statement may designate), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company), (iii) all reasonable expenses of any persons in preparing or assisting in preparing, word processing, printing and distributing any Shelf Registration Statement, any Prospectus, any amendments or supplements thereto, and any securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) the fees and disbursements of counsel to the Company in connection with any Shelf Registration Statement, (v) fees and disbursements of the registrar and transfer agent for the Securities and Common Stock, (vi) Securities Act liability insurance obtained by the Company in its sole discretion, (vii) the reasonable fees and disbursements of one Special Counsel (other than fees and expenses in connection with any underwritten offerings), and (ix) the fees and disbursements of the independent registered public accounting firm of the Company and of any other Person or business whose financial statements are included or incorporated or deemed to be incorporated by reference in a Shelf Registration Statement, including the expenses of any “cold comfort” or similar letters required by or incident to such performance and compliance. In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing by the Company of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company. Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay any broker’s commission, agency fee or underwriter’s discount or commission in connection with the sale of its Registrable Securities under a Shelf Registration Statement.

     SECTION 6. Indemnification and Contribution.

     (a) The Company agrees to indemnify and hold harmless each Notice Holder, each person, if any, who controls any Notice Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Holder within the

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meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such Holder in connection with defending or investigating any such action or claim), as incurred, caused by or that are based upon or arise out of any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or any amendment thereof, or any Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, except to the extent such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based solely upon information relating to any Holder furnished to the Company in writing by or on behalf of such Holder expressly for use therein; provided that the foregoing indemnity shall not inure to the benefit of any Holder (or to the benefit of any person controlling such Holder) from whom the person asserting such losses, claims, damages or liabilities purchased the Registrable Securities, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Holder to such person, if required by law so to have been delivered at or prior to the written confirmation of the sale of the Registrable Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the Company under this Agreement.

     (b) Each Holder agrees severally and not jointly to indemnify and hold harmless the Company and the Company’s directors and officers who sign any Shelf Registration Statement and each person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) or any other Holder, to the same extent as the foregoing indemnity from the Company to such Holder, but only (i) to the extent such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based solely upon information relating to such Holder furnished to the Company in writing by or on behalf of such Holder expressly for use in such Shelf Registration Statement or Prospectus or amendment or supplement thereto or (ii) to the extent that a Holder either fails to send or deliver a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto), but only if (A) the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities and (B) such failure is not the result of noncompliance by the Company under this Agreement. In no event shall the liability of any Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.

     (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such

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counsel related to such proceeding; provided that the failure of any indemnified party to give such notice shall not relieve the indemnifying party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the indemnifying party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such indemnified party in any such proceeding or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Securities deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Securities are or would be convertible as of the date on which such designation is made) of the Registrable Securities covered by the Shelf Registration Statement held by Holders that are indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

     (d) To the extent that the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by any Holder shall be deemed to be equal to the value of receiving registration rights under this Agreement for the Registrable Securities. The relative fault of the Holders on the one hand and the Company on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material

17

fact relates to information supplied by the Holders or by the Company, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to this Section 6(d) are several in proportion to the respective number of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint.

     The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding this Section 6(d), no indemnifying party that is a selling Holder shall be required to contribute any amount in excess of the amount by which the net proceeds by such Holder from the sale of the Registrable Securities giving rise to the indemnification obligation exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

     (e) The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity, hereunder, under the Rule 144A Purchase Agreement, the Accredited Investor Purchase Agreement, or otherwise.

     (f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder, any person controlling any Holder or any affiliate of any Holder or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) the sale of any Registrable Securities by any Holder.

     SECTION 7. Information Requirements. The Company covenants that, if at any time before the end of the Effectiveness Period, the Company is not subject to Section 13 or 15(d) under the Exchange Act, it will make available to any Holder in connection with any sale thereof and any prospective purchaser of Registrable Securities, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any Holder and it will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemption provided by Rule 144A. Upon the request of any Holder, the Company shall deliver to such Holder a written statement as to whether it has complied with such filing requirements, unless such a statement has been included in the Company’s most recent report filed pursuant to Section 13 or 15(d) under the Exchange Act.

     SECTION 8. Preemptive Rights. For six (6) months following the date of this Agreement, if the Company issues for cash consideration any Common Stock or any securities

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convertible into or exchangeable for, directly or indirectly, our Common Stock (“Convertible Securities” and together with the Common Stock, the “Common Equity”) or any rights, warrants or options to purchase any Common Equity (the issuance of any such Common Equity during such six (6) month period, the “Common Equity Sale”), then the Holder shall also have the right, subsequent to the consummation of the Common Equity Sale, to purchase up to an amount of Common Equity, on the identical terms and conditions as the Common Equity was issued in the Common Equity Sale, so as to maintain such Holder’s “as converted” pro rata ownership based solely upon ownership of the Company’s equity represented by such Holder’s Registrable Securities prior to the Common Equity Sale. Notwithstanding anything to the contrary set forth above, such purchase rights shall not apply to any (i) Common Equity (other than for cash) in connection with a strategic merger, alliance, joint venture, acquisition, consolidation, licensing or partnering agreement; (ii) any Common Equity issued in connection with any credit facility obtained by the Company; or (iii) Common Equity issued pursuant to an employment agreement or arrangement or an equity compensation plan approved by the Company’s board of directors. Upon the consummation of the Common Equity Sale giving rise to this right, the Company shall promptly give the Holder written notice of the consummation of such Common Equity Sale describing the Common Equity, the price and the terms and conditions upon which the Company issued the same and the Company’s calculation of the amount of Common Equity that the Company believes such Holder has the right to purchase.

     SECTION 9. Miscellaneous.

     (a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor shall it, on or after the date of this Agreement, enter into, any agreement with respect to its securities that conflicts with the rights granted to the Holders in this Agreement. In addition, the Company shall not grant to the holders of the Company’s securities (other than the Holders in such capacity) the right to include any of its securities (other than the Registrable Securities) in the Shelf Registration Statement provided for under this Agreement. The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with the rights granted to the holders of the Company’s securities under any other agreements unless such rights have been waived.

     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of a majority of the then outstanding Underlying Common Stock constituting Registrable Securities (with Holders of Securities deemed to be the Holders, for purposes of this Section 9(b), of the number of outstanding shares of Underlying Common Stock into which such Securities are or would be convertible as of the date on which such consent is requested). Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose securities are being sold pursuant to a Shelf Registration Statement and that does not directly or indirectly affect the rights of other Holders may be given by Holders of at least a majority of the Registrable Securities being sold by such Holders pursuant to such Shelf Registration Statement; provided that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. Each Holder of Registrable Securities outstanding at the time of any such

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amendment, modification, supplement, waiver or consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or consent effected pursuant to this Section 9(b) whether or not any notice, writing or marking indicating such amendment, modification, supplement, waiver or consent appears on the Registrable Securities or is delivered to such Holder.

     (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, by facsimile, by courier or by first class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one Business Day after being deposited with such courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by first class mail, to the parties as follows:

          (i) if to a Holder, at the most current address or facsimile number given by such Holder to the Company in a Notice and Questionnaire or any amendment thereto;

          (ii) if to the Company, to:

Grubb & Ellis Company
39400 Woodward Avenue
Suite 250
Bloomfield Hills, Michigan 48304
Attention: Chairman of the Board
Facsimile No.: (248) 644-7620

with a copy to:

Zukerman Gore Brandeis & Crossman, LLP
875 Third Avenue
New York, New York 10022
Attention: Cliff Brandeis, Esq.
                  Joseph E. Maloney, Esq.
Facsimile No.: (212) 223-6433

          (iii) if to the Initial Holders, to:

Wellington Management Company, LLP
75 State Street
Boston, Massachusetts 02109
Attention: Steve Hoffman, Esq.
Facsimile No.: (617) 204-7429

with a copy to:

Greenberg Traurig, LLP
One International Place
Boston, Massachusetts 02110
Attention: Bradley Jacobson, Esq.

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Facsimile No.: (617) 279-8402

or to such other address as such person may have furnished to the other persons identified in this Section 9(c) in writing in accordance herewith.

     (d) Approval of Holders. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other than the Initial Holders or subsequent Holders if such subsequent Holders are deemed to be such affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

     (e) Successors and Assigns. Any Permitted Assign of the Initial Holders to whom any Registrable Securities are sold or otherwise transferred shall be deemed, for purposes of this Agreement, to be an assignee of the Initial Holders. This Agreement shall be binding upon the successors and assigns of each of the parties hereto and shall inure to the benefit of and be binding upon each Holder of Registrable Securities; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Certificate of Designations; and provided, further, that this Agreement shall not inure to the benefit of any person that is not a Permitted Assign of the Initial Holder. If Permitted Assign of any Initial Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such Permitted Assign shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and shall be entitled to receive the benefits hereof.

     (f) Submission to Jurisdiction, Etc. No legal proceeding may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company and the Initial Holders each hereby consent to the jurisdiction of such courts and personal service with respect thereto and hereby irrevocably and unconditionally waive any objection to the laying of venue of any legal proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such legal proceeding brought in any such court has been brought in an inconvenient forum. To the extent permitted by law, the Company and the Initial Holders each hereby waive all right to trial by jury in any legal proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such legal proceeding brought in any such court shall be conclusive and binding upon the Company and the Initial Holders and may be enforced in any other courts in the jurisdiction of which the Company is or may be subject, by suit upon such judgment.

     (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be original and all of which taken together shall constitute one and the same agreement.

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     (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

     (j) Severability. If any term, provision, covenant or restriction of this Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, and the parties hereto shall use their commercially best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.

     (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and the registration rights granted by the Company with respect to the Registrable Securities. Except as provided in the Rule 144A Purchase Agreement and the Accredited Investor Purchase Agreement, there are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein, with respect to the registration rights granted by the Company with respect to the Registrable Securities. This Agreement supersedes all prior agreements and undertakings among the parties with respect to such registration rights. No party hereto shall have any rights, duties or obligations other than those specifically set forth in this Agreement.

     (l) Termination. This Agreement and the obligations of the parties hereunder shall terminate upon the end of the Effectiveness Period, except for any liabilities or obligations under Section 4, 5 or 6 hereof, any confidentiality obligations under Section 3(i) hereof, and the obligations to make payments of and provide for additional payments under Section 2(e) hereof to the extent such damages accrue prior to the end of the Effectiveness Period, each of which shall remain in effect in accordance with its terms.

[Remainder of Page Intentionally Left Blank]

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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

GRUBB & ELLIS COMPANY
By:
	Name:
	Title:

[Registration Rights Agreement]

Confirmed and accepted as of
the date first above written:
HOLDER [signature block to be replicated for each holder]
By:
	Name:
	Title:

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SCHEDULE A

INITIAL HOLDERS

Initial Holder Investor Status Number of Securities

EXHIBIT A

SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE

[Please see attached.]

EX-99.2

Exhibit 99.2

FORM OF
PURCHASE AGREEMENT

     THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of October 23, 2009 (the “Effective Date”), by and among Grubb & Ellis Company, a Delaware corporation (the “Company”), and the purchasers listed on Schedule A hereto (each, a “Purchaser” and, collectively, the “Purchasers”).

     THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis of the following facts, intentions, and understandings:

     A. In accordance with the terms and conditions of this Agreement, the Company has agreed to issue and sell, and each of the Purchasers have severally agreed to purchase, in a transaction that is exempt from registration under Section 4(2) of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), that number of shares of the Company’s cumulative participating perpetual convertible preferred stock, par value $0.01 per share ($100 initial liquidation preference per share), which, if necessary, shall also include as Replacement Preferred Stock (as defined in Section 4(a) of the Certificate of Designation (as defined below)) (the “Preferred Stock”), set forth opposite their respective names on their respective signature pages hereto (the aggregate of all such shares purchased by the Purchasers, the “Preferred Shares”). The Preferred Shares, including, under certain circumstances, accrued dividends thereon, will be convertible into shares (the “Underlying Shares” and, together with the Preferred Shares, the “Securities”) of the common stock, par value $0.01 per share, of the Company (the “Common Stock”), subject to and in accordance with the terms and conditions of the Certificate of Designations (as defined below). The Preferred Shares will be issued pursuant to a Certificate of the Powers, Designations, Preferences and Rights in form attached as Exhibit A hereto (the “Certificate of Designations”) to be filed with the Secretary of State of the State of Delaware. This Agreement, the Preferred Shares, the Certificate of Designations, the Registration Rights Agreement (as defined herein), and the Escrow Agreement (as defined below) are herein referred to collectively as the “Operative Documents.” JMP Securities LLC has acted as the Company’s exclusive placement agent (the “Placement Agent”) with respect to the sale of the Preferred Shares under this Agreement.

