Delaware | 84-1318182 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) |
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ (Do not check if a smaller reporting company) |
Smaller reporting company o |
Proposed Maximum | Proposed Maximum | |||||||||||||||||||||
Title of Each Class of | Amount to be | Aggregate Offering | Aggregate Offering | Amount of | ||||||||||||||||||
Securities to be Registered | Registered | Price Per Unit or Share | Price(1) | Registration Fee(2)(3) | ||||||||||||||||||
Common Stock, $0.01 par value per share |
16,045,322 | $ | 1.45 | $ | 23,265,716.90 | $ | 1,658.85 | |||||||||||||||
(1) | Estimated pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the Securities Act), solely for the purpose of computing the amount of the registration fee. | ||
(2) | Calculated pursuant to Rule 457(o) promulgated under the Securities Act and based on the filing fee of $71.30 per $1,000,000 of securities registered. | ||
(3) | Previously paid. |
Item |
||||
SEC registration fee |
$ | 1,658.85 | ||
Blue sky fees and expenses |
0 | |||
Printing and engraving expenses |
5,000 | * | ||
Legal fees and expenses |
10,000 | * | ||
Accounting fees and expenses |
8,000 | * | ||
Transfer Agent and Registrar fees |
2,000 | * | ||
Miscellaneous |
1,000 | * | ||
Total |
$ | 27,658.85 |
* | Estimated |
II-1
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; | ||
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and | ||
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof. | |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. | |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | If the registrant is relying on Rule 430B: |
A. | Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | ||
B. | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or |
(ii) | If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or |
II-2
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
(6) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. | |
(7) | That: |
(i) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. | ||
(ii) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
II-3
GRUBB & ELLIS COMPANY |
||||
By: | /s/ Thomas P. DArcy | |||
Name: | Thomas P. DArcy | |||
Title: | Chief Executive Officer, President and Director | |||
Signature | Title | Date | ||
/s/ Thomas P. DArcy
|
Chief Executive Officer, President and Director (Principal Executive Officer) |
July 14, 2010 | ||
/s/ Matthew A. Engel
|
Interim Chief Financial Officer, Senior Vice President, Chief Accounting Officer (Principal Financial and Accounting Officer) |
July 14, 2010 | ||
/s/ C. Michael Kojaian*
|
Director | July 14, 2010 | ||
/s/ Robert J. McLaughlin*
|
Director | July 14, 2010 | ||
/s/ Devin I. Murphy*
|
Director | July 14, 2010 | ||
/s/ D. Fleet Wallace*
|
Director | July 14, 2010 | ||
/s/ Rodger D. Young*
|
Director | July 14, 2010 |
By: | /s/ Thomas P. DArcy | ||||
Name: | Thomas P. DArcy | ||||
Title: | Chief Executive Officer, President and Director | ||||
Exhibit | ||||||
No. | Description | |||||
(2) Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession | ||||||
2.1 | Agreement and Plan of Merger, dated as of May 22, 2007, among NNN Realty Advisors, Inc., B/C Corporate Holdings, Inc. and the Registrant, incorporated herein by reference to Exhibit 2.1 to the Registrants Current Report on Form 8-K filed on May 23, 2007. | |||||
2.2 | Merger Agreement, dated as of January 22, 2009, by and among the Registrant, GERA Danbury LLC, GERA Property Acquisition, LLC, Matrix Connecticut, LLC and Matrix Danbury, LLC, incorporated herein by reference to Exhibit 2.1 to the Registrants Current Report on Form 8-K filed on January 29, 2009. | |||||
2.3 | First Amendment to Merger Agreement, dated as of January 22, 2009, by and among the Registrant, GERA Danbury LLC, GERA Property Acquisition, LLC, Matrix Connecticut, LLC and Matrix Danbury, LLC, incorporated herein by reference to Exhibit 2.2 to the Registrants Current Report on Form 8-K filed on January 29, 2009. | |||||
