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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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GRUBB & ELLIS COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 94-1424307
(State or other jurisdiction 2215 Sanders Road (I.R.S. Employer
of incorporation or Suite 400 Identification Number)
organization) Northbrook, Illinois 60062
(Address of principal executive offices) (zip code)
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Grubb & Ellis Company
1990 Amended and Restated Stock Option Plan,
as amended effective as of June 20, 1997
Grubb & Ellis Employee Stock Purchase Plan
(Full title of the plan)
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Robert J. Walner
Senior Vice President and General Counsel
Grubb & Ellis Company
2215 Sanders Road
Suite 400
Northbrook, Illinois 60062
(847) 753-9010
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Scott R. Haber, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111-2586
(415) 391-0600
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Calculation of Registration Fee
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Proposed Amount
Title of Proposed Maximum of
Securities Amount Maximum Aggregate Regis-
to be to be Offering Price Offering -tration
Registered Registered Per Share (1) Price (1) Fee (1)
- ---------- ---------- -------------- ---------- --------
Common Stock, 1,250,000 $12.91 $16,137,500 $4,761
$0.01 par value
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(1) Estimated for the purpose of calculating the registration fee pursuant to
pursuant to Rule 457(c) (the average ($12.91) of the high ($13.06) and low
($12.75) prices for the Company's Common Stock quoted on the New York Stock
Exchange, Inc. on December 17, 1997).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 of Grubb & Ellis Company, a Delaware
corporation (the "Registrant" or the "Company"), covers 500,000 additional
shares of common stock, par value $0.01 per share, of the Registrant (the
"Common Stock") reserved for issuance under the Grubb & Ellis Company 1990
Amended and Restated Stock Option Plan, as amended effective as of June 20, 1997
and 750,000 shares of Common Stock reserved for issuance under the Grubb & Ellis
Employee Stock Purchase Plan, adopted effective as of August 1, 1997.
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1997; and
(c) The description of Common Stock contained in the
Registrant's Form 8-A Registration Statement used to register the Common
Stock and filed with the Commission which was declared effective by the
Commission on April 15, 1981, except that authorized shares of capital
stock and Common Stock have been increased to 51,000,000 and 50,000,000,
respectively.
In addition to the foregoing documents, all documents subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock described
herein has been passed upon for the Registrant by Carol Vanairsdale, Vice
President and Assistant General Counsel for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article X of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by
applicable law, including, without limitation, the Delaware General Corporation
Law, as amended from time to time ("Delaware Law"), indemnify each director and
officer, present or former, of the
1
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Registrant whom it may indemnify pursuant to such applicable law, including
certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). Section 145 of the Delaware Law authorizes a corporation to
indemnify its directors and officers in terms sufficiently broad to permit such
indemnification (including reimbursement of expenses incurred) under certain
circumstances for liabilities under the Securities Act.
In addition, Article X of the Registrant's Restated Certificate of
Incorporation provides that a director of the Registrant shall not be liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, and (iv) for any transaction from which the
director derives an improper personal benefit. The effect of the provision of
the Company's Restated Certificate of Incorporation is to eliminate the rights
of the Company and its stockholders (through stockholders' derivative suits on
behalf of the Company) to recover monetary damages against a director for breach
of the fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Company or any stockholder to seek nonmonetary relief such as an
injunction or rescission in the event of a breach of a director's duty of care.
Furthermore, Section 7.01 of the Company's Bylaws provides that the Company
shall indemnify, in addition to its directors and officers, employees and agents
against losses incurred by any such person by reason of the fact that such
person was acting in such capacity to the fullest extent authorized by Delaware
Law.
The Registrant has entered into indemnification agreements with each
of its directors and executive officers, which also provide indemnification
against certain liabilities, including certain liabilities under the Securities
Act. The Registrant currently maintains directors' and officers' liability
insurance in the form of a policy which provides for coverage of liabilities up
to a maximum amount of $10 million per policy year (subject to certain minimum
initial payments by the Registrant). The policy insures directors and officers
for liabilities incurred in connection with or on behalf of the Registrant,
except for losses incurred on account of certain specified liabilities,
including losses from "matters which may be deemed uninsurable under the law
pursuant to which this policy shall be construed."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
4.1(1) Restated Certificate of Incorporation of the Registrant.
4.2(2) Certificate of Retirement with respect to 130,233 shares of Junior
Convertible Preferred Stock of the Registrant.
4.3(3) Certificate of Retirement with respect to 8,894 shares of Series A
Senior Convertible Preferred Stock, 128,266 shares of Series B Senior
Convertible Preferred Stock and 19,767 shares of Junior Convertible
Preferred Stock of the Registrant.
4.4 Amendment to the Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary of State on December
9, 1997.
4.5(4) Bylaws of the Registrant.
4.6 Grubb & Ellis Company 1990 Amended and Restated Stock Option Plan, as
amended effective as of June 20, 1997.
4.7 Grubb & Ellis Employee Stock Purchase Plan.
5 Opinion of Carol Vanairsdale, Vice President and Assistant General
Counsel of the Registrant.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney.
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(1) Filed as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and incorporated herein by reference.
(2) Filed as Exhibit 3.3 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended December 31, 1996 and incorporated herein by
reference.
(3) Filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended December 31, 1996 and incorporated herein by
reference.
(4) Filed as Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1996 and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii)to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the
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Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on this 19th day
of December 1997.