     B. The Company has prepared a preliminary offering memorandum, dated October 23, 2009, as subsequently supplemented, if applicable (the “Preliminary Offering Memorandum”), and will prepare a final offering memorandum, dated the date of this Agreement (the “Offering Memorandum”), relating to the Company and its Subsidiaries (as defined below) and the Preferred Shares. For purposes of this Agreement, “Time of Sale Memorandum” means the Preliminary Offering Memorandum together with the information set forth on Schedule B hereto. The Time of Sale Memorandum and the Offering Memorandum are collectively referred to as the “Offering Memorandums.” In addition, any reference to the Time of Sale Memorandum or the Offering Memorandum shall be deemed to refer to any documents incorporated by reference therein as of the date of such Time of Sale Memorandum or the Offering Memorandum, as the case may be. Any reference to any amendment or supplement to any Time of Sale Memorandum or the Offering Memorandum shall be deemed to refer to and include any document filed by the Company under the Securities Exchange Act of 1934, as

amended, , and the rules and regulations promulgated thereunder (the “Exchange Act”), with the U.S. Securities and Exchange Commission (the “Commission”) after the date of such Time of Sale Memorandum or the Offering Memorandum, as the case may be, but prior to the date of such amendment or supplement and incorporated by reference in such Time of Sale Memorandum or the Offering Memorandum, as the case may be.

     C. Concurrently with the sales entered into pursuant to this Agreement, the Placement Agent, in its capacity as an initial purchaser, is entering into an agreement to purchase Preferred Stock from the Company (the “Rule 144A Purchase Agreement”) and has advised the Company that it plans to make offers on the terms set forth in the Offering Memorandum, as amended or supplemented, to sell the Preferred Stock solely to persons whom the Placement Agent, in its capacity as the initial purchaser, reasonably believes to be “qualified institutional buyers,” as defined in Rule 144A under the Securities Act (“QIBs”).

     NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Purchasers hereby agree as follows:

     SECTION 1. Sale and Purchase of the Preferred Shares.

          1.1 Purchase and Sale of the Preferred Shares. At the Closing (as defined below) the Company shall issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Company, severally and not jointly, upon the terms and subject to the conditions hereinafter set forth, the number of Preferred Shares set forth opposite the Purchaser’s name on Schedule A hereto at a purchase price of $100 per share.

          1.2 Payment, Delivery of Preferred Shares, and Escrow. Unless otherwise agreed to between the Company and a Purchaser as to such Purchaser, no later than the third business day after the date hereof (i) each Purchaser shall deliver into escrow the purchase price for the number of Preferred Shares set forth opposite such Purchaser’s name on its respective signature page hereto for the Preferred Shares to be issued and sold to such Purchaser, by wire transfer of immediately available funds, in accordance with the terms of the escrow agreement to be dated as of the date hereof, by and among JPMorgan Chase Bank, N.A., as escrow agent (the “Escrow Agent”), the Company, JMP Securities LLC, in its capacity as the initial purchaser (in such capacity, the “Initial Purchaser”), and the Placement Agent, the form of which is attached as Exhibit C hereto (the “Escrow Agreement”), and (ii) the Company shall deliver into escrow, in accordance with the terms of the Escrow Agreement, one or more stock certificates registered in the name of such Purchaser, or in the name(s) of such nominee(s) as designated by such Purchaser, no later than the third business day after the date hereof, representing in the aggregate the number of Preferred Shares set forth opposite such Purchaser’s name on its respective signature page hereto and bearing the legend referred to in Section 3.8 of this Agreement. The name(s) in which the stock certificates are to be registered are set forth in the Stock Certificate Questionnaire attached hereto as part of Appendix I. Notwithstanding anything set forth herein to the contrary, $5,000,000 of the Preferred Shares to be purchased by Kojaian Management Corporation (“KMC”) shall be purchased by the conversion, in accordance with its terms, of that certain 12% Senior Subordinated Convertible Note (the “Convertible Note”) in the principal

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amount of $5,000,000 issued by the Company to KMC on October 2, 2009. A copy of such Convertible Note, the notice by the Company (the “Company Notice”) to KMC with respect to KMC’s right to exercise its right to convert the Convertible Note into the Preferred Shares, and the conversion notice delivered by KMC to the Company is annexed hereto; and in accordance with the terms of the Company Notice, the Preferred Shares issued in connection with the conversion of the Convertible Note shall be deemed to be issued and sold pursuant to this Agreement.

          1.3 The Closing. The completion of the purchase and sale of the Preferred Shares, and the release from escrow of each Purchaser’s payment for the Preferred Shares to be issued and sold to such Purchaser and of the stock certificates representing such Preferred Shares in accordance with the terms of the Escrow Agreement (the “Closing”), shall occur at the offices of O’Melveny & Myers LLP, Two Embarcadero Center, 28^th Floor, San Francisco, California 94111, on or before the fifteenth business day (or the next succeeding business day if such day is not a business day) after the date hereof, or on such later date or at such different location as the Company and the Placement Agent shall agree upon in writing (the “Closing Date”), but in any event not prior to the date that the conditions for Closing set forth in Sections 5 and 6 of this Agreement shall have been satisfied or waived by the appropriate party. The Closing shall occur at a time to be agreed upon by the Company and the Placement Agent and of which the Purchasers shall be notified by facsimile transmission or otherwise. Each party’s obligations to complete the purchase and sale of the Preferred Shares at the Closing shall be subject to the satisfaction (or waiver) of the conditions set forth in Sections 5 and 6 of this Agreement.

          1.4 Independent Nature of Purchasers’ Obligations and Rights. The rights and obligations of each Purchaser under any Operative Document are several and not joint with the rights and obligations of the other Purchasers. A Purchaser shall not be responsible in any way for the performance of the obligations of any other Purchasers under any Operative Document. Except as otherwise set forth in Section 6 hereof, a Purchaser shall not have the right to terminate or fail to perform its obligations under any Operative Document solely because another Purchaser terminates or fails to perform its obligations under an Operative Document. Nothing contained herein or in any Operative Document, and no action taken by any Purchaser pursuant thereto shall constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Operative Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Operative Documents, and it shall not be necessary for the other Purchasers to be joined as additional parties in any proceeding for such purpose.

     SECTION 2. Company’s Representations and Warranties. The Company represents and warrants to each of the Purchasers as of the date hereof, as of 5:00 p.m. (New York time) on October 23, 2009 (the “Time of Sale”), and as of the Closing Date, and agrees with each Purchaser as follows:

          2.1 Time of Sale Memorandum and Offering Memorandum. Neither (a) the Time of Sale Memorandum, as of the Time of Sale, nor (b) any amendments or supplements to the Time of Sale Memorandum, as of the date of such amendment or supplement, nor (c) the

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Time of Sale Memorandum, as so amended or supplemented, if applicable, as of the Closing Date, nor (d) the Offering Memorandum, as of its date and as of the Closing Date, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Time of Sale Memorandum or the Offering Memorandum made solely in reliance upon and in conformity with written information furnished to the Company by a Purchaser expressly for use therein.

          2.2 Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Time of Sale Memorandum and the Offering Memorandum, at the time such documents were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder (the “Securities Act Regulations”) or the Exchange Act and the rules and regulations of the Commission thereunder (the “Exchange Act Regulations”), as applicable, and, when read together with the other information in the Time of Sale Memorandum, at the Time of Sale did not, and, when read together with the other information in the Offering Memorandum, at the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

          2.3 Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Offering Memorandums and to enter into and perform its obligations under the Operative Documents; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to so qualify or to be licensed would not have a material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets, results of operations or prospects of the Company and its Subsidiaries (as defined below), taken as a whole (a “Material Adverse Effect”).

          2.4 Good Standing of Subsidiaries. Each subsidiary of the Company (each a “Subsidiary” and collectively, the “Subsidiaries”), which includes, without limitation, the Subsidiaries listed on Schedule D, has been duly incorporated, formed or organized and is validly existing as a corporation, limited liability company, or limited partnership, as the case may be, in good standing under the laws of the jurisdiction of its formation with all requisite corporate, limited liability company, limited partnership (as applicable) power and authority to own, lease and operate its properties and to conduct its business as described in each of the Offering Memorandums and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except where failure to so qualify or be licensed would not have a Material Adverse Effect; except as otherwise disclosed in the Time of Sale Memorandum, all of the issued and outstanding capital stock or other ownership interests of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable; the

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capital stock or other ownership interests of each such Subsidiary owned by the Company or through Subsidiaries are owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, other than the liens and security interest granted to the lenders under that certain Third Amended and Restated Credit Agreement, dated as of May 18, 2009, by and among the Company, certain of its Subsidiaries, the lenders from time to time thereunder, Deutsche Bank Securities, Inc., as syndication agent, sole book-running manager and sole lead arranger, and Deutsche Bank Trust Company Americas, as initial issuing bank, swing line bank and administrative agent, as amended by that First Letter Amendment to Third Amended and Restated Credit Agreement, dated September 30, 2009 (the “Credit Agreement”), and none of the outstanding shares of capital stock of any wholly-owned Subsidiary and, to the knowledge of the Company, any other Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary.

          2.5 Independent Accountants. Ernst & Young LLP, the accountants who have certified the financial statements and supporting schedules of the Company incorporated by reference in the Offering Memorandums, are independent registered public accountants as required by the Securities Act and Securities Act Regulations.

          2.6 Financial Statements. The financial statements and schedules, including the notes thereto, incorporated by reference in the Offering Memorandums present fairly in all material respects the combined financial position of the Company and its Subsidiaries presented therein, as of and at the dates indicated and the consolidated results of operations and cash flows for the Company and its Subsidiaries for the periods specified. Such financial statements and schedules have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis, except as may be expressly stated in the related notes thereto. No other financial statements or schedules would be required to be included in the Offering Memorandums if the financial statements and schedules incorporated by reference in the Offering Memorandums were included in a registration statement filed by the Company on Form S-1 under the Securities Act and Securities Act Regulations on the respective dates of the Offering Memorandums. The unaudited pro forma financial statements and the related notes thereto included in the Offering Memorandums present fairly the information shown therein, have been prepared in accordance with the applicable requirements of the Securities Act and Securities Act Regulations (including, without limitation, Rule 11-02 of Regulation S-X) and the guidelines of the Commission with respect to pro forma financial information and have been properly presented on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the Offering Memorandums regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Securities Act Regulations, to the extent applicable.

          2.7 Absence of Certain Changes. Subsequent to the date as of which information is given in the Time of Sale Memorandum, except as otherwise stated therein: (a) the Company and its Subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction not in the ordinary course of business; (b) the Company has not purchased any of its outstanding capital stock, nor declared, paid or

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otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends stated in the Time of Sale Memorandum; (c) there has not been any change in the capital stock or material short-term debt or long-term debt of the Company and its Subsidiaries; and (d) the Company has not altered materially its method of accounting or the manner in which it keeps its accounting books and records.

          2.8 Material Adverse Effect. Neither the Company nor any Subsidiary has sustained since the date of the latest audited financial statements included in the Time of Sale Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Memorandum; and, since the date as of which information is given in the Time of Sale Memorandum, there has not been (a) any change in the capital stock or members’ equity, as applicable, or long-term debt of the Company or any of its Subsidiaries, or (b) any Material Adverse Effect.

          2.9 Capitalization. The authorized capital stock of the Company conforms in all material respects to the description thereof under “Description of Capital Stock” and “Description of Preferred Stock” as set forth in the Time of Sale Memorandum. As of the date hereof and the Closing Date, the issued and outstanding capital stock of the Company, will be in all material respects as set forth in the Time of Sale Memorandum. The shares of Common Stock outstanding and the other outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and have been issued in compliance with all federal and state securities laws. None of such outstanding shares of Common Stock or other outstanding securities were issued in violation of preemptive or other similar rights of any securityholder of the Company. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities.

