e8vk

0000950137-06-005145.txt : 20060511 0000950137-06-005145.hdr.sgml : 20060511 20060428175709 ACCESSION NUMBER: 0000950137-06-005145 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060428 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060428 DATE AS OF CHANGE: 20060510 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GRUBB & ELLIS CO CENTRAL INDEX KEY: 0000216039 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 941424307 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08122 FILM NUMBER: 06791516 BUSINESS ADDRESS: STREET 1: 2215 SANDERS RD STREET 2: STE 400 CITY: NORTHBROOK STATE: IL ZIP: 60062 BUSINESS PHONE: 4159561990 MAIL ADDRESS: STREET 1: ONE MONTGOMERY ST STE 3100 STREET 2: TELESIS TWR 9TH FLR CITY: SAN FRANCISCO STATE: CA ZIP: 94104 8-K 1 c04784e8vk.htm CURRENT REPORT e8vk

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) April 28, 2006

GRUBB & ELLIS COMPANY

(Exact name of registrant as specified in its charter)


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

500 West Monroe Street, Suite 2800, Chicago, Illinois 60661
(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (847) 698-6700

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


	Item 1.01 Entry into a Material Definitive Agreement.
	Item 9.01. Financial Statements and Exhibits.
Series A-1 Preferred Stock Exchange Agreement
Registration Rights Agreement

Item 1.01 Entry into a Material Definitive Agreement.

On April 28, 2006, Grubb & Ellis Company (the “Company”) entered into an exchange agreement (the “Exchange Agreement”) with Kojaian Ventures, L.L.C. (“KV”) with respect to the 11,725 shares of the Company’s Series A-1 Preferred Stock, having a stated value of $1,000 per share (the “Preferred Stock”), beneficially owned by KV. KV is an affiliate of the Company’s Chairman of the Board of Directors, and is also an affiliate of Kojaian Holdings, LLC (“KH”), which owns 2,425,576 shares of the Company’s common stock, par value $.01 per share (the “Common Stock”). In addition to beneficially owning the Preferred Stock, KV also owns 1,337,358 shares of Common Stock. The Exchange Agreement provides that KV exchange all of the Preferred Stock, for (i) 11,173,925 shares of Common Stock, which is the common share equivalent that the holder of the Preferred Stock is entitled to receive upon a liquidation, merger, consolidation, sale or change in control of the Company, and (ii) a cash payment of $10,056,532.50 (or $.90 per share of each newly issued share of Common Stock). The closing of the Exchange Agreement will occur simultaneously with, and is expressly conditioned upon, the closing of the proposed public offering of the Company’s Common Stock pursuant to the Registration Statement on Form S-1 filed by the Company on April 28, 2006. The fair value of the consideration transferred to KV in excess of the carrying amount of the preferred stock in the Company's financial statements will be classified as a preferred dividend in the period the transaction becomes effective, therefore reducing the amount of earnings available to common stockholders for the respective period.

Upon a liquidation, merger, consolidation, sale or change in control of the Company the holder of the Series A-1 Preferred Stock is entitled to be paid prior to any payment is made to holders of Common Stock in an amount equal to the greater of (i) of $23.5 million (twice the stated value of the Preferred Stock), and (ii) the amount payable per share of Common Stock based upon the 11,173,925 common stock share equivalent. The holder of the Preferred Stock is also entitled to vote on all matters that are subject to the vote of common stockholders based upon the 11,173,925 common stock share equivalent. Such Common Stock share equivalent is currently equal to approximately 54% of all voting common stock. Further, in addition to being entitled to vote on all matters subject to the vote of common stockholders, the holder of the Preferred Stock is also entitled to a separate class vote with respect to certain proposed corporate actions. Specifically, the affirmative vote of a majority of the Preferred Stock issued and outstanding is required in order for the Company to (i) amend or repeal any provision of the Company’s certificate of incorporation of by-laws, (ii) authorize or effect the payment of any dividends or the redemption or purchase of capital stock of the Company or rights to acquire capital stock of the Company, (iii) authorize or effect the issuance by the Company of any shares of capital stock or rights to acquire capital stock other (x) than pursuant to certain options, warrants, conversions, subscription rights in existence on March 7, 2002 or thereafter approved with the consent of the holders of the majority of the Preferred Stock, or (y) pursuant to stock

option, stock bonus or other employee stock plans for the benefit of the employees and consultants and outside directors of the Company or its subsidiaries in existence as of such date or thereafter approved with a consent of the holders of the majority of the Preferred Stock, or (iv) amend, alter or appeal the preferences, special rights or other powers of the Preferred Stock, which includes the authorization and issuance of any preferred security with a preference over, or on parity with, the Preferred Stock.

On April 28, 2006 the Company also entered into a registration rights agreement (the “Registration Rights Agreement”) with KV and KH. Pursuant to the Registration Rights Agreement, the Company has granted KV, KH and their affiliates (collectively, the “Kojaian Entities”) demand and piggyback registration rights with respect to shares of Common Stock of the Company which they own or which they may acquire in the future. In connection with the exercise of any such rights, the Company is required to pay certain registration expenses, including the fees of a single counsel for the selling stockholders. In addition, in connection with any sale of shares pursuant to the exercise of the registration rights, the Company has agreed to indemnify the Kojaian Entities from and against losses caused by material misstatements and omissions in the offering documents or other violations of the federal or states securities laws. In certain circumstances, the Kojaian Entities may assign their rights contained in the Registration Rights Agreement. The Registration Rights Agreement replaces the registration rights granted by the Company to certain Kojaian Entities pursuant to an agreement entered into in 1996.

The foregoing is only intended to be a summary of the terms of each of the Exchange Agreement and the Registration Rights Agreement, and is not intended to be a complete discussion of either agreement. Accordingly, the foregoing is qualified in its entirety by reference to the full text of each of the Exchange Agreement and the Registration Rights Agreement. A copy of each of the Exchange Agreement and Registration Rights Agreement is annexed as an Exhibit to this Current Report on Form 8-K.

Item 9.01. Financial Statements and Exhibits.

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

	1.		Series A-1 Preferred Stock Exchange Agreement dated as of April 28, 2006 by and between Grubb & Ellis Company and Kojaian Ventures, L.L.C.

	2.		Registration Rights Agreement dated as of April 28, 2006 by and between Grubb & Ellis Company, Kojaian Ventures, L.L.C. and Kojaian Holdings, LLC.

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/ Shelby E. Sherard
		Shelby E. Sherard
		Chief Financial Officer

Dated: April 28, 2006

EX-99.1 2 c04784exv99w1.htm SERIES A-1 PREFERRED STOCK EXCHANGE AGREEMENT exv99w1

Exhibit 99.1

SERIES A-1 PREFERRED STOCK

EXCHANGE AGREEMENT

Dated as of

April 28, 2006

By and Between

GRUBB & ELLIS COMPANY

and

KOJAIAN VENTURES, L.L.C.

SERIES A-1 PREFERRED STOCK EXCHANGE AGREEMENT

This Series A-1 Preferred Stock Exchange Agreement (the “Agreement”) is made as of this 28^th day of April, 2006 by and between Grubb & Ellis Company, a Delaware corporation (the “Company”) and Kojaian Ventures, L.L.C., a Michigan limited liability (“KV”).

WHEREAS, pursuant to that certain securities purchase agreement made as of May 13, 2002 by and between the Company and KV, as subsequently amended as of June 30, 2002, KV acquired, among other things, a subordinated convertible promissory note in the principal amount of $11,237,500 bearing interest at the rate of 12% per annum (the “Subordinated Note”); and

WHEREAS, the Subordinated Note was convertible into shares of the Company’s Series A Preferred Stock, par value $.01 per share (the “Series A Preferred Stock”), which bore a cumulative dividend of 12% per annum, and which had such other rights and preferences as set forth in that certain amended and restated certificate of designations, number, voting rights, preferences and rights of Series A Preferred Stock of the Company as filed with the Secretary of State of the State of Delaware on September 13, 2002; and

WHEREAS, on or about September 19, 2002, KV converted the Subordinated Note into 11,725 shares of Series A Preferred Stock; and

WHEREAS, in accordance with terms and conditions of the certain Preferred Stock Exchange Agreement dated as of December 30, 2004, on January 4, 2005, KV exchanged its 11,725 shares of Series A Preferred Stock for an identical number of shares of a newly created series of preferred stock of the Company, having the voting powers, preferences and rights of such series of preferred stock as set forth in that certificate of designations, number, voting power, preferences and rights of Series A-1 Preferred Stock (the “Series A-1 Preferred Stock”) of the Company filed with the Secretary of State of the State of Delaware on January 4, 2005 (the “Certificate of Designations”); and

WHEREAS, the Company deems it to be in the best interests of its stockholders to eliminate the Series A-1 Preferred Stock from its capital structure pursuant to an exchange transaction to be completed simultaneously with the closing of a public offering of the Company’s securities under Section 5 of the Securities Act of 1933, as amended, pursuant to which upon the closing of such public offering KV, along with all affiliates of KV, will own less than 50% of all of the issued and outstanding voting securities of the Company (the “Qualifying Public Offering”), as more fully set forth herein.

NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agreed as follows:

1. Exchange of Securities. Subject to the full satisfaction or waiver of all of the conditions to closing set forth in Section 2.1 and Section 2.2 below, on the “Closing Date” (as that term is defined in Section 2.3 below) and immediately prior to the closing of the Qualifying Public Offering, KV shall deliver to the Company an original certificate representing all of 11,725 shares of Series A-1 Preferred Stock owned by KV in exchange for (i) a certificate, issued in the name of KV, representing such number of shares of the Company’s common stock, par value $.01 per share (the “Common Stock”) which is equal to the difference between 11,173,925 shares of Common Stock and the number of shares of Common Stock actually sold by KV in the Qualifying Public Offering (the shares represented by that certificate are referred to in this Agreement as the “Shares”) and (ii) $10,056,532.50 in cash (the “Exchange Cash Consideration”). It is agreed and understood by KV and the Company that the shares of Common Stock to be sold by KV in the Qualifying Public Offering shall be retained by the Company on behalf of KV and, immediately after the Closing, such shares shall be sold in the Qualifying Public Offering and all proceeds of such sale shall be remitted by the underwriter directly to KV.

2. Closing Conditions.

2.1 Conditions to Closing for KV. The obligations of KV to effect the Closing (as defined herein) shall be subject to the following conditions, except to the extent waived in writing by KV:

(i) the Registration Statement filed with the Securities and Exchange Commission (“SEC”) for the Qualifying Public Offering shall have been declared effective by the SEC and no stop order shall have been issued with respect to that Registration Statement.

(ii) the Company’s Common Stock shall have been accepted for listing on the New York Stock Exchange (the NYSE, not NYSE Arca), or such other stock exchange or trading facility as may be approved by KV in writing in its sole and absolute discretion, effective upon the closing of the Qualifying Public Offering.

(iii) the Company and KV (and such affiliates of KV as KV shall determine) shall have executed and delivered a registration rights agreement (“the Registration Rights Agreement”) in form and substance acceptable to KV.

(iv) at the time the Company and the representative or representatives of the several underwriters, as the case may be (collectively, the “Representative”), execute and deliver the definitive underwriting agreement with respect to the Qualifying Public Offering (the “Underwriting Agreement”), all of the terms and conditions of the Qualifying Public Offering, including without limitation the number of shares to be sold by the Company and KV, subject to §5.1 (ii) below, shall be acceptable to KV and KV shall have delivered to the Company the Notice of Approved Terms and Conditions in the form annexed hereto as Schedule 2.1 (“Notice of Approved Terms”);

(v) all conditions to the closing of the Qualifying Public Offering, as set forth in the Notice of Approved Terms, shall have been satisfied or waived;

(vi) there shall be no injunction, restraining order or decree of any nature of any governmental entity that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, including, but not limited to a stop order issued by the U.S. Securities and Exchange Commission (the “SEC”) with respect to the Qualifying Public Offering;

(vii) KV shall have received an original stock certificate, issued in the name of KV, representing duly and validly issued Shares;

(viii) KV shall have received, via wire transfer in accordance with the wire transfer instructions annexed hereto as Exhibit A, the Exchange Cash Consideration; and

(ix) KV shall have received from the Company a certificate from a duly authorized officer of the Company, dated as of the date of the Closing, and in the form annexed hereto as Exhibit B, certifying that all of the representations and warranties of the Company set forth herein are true and correct in all respects, and all of the covenants of the Company required by this Agreement to be performed at or prior to the Closing are performed in all respects, as of the date of the Closing.

2.2 Conditions to Closing for the Company. The obligations of the Company to effect the Closing shall be subject to the following conditions, except to the extent waived in writing by the Company:

(i) there shall be no injunction, restraining order or decree of any nature of any governmental entity that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, including but not limited to a stop order issued by the SEC with respect to the Qualifying Public Offering;

(ii) the Company shall have received from KV the original Series A-1 Preferred Stock certificate(s), with an accompanying stock power executed in blank with signature guaranteed, and with all necessary, if any, stock transfer stamps attached;

(iii) the Company shall have received from KV a certificate from a duly authorized representative of KV, dated as of the date of the Closing, and in the form annexed hereto as Exhibit C, certifying that all of the representations and warranties of KV set forth herein are true and correct in all respects, and all of the covenants of KV required by this Agreement to be performed at or prior to the Closing are performed in all respects, as of the date of the Closing; and

(iv) all conditions to the closing of the Qualifying Public Offering as set forth in the Notice of Approved Terms shall have been satisfied or waived and such closing shall be scheduled to occur immediately after the exchange contemplated in Section 1 of this Agreement.

2.3 Closing. Upon the full satisfaction or waiver of all of the conditions set forth in Section 2.1 and Section 2.2 above and simultaneously upon the closing of the Qualifying Secondary Offering, the parties shall effect the closing (the “Closing”) of the transactions contemplated by Section 1 hereof (the date of the Closing, the “Closing Date”) which shall take place at the offices of Zukerman Gore & Brandeis, LLP, 875 Third Avenue, New York, New York, 10022, or at such other time, at such other place, and in such other manner, as the parties hereto shall agree.

3. Representations and Warranties of the Company. The Company warrants and represents, as of the date hereof and as of the Closing Date as if such representations and warranties were made on the Closing date as follows:

3.1 Corporate Power. The Company has the full legal right, power and authority to execute, deliver and perform its obligations under this Agreement. The delivery to KV of the Shares pursuant to the terms of this Agreement will transfer to KV valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind whatsoever, other than those imposed by (i) the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), and any other applicable federal and state securities laws, and (ii) any agreements pertaining to the resale of the Shares hereinafter entered into by KV with the Representative.

3.2 Due Authorization. This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principals. The execution and delivery by the Company of this Agreement and the other agreements and instruments, to be executed and delivered by the Company in connection herewith, do not, and the consummation of the transaction contemplated hereby and thereby will not, (i) violate any provision in the certificate of incorporation or by-laws of the Company, (ii) violate any provision of, or result in the termination or acceleration of, or default under, or entitle any party to accelerate (with or after the filing of notice or lapse of time of both) any obligation under, or result in the creation or imposition of any lien, charge, pledge, security interest or other encumbrance upon any of the assets of the Company pursuant to any provision of any mortgage, lien, lease, agreement, license, or instrument, or violate any law, regulation, order, arbitration award, judgment or decree to which the Company is a party or by which its property is bound; (iii) violate or conflict with, or create a default under, any other material restriction of any kind or character to which the Company is subject; (iv) require any governmental consent, authorization, filing, approval, or exemption, except as may be required by the Securities Exchange Act of

1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), or (v) violate any consent decree or requirement to which the Company is subject.

3.3 Existence and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the power to own its property and to carry on its business as it is now being conducted. The Company is duly qualified to do business and is in good standing in the jurisdictions in which the character and location of the properties owned or leased by the Company or the nature of the business conducted by the Company make such qualification necessary, except with the failure to qualify individually or in the aggregate will not have a material adverse effect of the business of the Company.

3.4 Valid Issuance. When exchanged and delivered in accordance with the terms hereof for the consideration expressed herein, the Shares will be duly and validly issued, fully paid, non-assessable and free of preemptive rights, and, when delivered by the Company, the Shares constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other law affecting creditor’s rights generally and of general principles of equity (regardless of whether considered in a proceeding at law or in equity). Based in part upon the representations of KV in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws and the offer, exchange and issuance of the Shares will constitute a transaction exempt from the registration requirements of Section 5 of the Securities Act.

3.5 No Brokers or Finders. No agent, broker, person or firm acting on behalf of the Company is, or will be, entitled to any commission or broker’s or finder’s fees from any of the parties hereto, or from any person controlling or controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated by this Agreement. The Company agrees to indemnify and hold KV harmless with respect to the foregoing.