GRUBB & ELLIS COMPANY
By: /s/ CAROL VANAIRSDALE
------------------------------------
Carol Vanairsdale
Vice President and Assistant
General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 19, 1997.
Signature Title
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* President, Chief Executive Officer
- ------------------------- and Chairman of the Board
Neil R. Young (Principal Executive Officer)
* Senior Vice President and Chief
- ------------------------- Financial Officer (Principal
Brian Parker Financial Officer and Accounting
Officer)
* Director
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R. David Anacker
* Director
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Lawrence S. Bacow
* Director
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Joe F. Hanauer
* Director
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C. Michael Kojaian
* Director
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Sidney Lapidus
* Director
- -------------------------
Reuben S. Leibowitz
* Director
- -------------------------
Robert J. McLaughlin
* Director
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John D. Santoleri
* Director
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Todd Williams
By: /s/ Carol Vanairsdale
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Carol M. Vanairsdale,
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit Page
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4.1(1) Restated Certificate of Incorporation of the Registrant.
4.2(2) Certificate of Retirement with respect to 130,233 shares of
Junior Convertible Preferred Stock of the Registrant.
4.3(3) Certificate of Retirement with respect to 8,894 shares of Series
A Senior Convertible Preferred Stock, 128,266 shares of Series B
Senior Convertible Preferred Stock and 19,767 shares of Junior
Convertible Preferred Stock of the Registrant.
4.4 Amendment to the Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary of State on
December 9, 1997.
4.5(4) Bylaws of the Registrant.
4.6 Grubb & Ellis Company 1990 Amended and Restated Stock Option
Plan, as amended effective as of June 20, 1997.
4.7 Grubb & Ellis Employee Stock Purchase Plan.
5 Opinion of Carol Vanairsdale, Vice President and Assistant
General Counsel of the Registrant.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney.
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(1) Filed as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and incorporated herein by reference.
(2) Filed as Exhibit 3.3 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended December 31, 1996 and incorporated herein by
reference.
(3) Filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended December 31, 1996 and incorporated herein by
reference.
(4) Filed as Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1996 and incorporated herein by
reference.
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Exhibit 4.4
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
GRUBB & ELLIS COMPANY
It is hereby certified that:
1. The name of the corporation (the "Corporation") is Grubb & Ellis
Company, and the original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on December 5, 1980.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article IV thereof and by substituting in lieu of said
Article the following new Article:
"ARTICLE IV
The total number of shares of capital stock which the Corporation
shall have authority to issue is fifty-one million (51,000,000)
shares, of which fifty million (50,000,000) shares with a par value of
$0.01 per share shall be designated Common Stock, and of which one
million (1,000,000) shares with a par value of $0.01 per share shall
be designated Preferred Stock.
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby expressly vested with
authority to fix by resolution or resolutions the designations and the
powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions
thereof (including, without limitation, the voting powers, if any, the
dividend rate, conversion rights, redemption price, or liquidation
preference), of any wholly unissued series of Preferred Stock, to fix
the number of shares constituting any such series, and to increase or
decrease the number of shares of any such series (but not below the
number of shares thereof then outstanding). In case the number of
shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution or resolutions originally
fixing the number of shares of such series."
<PAGE>
3. The amendment of the Restated Certificate of Incorporation herein has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Signed: December 8, 1997.
/s/ Carol Vanairsdale
------------------------------
Carol Vanairsdale
Assistant Secretary
<PAGE>
EXHIBIT 4.6
GRUBB & ELLIS COMPANY
1990 AMENDED AND RESTATED STOCK OPTION PLAN
AS AMENDED EFFECTIVE AS OF JUNE 20, 1997
1. PURPOSE. The purpose of the 1990 Amended and Restated Stock
Option Plan (the "Plan") is to promote the interests of Grubb & Ellis Company
(the "Company"), its subsidiaries and its stockholders, in retaining and
attracting key persons associated with the Company and its subsidiaries who are
in a position to contribute significantly to the success of the Company and its
subsidiaries, by granting options ("Options") to such persons to purchase shares
of its Common Stock, $0.01 Par Value ("Shares"). This Plan is an amendment and
restatement of the Company's 1981, 1982, 1983, 1984 and 1985 Stock Option Plans
(Amended) ("Plans"), and includes the Second Amendment to the Plan effective as
of November 21, 1995, the Third Amendment to the Plan effective as of September
25, 1996, the Fourth Amendment to the Plan effective as of February 27, 1997 and
the Fifth Amendment to the Plan effective as of June 20, 1997.
2. EFFECTIVE DATE OF THE PLAN; TERM. Subject to approval by the
holders of a majority of the outstanding shares of Common Stock of the Company
voting on or before May 16, 1991, this Plan shall be effective as of May 16,
1990 ("Effective Date"). Upon becoming effective, this Plan shall continue in
effect until such date as the Board of Directors of the Company discontinues the
Plan; provided, however, that no "incentive stock Options" shall be granted
under the Plan after May 16, 2000. Any such termination of the Plan shall not
affect Options previously granted and such Options shall remain in full force
and effect as if this Plan had not been terminated. On and after the Effective
Date, all outstanding options under the previous Plans shall continue to be
effective under this Plan upon the terms and conditions of the options as
granted and amended prior to the Effective Date.
3. ADMINISTRATION. This Plan shall be administered by the Board of
Directors of the Company or by such committee of directors (in either case, the
"Board/Committee") as may be established by the Board of Directors in accordance
with Rule 16b-3 of the Securities Exchange Act of 1934, as amended. No member
of the Compensation Committee of the Board of Directors (the "Compensation
Committee") shall be eligible to participate in this Plan while serving as a
member of the Compensation Committee, nor shall any such member have been so
eligible for one year prior to becoming a member of the Compensation Committee.