          2.10 Authorization of Agreement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Operative Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder, including, without limitation, to issue the Preferred Shares in accordance with the terms hereof. The Company’s execution and delivery of each of the Operative Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Securities) have been duly authorized by all necessary corporate action on the part of the Company, and no further corporate action is required by the Company, its Board of Directors or its stockholders in connection therewith, including, without limitation, under the rules and regulations of the New York Stock Exchange (the “NYSE”), except for fulfilling the stockholder notice requirements under the rules and regulations of the NYSE. This Agreement has been duly authorized, executed, and delivered by the Company.

          2.11 Binding Obligation. Assuming due authorization, execution and delivery of this Agreement by the Purchasers, this Agreement is the legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting

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creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof.

          2.12 Authorization of Certificate of Designations. The Certificate of Designations has been duly and validly authorized by the Company and, when filed by the Company with the Secretary of State of the State of Delaware, will be legally valid and effective and enforceable against the Company in accordance with its terms.

          2.13 Authorization of Preferred Shares. The Preferred Shares have been duly and validly authorized by the Company for issuance and sale to the Purchasers pursuant to this Agreement and, when issued and authenticated in accordance with the terms of the Certificate of Designations and delivered against payment therefor in accordance with the terms hereof and thereof, will be validly issued, fully paid and non-assessable, free and clear of all liens, encumbrances, equities or claims and the issuance of the Preferred Shares will not be subject to any preemptive or similar rights. Each Preferred Share shall have the rights, preferences, privileges and restrictions set forth in the Certificate of Designations. The certificates to be used to evidence the Preferred Shares will comply in all material respects with all applicable legal requirements, the requirements of the charter and bylaws of the Company, and the requirements of the NYSE. No holder of Preferred Shares will be subject to personal liability solely by reason of being such a holder. Assuming the accuracy of the representations and warranties of the Purchasers in this Agreement, the Preferred Shares will be issued in compliance with all applicable federal and state securities laws.

          2.14 Authorization of Underlying Shares. The Underlying Shares have been duly authorized and, when issued and delivered by the Company in accordance with the terms of the Certificate of Designations and the Preferred Shares, will be validly issued, fully paid and non-assessable, free and clear of all liens, encumbrances, equities or claims and the issuance of the Underlying Shares will not be subject to any preemptive or similar rights. The certificates to be used to evidence the Underlying Shares will comply in all material respects with all applicable legal requirements, the requirements of the charter and bylaws of the Company, and the requirements of the NYSE. No holder of Underlying Shares will be subject to personal liability solely by reason of being such a holder.

          2.15 Authorization of Registration Rights Agreement. The registration rights agreement by and among the Company and certain Purchasers to be entered into on the Closing Date (the “Registration Rights Agreement”) attached hereto as Exhibit B, has been duly and validly authorized by the Company and, assuming due authorization, execution and delivery thereof by the other parties thereto, when duly executed and delivered by the Company, will be the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity, good faith and fair dealing regardless of whether enforcement is sought in any proceedings of law or equity and except to the extent that the indemnification and contribution provisions may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof. The Offering Memorandums contain a summary of the

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material terms of the Registration Rights Agreement and such summary is accurate in all material respects.

          2.16 Authorization of Escrow Agreement. The Escrow Agreement has been duly and validly authorized by the Company and, assuming due authorization, execution and delivery thereof by the Escrow Agent, Initial Purchaser and Placement Agent, when duly executed and delivered by the Company, will be the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity, good faith and fair dealing regardless of whether enforcement is sought in any proceedings of law or equity.

          2.17 Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in (a) violation of its organizational documents, (b) default (whether with or without the giving of notice or passage of time or both) in the performance or observance of any obligation, agreement, covenant or condition contained in any lease, indenture, mortgage, deed of trust, loan agreement, operating agreement, property management agreement, franchise agreement or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, (c) violation of any order of which the Company has been made aware in writing of any court, arbitrator or governmental body having jurisdiction over the Company or its properties or assets, or (d) is in violation of, or in receipt of written notice that it is in violation of, any statute, rule or regulation of any governmental authority applicable to the Company. The issuance and sale of the Preferred Shares by the Company, the issuance of the Underlying Shares by the Company, and the compliance by the Company with all of the provisions of the Operative Documents and all other transactions contemplated by the Operative Documents do not and will not: (x) conflict with, or result in any breach of, or constitute a default under nor constitute any event which (with notice, lapse of time, or both) would constitute a breach of or default under (i) any provisions of the charter or bylaws or other organizational documents of the Company or any Subsidiary, (ii) any provision of any license, lease, indenture, mortgage, deed of trust, loan, credit, operating agreement, property management agreement or other agreement or instrument to which any of the Company or any Subsidiary is a party or by which any of them or their respective properties or assets may be bound or affected after giving effect to the use of proceeds as set forth in the Offering Memorandums, (iii) any law or regulation binding upon or applicable to the Company or any Subsidiary or any of their respective properties or assets (including, without limitation, the rules and regulations of the NYSE, except for fulfilling the stockholder notice requirements under the rules and regulations of the NYSE) or (iv) any decree, judgment or order applicable to the Company or any Subsidiary; or (y) except as contemplated in the Operative Documents, result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the Company or any Subsidiary.

          2.18 Absence of Litigation and Proceedings; Accuracy of Exhibits. Except as disclosed in the Time of Sale Memorandum, there are no pending actions, suits or proceedings against or affecting the Company, any of its Subsidiaries or any of their respective properties that (a) if determined adversely to the Company or any of its Subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (b) would materially and adversely affect the ability of the Company or its Subsidiaries to perform their respective obligations under the Operative Documents, or (c) are otherwise material in the

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context of the sale of the Preferred Shares; and no such actions, suits or proceedings are, to the knowledge of the Company, threatened or contemplated. There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its Subsidiaries or any of their respective officers or directors is a party or to which any of the properties of the Company or any of its Subsidiaries is subject that would be required by applicable law or regulation to be described in the documents incorporated by reference in each of the Offering Memorandums that are not described in each of the Offering Memorandums or any affiliate transactions, off-balance sheet transactions, statutes, regulations, contracts, licenses, agreements, leases or other documents that would be required by applicable law or regulation to be described in the documents incorporated by reference in each of the Offering Memorandums that are not described in each of the Offering Memorandums.

          2.19 Possession of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, all material licenses, inventions, copyrights, know-how (including trade secrets and other confidential information, systems or procedures), trademarks, service marks, and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing.

          2.20 Absence of Further Requirements. No consent, approval, authorization or order of, or filing, registration or qualification with, any governmental body or agency or body or any court is required for the execution, delivery, performance or consummation by the Company of its obligations under the Operative Documents, including the issuance and sale of the Preferred Shares to be issued and sold by the Company hereunder and the issuance of the Underlying Shares by the Company, except (a) such consents, approvals, authorizations, orders, filings, qualifications or registration as may be required by the securities or Blue Sky laws of the various states, (b) such consents, approvals, authorizations, orders, filings qualifications or registration as will be obtained or completed by Closing Date, (c) filings with the Commission, the Financial Industry Regulatory Authority, Inc. and the NYSE to be made in connection with the issuance of the Underlying Shares and pursuant to the Registration Rights Agreement, (d) such consents, approvals, authorizations, orders, filings, qualifications or registration as will be obtained or completed by the filing of a preliminary and definitive proxy statement in order to seek stockholder approval of the amendments to the Company’s certificate of incorporation as described in the Offering Memorandums and the filing of a certificate of amendment to the Company’s certificate of incorporation with the Secretary of State of the State of Delaware as described in the Offering Memorandums upon receipt of such stockholder consent or (E) a Form D as may be required under federal securities laws.

          2.21 Absence of Manipulation. Neither the Company nor any of its affiliates has taken, nor will the Company or any affiliate take, directly or indirectly, any action designed to, or which constituted, or might reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Preferred Stock, the Common Stock, or any other security of the Company to facilitate the sale or resale of the Preferred Shares.

          2.22 Obligations to Issue Securities. Except for the Underlying Shares, shares reserved for issuance upon exercise of outstanding options under publicly disclosed option plans

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or any shares reserved for convertible, exchangeable or exercisable securities disclosed in the Time of Sale Memorandum, no shares of capital stock of the Company or its Subsidiaries are reserved for any purpose. Except as described in the immediately preceding sentence, there are no outstanding (a) securities of the Company or any of its Subsidiaries convertible into or exchangeable for any capital stock, partnership interests, membership interests, or other equity interests, as the case may be, in the Company or any of its Subsidiaries, (b) options, rights (preemptive or otherwise) or warrants to purchase or subscribe for shares of Common Stock or any other securities of the Company, or (c) obligations of the Company or any of its Subsidiaries to issue any such securities, options, rights or warrants; except for securities disclosed in the Time of Sale Memorandum.

          2.23 No Integration. There has been no sale, offer for sale, solicitation of an offer to buy or negotiation by the Company or any of its Subsidiaries in respect of any security that would be integrated with the offering of the Preferred Shares in a manner that would require the registration of the Preferred Shares under the Securities Act. When the Preferred Shares are issued and delivered pursuant to this Agreement, no Preferred Share will be treated as the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.

          2.24 Possession of Licenses and Permits. Each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any U.S. federal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct its business as described in the Offering Memorandums, except where failure to have such license, authorization, consent or approval or to make such filing would not have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any Subsidiary, except where failure to have such license, authorization, consent or approval or to make such filing would not have a Material Adverse Effect.

          2.25 Title to Property. The Company and its Subsidiaries have good and marketable title in fee simple to, or a valid leasehold interest in, all real property described in the Offering Memorandums as owned by them (the “Company Properties”), and good and marketable title to all personal property owned by them that is material to the business of the Company, in each case free and clear of all liens, encumbrances, security interests and defects except such as are described in the Time of Sale Memorandum or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any Company Properties, buildings and equipment held under lease by the Company and its Subsidiaries and described in the Offering Memorandums are held by them under valid, subsisting and enforceable leases (such leases, the “Company Leases”) with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries. Neither the Company nor any of its Subsidiaries is in default under any of the Company Leases, relating to, or any of the mortgages or other security

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documents or other agreements encumbering or otherwise recorded against, the Company Properties, and neither the Company nor any of its Subsidiaries knows of any event, which but for the passage of time or the giving of notice, or both, would constitute a default under any of such documents.

          2.26 Title Insurance. The Company or its Subsidiaries have either (a) an owner’s or leasehold title insurance policy, from a nationally recognized title insurance company licensed to issue such policy, on each of the Company Properties that insures the fee or leasehold interest, as the case may be, in the Company Properties, which policies include only commercially reasonable exceptions, and with coverage in amounts at least equal to amounts that are generally deemed in the Company’s industry to be commercially reasonable in the markets where the Company’s Properties are located, or (b) one or more lender’s title insurance policies insuring the lien of the mortgages encumbering the Company Properties with coverage, in the aggregate, equal to the maximum aggregate principal amount of indebtedness incurred by the Company or its Subsidiaries and secured by the Company Properties.

          2.27 Code Compliance. Each of the Company Properties complies in all material respects with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to the Company Properties); and neither the Company nor any of its Subsidiaries has knowledge of any pending or threatened condemnation proceeding, zoning change or other proceeding or action.

          2.28 Environmental Laws. Each of the Company and its Subsidiaries (a) is in compliance in all material respects with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (b) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (c) is in compliance with all terms and conditions of any such permit, license or approval. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties).

     Except as otherwise disclosed in the Time of Sale Memorandum: (i) the Company has received no notice of, and has no knowledge of, any occurrence or circumstance which, with notice or passage of time or both, would give rise to a claim under or pursuant to any U.S. federal, state or local environmental statute or regulation or under common law, pertaining to Hazardous Materials (as defined below) on or originating from any of the Company Properties or arising out of the conduct of the Company, including, without limitation, a claim under or pursuant to any Environmental Statute (as defined below); and (ii) none of the Company Properties is included or, to the Company’s knowledge, is proposed for inclusion on the National Priorities List issued pursuant to CERCLA (as defined below) by U.S. Environmental Protection Agency or on any similar list or inventory issued pursuant to any other Environmental Statute or issued by any other governmental authority.

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     As used herein, “Hazardous Materials” shall include, without limitation, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, toxic substances, or related materials, asbestos or any hazardous material as defined by any U.S. federal, state or local environmental law, ordinance, rule or regulation including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601-9675 (“CERCLA”), the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-330j-26, and the Occupational Safety and Health Act, 29 U.S.C. Sections 651-678, as any of the above statutes may be amended from time to time, and in the regulations promulgated pursuant to each of the foregoing (individually, an “Environmental Statute”) or by any federal, state or local governmental authority having or claiming jurisdiction over the Company Properties and other assets described in the Offering Memorandums.