3.6 Series A-1 Preferred Stock. The Series A-1 Preferred Stock of the Company owned by KV: (i) has an Assumed Share Number (as that phrase is defined in the Certificate of Designations) of 953; and (ii) for voting purposes, pursuant to Section 4 of the Certificate of Designations, is equivalent to 11,173,925 shares of Common Stock.

3.7 Common Stock. As of the date of this Agreement, the authorized capital stock of the Company, the number of outstanding shares of capital stock of the Company, the number of shares of Common Stock which may be issued upon exercise of outstanding stock options, warrants, or other rights or obligations for issuance of any share of stock of the Company or any of its subsidiaries or any security convertible into or exchangeable for stock of the Company or any of its subsidiaries are fully and accurately described in Exhibit C to this Agreement.

4. Representations and Warranties of KV. KV warrants and represents, as of the date hereof and as of the Closing Date as if such representations and warranties were made on the Closing date as follows:

4.1 Power and Authority; Authorization and Noncontravention. KV has the full legal right, power and authority to execute, deliver and perform its obligations under this Agreement and this Agreement has been duly and validly authorized, executed and delivered by KV and constitutes a valid and legally binding agreement of KV, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The execution and delivery by KV of this Agreement and the other agreements and instruments to be executed and delivered by KV in connection herewith, do not, and the consummation of the transaction contemplated hereby and thereby will not, (i) violate any provision of the Articles of Organization, Operating Agreement or any other like organizational or governing documents of KV; (ii) violate any provision of, or result in the termination or acceleration of, or default under, or entitle any party to accelerate (whether after the filing of notice or lapse of time or both) any obligation under, or result in the creation or imposition of any lien, charge, pledge, security interest or other encumbrance upon any of the assets of KV pursuant to any provision of any mortgage, lien, lease, agreement, license, or instrument, or violate any law, regulation, order, arbitration award, judgment or decree to which KV is a party or by which its property is bound; (iii) violate or conflict with, or create a default under, any other material restriction of any kind or character to which KV is subject; (iv) require any governmental consent, authorization, filing, approval, or exemption, except as may be required under the Securities Act and Exchange Act; or (v) violate any consent decree or requirement to which KV is subject.

4.2 Existence and Good Standing. KV is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Michigan. KV has the power to own its property and to carry on its business as it is now being conducted.

4.3 Experience; Certain Risks. KV has substantial experience in evaluating and investing in non-registered securities of publicly traded entities, is capable of evaluating the merits and risks of investment in the Company and has the capacity to protect its own interests. KV hereby acknowledges that: (i) the Shares represent a non-registered equity security in a corporate entity that has a retained deficit; (ii) no return on investment, whether through distributions, appreciation, transferability or otherwise, and no performance by, through or of the Company, has been promised, assured, represented or warranted by the Company, or by any director, officer, employee, agent or representative thereof; (iii) the Shares (x) are not registered under applicable federal or state securities laws, and thus may not be sold, conveyed, assigned or transferred unless registered under such laws or unless an exemption from registration is available under such laws, as more fully described below, and (y) although there presently is a public market with respect to the shares of the Company’s Common Stock, the Shares will not be quoted, traded or listed for trading or quotation on any organized market or quotation

system, and there have not been any representations made by the Company or its representatives to KV that the Shares will ever be quoted, traded or listed for trading or quotation on any organized market or quotation system or that there ever will be a public market for the Shares or that there will continue to be a public market with respect to the Common Stock, and (iv) the acquisition of the Shares is a speculative investment, involving a degree of risk, and is suitable only for a person or entity of adequate financial means who has no need for liquidity in this investment in that, among other things, (a) such person or entity may not be able to liquidate its investment in the event of an emergency or otherwise, (b) transferability is limited, and (c) in the event of a dissolution or otherwise, such person or entity could sustain a complete loss of its entire investment. KV, which is an “affiliate” of C. Michael Kojaian, as that term is defined in Rule 405 promulgated under the Securities Act, has adequate means of providing for its current financial needs and possible contingencies and has no need for liquidity of its investment in the Shares. KV is able to bear the economic risks inherent in an investment in the Shares and can afford to bear the risk of holding the shares for an indefinite period of time. An important consideration bearing on its ability to bear the economic risk of the purchase of the Shares is whether KV can afford a complete loss of its investment in the Shares, and KV represents and warrants that it can afford such a complete loss. KV has such knowledge and experience in business, financial, investment and banking matters (including, but not limited to investments in restricted, non-listed and non-registered securities) that KV is capable of evaluating the merits, risks and advisability of an investment in the Shares.

4.4 Accredited Investor or Business and Financial Experience. KV is an accredited investor as defined in Rule 501 under the Securities Act.

4.5 Investment. KV is acquiring the Shares for investment purposes only and solely for its own account, not as a nominee or agent, and not with the view towards the resale or distribution thereof except pursuant to a registered offering as contemplated by the Registration Rights Agreement. KV understands that the Shares have not been, and will not be, registered under the Securities Act or qualified under any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and various states’ securities laws, which exemption depends upon, among other things, the bona fide nature of the investment intent and the accuracy of KV’s representations as expressed herein. KV understands that, in the view of the SEC, among other things, a purchase with a present intent to distribute or resell would represent a purchase and acquisition with an intent inconsistent with its representation to the Company, and the SEC might regard such a transfer as a deferred sale for which the registration exemption is not available. Consequently, KV agrees not to sell, offer to sell or otherwise transfer the Shares in violation of the Securities Act and consents to the placement of a legend on the certificate(s) evidencing the Shares, as the case may be, that they have not been registered under federal securities laws and applicable state securities laws.

4.6 Access to Information. KV expressly acknowledges and agrees that it has not relied on any representation, warranty or statements, written or oral, other

than the express representations and warranties contained herein and the information contained within the Company’s filings with the SEC (including without limitation the Company’s Form S-1 Registration Statement), and that KV’s decision to exchange the Series A-1 Preferred Stock for the Shares and the Exchange Cash Consideration is not based on any promotional, marketing or sales materials, and KV and its representatives have been afforded an opportunity to ask questions of, and has received answers thereto from, the Company and its representatives regarding the business, management and financial affairs of the Company, and has had access to all documents and information that KV deems material to an investment decision with respect to the acquisition of the Shares and the receipt of the Exchange Cash Consideration hereunder, in each case, prior to the acquisition of the Shares and receipt of the Exchange Cash Consideration.

4.7 Beneficial Ownership. KV is the lawful record and beneficial owner of 11,725 shares of Series A-1 Preferred Stock, free and clear of any liens, claims, encumbrances or restrictions of any kind, except those arising under the Certificate of Designation, Number, Voting Powers, Preferences and Rights of Series A-1 Preferred Stock (the “Certificate of Designation”) or any agreement with the Company. KV is not a party to or otherwise subject to any agreement, understanding agreement or arrangement regarding the transfer, sale, distribution, hypothecation or disposition of the Series A-1 Preferred Stock. Upon delivery of the Series A-1 Preferred Stock to the Company at the Closing, KV will have transferred all right, title and interest in and to the Series A-1 Preferred Stock to the Company free and clear of any liens, claims, encumbrances and restrictions of any kind whatsoever, other than those imposed by the Securities Act and any other applicable securities laws, the Certificate of Designation, or any agreement with the Company.

4.8 No Brokers or Finders. No agent, broker, person or firm acting on behalf of the KV is, or will be, entitled to any commission or broker’s or finder’s fees from any of the parties hereto, or from any person controlling or controlled by or under common control with any of the parties hereto, in connection with the exchange of shares contemplated by this Agreement; except that the underwriters in the Qualified Public Offering will be entitled to an underwriting discount, fees and expenses for the sale of KV’s shares in the Qualified Public Offering. KV agrees to indemnify and hold the Company harmless with respect to the foregoing.

5. Additional Covenants of the Parties.

5.1 KV agrees that:

(i) upon the execution hereof, KV is hereby deemed to have given its approval, subject to all of the other terms and conditions set forth herein, for the Company to file that certain Registration Statement on Form S-1 with respect to the Qualifying Public Offering that has been signed by C. Michael Kojaian in his capacity as the Chairman of the Board of the Company; and

(ii) upon satisfaction or waiver of all conditions to Closing provided in Section 2.1 of this Agreement, KV will sell and transfer to the underwriters, against receipt of payment as provided in the Notice of Approved Terms, the number of shares of Common Stock to be determined by KV in its discretion pursuant to a Qualifying Public Offering; provided that the number of shares sold in the Qualifying Public Offering shall be such that upon the closing of the Qualifying Public Offering, KV, along with all affiliates of KV, will own less than 50% of all of the issued and outstanding shares of Common Stock of the Company.