Subject to the provisions of this Plan, the Board/Committee shall have sole
authority, in its absolute discretion, to determine which eligible persons shall
receive Options (the "Optionees"), the dates when Options shall be granted, the
terms of such Options (which may differ from one another), the number of Shares
to be optioned, and the exercise price of such Options, and shall have authority
to do everything necessary or appropriate to administer this Plan, including,
without limitation, interpreting this Plan. All decisions, determinations and
interpretations of the
<PAGE>
Board/Committee shall be final and binding on all persons, including the Company
and its subsidiaries, and all Optionees.
4. ELIGIBILITY. The Board/Committee may grant Options to any key
employee of the Company or of any of its subsidiaries, whether presently in
existence or hereinafter organized or acquired, and to any director of the
Company, whether or not such director is an employee; provided, however, that
directors who are members of the Compensation Committee are not eligible to
receive Options under the Plan. On and after such date when securities issuable
under the Plan to independent contractors are registrable on a Form S-8 or
similar registration statement, or otherwise when securities compliance becomes
similarly simplified, in the judgment of the appropriate corporate officers of
the Company, upon written notification to the Board/Committee, the
Board/Committee may grant "non-qualified" Options (see below) to any key
independent contractor associated with the Company or any of its subsidiaries,
subject to the above limitation on members of the Compensation Committee. As of
the Effective Date, independent contractors are not eligible to be granted
Options under the Plan. A key employee or key independent contractor associated
with the Company is one whose duties and/or authority are such that, in the
judgment of the Board/Committee, he or she is in a position to contribute
significantly to the success of the Company or any of its subsidiaries.
5. STOCK TO BE OPTIONED. The maximum number of Shares of authorized,
but unissued, or reacquired Common Stock of the Company, which may be optioned
and sold under this Plan is 2,000,000 Shares. Outstanding Options under the
previous Plans will be subject to and authorized by this Plan. On and after the
Effective Date, Shares subject to expired or cancelled Options will be available
for regrant of Options. The Shares authorized will be available for the grant of
either "incentive stock Options" (see below) or non-qualified Options. Except
as set forth in this paragraph, as of the Effective Date, the authorization of
Shares under the previous Plans shall be cancelled.
6. GRANTING OF OPTIONS.
(a) Options may be granted pursuant to this Plan at any time during
its term. Options granted may be either incentive stock Options ("ISOs")
meeting the requirements of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or "non-qualified Options" which do not meet such
requirements; provided, however, that ISOs shall be granted only to eligible
employees. Each Option grant shall be consistent with the terms of this Plan.
No Option granted pursuant to this Plan shall be exercisable more than ten years
after the date of grant, unless the Board/Committee determines otherwise with
respect to individual Option grants or for all Options or Optionees; provided,
however, that no ISO granted to an Optionee who owns stock possessing more than
10% of the total combined voting power of all classes of stock of the Company at
the date of grant shall be exercisable more than five years after the date of
grant.
(b) DOLLAR LIMITATION ON ISOS GRANTED BEFORE JANUARY 1, 1987. The
aggregate fair market value (determined as of the date the Option is granted) of
the Shares for which any employee may be granted ISOs in any calendar year under
this Plan and under any other plan of
1
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the Company, its subsidiaries and/or any parent corporation before January 1,
1987, shall not exceed $100,000 plus any "unused limit carryover" to such year.
If $100,000 exceeds the aggregate fair market value (determined as of the date
the Option is granted) of the Shares for which an employee was granted ISOs in
any calendar year after 1980, under any ISO plan of his or her employer
corporation and its parent and subsidiary corporations, then one-half of such
excess shall be "unused limit carryover" to each of the three succeeding
calendar years. The amount of the unused limit carryover for any calendar year
which may be taken into account in any succeeding calendar year shall be the
amount of such carryover reduced by the amount of such carryover which was used
in prior calendar years. For purposes of the foregoing sentence, the amount of
ISOs granted during any calendar year shall be treated as first using up the
$100,000 limitation of the first sentence of this Section 6(b), and then shall
be treated as using up unused limit carryovers to such year in the order of the
calendar years in which the carryovers arose.
(c) DOLLAR LIMITATION ON ISOS GRANTED AFTER DECEMBER 31, 1986. For
ISOs granted after December 31, 1986, the aggregate fair market value
(determined as of the respective date or dates of grant) of the Shares with
respect to which ISOs may first be exercisable under the Plan (or any other plan
of the Optionee's employer corporation or its parent or subsidiary corporation)
during any one calendar year shall not exceed the sum of $100,000.
7. OPTION PRICE. The Option price for each Share purchasable upon
exercise of Options granted pursuant to this Plan either shall be its fair
market value or, in the case of non-qualified Options only, may be such other
price as the Board/Committee shall determine which shall be at least 50% of the
fair market value of such Share, at the date of grant of the Option; provided,
however, that the exercise price of ISOs granted to an Optionee who owns stock
possessing more than 10% of the total combined voting power of all classes of
the Company at the date of grant shall be set at not less than 110% of the fair
market value per Share at the date of grant. The fair market value of the
Shares on any given date shall be determined by reference to the closing market
price per Share on the New York Stock Exchange Composite Reporting System (or on
such other major trading market or exchange on which the Company's Common Stock
is then traded) on the trading date next preceding such date.