          2.29 Absence of Labor Dispute. No material labor dispute with the employees of the Company or any of its Subsidiaries exists, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened, or imminent labor disturbance by the employees of any of their principal suppliers or contractors.

          2.30 Mortgage Loans. The Company and its Subsidiaries are in compliance with all of their mortgage loans and all covenants therein, financial and otherwise.

          2.31 Property Improvement Plans. Neither the Company nor any of its Subsidiaries is subject to any material property improvement plan required by franchisors.

          2.32 Investment Company Act. Neither the Company nor any of its Subsidiaries is, or after giving effect to the offering and sale of the Preferred Shares and the application of the proceeds thereof as described in the Offering Memorandums will be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder (the “Investment Company Act”).

          2.33 Insurance. The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company believes are prudent and customary in the businesses in which they are engaged, and neither the Company nor any of its Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a similar cost.

          2.34 Material Contracts. Other than (i) the termination of the Credit Agreement and the repayment of amounts due thereunder as disclosed in the Offering Memorandums, and (ii) the Company’s delivery of a notice of its intention not to renew certain employment contracts, which non-renewal is not material to the Company, the Company has not sent or

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received any communication regarding termination of, or intent not to renew, any of the material contracts or agreements referred to, described in or filed as an exhibit to the Company’s Annual Report on Form 10-K/A for the year ended December 31, 2008 or the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009 or the quarter ended June 30, 2009 or any other filing made by the Company with the Commission during the period from January 1, 2009 to the date immediately preceding the Effective Date (such filings, the “SEC Filings”), including, without limitation, any ground lease, franchise agreement or management agreement with respect to the Company Properties, and no such termination or non-renewal has been threatened by the Company or, to the Company’s knowledge, to any other party to such contract or agreement.

          2.35 Internal Control Over Financial Reporting. Except as disclosed in the Time of Sale Memorandum, the Company and each of its Subsidiaries maintains internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and such internal control over financial reporting is effective to perform the functions for which it was established.

          2.36 Registration Rights. There are no persons with registration or other similar rights to have any securities issued by the Company registered under the Securities Act except (a) for registration rights contained in agreements filed as exhibits to the Company’s Annual Report on Form 10-K/A for the year ended December 31, 2008, including exhibits filed by incorporation by reference and (b) pursuant to the Registration Rights Agreement.

          2.37 Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or Subsidiaries or directors or officers of the Company or any of its Subsidiaries, in their capacity as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and the applicable rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”) including, without limitation, Section 402 related to loans, and Sections 302 and 906 related to certifications.

          2.38 Independent Directors. The members of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee of the Board of Directors of the Company are “independent directors” within the meaning of the listing standards and rules of the NYSE, and with respect to the Audit Committee, the Commission, all of the members of the Audit Committee are financially literate within the meaning of the listing standards and rules of the NYSE and at least one member of the Audit Committee is an “audit committee financial expert,” within the meaning of Item 401(h) of Regulation S-K.

          2.39 ERISA Liabilities. The Company does not have, and does not anticipate incurring, any material liabilities under the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder.

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          2.40 Plan Assets. The assets of the Company and its Subsidiaries do not constitute “plan assets” of an ERISA regulated employee benefit plan.

          2.41 Taxes. The Company and each of its Subsidiaries have accurately prepared and timely filed all federal, state and other tax returns and extensions (“Returns”) that are required to be filed by each such entity; all such Returns are true, correct and complete in all material respects; and all federal, state, county, local or foreign taxes, charges, fees, levies, fines, penalties or other assessments, including all net income, gross income, sales and use, ad valorem, transfer, gains, profits, excise, franchise, real and personal property, gross receipts, capital stock, disability, employment, payroll, license, estimated, stamp, custom duties, severance or withholding taxes or charges imposed by any governmental authority (including any interest and penalties (civil or criminal) on or additions to any such taxes and any expenses incurred in connection with the determination, settlement or litigation of any tax liability), in each case, to the extent material (“Taxes”), shown in such Returns or on assessments received by the Company or any of its Subsidiaries or otherwise due and payable or claimed to be due and payable by any governmental authority, have been paid, except for any such tax, charge, fee, levy, fine, penalty or other assessment that (a) is currently being contested in good faith, or (b) is immaterial in amount. Neither the Company nor any of its Subsidiaries has requested any extension of time within which to file any Return, which Return has not since been filed. Neither the Company nor any of its Subsidiaries has executed any outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Returns. No audits or other administrative proceedings or court proceedings are presently pending nor threatened against the Company or any of its Subsidiaries with regard to any Taxes or Returns of the Company or any of its Subsidiaries, and no taxing authority has notified the Company or any of its Subsidiaries in writing that it intends to investigate its Tax affairs.

          2.42 Proceeds; Office of Foreign Assets Control. None of the proceeds received by the Company from the offering of the Preferred Shares will be used to further any action in violation or contravention of the U.S.A. Patriot Act or otherwise violate or contravene the rules, regulations, or policies of the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”). Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, or affiliate of the Company or any of its Subsidiaries is currently subject to any sanctions administered by OFAC.

          2.43 No Relationships. No material relationship, direct or indirect, exists between or among any of the Company, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, which would be required pursuant to the regulations applicable to Form 10-K to be described in an annual report filed by the Company on Form 10-K with the Commission (if such Form 10-K were filed on the date hereof) which is not so described in each of the Offering Memorandums.

          2.44 Registration of Securities and Listing Approval. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and prior to the Closing Date the Underlying Shares will be approved for listing on the NYSE, subject to official notice of issuance.

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          2.45 Disclosure Controls. The Company maintains disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in the reports that it files under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms and is accumulated and communicated to the Company’s management, including its Chief Executive Officer and its Chief Financial Officer, as appropriate to allow timely decisions regarding disclosure, and except as disclosed in the Time of Sale Memorandum, such disclosure controls and procedures are effective to perform the functions for which they were established.

          2.46 Statistical and Market-Related Data. The statistical and market-related data included in the Offering Memorandums are based on or derived from sources which the Company believes to be reliable and accurate, and the Company has received any consents necessary to use such statistical and market-related data in the Offering Memorandums.

          2.47 Commission Comment Letters. There are no comments outstanding under any letters from the staff of the Commission relating to the Company’s filings with the Commission other than comments which (i) have been responded to by the Company and (ii) are not material to the Company.

          2.48 No Registration. No registration under the Securities Act of the Preferred Shares is required for the sale of the Preferred Shares to the Purchasers as contemplated hereby. No form of general solicitation or general advertising (as defined in Regulation D under the Securities Act) was used by the Company or any of its representatives in connection with the offer and sale of any of the Preferred Shares, including, but not limited to, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

          2.49 Rule 144A. Each of the Offering Memorandums as of their dates, contains the information specified in, and meets the requirements of, Rule 144A(d)(4) under the Securities Act.

          2.50 Regulations T, U and X. None of the execution, delivery and performance of this Agreement, the issuance and sale of the Preferred Shares, the issuance of the Underlying Shares, the application of the proceeds from the issuance and sale of the Preferred Shares, and the consummation of the transactions contemplated thereby as set forth in the Offering Memorandums, will violate Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System or analogous foreign laws and regulations.

          2.51 Finder’s Fees. Except pursuant to this Agreement and the Rule 144A Purchase Agreement and the placement agent fees contemplated therewith (which placement agent fees are being paid by the Company), there are no contracts, agreements or understandings between the Company and its Subsidiaries and any other person that would give rise to a valid claim against the Company or any of its Subsidiaries or any of the Purchasers for a brokerage commission, finder’s fee or like payment in connection with the issuance, purchase and sale of the Preferred Shares or the Underlying Shares. The Company shall indemnify, pay, and hold

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each Purchaser harmless against, any liability, loss or expense (including, without limitation, attorneys’ fees and out-of-pocket expenses) arising in connection with any such claim.

          2.52 Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

          2.53 Foreign Corrupt Practices Act. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, or affiliate of the Company or any of the Subsidiaries, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, the Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

          2.54 Reservation of Underlying Shares. The Company has reserved, and will continue to reserve, free of any preemptive or similar rights of stockholders of the Company, a number of unissued shares of Common Stock, sufficient to issue and deliver the Underlying Shares into which the Preferred Shares are initially convertible at Closing and has taken all such actions required and permitted to be taken to reserve for issuance all Underlying Shares issuable upon conversion of the Preferred Shares following the amendment of the Certificate of Incorporation to increase the number of authorized shares in accordance with their terms.

          2.55 NYSE Financial Viability Exception. The Audit Committee of the Board of Directors of the Company has approved the filing, with the NYSE, of an application for exemption (the “Exemption”) from the stockholder approval requirements of Section 312.03 of the NYSE Listed Company Manual (the “Exemption Application”) pursuant to the financial viability exception provided for under Section 312.05 of the NYSE Listed Company Manual. The Company filed the Exemption Application with the NYSE on October 20, 2009 and expects to receive notice of the NYSE’s approval of the Exemption Application on October 23, 2009. Pursuant to Section 312.05 of the NYSE Listed Company Manual, the Company has mailed to its stockholders a letter (the “Exemption Letter”) alerting them to its omission to seek the stockholder approval that would otherwise be required under the Section 312.03 of the NYSE Listed Company Manual and indicating that the Audit Committee has expressly approved the

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exception. The Company has provided to the Purchasers true, accurate, and complete copies of (a) the resolutions of the Audit Committee authorizing the filing of the Exemption Application, (b) the Exemption Application, as filed with the NYSE, and will provide as soon as available copies of (1) the NYSE’s notice to the Company approving the Exemption Application, and (d) the Exemption Letter.

          2.56 Existing Stockholder Investment. The Company has consummated the sale of its Senior Subordinated Convertible Note, dated as of October 2, 2009, to Kojaian Management Corporation, a Michigan corporation, for gross proceeds of $5,000,000.

          2.57 Registration Rights Waiver. Kojaian Ventures, L.L.C., a Michigan limited liability company, and Kojaian Holdings, LLC, a Michigan limited liability company, on their own behalf and on behalf of their affiliates, have delivered a letter pursuant to which all such persons agreed to waive any rights they may have to register any securities of the Company in connection with any registrations of Securities effected pursuant to the Registration Rights Agreement.

          2.58 Application of Takeover Protections; Rights Agreements. The Company has not adopted any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Stock or a change in control of the Company. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise which is or could become applicable to any Purchaser solely as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and any Purchaser’s ownership of the Securities.

          2.59 Acknowledgment Regarding Purchasers’ Purchase of Shares. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Operative Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Operative Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Operative Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities.

          2.60 Shell Company Status. The Company is not, and has never been, an issuer identified in Rule 144(i)(1).

     SECTION 3. Purchaser’s Representations and Warranties. Each Purchaser represents and warrants to the Company with respect to only itself that as of the Effective Date and the Closing:

          3.1 Information. Such Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to an investment decision

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like that involved in the purchase of the Preferred Shares, including investments in securities issued by the Company, and has requested, received, reviewed and considered all information it deems necessary and relevant, including the Time of Sale Memorandum and SEC Filings, in making an informed decision to purchase the Preferred Shares. Such Purchaser further represents that it has had an opportunity to ask questions of and receive answers from the Company regarding the terms and conditions of the offering of the Preferred Shares and the business, properties, prospects and financial condition of the Company. Such Purchaser understands that its investment in the Preferred Shares involves a significant degree of risk. Such Purchaser has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Preferred Shares and has the ability to bear the economic risks of an investment in the Preferred Shares for an indefinite period of time. The Purchaser acknowledges that the Placement Agent has made no representations or warranties regarding the Company.

          3.2 Investment Purpose. Such Purchaser is acquiring the number of Preferred Shares set forth opposite its name on Schedule A hereto in the ordinary course of its business and for its own account for investment purposes only and with no present intention of distributing any of such Preferred Shares, and no arrangement or understanding exists with any other persons regarding the distribution of such Preferred Shares; provided, however, that in making such representation, such Purchaser reserves the right to sell, transfer or otherwise dispose of the Preferred Shares at any time subject to and in accordance with (i) the provisions of this Agreement and (ii) the Federal and state securities laws applicable to such sale, transfer or disposition.