5.2 The Company agrees that:

(i) the Company expressly understands, acknowledges and agrees that, notwithstanding the execution of this Agreement or anything set forth herein, KV is under no obligation whatsoever to execute and deliver the Notice of Approved Terms and, accordingly, KV has the absolute right at any time to refuse to execute and deliver the Notice of Approved Terms for any reason or for no reason.

(ii) the Company expressly understands, acknowledges and agrees that, notwithstanding the execution of this Agreement or anything set forth herein, KV will retain all rights of a holder of Series A-1 Preferred Stock under the Certificate of Designation, and that, consistent with its rights under the Certificate of Designation, KV has not authorized issuance of any shares of Common Stock by the Company and is under no obligation to authorize such an issuance, that KV has the absolute right to refuse to authorize the issuance of shares by the Company; it being contemplated that such consent will be provided, if at all, in the Notice of Approved Terms.

6. Survival of Representations and Warranties; Indemnity

6.1 Survival of Representations and Warranties. The respective representations and warranties, covenants, agreements and obligations of each of the Company and KV contained in this Agreement or in any Exhibit attached hereto, and the indemnification provisions set forth in this Section 6 hereof, shall survive the Closing.

6.2 Indemnification by the Parties.

(i) Each of the parties hereto agrees to indemnify (the “Indemnifying Party”) and hold the other and each of its respective partners, officers, directors, members, managers, employees, counsel, accountants, agents, successors and assigns (collectively, an “Indemnified Party”) harmless from any and all damages, liabilities, losses, costs or expenses (including, without limitation, reasonable counsel fees and expenses) suffered or paid, directly or indirectly, solely as a result of or arising out of the failure of any respective representation or warranty made by the Indemnifying Party in this Agreement or in any Exhibit or Schedule attached hereto to be true, complete and correct in all material respects as of the date of this Agreement and as of the Closing Date.

(ii) If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Party proposes to demand indemnification pursuant to Section 6.2(i) hereof, it shall notify the Indemnifying Party with reasonable promptness; provided, however, that any failure by an Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from its obligations hereunder, except to the extent that the Indemnifying Party shall have been materially prejudiced in its ability to defend the action, suit, proceedings or investigation for which such indemnification is sought by reason of such failure. Except as set forth below, an Indemnifying Party shall have the right to retain counsel of its own choice, and the Indemnifying Party shall pay the reasonable fees, expenses and disbursements of counsel selected by the Indemnifying Party; and such counsel shall to the extent consistent with its professional responsibilities, cooperate with the Indemnified Party and any counsel designated by the Indemnified Party, which counsel designated by the Indemnified Party shall be the expense of the Indemnified Party.

In the event the Indemnifying Party does not assume or fails to conduct in a diligent manner the defense of any claim or litigation resulting therefrom, (a) the Indemnified Party may defend, using its own counsel, against such claim or litigation, in such manner as it deems appropriate, including, but not limited to, settling such claim or litigation, on such terms as the Indemnified Party may deem appropriate, subject to first obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed or conditioned, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The Indemnifying Party shall pay the reasonable fees, reasonable expenses and reasonable disbursements of counsel selected by an Indemnified Party in the circumstances described in the previous sentence. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.

The Indemnifying Party shall be liable for any settlement of any claim against an Indemnified Party made with the Indemnifying Party’s written consent or made in connection with the circumstances described in the first sentence of the previous paragraph. The Indemnifying Party shall not, without prior written consent of an Indemnified Party, which consent shall not be unreasonably withheld or delayed or conditioned, settle or compromise any claim, or permit a default or consent to the entry of any judgment in respect thereof; provided, however, that notwithstanding the foregoing, the Indemnifying Party shall have the right to settle or compromise any claim provided that (i) the Indemnifying Party pays all sums, costs and expenses incident thereto, and (ii) Indemnifying Party obtains for the Indemnified Party a full, non-conditional absolute release.

Each party agrees to cooperate fully with the other, such cooperation to include, without limitation, attendance at depositions and the production of relevant documents as may be reasonably requested by the other parties, provided that the Indemnifying Party will reimburse the Indemnified Party for all of its reasonable, actual out-of-pocket expenses incurred in connection with such cooperation by the Indemnified Party.

(iii) In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions is made but it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then the Indemnifying Party (as applicable), on the one hand, and an Indemnified Party, on the other, shall contribute to the losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs and expenses to which the indemnified persons may be subject in accordance with the relative benefits received by the Indemnifying Party (as the case may be), on the one hand, and an Indemnified Party, on the other hand, in connection with the statements, acts or omissions which resulted in expenses and the relevant equitable considerations shall also be considered. No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation.

7. Miscellaneous.

7.1 Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of Delaware applicable to agreements executed and to be performed solely within such State, and each of the parties hereto irrevocably consents to the venue and jurisdiction of the federal and state courts located in the State of Delaware, County of Kent.

7.2 Headings. The Section headings used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.

7.3 Publicity. Except as otherwise required by applicable federal securities laws, or as otherwise agreed to by the parties, none of the parties hereto shall issue any press release or make any other public statement, filing or disclosure relating to, in connection with or arising out of this Agreement or the transactions contemplated herein. It is understood and agreed that the Company will file a Form 8-K Periodic Report and KV and its affiliates will file a Schedule 13D/A promptly to report execution of this Agreement. Any public statement, filing or disclosure so issued or made by either party shall require the prior approval, not to be unreasonably withheld, delayed or conditioned, of the other party hereto as to the contents and the manner of presentation and publication thereof.

7.4 Notices. All notices, requests, demands, other communications and deliveries required or desired to be given hereunder shall only be effective if given in writing by hand, by certified or registered mail, return receipt requested, postage prepaid, or by U.S. express mail service, or by private overnight mail service (e.g. Federal Express), or by facsimile transmission. Any such notice, request, demand, other communication or delivery shall be deemed to have been received (a) on the business day actually received if given by hand or facsimile transmission, (b) on the business day immediately subsequent to mailing, if sent by U.S. express mail service or private overnight mail service, or (c) three (3) business days following the mailing thereof, if mailed by certified or registered mail, postage prepaid, return receipt requested, and all such notices shall be sent to the following addresses (or to such other address or addresses as a party may have advised the other in the manner provided herein):

if to KV, to:

Kojaian Ventures, L.L.C.
39400 Woodward Avenue
Suite 250
Bloomfield Hills, Michigan 48304
Telephone No. (248) 644-7600
Facsimile No. (248) 644-7620

with a copy simultaneously by like means to:

Carson Fischer, P.L.C.
Third Floor
300 East Maple Road
Birmingham, Michigan 48009
Telephone No. (248) 644-4840
Facsimile No. (248) 644-1832
Attn: Robert M. Carson, Esq.

if to the Company to:

Grubb & Ellis Company
500 West Monroe Street
Suite 2800
Chicago, Illinois 60661
Telephone No. (312) 698-6700
Facsimile No. (312) 207-1822
Attn: Chief Executive Officer

with a copy simultaneously by like means:

Zukerman Gore & Brandeis, LLP
875 Third Avenue
New York, New York 10022
Telephone No. (212) 223-6700
Facsimile No. (212) 223-6433
Attention: Clifford A. Brandeis, Esq.

and

Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone No. (212) 735-3000
Facsimile No. (212) 735-2000
Attention: Nancy A. Lieberman, Esq.

7.5 Headings. The section headings contained herein are for the purposes of convenience only and are not intended to define or limit the contents of said sections.

7.6 Further Assurances. Each party hereto shall cooperate, shall take such further action and shall execute and deliver such further documents as may be reasonably requested by the other party hereto in order to carry out the provisions, purposes and intent of this Agreement and the transaction contemplated hereby, including but not limited to the elimination of the Series A-1 Preferred Stock from the Company’s capital structure.

7.7 Costs. All legal, accounting and other costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party or parties incurring the same.

7.8 Legend. The certificate(s) representing the Shares shall have a restrictive legend on the back of such certificate(s) until removed as provided in the Registration Rights Agreement, which shall be in form and substance substantially as follows:

“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). ANY SALE, PLEDGE OR OTHER TRANSFER OF THE SHARES WILL BE INVALID UNLESS SUCH SHARES ARE REGISTERED UNDER THE ACT, OR UNLESS, IN THE OPINION OF COUNSEL FOR GRUBB & ELLIS COMPANY, AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT APPLIES.”

7.9 Successors and Assigns. This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

7.10 Counterparts. This Agreement may be executed in two or more original or facsimile counterparts, all of which taken together shall constitute one instrument.