8. VESTING OF OPTIONS.
(a) The vesting period of each Option granted shall be as determined
by the Board/Committee; provided, that if a vesting period is not specified by
the Board/Committee, the number of Shares granted to an Optionee shall be
divided into three, equal installments. The first such installment shall vest,
and the Option shall be exercisable with respect to the Shares included in such
installment, on the date one year after the grant of the Option, and each
succeeding installment shall vest, and the Option shall be exercisable with
respect to the Shares included therein, annually thereafter.
(b) Notwithstanding the foregoing, Options granted pursuant to this
Plan shall vest immediately upon the occurrence of any of the following events
(hereafter referred to as "Acceleration"): (i) at the election of the
Board/Committee with respect to Options specifically
2
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designated; (ii) the merger or combination of the Company with another
corporation, when as a result thereof the shareholders of the Company
immediately preceding such merger or combination shall immediately thereafter
own less than 50% of the outstanding shares of the surviving corporation which
at the time shall have, by the terms thereof, the ordinary voting power to elect
the directors of such corporation; (iii) a tender offer or single transaction
(other than a merger or combination of the Company with another corporation)
which in either case results in a change in ownership of 33-1/3% or more of the
outstanding shares of Common Stock of the Company; (iv) a sale to an unrelated
party of substantially all of the assets of the Company; or (v) a substantial
partial or complete liquidation of the Company.
9. EXERCISE OF OPTIONS.
(a) An Option may be exercised when installments vest and at any time
from time to time thereafter during the specified term of the Option with
respect to all or a portion of the Shares covered by such vested installments;
provided, that not less than ten Shares may be purchased at any one time unless
the number purchased is the total number at the time purchasable under such
Option and only whole Shares may be purchased; and further subject to the
restrictions contained in this Section 9.
(b) An ISO granted before January 1, 1987 shall not be exercisable
while there is "outstanding" any ISO which was granted before the granting of
such Option to such Optionee to purchase stock in the Company or in a
corporation which (at the date such Option is granted) is a parent or subsidiary
corporation of the Company, or in a predecessor corporation of any of such
corporations. For purposes of the foregoing sentence, any ISO shall be treated
as "outstanding" until such Option is exercised in full or expires by reason of
lapse of time.
(c) An Option may be exercised by delivery of written notice of such
exercise to the Company at its principal business office by the Optionee,
together with one of the following:
1) full cash payment for the Shares with respect to which the Option
is exercised, in the form of a check payable to the Company in the amount of the
aggregate purchase price;
2) full payment for the Shares with respect to which the Option is
exercised in the form of shares of Common Stock of the Company already owned by
the Optionee having a fair market value (determined in accordance with Paragraph
7) equal to the aggregate purchase price of the Shares;
3) full payment for the Shares with respect to which the Option is
exercised in the form of a combination of cash and already-owned shares;
4) in the discretion of the Board/Committee, payment on an
installment basis by making an initial payment and thereafter paying the balance
of the exercise price within a term not to exceed ten years from the date of
exercise (or sooner upon termination of employment for any reason other than
incapacity, retirement or death);
5) if offered by the Board/Committee, an executed subscription
agreement and
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promissory note upon such terms and conditions as the Company may require, which
shall evidence the Optionee's irrevocable agreement to purchase the Shares
within one year of such notice.
Until the issuance of the stock certificate, no right to vote or
receive dividends or any other rights as a stockholder shall exist with respect
to optioned Shares notwithstanding the exercise of the Option. No adjustment
will be made for any dividend or distribution in respect of the Shares for which
the record date is prior to the date the stock certificate is issued except as
provided in Section 13.
(d) Except as otherwise provided in the option agreement or form of
grant with respect to an Option, an Option may be exercised by the Optionee
either while he or she is, and has continually been since the date of the grant
of the Option, an employee of the Company, its subsidiaries, its parent or its
successor companies, or a director of the Company, or within three months after
termination of such status, except that if his or her continuous employment or
service as a director terminates by reason of his or her death, to the extent
that installments have vested and remain unexercised on the date of the
Optionee's death, such Option of the deceased Optionee may be exercised within
one year after the death of such Optionee, by (and only by) the person or
persons to whom his or her rights under such Option shall have passed by will or
by the laws of descent and distribution.
(e) A non-qualified Option granted to an Optionee while associated
with the Company or its subsidiaries as an independent contractor may be
exercised under the same conditions as that of an employee Optionee described in
Paragraph 9(d) above, except that "associate" and "association" shall be
substituted for "employee" and "employment," respectively.
10. OPTIONS NOT TRANSFERABLE. Options granted under this Plan may
not be sold, pledged, assigned, or transferred in any manner otherwise than by
will or the laws of descent or distribution, and may be exercised during the
lifetime of an Optionee only by such Optionee.
11. CANCELLATION AND NEW GRANT OF OPTIONS. The Board/Committee shall
have the authority to effect, at any time and from time to time, with the
consent of the affected Optionees, the cancellation of any or all outstanding
Options under the Plan and to grant in substitution therefor new Options under
the Plan covering the same or a different number and class of shares of stock
and having an Option price per share on the new grant date set according to
Paragraph 7 above, and a new vesting schedule commencing on such date.
12. AMENDMENT OR TERMINATION OF THE PLAN.
(a) The Board of Directors of the Company may amend this Plan from
time to time in such respects as it may deem advisable; provided, however, that
without stockholder approval, the Board of Directors may not amend the Plan to
effect an increase in the number of Shares authorized for the grant of Options
to a number greater than is authorized hereunder.