          3.3 Accredited Investor. Such Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act.

          3.4 Reliance on Exemptions. Such Purchaser understands that the Preferred Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act and applicable state securities laws and that the Company is relying upon the truth, accuracy and completeness of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Preferred Shares.

          3.5 Offering Materials. Such Purchaser hereby acknowledges and agrees that it is prohibited from reproducing or distributing the Offering Memorandums, the Operative Documents or any other offering materials, in whole or in part, or divulging or discussing any of their contents, except for use internally and by its legal counsel, except as required by law or legal process or except to the extent such information is made publicly available other than as a result of a breach by such Purchaser (or any of its affiliates or their representatives) of its confidentiality obligations hereunder. Further, such Purchaser understands that the existence and nature of all conversations and presentations, if any, regarding the Company and this offering must be kept strictly confidential until such time as the Company makes a public announcement of the sale of the Preferred Shares. Such Purchaser understands that the federal securities laws impose restrictions on trading based on information regarding this offering.

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          3.6 No Governmental Review. Such Purchaser understands that no United States federal or state agency or other government or governmental agency has passed upon or made any recommendation or endorsement of the Preferred Shares or the fairness or suitability of the investment in the Preferred Shares nor have such authorities passed upon or endorsed the merits of the offering of the Preferred Shares.

          3.7 Transfer or Resale.

               (a) Such Purchaser understands that the Preferred Shares have not been registered under the Securities Act or any state securities laws, and such Purchaser agrees that it will not, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition;” and the term “Dispose” shall have the correlative meaning) the Preferred Shares, unless (i) the Preferred Shares are registered under the Securities Act, (ii) such Purchaser shall have delivered to the Company an opinion of counsel in form and substance reasonably acceptable to the Company, to the effect that, in connection with such Disposition, registration is not required under the Securities Act or any applicable state securities law due to the applicability of an exemption therefrom, or (iii) such Preferred Shares have been Disposed of in accordance with Rule 144 under the Securities Act or any successor provision. In that connection, such Purchaser is aware of Rule 144 under the Securities Act and the restrictions imposed thereby.

               (b) Such Purchaser that is located outside the United States acknowledges that, to its knowledge, no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Preferred Shares, or possession or distribution of offering materials in connection with the issue of the Preferred Shares, in any jurisdiction outside the United States where action for that purpose is required. Such Purchaser outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Preferred Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Preferred Shares.

               (c) Such Purchaser hereby covenants with the Company not to make any Disposition of the Preferred Shares without complying with the provisions of the Operative Documents, and, if then applicable, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and such Purchaser acknowledges that the certificates evidencing the Preferred Shares will be imprinted with a legend that prohibits their Disposition except in accordance therewith.

          3.8 Legends. Such Purchaser understands that the Securities (and all securities issued in exchange therefor or in substitution thereof) shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Securities):

     “NEITHER THIS SECURITY NOR THE COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS

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OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR THE COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF (A) THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), OR (C) IT IS AN INDIVIDUAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a) (4), (5) OR (6) UNDER THE SECURITIES ACT; (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY OR ANY COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, BEFORE THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), ONLY (A) TO GRUBB & ELLIS COMPANY (THE “ISSUER”), (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) IF THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) UNDER THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRANSFER AGENT’S RIGHT BEFORE ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED ON THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(B) ABOVE OR ON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).”

     The legend above shall be removed by the Company from any certificate evidencing the Securities if a registration statement under the Securities Act is at that time in effect with respect to the legended Security or the Company is provided with documentation reasonably satisfactory to the Company and its counsel that such Security can be freely transferred in a public sale without such a registration statement being in effect.

     If the Company shall fail for any reason or for no reason to issue to the Purchaser unlegended certificates or issue such Securities to such Purchaser by electronic delivery at the

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applicable balance account at The Depository Trust Company within three (3) business days after the receipt of documents necessary for the removal of the legend set forth in this Section 3.8 above (the “Removal Date”), then in addition to all other remedies available to the Purchaser, if on or after the business day immediately following such three (3) business day period, the Purchaser purchases (in an open market transaction or otherwise) shares of Securities to deliver in satisfaction of a sale by the Purchaser of such Securities that the Purchaser anticipated receiving without legend from the Company (a “Buy-In”), then the Company shall, within three (3) business days after the Purchaser’s request and in the Purchaser’s discretion, either (a) pay cash to the Purchaser in an amount equal to the Purchaser’s total purchase price (including brokerage commissions, if any) for the shares of Securities so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such unlegended Securities shall terminate, or (b) promptly honor its obligation to deliver to the Purchaser such unlegended Securities as provided above and pay cash to the Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (i) such number of shares of Securities, times (ii) the Closing Bid Price on the Removal Date. For the purpose of this Agreement, “Closing Bid Price” means, for any security as of any date, the last closing bid price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg Financial Markets (“Bloomberg”), or if the foregoing does not apply, the last closing bid price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Bid Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price of such security on such date shall be the fair market value as mutually determined by the Company and the holder of the Securities. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

          3.9 Residency. If such Purchaser is not a natural person, such Purchaser’s principal executive offices are in the jurisdiction set forth immediately below the Purchaser’s name on the signature pages hereto.

          3.10 Authorization; Enforcement; Validity. Such Purchaser has the power, authority and capacity to enter into the Operative Documents to which it is a party and to consummate the transactions contemplated hereby and thereby, and has taken all necessary action to authorize the execution, delivery, and performance of such Operative Documents. Upon the execution and delivery of such Operative Documents, and assuming the valid execution thereof by the Company, such Operative Documents shall constitute valid and binding obligations of such Purchaser, enforceable in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as agreements by such Purchaser to indemnify others may be violative of public policy and, thus, unenforceable.

          3.11 No Conflicts. The execution and performance of the Operative Documents to which such Purchaser is a party do not conflict with any other agreement to which

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such Purchaser is a party or is bound, any court order or judgment binding upon such Purchaser, or the organizational documents of such Purchaser, except for such conflicts as would not reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

          3.12 No Intent to Effect a Change of Control. Such Purchaser has no present intention to acquire or hold the Securities with a purpose or effect of changing or influencing control of the Company, as such phrase is understood in Regulation 13D under the Exchange Act.

          3.13 No Adverse Litigation. Such Purchaser is not a party to any litigation against the Company.

          3.14 No Advice. Such Purchaser understands that nothing in this Agreement or any other materials presented to such Purchaser in connection with the purchase and sale of the Preferred Shares constitutes legal, tax or investment advice. Such Purchaser has consulted its own legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Preferred Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely on such representations and warranties.

          3.15 No Finder’s Fees. Such Purchaser has not incurred any liability for any finder’s fees or similar payments in connection with the transactions herein contemplated.

          3.16 No General Solicitation. Such Purchaser is not purchasing the Preferred Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.

          3.17 Prohibited Transactions.

          (a) During the period beginning from the time such Purchaser was initially contacted about the issue and sale of the Preferred Shares to the date hereof, neither such Purchaser nor any affiliate of such Purchaser, foreign or domestic, has, directly or indirectly, effected or agreed to effect any “short sale” (as defined in Rule 200 under Regulation SHO), whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) with respect to the Common Stock, borrowed any shares of Common Stock, or granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Company’ securities (each, a “Prohibited Transaction”).

          (b) Prior to the earlier to occur of (i) the termination of this Agreement, and (ii) 180 days from the Closing Date, such Purchaser shall not, and shall cause its affiliates not to engage directly or indirectly, in any Prohibited Transaction.

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          3.18 No Registration Rights. Other than certain of the Purchasers that are party to the Registration Rights Agreement, each Purchaser acknowledges that no Purchaser will be granted any rights to require the registration of the Preferred Shares.

     SECTION 4. Covenants.

          4.1 Obligations. Each party shall timely satisfy each of the conditions to be satisfied by it as provided in Sections 5 and 6 of this Agreement. The Company will use its reasonable best efforts to do and perform all things to be done or performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Preferred Shares.

          4.2 Securities Laws Disclosure. On or before 5:00 p.m., eastern time, on the fourth business day following the date of this Agreement, the Company shall file a Current Report on Form 8-K with the Commission (i) describing the terms of the transactions contemplated by the Operative Documents and including the form of this Agreement and the form of the Registration Rights Agreement and the form of Certificate of Designations as exhibits to such Current Report on Form 8-K and (ii) describing any material non-public information set forth in the Offering Memorandums. From and after the issuance of such Form 8-K, no Purchaser shall be in possession of any material, non-public information received from the Placement Agent, the Company, any Subsidiary or any of their respective officers, directors or employees, that is not disclosed in such Form 8-K. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents, not to, provide any Purchaser with any material, non-public information regarding the Company or any of its Subsidiaries from and after the filing of such Form 8-K with the Commission without the consent of such Purchaser.

          4.3 Use of Proceeds. The Company shall use the proceeds from the sale of the Preferred Shares as described under “Use of Proceeds” in the Time of Sale Memorandum.

          4.4 Restriction on Sale of Securities. During a period of 180 days from the date of the Offering Memorandum, the Company will not, without the prior written consent of the Placement Agent, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any share of Common Stock or other security of the Company or any of its Subsidiaries or any security convertible into or exercisable or exchangeable for Common Stock or other securities of the Company or any of its Subsidiaries or file any registration statement under the Securities Act (other than a registration statement on Form S-8 or filed pursuant to the Registration Rights Agreement) with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) any Preferred Shares to be sold by the Company hereunder, (B) issuances of equity incentive awards pursuant to the Company’s equity incentive plans, (C) the issuance of Underlying Shares upon conversion of the Preferred Shares, or (D) issuances of any

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equity awards pursuant to an employment agreement or arrangement or equity compensation plan approved by the Company’s Board of Directors.

          4.5 Blue Sky Laws. The Company agrees to make commercially reasonable best efforts to qualify the Preferred Shares under the state securities or blue sky laws of any jurisdiction in which such qualification may be required in connection with the sale and distribution of the Preferred Shares.

          4.6 General Solicitation. The Company will not solicit any offer to buy or offer or sell the Preferred Shares by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.

          4.7 Rule 144 Information. For so long as any of the Preferred Shares remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will make available to any holder or beneficial owner of Preferred Shares in connection with any sale thereof and any prospective purchaser of such Preferred Shares from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act.

          4.8 Listing. The Company will use its reasonable best efforts to promptly effect the listing of the Underlying Shares on the NYSE.

          4.9 Sarbanes-Oxley Act. The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules, and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.

          4.10 Available Shares. The Company will reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue the Underlying Shares.

          4.11 Transfer Agent. The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.

          4.12 Investment Company. The Company will take such steps as shall be necessary to ensure that the Company does not become an “investment company” as such term is defined under the Investment Company Act.

          4.13 Usury Laws. The Company will not voluntarily claim the benefit of any usury laws against the holders of any Securities.

     SECTION 5. Conditions to the Company’s Obligation to Close. The obligation of the Company to issue and sell the Preferred Shares to each respective Purchaser at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the

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Company at any time in its sole discretion by providing such Purchaser with prior written notice thereof:

          5.1 Operative Documents. Such Purchaser shall have executed each of the Operative Documents to which it is a party and delivered the same to the Company.

          5.2 Payment of Purchase Price. The Company shall have received from such Purchaser the full amount of the purchase price for the Preferred Shares being purchased by such Purchaser at the Closing, by wire transfer of immediately available funds in accordance with the Escrow Agreement. Wire transfer instructions shall be set forth on Schedule C hereto.

          5.3 No Injunctions or Restraints. No litigation properly filed and served on the Company by a governmental authority with competent jurisdiction over the Company shall be pending which seeks to enjoin or prohibit the Company from consummating the transactions contemplated by the Operative Documents, and no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction over the Company shall be in effect which seeks to enjoin or prohibit the Company from consummating the transactions contemplated by the Operative Documents.

          5.4 Representations and Warranties; Covenants. The representations and warranties of such Purchaser shall be true, correct and complete in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case such representations and warranties shall be true, correct and complete without further qualification) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true, correct and complete as of such date), and such Purchaser shall have performed, satisfied and complied with in all material respects the covenants, agreements and conditions required by the Operative Documents to be performed, satisfied or complied with by such Purchaser at or prior to the Closing Date.