2.4 | Second Amendment to Merger Agreement, dated as of May 19, 2009, by and among the Registrant, GERA Danbury LLC, GERA Property Acquisition, LLC, Matrix Connecticut, LLC and Matrix Danbury, LLC, incorporated herein by reference to Exhibit 2.1 to the Registrants Current Report on Form 8-K filed on May 26, 2009. | |||||
(3) Articles of Incorporation and Bylaws | ||||||
3.1 | Restated Certificate of Incorporation of the Registrant, incorporated herein by reference to Exhibit 3.2 to the Registrants Annual Report on Form 10-K filed on March 31, 1995. | |||||
3.2 | Certificate of Retirement with Respect to 130,233 Shares of Junior Convertible Preferred Stock of Grubb & Ellis Company, filed with the Delaware Secretary of State on January 22, 1997, incorporated herein by reference to Exhibit 3.3 to the Registrants Quarterly Report on Form 10-Q filed on February 13, 1997. | |||||
3.3 | Certificate of Retirement with Respect to 8,894 Shares of Series A Senior Convertible Preferred Stock, 128,266 Shares of Series B Senior Convertible Preferred Stock, and 19,767 Shares of Junior Convertible Preferred Stock of Grubb & Ellis Company, filed with the Delaware Secretary State on January 22, 1997, incorporated herein by reference to Exhibit 3.4 to the Registrants Quarterly Report on Form 10-Q filed on February 13, 1997. | |||||
3.4 | Amendment to the Restated Certificate of Incorporation of the Registrant as filed with the Delaware Secretary of State on December 9, 1997, incorporated herein by reference to Exhibit 4.4 to the Registrants Statement on Form S-8 filed on December 19, 1997 (File No. 333-42741). | |||||
3.5 | Amended and Restated Certificate of Designations, Number, Voting Powers, Preferences and Rights of Series A Preferred Stock of Grubb & Ellis Company, as filed with the Secretary of State of Delaware on September 13, 2002, incorporated herein by reference to Exhibit 3.8 to the Registrants Annual Report on Form 10-K filed on October 15, 2002. | |||||
3.6 | Certificate of Designations, Number, Voting Powers, Preferences and Rights of Series A-1 Preferred Stock of Grubb & Ellis Company, as filed with the Secretary of State of Delaware on January 4, 2005, incorporated herein by reference to Exhibit 2 to the Registrants Current Report on Form 8-K filed on January 6, 2005. | |||||
3.7 | Preferred Stock Exchange Agreement, dated as of December 30, 2004, between the Registrant and Kojaian Ventures, LLC, incorporated herein by reference to Exhibit 1 to the Registrants Current Report on Form 8-K filed on January 6, 2005. | |||||
3.8 | Certificate of Designations, Number, Voting Powers, Preferences and Rights of Series A-1 Preferred Stock of Grubb & Ellis Company, as filed with the Secretary of State of Delaware on January 4, 2005, incorporated herein by reference to Exhibit 2 to the Registrants Current Report on Form 8-K filed on January 6, 2005. |
Exhibit | ||||||
No. | Description | |||||
3.9 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Grubb & Ellis Company as filed with the Delaware Secretary of State on December 7, 2007, incorporated herein by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed on December 13, 2007. | |||||
3.10 | Certificate of the Powers, Designations, Preferences and Rights of the 12% Cumulative Participating Perpetual Convertible Preferred Stock, as filed with the Secretary of State of Delaware on November 4, 2009, incorporated herein by reference to Annex A to the Registrants Schedule 14A filed on November 6, 2009. | |||||
3.11 | Amendment to the Restated Certificate of Incorporation of the Registrant as filed with the Delaware Secretary of State on December 17, 2009, incorporated herein by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed on December 23, 2009. | |||||