7.11 Entire Agreement. This Agreement, including the other documents referred to herein or annexed as Exhibits hereto which form a part hereof, contains the entire understanding of the parties hereto with respect to the subject matter contained herein and therein and supersedes all prior agreements and understandings between the parties with respect to such subject matter hereof.

7.12 Amendments. This Agreement may not be changed orally, but only by an agreement in writing signed by the parties hereto.

7.13 Waivers. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but such waiver shall be effective only if it is in a writing signed by the party against whom the existence of such waiver is asserted. Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement nor shall any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under this Agreement. No failure by either party to take any action or assert any right or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of the continuation or repetition of the circumstances giving rise to such right unless expressly waived in writing by the party against whom the existence of such waiver is asserted.

7.14 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.

7.15 Third Party Beneficiaries. Each party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the parties hereto.

7.16 Waiver of Jury Trial. The parties hereto waive all right to trial by jury of any action, suit or proceeding brought to enforce or defend any rights or remedies arising under or in connection with this Agreement or the transaction contemplated hereby whether grounded in tort, contract or otherwise.

[Rest of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written.


COMPANY: GRUBB & ELLIS COMPANY
By:	/s/ Mark E. Rose
	Name:	Mark E. Rose
	Title:	Chief Executive Officer

KOJAIAN VENTURES, L.L.C. a Michigan limited liability company
By:	KOJAIAN VENTURES-MM, Inc.
	a Michigan Corporation,
	Managing Member


By:	C. Michael Kojaian
	Name:	C. Michael Kojaian
	Title:	President

Schedule 2.1

Kojaian Ventures, L.L.C.
39400 Woodward Avenue
Suite 250
Bloomfield Hills, Michigan 48304

Grubb & Ellis Company
500 West Monroe Street
Suite 2800
Chicago, Illinois 60662


Re:		Prospectus Dated _____, 2006 Under the Registration Statement for Grubb & Ellis Company on Form S-1; Registration No. 333- (the “Registration Statement”)

Ladies & Gentlemen:

Reference is hereby made to that certain Series A-1 Preferred Exchange Agreement (the “Exchange Agreement”) by and between Grubb & Ellis Company (the “Company”) and Kojaian Ventures, L.L.C. (“KV”) . Except as expressly set forth herein to the contrary, all capitalized terms set forth herein shall have the same meaning as ascribed to them in the Exchange Agreement.

Please be advised that Kojaian Ventures, L.L.C. hereby consents to the proposed offer and sale of not less than ___shares nor more than ___shares of the Company’s Common Stock by the Company and agrees to sell not less than ___shares nor more than ___shares of the Company’s Common Stock to be received by KV in accordance with the terms and conditions set forth in, and as contemplated by, the above-referenced Prospectus and the Underwriting Agreement.


Very truly yours, KOJAIAN VENTURES, L.L.C. a Michigan limited liability company
By:	KOJAIAN VENTURES-MM, Inc.
	a Michigan Corporation,
	Managing Member


By:
	Name:	C. Michael Kojaian
	Title:	President

EX-99.2 3 c04784exv99w2.htm REGISTRATION RIGHTS AGREEMENT exv99w2

Exhibit 4.7

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of April 28, 2006, is entered into by and between Grubb & Ellis Company, a Delaware corporation (including its successors, the “Company”), and Kojaian Ventures L.L.C., a Michigan limited liability company (“KV”) and Kojaian Holdings, LLC, a Michigan limited liability company (“KH”)

RECITALS

WHEREAS, simultaneously herewith the Company and KV are entering into that certain Series A Preferred Stock Exchange Agreement dated as of April ___, 2006 (the “Exchange Agreement”) pursuant to which and subject to the terms and conditions therein, 11,725 shares of Series A-1 Preferred Stock, par value $.01 per share of the Company held by KV is to be exchanged for 11,173,925 shares of Common Stock, par value $.01 per share of the Company (the “Common Stock”) and other consideration;

WHEREAS, the Company is contemplating selling shares of Common Stock in an underwritten public offering (the “Secondary Offering”), which Secondary Offering is to include shares of Common Stock issuable to KV in the exchange contemplated by the Exchange Agreement;

WHEREAS, the Company has agreed to provide the Kojaian Investors with the registration rights specified in this Agreement with respect to any shares of Common Stock held by the Kojaian Investors or any other Holder on the terms and subject to the conditions set forth herein, which rights shall apply to the shares of Common Stock to be sold by KV in the Secondary Offering.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1
DEFINITIONS

1.1 Definitions. The following terms shall have the meanings set forth in this Section 1.1:

“Affiliate” means, with respect to any Person, any other Person, directly or indirectly, controlling, controlled by, or under common control with, such Person. For purposes of this definition, the term “control” (including the correlative terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power (a) to direct or cause the direction of the management

and policies of a Person, whether through the ownership of voting securities, by contract or otherwise or (b) to obtain or possess 25% or more of the voting rights of a Person or 25% or more of the economic ownership of a Person. For the avoidance of any doubt, current, former and prospective employees, officers, directors, members, managers and general partners of a Person and such individuals’ spouse, children, parents or any trust created for the benefit of such spouse, children or parents, shall be deemed to be an Affiliate of such Person.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations promulgated by the SEC thereunder.

“Excluded Registration” means a registration under the Securities Act of (i) securities pursuant to one or more Demand Registrations pursuant to Section 2 hereof, (ii) securities registered on Form S-8 or any similar successor form, and (iii) securities registered to effect the acquisition of, or combination with, another Person.

“Holder” means (i) the Kojaian Investors and (ii) any direct or indirect transferee of Kojaian Investors who shall become a party to this Agreement in accordance with Section 2.9 and has agreed in writing to be bound by the terms of this Agreement.

“Kojaian Investors” means KV and KH and their respective Affiliates.

“Person” or “persons” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

“Register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.

“Registrable Shares” means the Common Stock owned by the Holders, whether owned on the date hereof or acquired hereafter.

“Requesting Holders” shall mean the Kojaian Investors or any Holder(s) requesting to have its (their) Registrable Shares included in any Demand Registration or Shelf Registration.

“SEC” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations promulgated by the SEC thereunder.

1.2 Other Terms. For purposes of this Agreement, the following terms have the meanings set forth in the section or agreement indicated.


Term		Section
Adverse Effect		Section 2.1.5
Advice		Section 2.6
Agreement		Introductory Paragraph
CCU		Introductory Paragraph
Common Stock		Recitals
Company		Introductory Paragraph
Demand Registration		Section 2.1.1(a)
Demanding Shareholders		Section 2.1.1(a)
Demand Request		Section 2.1.1(a)
Inspectors		Section 2.5(xiii)
NASD		Section 2.5(q)
Piggyback Registration		Section 2.2.1
Records		Section 2.5(xiii)
Registration Statement		Recitals
Required Filing Date		Section 2.1.1(b)
Seller Affiliates		Section 2.8.1
Shelf Registration		Section 2.1.2
Suspension Notice		Section 2.6

1.3 Rules of Construction. Unless the context otherwise requires

(1) a term has the meaning assigned to it;

(2) “or” is not exclusive;

(3) words in the singular include the plural, and words in the plural include the singular;

(4) provisions apply to successive events and transactions; and

(5) “herein,” “hereof” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.

ARTICLE 2
REGISTRATION RIGHTS

2.1 Demand Registration.

2.1.1 Request for Registration.

(a) Commencing on the date hereof, any Holder or Holders of Registrable Shares shall have the right to require the Company to file a registration statement on Form S-1, S-2 or S-3 or any similar or successor to such forms under the Securities Act for a public offering of all

or part of its or their Registrable Shares (a “Demand Registration”), by delivering to the Company written notice stating that such right is being exercised, naming, if applicable, the Holders whose Registrable Shares are to be included in such registration (collectively, the “Demanding Shareholders”), specifying the number of each such Demanding Shareholder’s Registrable Shares to be included in such registration and, subject to Section 2.1.3 hereof, describing the intended method of distribution thereof (a “Demand Request”).

(b) Each Demand Request shall specify the aggregate number of Registrable Shares proposed to be sold. Subject to Section 2.1.6, the Company shall file the registration statement in respect of a Demand Registration as soon as practicable and, in any event, within forty-five (45) days after receiving a Demand Request (the “Required Filing Date”) and shall use reasonable best efforts to cause the same to be declared effective by the SEC as promptly as practicable after such filing; provided, however, that:

(i) the Company shall not be obligated to effect a Demand Registration pursuant to Section 2.1.1(a) within 60 days after the effective date of a previous Demand Registration, other than a Shelf Registration pursuant to this Article 2; and

(ii) the Company shall not be obligated to effect pursuant to Section 2.1.1(a) more than three Demand Registrations during any 12-month period.