     SECTION 6. Conditions to each Purchaser’s Obligation to Close. The obligation of each Purchaser hereunder to purchase the Preferred Shares from the Company at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for each Purchaser’s sole benefit and may be waived by such Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof:

          6.1 Operative Documents. The Company shall have executed each of the Operative Documents and delivered the same to such Purchaser.

          6.2 Delivery of Preferred Shares. The Company shall have executed and delivered to such Purchaser one or more certificates representing the Preferred Shares being purchased by such Purchaser at the Closing.

          6.3 Opinion of Counsel. The Company shall have delivered to the Placement Agent the opinion of Zukerman Gore Brandeis & Crossman, LLP, legal counsel of the Company, dated as of the Closing Date, in substantially the form of Exhibit D attached hereto, subject to customary qualifications, and such other opinions as the Purchasers may reasonably request.

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Such opinion also shall state that each of the Purchasers may rely thereon as though it were addressed to such Purchaser.

          6.4 Lock-Up Agreement. On the Effective Date, the Company shall have delivered to the Placement Agent an agreement in the form of Exhibit E attached hereto (the “Lock-up Agreement”) from certain officers, satisfactory to the Placement Agent, and each director of the Company. Such agreement shall be in full force and effect on the Closing Date.

          6.5 “Comfort” Letter. At the Closing, the Company shall have delivered to the Placement Agent letters from Ernst & Young LLP dated, respectively, as of the Effective Date and the Closing Date, in form and substance reasonably satisfactory to the Placement Agent, relating to the financial statements, including any pro forma financial statements, of the Company, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. Such letters also shall state that each of the Purchasers may rely thereon as though it were addressed to such Purchaser.

          6.6 No Injunctions or Restraints. No litigation properly filed and served on the Company by a governmental authority with competent jurisdiction over the Company shall be pending which seeks to enjoin or prohibit the Company from consummating the transactions contemplated by the Operative Documents, and no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction over the Company shall be in effect which seeks to enjoin or prohibit the Company from consummating the transactions contemplated by the Operative Documents.

          6.7 Representations and Warranties; Covenants. The representations and warranties of the Company shall be true, correct and complete in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 2 above, in which case such representations and warranties shall be true, correct and complete without further qualification) as of the date when made and as of the Closing Date as though made at the Closing Date, and the Company shall have performed, satisfied and complied with in all material respects the covenants, agreements and conditions required by the Operative Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date.

          6.8 Material Adverse Change. Subsequent to the respective dates as of which information is given in the Offering Memorandums, there has been no (i) change, event, circumstance or development that could reasonably be expected to have a Material Adverse Effect (whether or not arising in the ordinary course of business), (ii) transaction which is material to the Company and its Subsidiaries, considered as one enterprise, (iii) other than the transactions contemplated in this Agreement or the Operative Documents, obligation, direct or contingent, that is material to the Company and its Subsidiaries, considered as one enterprise, incurred by the Company and the Subsidiaries, considered as one enterprise, (iv) change in the capital stock or material change in outstanding indebtedness of the Company and its Subsidiaries, considered as one enterprise, considered as one enterprise, or (v) dividend or distribution of any kind declared, paid or made on the capital stock of the Company or its Subsidiaries, or any loss or damage (whether or not insured) to the property of the Company or

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Subsidiaries which has been sustained or will have been sustained which has a Material Adverse Effect.

          6.9 Good Standing Certificate. The Company shall have delivered to the Placement Agent on behalf of the Purchasers a certificate of the Secretary of State of the State of Delaware, dated as of a date within ten days of the date of the Closing, with respect to the good standing of the Company.

          6.10 Secretary’s Certificate. The Company shall have delivered to the Placement Agent on behalf of the Purchasers a certificate of the Company executed by the Company’s Secretary, dated as of the Closing Date, attaching and certifying to the truth and correctness of (i) the Company’s charter documents, (ii) the Company’s bylaws, and (iii) the resolutions adopted by the Company’s board of directors in connection with the transactions contemplated by the Operative Documents.

          6.11 Other Actions. The Company shall have executed such certificates, agreements, instruments and other documents, and taken such other actions as shall be customary or reasonably requested by the Placement Agent or the Purchasers in connection with the transactions contemplated hereby.

          6.12 Approval of Listing. At the Closing Time, the Underlying Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance.

          6.13 Certificate of Designations. The Company shall have filed the Certificate of Designations with the Secretary of State of the State of Delaware.

          6.14 Registration Rights Agreement. The Company and the holders party to the Registration Rights Agreement shall have entered into the Registration Rights Agreement.

          6.15 Escrow Agreement. The Escrow Agent, the Company, the Initial Purchaser and the Placement Agent shall have entered into the Escrow Agreement.

          6.16 Debt Restructuring. The Company and its Subsidiaries shall have satisfied in full their respective obligations in connection with the Credit Agreement. The Credit Agreement shall have been terminated in accordance with its terms and all principal, interest and other amounts due to the lenders and agents thereunder shall have been paid in full and the Placement Agent shall have been provided with a copy of a payoff letter or other evidence demonstrating such payment in full.

          6.17 NYSE Exemption. The Exemption Application shall be in full force and effect and the required 10-day notification period with respect thereto shall have expired without such exemption having been withdrawn, rescinded or voided.

          6.18 Preliminary Proxy. The Company shall have filed a preliminary proxy with the Commission for a stockholder meeting to be held no later than 120 days after the Closing Date, seeking to amend its certificate of incorporation, in accordance with Section 9 of the Certificate of Designations.

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          6.19 Officers’ Certificate. On the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Offering Memorandum or the Time of Sale Offering Memorandum, (i) any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating according any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) any adverse change, or any development involving a prospective adverse change, in the condition, financial or otherwise, or in the earnings, assets, business affairs, business prospects, or operations of the Company and its Subsidiaries, taken as a whole, or in the fee, ground lease, and mortgage interests, in the properties which the Company and its Subsidiaries will own and/or operate as of the Closing Date, whether or not arising in the ordinary course of business, which would be material to the Company and its Subsidiaries, taken as a whole, (iii) transactions or acquisitions entered into by the Company or any of its Subsidiaries, other than those in the ordinary course of business which would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (iv) any dividend or distribution of any kind, declared, paid or made by the Company on any class of its capital stock, or (v) any change in the capital stock of the Company or any increase in indebtedness of Company or any of its Subsidiaries or in the indebtedness encumbering the properties which the Company and its Subsidiaries will own and/or operate as of the Closing Date, which would reasonably be expected to have a Material Adverse Effect, and the Initial Purchaser shall have received a certificate of the chief financial or chief accounting officer of the Company, dated as of the Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the statements above are true and correct as of the Closing Date, (iii) the representations and warranties in Section 2 hereof are true and correct as of the Closing Date, and (iv) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.

     SECTION 7. Miscellaneous Provisions.

          7.1 Survival of Representations and Warranties. A Purchaser’s election to purchase the Preferred Shares being purchased by such Purchaser based upon the statements in the certificate described in Section 6.19 of this Agreement shall not be construed as a waiver of such Purchaser’s right to remedies for the inaccuracy of the representations and warranties made by the Company in this Agreement and in such certificate. Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent, all representations and warranties made by the Company and the Purchasers herein and in the certificates for the Preferred Shares delivered pursuant hereto shall survive the execution of this Agreement, the delivery to the Purchasers of the Preferred Shares being purchased and the payment in exchange therefor.

          7.2 Placement Agent. The Purchasers acknowledge that the Company intends to pay to the Placement Agent a fee in respect of the sale of the Preferred Shares to the Purchasers. Each of the parties hereto hereby represents that, on the basis of any actions and agreements by it, there are no other brokers or finders entitled to compensation in connection with the sale of the Preferred Shares to the Purchasers. The Placement Agent is not an agent of, and is not entitled to make any representations to the Purchasers or execute any documents on

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behalf of, the Company, and the Purchasers acknowledge that the Placement Agent is not authorized to bind the Company in any way.

          7.3 Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile; or (iii) two (2) business days after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

          (a)     if to the Company, to:

Grubb & Ellis Company
500 W. Monroe
Chicago, Illinois 60661
Attention: Chief Financial Officer
Facsimile No.: (312) 698-5944

                  with a copy to:

Zukerman Gore Brandeis & Crossman, LLP
875 Third Avenue
New York, New York 10022
Attention: Clifford A. Brandeis, Esq.
                 Joseph E. Maloney, Esq.
Facsimile No.: (212) 223-6433

          (b)     if to the Placement Agent, to:

JMP Securities LLC
600 Montgomery Street, 11^th Floor
San Francisco, California 94111
Facsimile: (415) 835-8910
Attention: Kent Ledbetter
                 David Fullerton
                 Anthony Wayne

                  with a copy to:

O’Melveny & Myers LLP
Two Embarcadero Center, 28^th Floor
San Francisco, California 94111
Facsimile: (415) 984-8701
Attention: Peter T. Healy, Esq.

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          (c) if to a Purchaser, at its address as set forth on the Stock Certificate Questionnaire completed by such Purchaser, or at such other address or addresses as may have been furnished to the Company in writing.

Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission, or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

          7.4 Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

          7.5 Expenses. The Company shall pay the legal fees and expenses of Greenberg Traurig LLP incurred by the Purchasers on Schedule E in connection with the transactions contemplated by the Operative Documents, which amount shall be paid out of the escrow account contemplated by the Escrow Agreement at the Closing or paid by the Company upon termination of this Agreement so long as such termination did not occur as a result of a material breach by such Purchasers of any of their obligations hereunder (as the case may be). Except as provided elsewhere in the Operative Documents, each party shall bear their respective costs and expenses associated with the negotiation, execution, delivery, and performance of the Operative Documents.

          7.6 Indemnity. The Company shall indemnify, defend and hold harmless each of the Purchasers and its agents, shareholders, partners, members, officers, directors, representatives and affiliates (each a “Purchaser Indemnitee” and collectively, the “Purchaser Indemnitees”) from and against any and all losses, damages, liabilities, claims and expenses, including reasonable attorneys’ fees, sustained by any Purchaser Indemnitee resulting from, arising out of, or connected with any material inaccuracy in, breach of, or non-fulfillment of any representation, warranty, covenant or agreement made by or other obligation of the Company contained in this Agreement (including the exhibits and schedules hereto) or in any document delivered in connection herewith.

          7.7 Amendments and Waivers. This Agreement may not be modified or amended or the observance of any term of this Agreement may not be waived except pursuant to an instrument in writing signed by the Company and each Purchaser. All references in this Agreement to sections, paragraphs, exhibits and schedules shall, unless otherwise provided, refer to sections and paragraphs hereof and exhibits and schedules attached hereto, all of which exhibits and schedules are incorporated herein by this reference. No consideration shall be offered or paid to any Purchaser to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration is also offered to all of the Purchasers.

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          7.8 Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be part of this Agreement.

          7.9 Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

          7.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws provisions.

          7.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. Facsimile signatures shall be deemed original signatures.

          7.12 Entire Agreement. This Agreement, the Operative Documents, and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor any of the Purchasers makes any representation, warranty, covenant or undertaking with respect to such matters.

          7.13 Third Party Beneficiaries. The Placement Agent shall be a third party beneficiary of this Agreement.

          7.14 Publicity. The Company shall have the right to approve before issuance any press releases or any other public statements with respect to the transactions contemplated by the Operative Documents. The Company shall not publicly disclose the name of any Purchaser or any of its affiliates or investment advisers without the prior written consent of such Purchaser; provided, however, that the Company shall have the right to disclose such information without such Purchaser’s consent in the event that such disclosure is required by any judicial or administrative action, law (including, without limitation, the Securities Act and the Exchange Act), any exchange on which securities of the Company are listed and regulations or as otherwise deemed advisable by counsel to the Company.

          7.15 Termination. In the event that the Closing shall not have occurred with respect to a Purchaser on or before thirty (30) calendar days from the Effective Date due to the Company’s or such Purchaser’s failure to satisfy the conditions set forth in Sections 5 and 6 of this Agreement (and the non-breaching party’s failure to waive such unsatisfied conditions), the non-breaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date without liability of any non-breaching party to any other party. If, upon termination of this Agreement, the amount, if any, received by any Purchaser from the escrow account is less than the amount deposited into the escrow account, the Company shall immediately pay the amount of any deficiency to such Purchaser.