3.12 | Bylaws of the Registrant, as amended and restated effective May 31, 2000, incorporated herein by reference to Exhibit 3.5 to the Registrants Annual Report on Form 10-K filed on September 28, 2000. | |||||
3.13 | Amendment to the Amended and Restated By-laws of the Registrant, effective as of December 7, 2007, incorporated herein by reference to Exhibit 3.2 to Registrants Current Report on Form 8-K filed on December 13, 2007. | |||||
3.14 | Amendment to the Amended and Restated By-laws of the Registrant, effective as of January 25, 2008, incorporated herein by reference to Exhibit 3.1 to Registrants Current Report on Form 8-K filed on January 31, 2008. | |||||
3.15 | Amendment to the Amended and Restated By-laws of the Registrant, effective as of October 26, 2008, incorporated herein by reference to Exhibit 3.1 to Registrants Current Report on Form 8-K filed on October 29, 2008. | |||||
3.16 | Amendment to the Amended and Restated By-laws of the Registrant, effective as of February 5, 2009, incorporated herein by reference to Exhibit 3.1 to Registrants Current Report on Form 8-K filed on February 9, 2009. | |||||
3.17 | Amendment to the Amended and Restated Bylaws of the Registrant, effective December 17, 2009, incorporated herein by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K filed on December 23, 2009. | |||||
(4) Instruments Defining the Rights of Security Holders, including Indentures. | ||||||
4.1 | Registration Rights Agreement, dated as of April 28, 2006, between the Registrant, Kojaian Ventures, LLC and Kojaian Holdings, LLC, incorporated herein by reference to Exhibit 99.2 to the Registrants Current Report on Form 8-K filed on April 28, 2006. | |||||
4.2 | Warrant Agreement, dated as of May 18, 2009, by and between the Registrant, Deutsche Bank Trust Company Americas, Fifth Third Bank, JPMorgan Chase, N.A. and KeyBank, National Association, incorporated herein by reference to Exhibit 4.2 to the Registrants Annual Report on Form 10-K filed on May 27, 2009. | |||||
4.3 | Registration Rights Agreement, dated as of October 27, 2009, by and among the Registrant and each of the persons listed on the Schedule of Initial Holders attached thereto as Schedule A, incorporated herein by reference to Exhibit 4.3 to the Registrants Amendment No. 1 to Registration Statement on Form S-1 Annual Report on Form 10-K filed on December 28, 2009. | |||||
4.4 | Amendment No. 1 to Registration Rights Agreement, dated as of November 4, 2009, by and among the Registrant and each of the persons listed on the Schedule of Initial Holders attached thereto as Schedule A, incorporated herein by reference to Exhibit 4.3 to the Registrants Amendment No. 1 to Registration Statement on Form S-1 Annual Report on Form 10-K filed on December 28, 2009. | |||||
4.5 | Indenture for the 7.95% Convertible Senior Securities due 2015, dated as of May 7, 2010, between Grubb & Ellis Company, as Issuer, and U.S. Bank National Association, as Trustee, incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K filed on May 7, 2010. |
Exhibit | ||||||
No. | Description | |||||
4.6 | Registration Rights Agreement, dated as of May 7, 2010, between Grubb & Ellis Company and JMP Securities LLC, as Initial Purchaser, incorporated herein by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K filed on May 7, 2010. |
5.1 | Opinion of Zukerman Gore Brandeis & Crossman, LLP |
23.1* | Consent of Ernst & Young LLP | |||||
23.2* | Consent of PKF Certified Public Accountants A Professional Corporation | |||||
23.3 | Consent of Zukerman Gore Brandeis & Crossman, LLP (included in Exhibit 5.1) |
99.1 | Letter of termination from Grubb & Ellis Realty Advisors, Inc. to the Registrant dated as of February 28, 2008, incorporated herein by reference to Exhibit 99.1 to the Registrants Current Report on Form 8-K filed on February 29, 2008. |
| Filed herewith. | |
* | Previously Filed. |