2.1.2 Shelf Registration. With respect to any Demand Registration, the Requesting Holders may request the Company to effect a registration of the Common Stock under a registration statement pursuant to Rule 415 under the Securities Act (or any successor rule) (a “Shelf Registration”).

2.1.3 Selection of Underwriters. At the request of a majority of the Requesting Holders, the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a “firm commitment” underwritten offering. The Holders of a majority of the Registrable Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the underwritten offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed. No Holder may participate in any registration pursuant to Section 2.1.1 unless such Holder (x) agrees to sell such Holder’s Registrable Shares on the basis provided in any underwriting arrangements described above and (y) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Holder shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (a) such Holder’s ownership of his or its Registrable Shares to be transferred free and clear of all liens, claims, and encumbrances, (b) such Holder’s power and authority to effect such transfer, and (c) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Holder to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Holders selling Registrable Shares, and the

liability of each such Holder will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Holder from the sale of his or its Registrable Shares pursuant to such registration.

2.1.4 Rights of Nonrequesting Holders. Upon receipt of any Demand Request, the Company shall promptly (but in any event within ten (10) days) give written notice of such proposed Demand Registration to all other Holders, who shall have the right, exercisable by written notice to the Company within twenty (20) days of their receipt of the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Shares as they may request. All Holders requesting to have their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 2.1.

2.1.5 Priority on Demand Registrations. No securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration unless the managing underwriter or underwriters shall advise the Requesting Holders in writing that the inclusion of such securities will not adversely affect the price, timing or distribution of the offering or otherwise adversely affect its success (an “Adverse Effect”).

2.1.6 Deferral of Filing. The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1 until a date not later than sixty (60) days after the Required Filing Date if (i) at the time the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the board of directors of the Company or a committee of the board of directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its shareholders, or (ii) prior to receiving the Demand Request, the Company had determined to effect a registered underwritten public offering of the Company’s securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1.6 shall be lifted, and the requested registration statement shall be filed immediately, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 2.1.6, the Company shall promptly (but in any event within ten (10) days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1.6 and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within twenty (20) days after receiving such certificate, the holders of a majority of the Registrable Shares held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement.

The Company may defer the filing of a particular registration statement pursuant to this Section 2.1.6(a) only once and may not defer the filing of more than one (1) registration statement in any twelve (12) month period.

2.1.7 Initial Demand Registration. The registration statement on Form S-1 in respect of the Secondary Offering shall hereby constitute the initial Demand Registration under this Agreement (the “Initial Demand”). The Kojaian Investors shall specify the number of Registrable Shares to be sold by it in the Secondary Offering in the manner specified in the Exchange Agreement. The Company shall file the registration statement in respect of the Initial Demand as soon as practicable and, in any event, within ten (10) days of the date hereof and shall use reasonable best efforts to cause the same to be declared effective by the SEC as promptly as practicable. The Kojaian Investors shall have the right to select the investment banking firms to manage or participate in the Secondary Offering and to direct the replacement of such firms. It is hereby acknowledged and agreed that there shall not be any Requesting Holders in the Secondary Offering and that there shall not be any deferral of filing as provided by Section 2.1.6 hereof. Except to the extent modified in this Section 2.1.7, the Initial Demand shall be subject to all of the terms and provisions of this Agreement and shall constitute and be deemed to be a Demand Registration.

2.2 Piggyback Registrations.

2.2.1 Right to Piggyback. Each time the Company proposes to register any of its equity securities (other than pursuant to an Excluded Registration) under the Securities Act for sale to the public (whether for the account of the Company or the account of any security holder of the Company) (a “Piggyback Registration”), the Company shall give prompt written notice to each Holder of Registrable Shares (which notice shall be given not less than twenty (20) days prior to the anticipated filing date of the Company’s registration statement), which notice shall offer each such Holder the opportunity to include any or all of its Registrable Shares in such registration statement, subject to the limitations contained in Section 2.2.2 hereof. Each Holder who desires to have its Registrable Shares included in such registration statement shall so advise the Company in writing (stating the number of shares desired to be registered) within ten (10) days after the date of such notice from the Company. Any Holder shall have the right to withdraw such Holder’s request for inclusion of such Holder’s Registrable Shares in any registration statement pursuant to this Section 2.2.1 by giving written notice to the Company of such withdrawal. Subject to Section 2.2.2 below, the Company shall include in such registration statement all such Registrable Shares so requested to be included therein; provided, however, that the Company may at any time withdraw or cease proceeding with any such registration if it shall at the same time withdraw or cease proceeding with the registration of all other equity securities originally proposed to be registered.

2.2.2 Priority on Piggyback Registrations.

(a) If a Piggyback Registration is an underwritten offering and was initiated by the Company, and if the managing underwriter advises the Company that the inclusion of Registrable Shares requested to be included in the Registration Statement would cause an Adverse Effect, the Company shall include in such registration statement (i) first, the securities

the Company proposes to sell, (ii) second, the Registrable Shares requested to be included in such registration, pro rata among the Holders of such Registrable Shares on the basis of the number of Registrable Shares owned by each such Holder, and (iii) third, any other securities requested to be included in such registration. If as a result of the provisions of this Section 2.2.2(a) any Holder shall not be entitled to include all Registrable Shares in a registration that such Holder has requested to be so included, such Holder may withdraw such Holder’s request to include Registrable Shares in such registration statement.

(b) If a Piggyback Registration is an underwritten offering and was initiated by a security holder of the Company, and if the managing underwriter advises the Company that the inclusion of Registrable Shares requested to be included in the Registration Statement would cause an Adverse Effect, the Company shall include in such registration statement (i) first, the securities requested to be included therein by the security holders requesting such registration and the Registrable Shares requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities owned by each such holder, and (ii) second, any other securities requested to be included in such registration (including securities to be sold for the account of the Company). If as a result of the provisions of this Section 2.2.2(b) any Holder shall not be entitled to include all Registrable Shares in a registration that such Holder has requested to be so included, such Holder may withdraw such Holder’s request to include Registrable Shares in such registration statement.

(c) No Holder may participate in any registration statement in respect of a Piggyback Registration hereunder unless such Holder (x) agrees to sell such Holder’s Registrable Shares on the basis provided in any underwriting arrangements approved by the Company and (y) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents, each in customary form, reasonably required under the terms of such underwriting arrangements; provided, however, that no such Holder shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (i) such Holder’s ownership of his or its Registrable Shares to be sold or transferred free and clear of all liens, claims, and encumbrances, (ii) such Holder’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Holder to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Holders selling Registrable Shares, and the liability of each such Holder will be in proportion to, and provided, further, that such liability will be limited to, the net amount received by such Holder from the sale of his or its Registrable Shares pursuant to such registration.

2.2.3 Selection of Underwriters. If any Piggyback Registration is an underwritten offering, any such investment banking firm selected to manage the offering shall not do so if the Holders of a majority of the Registrable Shares included in such Piggyback Registration are Kojaian Investors and such Holders reasonably object thereto.

2.3 SEC Form S-3. The Company shall use its commercially reasonable best efforts to cause Demand Registrations to be registered on Form S-3 (or any successor form) once the Company becomes eligible to use Form S-3, and if the Company is not then eligible under the

Securities Act to use Form S-3, Demand Registrations shall be registered on the form for which the Company then qualifies. The Company shall use its commercially reasonable best efforts to become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use its commercially reasonable best efforts to remain so eligible.

2.4 Holdback Agreements.

2.4.1 The Company shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and during the 90-day period beginning on the effective date of any registration statement in connection with a Demand Registration (other than a Shelf Registration) or a Piggyback Registration, except pursuant to registrations on Form S-4 or Form S-8 or any successor form or unless the underwriters managing any such public offering otherwise agree.

2.4.2 If any Holders of Registrable Shares notify the Company in writing that they intend to effect an underwritten sale of Common Stock registered pursuant to a Shelf Registration pursuant to Article 2 hereof, the Company shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for its equity securities, during the seven days prior to and during the 90-day period beginning on the date such notice is received, except pursuant to registrations on Form S-4 or Form S-8 or any successor form or unless the underwriters managing any such public offering otherwise agree.