          7.16 Assignment. The terms and conditions to this Agreement shall inure to the benefit of the parties hereto and their respective permitted successors, heirs, assignees and

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legal representatives. This Agreement and the rights and obligations of the respective Purchasers hereunder may not be assigned without the prior written consent of the Company; provided, however, that no such consent shall be required for any assignment to (i) a direct or indirect majority-owned subsidiary of such Purchaser or other entity controlled or managed by the Purchaser, (ii) to any entity for which such Purchaser or an affiliate of the Purchaser is a general partner or managing member or (iii) to any entity that shares a common discretionary investment advisor with such Purchaser. The Company may not assign its rights hereunder without the prior written consent of the Purchasers. In no event will a sale by any Purchaser of all or substantially all of its capital stock or assets, or a merger, consolidation, share exchange or other business combination transaction involving any such Purchaser constitute an assignment for purposes of this Section 7.16.

[Remainder of this page intentionally left blank.]

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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

“COMPANY” GRUBB & ELLIS COMPANY
By:
	Name:
	Title:

[Signature page to Purchase Agreement]

“PURCHASER”

Legal Name of Purchaser:

Name of Individual Representing Purchaser:

Title of Individual Representing Purchaser:

Signature:

Number of Preferred Shares:

Address:

Telephone:

Facsimile:

[Signature page to Purchase Agreement]

SUMMARY INSTRUCTION SHEET FOR THE PURCHASER
(to be read in conjunction with the entire Purchase Agreement)

A. Complete the following items on the Purchase Agreement:

1. Signature Page:

(i)	Legal Name of Purchaser
(ii)	Name of Individual representing Purchaser (if an Institution)
(iii)	Title of Individual representing Purchaser (if an Institution)
(iv)	Signature of Individual Purchaser or Individual representing Purchaser
(v)	Address, telephone number and facsimile number of Purchaser

2. Appendix I — Stock Certificate Questionnaire: Provide the information requested by the Stock Certificate Questionnaire (attached hereto).

3. Return properly completed and signed Purchase Agreement including the properly completed Appendix I (initially by facsimile with hard copy by overnight delivery) to:

JMP Securities LLC
600 Montgomery Street, 11^th Floor
San Francisco, California 94111
Facsimile: (415) 835-8910
Attention: Kent Ledbetter
                 David Fullerton
                 Anthony Wayne

B. Instructions regarding the transfer of funds for the purchase of Preferred Shares will be sent by facsimile to the Purchaser by the Placement Agent at a later date.

C. Upon the resale of the Preferred Shares by the Purchasers, as described in the Purchase Agreement, the Purchaser must send a letter in the form of Appendix II attached hereto to the Company so that the Preferred Shares may be properly transferred.

APPENDIX I
GRUBB & ELLIS COMPANY
STOCK CERTIFICATE QUESTIONNAIRE

     The undersigned purchaser requests that its stock certificate be issued in the name of the person(s) indicated below:

Name:

Address:

Social Security or other
Taxpayer Identification Number:

Date:

Name of Purchaser:

Name of Individual
Representing Purchaser:

Title:

Signature:

APPENDIX II
GRUBB & ELLIS COMPANY
PURCHASER’S CERTIFICATE OF SUBSEQUENT SALE

Attention: Grubb & Ellis Company
Chief Financial Officer

     The undersigned, [an officer of, or other person duly authorized by]                     ¹ hereby certifies that [he/she][said institution] is the Purchaser of the shares evidenced by the attached certificate, and as such, sold                     ² shares on                                         .³

     Print or Type:

Name of Purchaser:

Name of Individual Representing Purchaser:

Title:

Signature:

1	Insert official name of individual or institution.
2	Insert number of shares.
3	Insert date of sale.

SCHEDULE A
SCHEDULE OF PURCHASERS

	Number of	Aggregate
Name of Purchaser	Preferred Shares	Purchase Price
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

SCHEDULE B

ADDITIONAL TIME OF SALE INFORMATION

The Placement Agent shall receive a cash fee (the “Private Placement Fee”) of six percent of the gross proceeds of the sale of Preferred Stock pursuant to this Agreement, except as otherwise set forth in the engagement letter dated September 24, 2009 by and between the Company and the Placement Agent.

SCHEDULE C

COMPANY WIRE INSTRUCTIONS

[Please see attached.]

SCHEDULE D
LIST OF GOOD STANDING JURISDICTIONS

	Subsidiary Name	Subsidiary of:	State of Org.
1	Grubb & Ellis Affiliates, Inc.	Grubb & Ellis Company (“G&E”)	DE
2	Grubb & Ellis Management Services, Inc. (f/k/a Axiom Real Estate Management Services, Inc.) (“GEMS”)	G&E	DE
3	Grubb & Ellis of Arizona, Inc.	G&E	WA
4	Grubb & Ellis Consulting Services Company (d/b/a Landauer Realty Group, Inc.) (“G&E Consulting”)	G&E	FL
5	Grubb & Ellis of Michigan, Inc. (d/b/a Grubb & Ellis Company)	G&E	MI
6	Grubb & Ellis Mortgage Group, Inc.	G&E	CA
7	Grubb & Ellis of Nevada, Inc.	G&E	NV
8	Grubb & Ellis New York, Inc.	G&E	NY
9	Grubb & Ellis Advisers of California, Inc. (formerly known as Grubb & Ellis Realty Advisers, Inc.)	G&E	CA
10	HSM Inc.	G&E	TX
11	Wm. A. White/Grubb & Ellis Inc.	G&E	NY
12	Landauer Hospitality International, Inc.	G&E Consulting	DE
13	Landauer Securities, Inc.	G&E Consulting	MA
14	Grubb & Ellis Management Services of Michigan, Inc. (d/b/a Grubb & Ellis Management Services, Inc.)	GEMS	MI
15	Grubb & Ellis Europe, Inc.	G&E	CA
16	GERA Shafer/Abrams Holdings LLC	G&E	DE
17	GERA Abrams Centre LLC	GERA Shafer/Abrams	DE
18	GERA 6400 Shafer LLC	GERA Shafer/Abrams	DE
19	NNN Realty Advisors, Inc.	G&E	DE
20	Grubb & Ellis Realty Investors, LLC	NNN Realty Adv.	VA
21	NNN/ROC Apartment Holdings, LLC	G&E Realty Inv.	VA
22	NNN Collateralized Senior Notes, LLC	G&E Realty Inv.	DE
23	NNN Mission Residential Holdings, LLC	G&E Realty Inv.	VA
24	Grubb & Ellis Healthcare REIT Advisor, LLC	G&E Realty Inv.	DE
25	Grubb & Ellis Healthcare Management, LLC	G&E Realty Inv.	VA
26	Grubb & Ellis Apartment REIT Advisor, LLC	G&E Realty Inv.	VA
27	Grubb & Ellis Apartment Management, LLC	G&E Realty Inv.	VA
28	NNN Park At Spring Creek Leaseco, LP	G&E Realty Inv.	TX

Schedule D - 1

	Subsidiary Name	Subsidiary of:	State of Org.
29	NNN 6320 Lamar, LLC	G&E Realty Inv.	VA
30	NNN Met Centre 10 SPE, LLC	G&E Realty Inv.	DE
31	NNN/SOF Avallon Member, LLC	G&E Realty Inv.	DE
32	NNN 200 Galleria Member, LLC	G&E Realty Inv.	DE
33	Grubb & Ellis Housing, LLC	G&E Realty Inv.	VA
34	NNN St. Charles Leaseco, LLC	G&E Housing	DE
35	NNN Sanctuary at Highland Oaks Leasco, LLC	G&E Housing	DE
36	Triple Net Properties Realty, Inc.	NNN Realty Adv.	CA
37	Grubb & Ellis Residential Management, Inc.	NNN Realty Adv.	DE
38	Grubb & Ellis Alesco Global Advisors, LLC	NNN Realty Adv.	CA
39	Grubb & Ellis Securities, Inc.	NNN Realty Adv.	CA
40	Grubb & Ellis Healthcare REIT II Advisor, LLC	G&E Realty Inv.	DE
41	NNN/SOF Avallon, LLC	NNN/SOF Avallon Member	DE
42	NNN 200 Galleria, LLC	NNN 200 Galleria Member	DE
43	Middle East Real Estate Services, LLC	GEMS	DE
44	Grubb & Ellis Equity Advisors, Property Management, Inc.	GEEA	DE
45	Grubb & Ellis Investor Solutions, LLC	GEEA	DE
46	Grubb & Ellis — RPTA Property Tax Advisors, LLC	G&E	DE
47	Grubb & Ellis Capital Corporation	G&E	CA
48	Grubb & Ellis Equity Advisors, LLC	G&E	DE
49	Grubb & Ellis Infrastructure Member, LLC	GEEA	DE
50	Energy & Infrastructure Advisors, LLC	G&E Infrastructure Member, LLC	DE

Schedule D - 2

SCHEDULE E

[Please see attached.]

Schedule E - 1

EXHIBIT A

CERTIFICATE OF DESIGNATIONS

[Please see attached.]

EXHIBIT B

FORM OF REGISTRATION RIGHTS AGREEMENT

[Please see attached.]

EXHIBIT C

FORM OF ESCROW AGREEMENT

[Please see attached.]

EXHIBIT D

FORM OF COMPANY COUNSEL OPINION

1.	Each of the Company and its Subsidiaries has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited liability company or trust in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable. The foregoing opinion regarding the valid existence and good standing of the Company and each Subsidiary is based solely on a certificate issued by the secretary of state, or similar governmental authority, of the jurisdiction of incorporation or formation, as the case may be, of the Company and each such Subsidiary. The Company has corporate power to enter into the Operative Documents, and perform its obligations under the Operative Documents and issue the Securities. The Company has the requisite corporate power to own, lease, and operate its assets and to carry on its business as presently conducted as described in the SEC Filings.
2.	The execution, delivery, and performance of the Operative Documents have been duly authorized by all necessary corporate action on the part of the Company and no further consent or authorization of the Company, its Board of Directors or its stockholders is required. The Operative Documents have been duly executed and delivered by the Company.
3.	Each of the Operative Documents constitutes the legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that the foregoing opinion regarding the enforceability of the Operative Documents are limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws affecting the rights of creditors and (b) general principles of equity, whether considered at law or in equity. In addition, we express no opinion regarding (i) the submission to jurisdiction to the extent it relates to the subject matter jurisdiction of any court or the designation of an exclusive jurisdiction for the resolutions of disputes, (ii) the enforceability of any waiver of a trial by jury, any waiver of any right to have service of process made in the manner required by applicable law or any waiver of objection to venue or claim of an inconvenient forum with respect to proceedings, (iii) the enforceability of any indemnification or contribution provision contained in the Purchase Agreement and the Registration Rights Agreement for claims, losses or liabilities in an unreasonable amount, for claims, losses or liabilities attributable to the indemnified party’s negligence or to the extent enforceability of such indemnification and contribution provisions may be barred or limited by federal or state securities laws, or (iv) the ability of any person to receive the remedies of specific performance, injunctive relief or any similar remedy in any proceeding. We also express no opinion regarding whether a federal or state court outside of the State of New York would give effect to a choice of New York law.
4.	The execution and delivery by the Company of the Operative Documents do not, and the Company’s performance of its obligations under the Operative Documents does not, (i) violate the Company’s charter or bylaws, (ii) violate, breach, or result in a default under, any existing obligation of or restriction on the Company under any agreement (the