(b) The Board of Directors of the Company may at any time terminate
this Plan.
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Any such termination of this Plan shall not affect Options previously granted
and such Options shall remain in full force and effect as if this Plan had not
been terminated.
(c) The Board/Committee may amend or modify outstanding Options
issued under the Plan in any or all aspects whatsoever not inconsistent with
terms of the Plan; provided, however, that no such amendment or modification
shall adversely affect the rights of an Optionee with respect to Options at the
time outstanding under the Plan unless the Optionee consents to such amendment.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If all or any
portion of an Option is exercised subsequent to any of the following kinds of
changes in the outstanding Common Stock of the Company: a stock dividend,
stock-split, recapitalization, combination or exchange of shares, merger,
consolidation, acquisition of property for stock, corporate separation,
reorganization or liquidation; and if as a result shares of any class shall be
issued in respect of outstanding shares of Common Stock or shares of Common
Stock shall be changed into the same or a different number of shares of the same
or another class or classes; then the Optionee, upon exercising such an Option,
shall receive, for the aggregate price paid, the aggregate number and class of
Shares which he or she would have been holding following any and all such
changes in the outstanding Common Stock of the Company as if Shares (as
authorized at the date of the granting of such Option) had been purchased by him
or her at the date of granting of such Option for the same aggregate price (on
the basis of the price per Share provided in such Option) and had not been
disposed of; provided, however, that no fractional Share shall be issued upon
any such exercise, and the aggregate price paid shall be appropriately reduced
on account of any fractional Share not issued. In the event of any such change
in the outstanding Common Stock of the Company, the aggregate number and class
of Shares remaining available under this Plan shall be that number and class
which a person, to whom an Option had been granted for all of the available
Shares under this Plan on the date preceding such change, would be entitled to
receive as provided in the first sentence of this Section 13.
14. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition to the
exercise of any portion of an Option, the Company may require the Optionee of
such Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present intention
to sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933, as amended,
or any other applicable law, regulation or rule of any governmental agency.
15. RESERVATION OF SHARES OF COMMON STOCK. The Company during the
term of this Plan, will at all times reserve and keep available, and will seek
or obtain from any regulatory body having jurisdiction any requisite authority,
in order to issue and sell such number of Shares of its Common Stock as shall
be sufficient to satisfy the requirements of this Plan. Inability of the
Company to obtain from any regulatory body having jurisdiction authority deemed
by the Company's counsel to be necessary for the lawful issuance and sale of any
Shares of its Common Stock hereunder shall relieve the Company of any liability
in respect to the non-issuance or sale of such stock as to which such requisite
authority shall not have been obtained.
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16. MISCELLANEOUS.
(a) No person shall have any claim or right to be granted an Option
under this Plan. The grant of an Option under this Plan shall not confer any
right on the Optionee to continue in the employ of or association with the
Company or limit in any way the right of the Company to terminate such
employment or association.
(b) The Company shall have the right to condition exercise of Options
granted pursuant to this Plan upon satisfactory arrangements to assure that, to
the extent the exercise of such Options shall result in realization by the
person exercising such Options of income subject to a requirement that taxes be
withheld with respect to such income, the amount of such taxes shall be provided
by the Optionee at the time of exercise of the Options or the number of Shares
issuable upon such exercise shall be reduced and withheld to satisfy such tax
obligations.
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EXHIBIT 4.7
GRUBB & ELLIS
EMPLOYEE STOCK PURCHASE PLAN
Grubb & Ellis Company, a corporation organized under the laws of the
State of Delaware (the "Company"), hereby adopts the Grubb & Ellis Employee
Stock Purchase Plan (the "Plan"). The purposes of the Plan are as follows:
(1) To assist employees of the Company and its Subsidiary
Corporations (as defined below) in acquiring a stock ownership interest in the
Company pursuant to a plan which is intended to qualify as an "employee stock
purchase plan" within the meaning of Section 423(b) of the Internal Revenue Code
of 1986, as amended.
(2) To help employees provide for their future security and to
encourage them to remain in the employment of the Company and its Subsidiary
Corporations.
1. DEFINITIONS
Whenever any of the following terms is used in the Plan with the first
letter or letters capitalized, it shall have the following meaning unless
context clearly indicates to the contrary (such definitions to be equally
applicable to both the singular and the plural forms of the terms defined):
(a) "Authorization" has the meaning set forth in Section 3(b) hereof.
(b) "Bargaining Unit" means a bargaining unit covered by a collective
bargaining agreement with the Company or a Subsidiary Corporation if the
collective bargaining agent of such bargaining unit has elected, by written
notice to the Company or a Subsidiary Corporation, to exclude the employees
in such bargaining unit from participation in the Plan. A collective
bargaining agent may revoke an election to exclude the employees in the
bargaining unit from participation in the Plan by written notice to the
Company or the Subsidiary Corporation. Prior to August 1, 1997, the
Company shall present a copy of the Plan to the collective bargaining agent
for each bargaining unit of the Company and Subsidiary Corporations. The
Company shall present a copy of the Plan to the collective bargaining agent
of each bargaining unit covered by a collective bargaining agreement
entered into by the Company or a Subsidiary Corporation after August 1,
1997. Each collective bargaining agent shall have an opportunity to review
the Plan and decide whether or not the employees in the bargaining unit
should participate in the Plan. Each collective bargaining agent shall be
allowed the choice to exclude the employees in the bargaining unit from the
Plan without regard to the provisions of the existing collective bargaining
agreement or other relevant agreement. A collective bargaining agent shall
provide written notice of the agent's election to exclude the employees in
the bargaining unit, or the agent's revocation of a
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prior election to exclude the employees in the bargaining unit, not less
than 10 days prior to the first day of the Offering Period with respect to
which such election, or revocation, is to be effective.