2.5 Registration Procedures. Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Shares in accordance with the intended method of disposition thereof as promptly as is practicable, and pursuant thereto the Company will as expeditiously as possible:

(a) prepare and file with the SEC, pursuant to Section 2.1.1(b) with respect to any Demand Registration, a registration statement on any appropriate form under the Securities Act with respect to such Registrable Shares and use its commercially reasonable best efforts to cause such registration statement to become effective, provided that as far in advance as practicable before filing such registration statement or any amendment thereto, the Company will furnish to the selling Holders copies of reasonably complete drafts of all such documents prepared to be filed (including exhibits), and any such Holder shall have the opportunity to object to any information contained therein and the Company will make corrections reasonably requested by such Holder with respect to such information prior to filing any such registration statement or amendment;

(b) except in the case of a Shelf Registration, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than one hundred eighty (180) days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments)

and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;

(c) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Shares subject thereto for a period ending on the earlier of (x) 24 months after the effective date of such registration statement and (y) the date on which all the Registrable Shares subject thereto have been sold pursuant to such registration statement;

(d) furnish to each seller of Registrable Shares and the underwriters of the securities being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), any documents incorporated by reference therein and such other documents as such seller or underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such seller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.6 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);

(e) use its commercially reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the holders of a majority of such Registrable Shares may reasonably request); use its commercially reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions (provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph or (ii) consent to general service of process in any such jurisdiction);

(f) promptly notify each seller and each underwriter and (if requested by any such Person) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (iii) of the happening of any event which makes any statement made in a registration statement or related prospectus untrue or which requires the making of any changes in such registration statement, prospectus or documents so

that they will 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, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(g) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might reasonably be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder and its counsel should be included;

(h) make reasonably available members of management of the Company, as selected by the Holders of a majority of the Registrable Shares included in such registration, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of such members of the Company’s management in road show presentations;

(i) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder and timely file complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and file with the SEC and make available an earnings statement which complies with Rule 158 under the Securities Act at the earliest reasonable date;

(j) if requested by the managing underwriter or any seller, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any seller reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;

(k) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to each seller;

(l) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;

(m) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;

(n) furnish to each seller and underwriter a signed counterpart of (i) an opinion or opinions of counsel to the Company, and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriter reasonably requests;

(o) cause the Registrable Shares included in any registration statement to be (i) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (ii) quoted on the National Association of Securities Dealers, Inc. Automated Quotation System or the NASDAQ National Market if similar securities issued by the Company are quoted thereon;

(p) provide a transfer agent and registrar for all Registrable Securities registered hereunder;

(q) cooperate with each seller and each underwriter participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (“NASD”);

(r) during the period when the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to

Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;

(s) notify each seller of Registrable Shares promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information;

(t) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as are customary in connection with an underwritten registration; and

(u) advise each seller of such Registrable Shares, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.

2.6 Suspension of Dispositions. Each Holder agrees by acquisition of any Registrable Shares that, upon receipt of any notice (a “Suspension Notice”) from the Company of the happening of any event of the kind described in Section 2.5(f)(iii) such Holder will forthwith discontinue disposition of Registrable Shares until such Holder’s receipt of the copies of the supplemented or amended prospectus, or until it is advised in writing (the “Advice”) by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder’s possession, of the prospectus covering such Registrable Shares current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of registration statements set forth in Sections 2.5(b) and 2.5(c) hereof shall be extended by the number of days during the period from and including the date of the giving of the Suspension Notice to and including the date when each seller of Registrable Shares covered by such registration statement shall have received the copies of the supplemented or amended prospectus or the Advice. The Company shall use its commercially reasonable best efforts and take such actions as are reasonably necessary to render the Advice as promptly as practicable.

2.7 Registration Expenses.

2.7.1 Demand Registrations. All reasonable, out-of-pocket fees and expenses incident to any Demand Registration including, without limitation, the Company’s performance of or compliance with this Article 2, all registration and filing fees, all fees and expenses associated with filings required to be made with the NASD (including, if applicable, the reasonable fees and expenses of any “qualified independent underwriter” as such term is defined in Schedule E of the Bylaws of the NASD, and of its counsel), as may be required by the rules and regulations of the NASD, fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Registrable Shares), rating agency fees, printing expenses (including

expenses of printing certificates for the Registrable Shares in a form eligible for deposit with Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by a Holder of Registrable Shares), messenger and delivery expenses, the fees and expenses incurred in connection with any listing or quotation of the Registrable Shares, fees and expenses of counsel for the Company and its independent certified public accountants (including the expenses of any special audit or “cold comfort” letters required by or incident to such performance), the fees and expenses of any special experts retained by the Company in connection with such registration and the fees and disbursements of a single counsel for a majority of the Registrable Shares covered by any registration statement, will be borne by the Company whether or not any registration statement becomes effective, and any underwriting discounts, commissions, or fees attributable to the sale of the Registrable Shares, will be borne by the Holders pro rata on the basis of the number of shares so registered.

2.7.2 Piggyback Registrations. All fees and expenses incident to any Piggyback Registration including, without limitation, the Company’s performance of or compliance with this Article 2, all registration and filing fees, all fees and expenses associated with filings required to be made with the NASD (including, if applicable, the reasonable fees and expenses of any “qualified independent underwriter” as such term is defined in Schedule E of the Bylaws of the NASD, and of its counsel), as may be required by the rules and regulations of the NASD, fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Registrable Shares), rating agency fees, printing expenses (including expenses of printing certificates for the Registrable Shares in a form eligible for deposit with Depository Trust Company and of printing prospectuses), messenger and delivery expenses, the fees and expenses incurred in connection with any listing or quotation of the Registrable Shares, fees and expenses of counsel for the Company and its independent certified public accountants (including the expenses of any special audit or “cold comfort” letters required by or incident to such performance), the fees and expenses of any special experts retained by the Company in connection with such registration, the fees and expenses of other persons retained by the Company and the fees and disbursements of a single counsel for a majority of the Registrable Shares covered by any registration statement, will be borne by the Company whether or not any registration statement becomes effective; provided, however, that any underwriting discounts, commissions, or fees attributable to the sale of the Registrable Shares will be borne by the Holders pro rata on the basis of the number of shares so registered.

2.8 Indemnification.

2.8.1 The Company agrees to indemnify and reimburse, to the fullest extent permitted by law, each seller of Registrable Shares, and each of its employees, advisors, agents, representatives, partners, members, managers, officers, and directors and each Person who controls such seller (within the meaning of the Securities Act or the Exchange Act) and any agent or investment advisor thereof (collectively, the “Seller Affiliates”) (a) against any and all losses, claims, damages, liabilities, and expenses, joint or several (including, without limitation, attorneys’ fees and disbursements except as limited by Section 2.8.3) based upon, arising out of, related to or resulting from (i) any untrue or alleged untrue statement of a material fact contained in any registration statement, preliminary prospectus, final prospectus or summary prospectuses

related thereto, or any amendment or supplement thereto, or any document incorporated by reference therein (collectively, “Offering Documents”), or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any violation or alleged violation of the Securities Act, the Exchange Act or any other federal securities laws or any “blue sky” or state securities laws, (b) against any and all loss, liability, claim, damage, and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon, arising out of, related to or resulting from (i) any such untrue statement or omission or alleged untrue statement or omission, or (ii) any violations or alleged violations of the Securities Act, the Exchange Act or other federal securities laws or “blue sky” or state securities laws, and (c) against any and all costs and expenses (including reasonable fees and disbursements of counsel) as may be reasonably incurred in investigating, preparing, or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon, arising out of, related to or resulting from (i) any such untrue statement or omission or alleged untrue statement or omission, or (ii) any violation of the Securities Act or Exchange Act or other federal securities laws or any “blue sky” or state securities laws, to the extent that any such expense or cost is not paid under subparagraph (a) or (b) above; except insofar as any such statements are made in reliance upon and in strict conformity with information furnished in writing to the Company by such seller or any Seller Affiliate. The reimbursements required by this Section 2.8.1 will be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred.

2.8.2 In connection with any registration statement in which a seller of Registrable Shares is participating, each such seller will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the fullest extent permitted by law, each such seller will indemnify the Company and each of its employees, advisors, agents, representatives, partners, officers and directors and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) and any agent or investment advisor thereof against any and all losses, claims, damages, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees and disbursements except as limited by Section 2.8.3) resulting from any untrue statement or alleged untrue statement of a material fact contained in the Offering Documents or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by such seller or any of its Seller Affiliates specifically for inclusion in the registration statement; provided that the obligation to indemnify will be several, not joint and several, among such sellers of Registrable Shares, and the liability of each such seller of Registrable Shares will be in proportion to, and will be limited to, the net amount received by such seller from the sale of Registrable Shares pursuant to such registration statement.