	“Other Agreements”) listed as an exhibit to the Company’s annual report on Form 10-K/A for the year ended December 31, 2008, or (iii) to our knowledge, breach or otherwise violate any existing obligation of or restriction on the Company under any order, judgment or decree of any New York or federal court or governmental authority binding on the Company.
5.	The execution and delivery by the Company of the Operative Documents do not, and the Company’s performance of its obligations under the Operative Documents will not, violate the current Delaware General Corporation Law (the “DGCL”) or any current New York or federal statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to the Company or to transactions of the type contemplated by the Operative Documents.
6.	To our knowledge, no order, consent, permit or approval of any New York or federal governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company or to transactions of the type contemplated by the Operative Documents is required on the part of the Company for the execution and delivery of, and performance of its obligations under, the Operative Documents.
7.	The outstanding shares of the capital stock of or limited liability company interests in the Company and each of the Subsidiaries have been duly authorized by all necessary corporate or limited liability company action on the part of the Company and the Subsidiaries and are validly issued, fully paid and non-assessable.
8.	The Preferred Shares have been duly authorized by all necessary corporate action on the part of the Company and, upon payment for and delivery of the Preferred Shares in accordance with the Purchase Agreement and the countersigning of the certificate or certificates representing the Preferred Shares by a duly authorized signatory of the registrar for the Preferred Stock, the Preferred Shares will be validly issued, fully paid and non-assessable.
9.	The stock certificates being delivered to each Purchaser representing the Preferred Shares comply in all material respects with the requirements of the DGCL and with any applicable requirements under the Company’s charter and bylaws.
10.	Assuming the accuracy of each of the Purchaser’s representations and warranties in Section 3 of the Purchase Agreement and each of the Company’s representations and warranties in Section 2 of the Purchase Agreement, and assuming that the Company and each Purchaser has performed each of its covenants and other agreements contained in the Purchase Agreement and that the Placement Agent has not engaged in any general solicitation or advertising in connection with the transactions contemplated by the Purchase Agreement, it is not necessary in connection with the sale of the Preferred Shares under the circumstances contemplated in the Purchase Agreement to register the Preferred Shares under the Securities Act.
11.	Holders of the capital stock of the Company are not entitled under the Company’s charter or bylaws, any of the Other Agreements or applicable law to any preemptive right to

	subscribe to any additional shares of the Company’s capital stock. With respect to each Subsidiary, holders of the capital stock of or limited liability company interests in each such Subsidiary are not entitled under such Subsidiary’s governing documents or the Other Agreements to any preemptive right to subscribe to additional shares of capital stock of, or limited liability company interests in, such Subsidiaries.
12.	To our knowledge, there are no material actions, suits or proceedings, inquiries, or investigations pending against the Company, any of the Subsidiaries or any of their respective officers and directors, or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign government or regulatory commission, board, body, authority, arbitral panel or agency. We have informed you that we are not involved in the Company’s litigation matters and would have no reason to know and, be unlikely to have knowledge, of any of the matters referenced above.
13.	Neither the Company nor any Subsidiary is, nor after giving effect to the offering and sale of the Preferred Shares and the application of the proceeds thereof as described in the Purchase Agreement will be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.
14.	The Preferred Shares conform as to legal matters, in all material respects, to the description thereof contained in the Prospectus under the caption “Description of Our Preferred Stock”.
15.	The statements set forth in the Offering Memorandums under “Description of Our Capital Stock,” and “Description of Preferred Stock” insofar as such statements purport to summarize certain provisions of Delaware Law and the Certificate of Incorporation, Certificate of Designation and the Bylaws, constitute accurate summaries thereof in all material respects.

     The Company’s counsel shall also deliver on the Closing Date a letter providing the following negative assurance:

1. We have participated in various conferences with representatives of the Company and with representatives of the Placement Agent at which the contents of the Offering Memorandums and related matters were discussed and reviewed. On the basis of the foregoing, we advise you that nothing has come to our attention which has caused us to believe that the Time of Sale Memorandum as of the Time of Sale, and the Offering Memorandum as of its date, and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that we make no statement with respect to the financial statements and the related notes and schedules, other financial data or financial and accounting information included or incorporated by reference in, or omitted from, such Offering Memorandum.

EXHIBIT E

FORM OF LOCK-UP AGREEMENT

October ___, 2009

JMP Securities LLC
600 Montgomery Street, 11^th Floor
San Francisco, California 94111

     Re: Grubb & Ellis Company (the “Company”)

Ladies & Gentlemen:

     The undersigned is an owner of record or beneficial owner of certain shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) or other securities of the Company, or securities convertible into, exchangeable or exercisable for Common Stock or other securities of the Company (collectively, the “Securities”). The Company proposes to carry out a private offering of Preferred Stock, par value $0.01 per share (the “Offering”) for which you will act as an initial purchaser and the placement agent. The undersigned recognizes that the Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Offering and in entering into purchase agreement and placement agent arrangements with the Company with respect to the Offering.

     In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not, without the prior written consent of JMP Securities LLC (which consent may be withheld in its sole discretion), directly or indirectly, (a) sell, offer, contract, sell any option or contract to purchase, purchase any option or contract to sell, or grant any option, right or warrant to purchase (including, without limitation, any short sale), pledge, lend, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”) or otherwise dispose of any Securities (collectively, a “Disposition”) currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of equity securities of the Company, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock, Securities or other securities, in cash or otherwise or (c) publicly announce the undersigned’s intention to do any of the foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date one hundred eighty (180) days after the closing of the Offering (the “Lock-up Period”). The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of shares of Common Stock or Securities held by the undersigned except in compliance with the foregoing restrictions.

     The foregoing restriction has been expressly agreed to preclude the holder of the Common Stock and/or the Securities from engaging in any hedging or other transaction during

the Lock-up Period which is designed to or might reasonably be expected to lead to or result in a Disposition of the Common Stock and/or the Securities, even if such Common Stock and/or Securities would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale, or grant of any right (including, without limitation, any put or call option) with respect to any Common Stock and/or Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to, or derives any significant part of its value from the Common Stock and/or the Securities.

     This agreement is irrevocable and will be binding on the undersigned and the respective successors, heirs, personal representatives, and assigns of the undersigned. In the event the Offering has not occurred by November 20, 2009, this agreement shall be of no further force or effect. Nothing in this agreement shall constitute an obligation to purchase shares of Common Stock or Securities of the Company.

[LEGAL NAME OF HOLDER]
By:
	Name:
	Title:

EX-99.3

Exhibit 99.3

	Grubb & Ellis Company
	1551 N. Tustin Avenue, Suite 200
	Santa Ana, CA 92705
	714.667.8252 main
news release for immediate release	714.667.6860 fax www.grubb-ellis.com

Contact:	Janice McDill
Phone:	312.698.6707
Email:	janice.mcdill@grubb-ellis.com

Grubb & Ellis Company Announces $90 Million
Preferred Equity Transaction

SANTA ANA, Calif. (Oct. 23, 2009) — Grubb & Ellis Company (NYSE: GBE), a leading real estate services and investment firm, today announced that the company has entered into definitive agreements with qualified institutional buyers and accredited investors to effect the sale of 900,000 shares of a new issuance of a 12 percent cumulative participating perpetual convertible preferred stock for $90 million in gross proceeds. The company has also granted the initial purchaser and placement agent a 45-day option to purchase up to an additional 100,000 shares of preferred stock.

The closing of the transaction is expected to occur on or about Nov. 6, 2009, and the company intends to use the offering proceeds to repay in full its credit facility at the agreed reduced principal amount equal to approximately 65 percent of the principal amount outstanding under such facility. The balance of the offering proceeds will be used for general working capital purposes and transaction costs. As part of the preferred stock offering, the $5 million subordinated loan provided on Oct. 2, 2009 to the company by an affiliate of its largest stockholder will be converted into the preferred stock at the offering price and accrued interest will be paid with respect to the subordinated loan.

“This is a transformational event for Grubb & Ellis. Upon closing, Grubb & Ellis will be one of the stronger capitalized companies in the real estate services industry,” said C. Michael Kojaian, the company’s chairman and largest stockholder. “We are extremely pleased with the demand for the security and the quality of the institutional investors attracted to the company.”

The company intends to immediately seek stockholder approval to amend its certificate of incorporation to, among other things, increase the authorized capital of the company. In the event the requisite stockholder approval is obtained to increase the company’s authorized capital, each share of preferred stock would thereafter be convertible into 60.606 shares of common stock, equivalent to a conversion price of $1.65 per share of common stock, and is a 10.0 percent premium to the closing price of the company’s common stock on Oct. 22, 2009.

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2 — 2 — 2
10/23/2009
Grubb & Ellis Company Announces $90 Million Preferred Equity Transaction

“Upon completion of the transaction, the company will have a much improved balance sheet, with minimal debt obligations and additional working capital to fund our growth initiatives,” said Richard W. Pehlke, executive vice president and chief financial officer. “This positions us well to build on the strengths of our service and investment capabilities with increased operating flexibility.”

Holders of the preferred stock are entitled to voting rights equal to the number of shares of common stock into which the preferred stock is convertible on an “as if” converted basis and, except as otherwise required by law, will vote together with holders of common stock as one class on all matters in which holders of common stock are entitled to vote. Holders of the preferred stock will also have a separate class vote with respect to certain limited matters.

Although this transaction would normally require approval of the company’s stockholders according to the rules of the New York Stock Exchange, the NYSE shareholder approval policy provides an exception in those cases where the delay in securing stockholder approval would seriously jeopardize the financial viability of the listed company. In accordance with the NYSE rule providing such exception, the audit committee of the board of directors of the company has approved of the company’s reliance on the exception and the Company has submitted an application to the NYSE for approval.

JMP Securities acted as the initial purchaser and sole placement agent on the preferred equity offering.

This press release does not constitute an offer to sell or the solicitation of an offer to buy any securities (including the shares of common stock into which the securities are convertible) and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale is unlawful. Although certain of the purchasers of the preferred stock have the right to have their securities registered, the preferred stock and the underlying common stock issuable upon conversion have not been registered under the Securities Act or any applicable state securities laws and may not be offered or sold in the United States, absent registration or an applicable exemption from such registration requirements.

Additional terms and information with respect to the transaction will be included in a Current Report on Form 8-K and a preliminary proxy statement to be filed with the Securities and Exchange Commission by the company and a final proxy statement to be filed with the SEC and mailed to stockholders.

About Grubb & Ellis Company

Named to The Global Outsourcing 100™ in 2009 by the International Association of Outsourcing Professionals™, Grubb & Ellis Company (NYSE: GBE) is one of the largest and most respected commercial real estate services and investment companies in the world. Our 6,000 professionals in more than 130 company-owned and affiliate offices draw from a unique platform of real estate services, practice groups and investment products to deliver comprehensive, integrated solutions to real estate owners, tenants and investors. The firm’s transaction, management, consulting and investment services are supported by highly regarded proprietary market research and extensive local expertise. Through its investment subsidiaries, the company is a leading sponsor of real estate investment programs that provide individuals and institutions the opportunity to invest in a broad range of real estate investment vehicles, including public non-traded real estate investment trusts (REITs), tenant-in-common (TIC) investments suitable for tax-deferred 1031 exchanges, mutual funds and other real estate investment funds. For more information, visit www.grubb-ellis.com.

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Grubb & Ellis Company
1551 N. Tustin Avenue, Suite 200      Santa Ana, CA 92705      714.667.8252

3 — 3 — 3
10/23/2009
Grubb & Ellis Company Announces $90 Million Preferred Equity Transaction

Forward-Looking Statements

Certain statements included in this press release may constitute forward-looking statements regarding, among other things, the ability of future revenue growth, market trends, new business opportunities and investment programs, results of operations, changes in expense levels and profitability and effects on the company of changes in the real estate markets. These statements involve known and unknown risks, uncertainties and other factors that may cause the company’s actual results and performance in future periods to be materially different from any future results or performance suggested by these statements. Such factors which could adversely affect the company’s ability to obtain these results include, among other things: (i) a continued or further slowdown in the volume and the decline in transaction values of sales and leasing transactions; (ii) the general economic downturn and recessionary pressures on businesses in general; (iii) a prolonged and pronounced recession in real estate markets and values; (iv) the unavailability of credit to finance real estate transactions in general and the company’s tenant-in-common programs, in particular; (v) the reduction in borrowing capacity under the company’s current credit facility, and the additional limitations with respect thereto; (vi) the ability to obtain the requisite stockholder approval to increase the company’s authorized capital; (vii) the ability of the company to return to compliance with the NYSE’s continued listing standards; (viii) the success of current and new investment programs; (ix) the success of new initiatives and investments; (x) the inability to attain expected levels of revenue, performance, brand equity and expense synergies resulting from the merger of Grubb & Ellis Company and NNN Realty Advisors in general, and in the current macroeconomic and credit environment, in particular and (xi) other factors described in the company’s annual report on Form 10-K/A for the fiscal year ending December 31, 2008, Form 10-Q for the three-month periods ending March 31, 2009 and June 30, 2009 and in other current reports on Form 8-K filed with the Securities and Exchange Commission (the “SEC”). The company does not undertake any obligation to update forward-looking statements.

###

Grubb & Ellis Company
1551 N. Tustin Avenue, Suite 200       Santa Ana, CA 92705      714.667