(c) "Board of Directors" or "Board" means the Board of Directors of the
Company.
(d) "Broker Employee" means an employee of the Company or any Subsidiary
Corporation all or part of whose compensation consists of brokerage
commissions.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the committee appointed to administer the Plan
pursuant to Section 13 hereof.
(g) "Company" means Grubb & Ellis Company, a Delaware corporation.
(h) "Date of Exercise" means, with respect to any Option, the last day of
the Offering Period for which the Option was granted.
(i) "Date of Grant" means, with respect to any Option, the date upon which
the Option is granted, as set forth in Section 3(a) hereof.
(j) "Eligible Compensation" means an Eligible Employee's rate of base pay
and commissions paid during the applicable period. Eligible Compensation
does not include bonuses, overtime, or deferred compensation and is
determined before contributions to any employee plan.
(k) "Eligible Employee" means an employee of the Company or any Subsidiary
Corporation who (1) would not, immediately after the Option is granted, own
stock possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company, a Parent Corporation or a
Subsidiary Corporation, (2) whose customary employment is for more than 20
hours per week and (3) whose customary employment is for more than five
months in any calendar year, including salaried and hourly employees and
Broker Employees; provided that employees who are employed in a Bargaining
Unit shall not be Eligible Employees. For purposes of paragraph (k), the
rules of Section 424(d) of the Code with regard to the attribution of stock
ownership shall apply in determining the stock ownership of an individual,
and stock which an employee may purchase under outstanding options shall be
treated as stock owned by the employee. During a leave of absence meeting
the requirements of Treasury Regulation 1.421-7(h)(2), an individual shall
be treated as an employee of the Company or Subsidiary Corporation
employing such individual immediately prior to such leave. "Eligible
Employee" shall not include any director of the Company or any Subsidiary
Corporation, or any other person, who does not render services to the
Company in the status of an employee within the meaning of Section 3401(c)
of the Code.
(l) "Offering Period" shall mean the three month period commencing on the
first calendar day of each fiscal quarter of the Company and ending on the
last calendar day of
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each such fiscal quarter of the Company; provided, however, that the first
Offering Period under the Plan shall commence on August 1, 1997 and end on
December 31, 1997. Options shall be granted on the Date of Grant and
exercised on the Date of Exercise as provided in Sections 3(a) and 4(a)
hereof.
(m) "Option" means an option granted under the Plan to an Eligible
Employee to purchase shares of the Company's Stock.
(n) "Option Period" means, with respect to any Option, the period
beginning upon the Date of Grant and ending upon the Date of Exercise.
(o) "Option Price" has the meaning set forth in Section 4(b) hereof.
(p) "Parent Corporation" means any corporation, other than the Company, in
an unbroken chain of corporations ending with the Company if, at the time
of the granting of the Option, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
(q) "Participant" means an Eligible Employee who has complied with the
provisions of Section 3(b) hereof.
(r) "Payday" means a day on which the Company pays Eligible Compensation
to Eligible Employees and which is designated by the Committee as the day
on which payroll deductions are to be withheld under the Plan.
(s) "Plan" means the Grubb & Ellis Employee Stock Purchase Plan.
(t) "Plan Year" means the calendar year.
(u) "Stock" means the shares of the Company's Common Stock, $0.01 par
value.
(v) "Subsidiary Corporation" means any corporation, other than the
Company, in an unbroken chain of corporations beginning with the Company
if, at the time of the granting of the Option, each of the corporations
other than the last corporation in an unbroken chain owns stock possessing
50% or more of the total combined voting power of all classes of stock in
one of the other corporations in such chain.
(w) "Termination Election" has the meaning set forth in Section 5(a).
2. STOCK SUBJECT TO THE PLAN
Subject to the provisions of Section 9 hereof (relating to adjustments upon
changes in the Stock) and Section 11 hereof (relating to amendments of the
Plan), the Stock which may be sold pursuant to Options granted under the Plan
shall not exceed in the aggregate 750,000 shares, and may be unissued shares or
treasury shares or shares bought on the market for purposes of the Plan.
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3. GRANT OF OPTIONS
(a) GENERAL STATEMENT. The Company shall offer Options under the
Plan to all Eligible Employees in successive Offering Periods until the earlier
of: (i) the date when the number of shares of Stock available under the Plan
have been sold; or (ii) the date the Plan is terminated. Except as otherwise
provided, the Date of Grant of an Option shall be the first date of the Offering
Period of such Option. Each Option shall expire on the Date of Exercise
immediately after the automatic exercise of the Option pursuant to Section 4(a)
hereof. The number of shares of Stock subject to each Option shall equal the
payroll deductions authorized by each Participant in accordance with subsection
(b) hereof for the Option Period, divided by the Option Price, except as
provided in Section 3(c); provided, however, that the maximum number of shares
of Stock subject to any Option shall not exceed 5,000.