2.8.3 Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such

Person) and (b) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (x) the indemnifying party has agreed to pay such fees or expenses, or (y) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person, or (z) in the reasonable judgment of any such Person, based on the advice of its counsel, as conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). If such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the applicable claim unless (1) such settlement or compromise contains a full and unconditional release of the indemnified party or (2) the indemnified party otherwise consents in writing. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels.

2.8.4 Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Section 2.8.1 or Section 2.8.2 are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, liabilities, or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in the losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.8.4 were determined by pro rata allocation (even if the Holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 2.8.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, or expenses (or actions in respect thereof) referred to above

shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 2.8.3, defending any such action or claim. Notwithstanding the provisions of this Section 2.8.4, no Holder shall be required to contribute an amount greater than the dollar amount by which the net proceeds received by such Holder with respect to the sale of any Registrable Shares exceeds the amount of damages which such Holder has otherwise been required to pay by reason of any and all untrue or alleged untrue statements of material fact or omissions or alleged omissions of material fact made in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto related to such sale of Registrable Shares. 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. The Holders’ obligations in this Section 2.8.4 to contribute shall be several in proportion to the amount of Registrable Shares registered by them and not joint.

If indemnification is available under this Section 2.8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.8.1 and Section 2.8.2 without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this Section 2.8.4 subject, in the case of the Holders, to the limited dollar amounts set forth in Section 2.8.2.

2.8.5 The indemnification and contribution provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and will survive the transfer of securities.

2.9 Transfer of Registration Rights. The rights of each Holder under this Agreement may be assigned to any direct or indirect transferee of a Holder who agrees in writing to be subject to and bound by all the terms and conditions of this Agreement.

2.10 Rule 144. The Company will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, will, upon the request of the Holders, make publicly available other information) and will take such further action as the Holders may reasonably request, all to the extent required from time to time to enable the Holders to sell Common Stock without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of any Holder, the Company will (1) deliver to such parties a written statement as to whether it has complied with such requirements and will, at its expense, immediately upon the request of any such Holder, deliver to such Holder a certificate, signed by the Company’s principal financial officer, stating (a) the Company’s name, address and telephone number (including area code), (b) the Company’s Internal Revenue Service identification number, (c) the Company’s SEC file number, (d) the number of shares of each class of capital stock outstanding as shown by the most recent report or statement published by the Company, and (e) whether the Company has filed the reports required to be filed under the Exchange Act for a period of at least ninety (90) days prior to the date of such certificate and in

addition has filed the most recent annual report required to be filed thereunder and (2) remove any restrictive legends on stock certificates, list such shares on the exchanges on which such shares trade, and take such other action reasonably requested.

2.11 Reservation of Rights. The Company will not (a) grant any registration rights to third parties which are more favorable than or inconsistent with the rights granted hereunder or (b) enter into any agreement, take any action, or permit any change to occur, with respect to its securities that violates or subordinates the rights expressly granted to the Holders in this Agreement.

ARTICLE 3
TERMINATION

3.1 Termination. The Holders may exercise the registration rights granted hereunder in such manner and proportions as they shall agree among themselves. The registration rights hereunder shall cease to apply to any particular Registrable Share when: (a) a registration statement with respect to the sale of such shares of Common Stock shall have become effective under the Securities Act and such shares of Common Stock shall have been disposed of in accordance with such registration statement; (b) such shares of Common Stock shall have been sold to the public pursuant to Rule 144 under the Securities Act (or any successor provision); (c) such shares shall have ceased to be outstanding or (d) in the case of Registrable Shares held by a Holder that is not a Kojaian Investor, such Holder holds less than three percent (3%) of the then outstanding Registrable Shares and such Registrable Shares are eligible for sale pursuant to Rule 144(k) under the Securities Act (or any successor provision). The Company shall promptly upon the request of any Holder furnish to such Holder evidence of the number of Registrable Shares then outstanding.

ARTICLE 4
MISCELLANEOUS

4.1 Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of Delaware applicable to agreements executed and to be performed solely within such State, and each of the parties hereto irrevocably consents to the venue and jurisdiction of the federal and state courts located in the State of Delaware, County of Kent.

4.2 Headings. The Section headings used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.

4.3 Publicity. Except as otherwise required by applicable federal securities laws, or as otherwise agreed to by the parties, none of the parties hereto shall issue any press release or make any other public statement, filing or disclosure relating to, in connection with or arising out of this Agreement or the transactions contemplated herein. Any public statement, filing or disclosure so issued or made by either party shall require the prior approval, not to be unreasonably withheld, delayed or conditioned, of the other party hereto as to the contents and the manner of presentation and publication thereof.

4.4 Notices. All notices, requests, demands, other communications and deliveries required or desired to be given hereunder shall only be effective if given in writing by hand, by certified or registered mail, return receipt requested, postage prepaid, or by U.S. express mail service, or by private overnight mail service (e.g. Federal Express), or by facsimile transmission. Any such notice, request, demand, other communication or delivery shall be deemed to have been received (a) on the business day actually received if given by hand or facsimile transmission, (b) on the business day immediately subsequent to mailing, if sent by U.S. express mail service or private overnight mail service, or (c) three (3) business days following the mailing thereof, if mailed by certified or registered mail, postage prepaid, return receipt requested, and all such notices shall be sent to the following addresses (or to such other address or addresses as a party may have advised the other in the manner provided herein):


		if to KV or KH, to:

		39400 Woodward Avenue
		Suite 250
		Bloomfield Hills, Michigan 48304
		Telephone No.		(248) 644-7600
		Facsimile No.		(248) 644-7620

		with a copy simultaneously by like means to:

		Carson Fischer, P.L.C.
		Third Floor
		300 East Maple Road
		Birmingham, Michigan 48009
		Telephone No.		(248) 644-4840
		Facsimile No.		(248) 644-1832
				Attn: Robert M. Carson, Esq.

		if to the Company to:

				Grubb & Ellis Company
				500 West Monroe Street
				Suite 2800
				Chicago, Illinois 60661
		Telephone No.		(312) 698-6700
				Facsimile No. (312) 207-1822
				Attn: Chief Executive Officer

		with a copy simultaneously by like means:

		Zukerman Gore & Brandeis, LLP
		875 Third Avenue
		New York, New York 10022


		Telephone No.		(212) 223-6700
		Facsimile No.		(212) 223-6433
		Attention:		Clifford A. Brandeis, Esq.

If to any other Holder at the address indicated for such Holder in the Company’s stock transfer records with copies, so long as any Kojaian Investor owns any Registrable Shares, to KV and KH as provided above.

4.5 Authority. Each of the parties hereto represents to the other that (a) it has the corporate power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it has been duly authorized by all necessary corporate action and no such further action is required, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles. This Agreement hereby replaces in its entirety the registration rights provided to any Kojaian Investors pursuant to that certain Registration Rights Agreement dated as of December 11, 1996 among the Company, certain Kojaian Investors and the other parties thereto.

4.6 Successors and Assigns. Except as otherwise expressly provided herein, this Agreement shall be binding upon and benefit the Company, each Holder, and their respective successors and assigns.

4.7 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

4.8 Waivers. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but such waiver shall be effective only if it is in a writing signed by the party against whom the existence of such waiver is asserted. Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement nor shall any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under this Agreement. No failure by either party to take any action or assert any right or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of the continuation or repetition of the circumstances giving rise to such right unless expressly waived in writing by the party against whom the existence of such waiver is asserted.

4.9 Amendment. This Agreement may not be amended or modified in any respect except by a written agreement signed by the Company, the Kojaian Investors (so long as the Kojaian Investors owns any Common Stock) and the Holders of a majority of the then outstanding Registrable Shares.

4.10 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic mail shall be as effective as delivery of a manually executed counterpart of any such Agreement.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be duly executed as of the date first written above.


COMPANY:

GRUBB & ELLIS COMPANY

By:	/s/ Mark E. Rose

	Name: Title:	Mark E. Rose Chief Executive Officer

KOJAIAN VENTURES, L.L.C.
	a Michigan limited liability company

By:	KOJAIAN VENTURES-MM, Inc.
	a Michigan Corporation,
	Managing Member

By:	/s/ C. Michael Kojaian

	Name: Title:	C. Michael Kojaian President

KOJAIAN HOLDINGS, LLC

By:	KOJAIAN MANAGEMENT
	CORPORATION, its Sole Member

By:	/s/ C. Michael Kojaian

	Name: Title:	C. Michael Kojaian Executive Vice President

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Table of Contents