(b) ELECTION TO PARTICIPATE; PAYROLL DEDUCTION AUTHORIZATION. An
Eligible Employee shall participate in the Plan only by means of payroll
deduction. Each Eligible Employee who elects to participate in the Plan shall
deliver to the Company prior to such Date of Grant, a completed and executed
written payroll deduction authorization and such other documents as may be
required by the Committee (the "Authorization"), within such time periods and
according to such procedures as the Committee shall specify. An Eligible
Employee's Authorization shall give notice of such Eligible Employee's election
to participate in the Plan for the next following Offering Period and subsequent
Offering Periods and shall designate a stated dollar amount or a stated whole
percentage amount of Eligible Compensation to be withheld. The Company shall
withhold amounts on each Payday in accordance with the Authorization. The
amount withheld shall not be less than $5.00 each Payday and the amount shall
not exceed 15% of Eligible Compensation. The cash compensation payable to a
Participant for an Offering Period shall be reduced through a payroll deduction
in an amount equal to the stated amount or percentage specified in the
Authorization, and such amount shall be credited to the Participant's account
under the Plan. Any Authorization shall remain in effect until the Eligible
Employee amends the same pursuant to procedures specified by the Committee, the
Eligible Employee terminates participation in the Plan pursuant to Section 5
hereof, or the Eligible Employee ceases to participate in the Plan upon
termination of employment pursuant to Section 6 hereof.
(c) $25,000 LIMITATION. No Eligible Employee shall be granted an
Option under the Plan which permits his rights to purchase stock under the Plan
and under all other employee stock purchase plans of the Company, any Parent
Corporation or any Subsidiary Corporation subject to Section 423 of the Code to
accrue at a rate which exceeds $25,000 of fair market value of such stock
(determined at the time the Option is granted) for each calendar year in which
the option is outstanding at any time. For purpose of the limitation imposed by
this subsection, the right to purchase stock under an option accrues when the
option (or any portion thereof) first becomes exercisable during the calendar
year, the right to purchase stock under an option accrues at the rate provided
in the option, but in no case may such rate exceed $25,000 of the fair market
value of such stock (determined at the time such option is granted) for any one
calendar year, and a right to purchase stock which has accrued under an option
may not be carried over to any other option.
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4. EXERCISE OF OPTIONS; OPTION PRICE
(a) GENERAL STATEMENT. Each Participant automatically and without
any act on such Participant's part shall be deemed to have exercised such
Participant's Option on the Date of Exercise to the extent that the balance then
in the Participant's account under the Plan is sufficient to purchase, at the
Option Price, shares of Stock subject to the Option, unless the Option has been
previously terminated pursuant to Section 5 or Section 6 hereof.
(b) OPTION PRICE DEFINED. The option price per share of Stock (the
"Option Price") to be paid by a Participant upon the exercise of the
Participant's Option shall be equal to 85% of the lesser of the fair market
value of a share of Stock on the Date of Exercise or the fair market value of a
share of Stock on the Date of Grant. The fair market value of a share of Stock
as of a given date shall be the average of the closing prices on the New York
Stock Exchange-Composite Tape for the five preceding trading days.
(c) ISSUANCE OF SHARES. The Company may, at the discretion of the
Committee, use an uncertificated program to issue shares of Stock to
Participants or the Company may issue certificated shares of Stock to
Participants.
(i) CERTIFICATED PROGRAM. The following provisions shall apply
if certificated shares of Stock are issued under the Plan. A Participant's
Option shall be exercised to the extent the amount credited to the
Participant's account will purchase whole shares of Stock. The Company
shall deliver to the Participant or his or her nominee, as soon as
practicable after the exercise of any Option, a certificate representing
the whole shares of Stock purchased by the Participant from funds credited
to the Participant's account under the Plan. Any amount credited to the
Participant's account after the purchase of whole shares of Stock upon
exercise of an Option shall be carried forward in such account to the
following Offering Period and shall be applied toward the purchase of
shares of Stock pursuant to the Option, if any, granted to such Participant
for such Offering Period. In the event the Company is required to obtain
authority from any commission or agency to issue any such certificate, the
Company shall seek to obtain such authority.
(ii) UNCERTIFICATED PROGRAM. The following provisions shall
apply if certificated shares of Stock are not issued under the Plan. A
Participant's Option shall be exercised to the extent the amount credited
to the Participant's account will purchase whole or fractional shares of
Stock. The Company shall deliver to an agent designated by the Company, as
soon as practicable after the exercise of any Option, the whole or
fractional shares of Stock purchased by the Participant from funds credited
to the Participant's account under the Plan. Such shares of Stock shall be
held on behalf of the Participant by the agent. The Participant may
transfer or sell such shares of Stock by providing directions to the agent
in accordance with procedures specified by the Committee.
(iii) INABILITY TO ISSUE SHARES. The inability of the Company to
obtain authority from any such commission or agency which the Committee in
its absolute
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discretion deems necessary for the lawful issuance of shares of Stock under
the Plan shall relieve the Company from liability to any Participant's
account following the remittance to such Participant of the outstanding
amount in cash in one lump sum without any interest thereon which was
credited to such Participant's account under the Plan and for which shares
were not issued.
(d) PRO RATA ALLOCATIONS. If the total number of shares of Stock for
which Options are to be exercised on any Date of Exercise exceeds the number of
shares of Stock remaining unsold under the Plan (after deduction of all shares
for which Options have theretofore been exercised), the Committee shall make a
pro rata allocation of the available remaining shares in as nearly a uniform
manner as shall be practicable and the balances of payroll deductions credited
to the accounts of Participants which have not been applied to the purchase of
shares of Stock shall be paid to such Participants in cash in one lump sum
within sixty (60) days after the Date of Exercise, without any interest thereon.
The Committee shall give written notice of such allocation to each Participant
affected thereby.
5. TERMINATION OF PARTICIPATION IN THE PLAN
(a) GENERAL STATEMENT. Any Participant may terminate participation
under the Plan at any time except that no Participant may terminate
participation after the 15th day of the last month of any Offering Period. A
Participant who wishes to terminate from the Plan must deliver to the Company a
notice of termination in a form prepared by the Company (the "Termination
Election"). Upon receipt of a Participant's Termination Election, the Company
shall pay to the Participant the amount of the balance in the Participant's
account under the Plan in cash in one lump sum within sixty (60) days, without
any interest thereon. Upon receipt of a Participant's Termination Election by
the Company, the Participant shall cease to participate in the Plan and the
Participant's Option shall terminate.
(b) ELIGIBILITY FOLLOWING TERMINATION. A Participant who terminates
participation in the Plan and who is still an Eligible Employee shall be
eligible to participate again in the Plan as of any subsequent Date of Grant by
delivering to the Company an Authorization pursuant to Section 3(b) hereof.
6. TERMINATION OF EMPLOYMENT
If the employment of a Participant with the Company and the Subsidiary
Corporations terminates for any reason, including death or retirement, the
Participant's participation in the Plan automatically and without any act on the
Participant's part shall terminate as of the date of the termination of the
Participant's employment. As soon as practicable after such a termination of
employment, the Company shall pay to the Participant (or the Participant's
estate, in the event of the Participant's death) the amount of the balance in
the Participant's account under the Plan without any interest thereon. Upon a
Participant's termination of employment, the Participant's Authorization,
interest in the Plan and Option under the Plan shall terminate.
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7. RESTRICTION UPON ASSIGNMENT
An Option granted under the Plan shall not be transferable other than
by will or the laws of descent and distribution, and is exercisable during the
Participant's lifetime only by the Participant. The Company shall not recognize
and shall be under no duty to recognize any assignment or alienation of the
Participant's interest in the Plan, the Participant's Option or any rights under
the Participant's Option.
8. NO RIGHTS OF STOCKHOLDERS UNTIL SHARES ISSUED
With respect to shares of Stock subject to an Option, a Participant
shall not be deemed to be a stockholder of the Company, and the Participant
shall not have any of the rights or privileges of a stockholder, until such
shares have been issued to the Participant or his or her nominee or the agent
designated by the Company on the Participant's behalf following exercise of the
Participant's Option. No adjustments shall be made for dividends (ordinary or
extraordinary, whether in cash securities, or other property) or distributions
or other rights for which the record date occurs prior to the date of such
issuance, except as otherwise expressly provided herein.
9. CHANGES IN THE STOCK; ADJUSTMENTS OF AN OPTION
Whenever any change is made in the Stock or to Options outstanding
under the Plan, by reason of a stock split, stock dividend, recapitalization or
other subdivision, combination, or reclassification of shares, appropriate
action shall be taken by the Committee to adjust accordingly the number of
shares of Stock subject to the Plan and the number and the Option Price of
shares of Stock subject to the Options outstanding under the Plan to preserve,
but not increase, the rights of Participants hereunder.
10. USE OF FUNDS; NO INTEREST PAID
All funds received or held by the Company under the Plan shall be
included in the general funds of the Company free of any trust or other
restriction and may be used for any corporate purpose. No interest will be paid
to any Participant or credited to any Participant's account under the Plan with
respect to such funds.
11. AMENDMENT OF THE PLAN
The Board of Directors may amend, suspend, or terminate the Plan at
any time and from time to time, provided that approval by a vote of the holders
of more than 50% of the outstanding shares of the Company's capital stock
entitled to vote shall be required to amend the Plan: (i) to change the number
of shares of Stock reserved for sale pursuant to Options under the Plan, (ii) to
alter the employers whose employees are eligible to participate in the Plan or
requirements for eligibility to participate in the Plan, or (iii) in any manner
that would cause the Plan to no longer be an "employee stock purchase plan"
within the meaning of Section 423(b) of the Code. If the Plan is suspended or
terminated during an Offering Period, each Participant's participation shall
automatically terminate as of the date of such suspension, and as soon as
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practicable the Company shall pay to each Participant the amount of the balance
of the Participant's account under the Plan without any interest thereon.
12. TERM; APPROVAL BY STOCKHOLDERS
No Option may be granted during any period of suspension of the Plan
or after termination of the Plan. The Plan shall be submitted for the approval
of the Company's stockholders within 12 months after the date of the Board of
Directors' adoption of the Plan. Options may be granted prior to such
stockholder approval; provided, however, that such Options shall not be
exercisable prior to the time when the Plan is approved by the stockholders; and
provided, further, that if such approval has not been obtained by the end of
said 12-month period, all Options previously granted under the Plan shall
thereupon expire.
13. ADMINISTRATION BY COMMITTEE; RULES AND REGULATIONS
(a) APPOINTMENT OF COMMITTEE. The Plan shall be administered by the
Committee, which shall be composed of not less than two individuals each of whom
is an employee of the Company or a Subsidiary Corporation and/or a member of the
Board of Directors. Each member of the Committee shall serve for a term
commencing on a date specified by the Board of Directors and continuing until
the member dies or resigns or is removed from office by the Board of Directors.
The Committee at its option may utilize the services of an agent to assist in
the administration of the Plan including establishing and maintaining an
individual securities account under the Plan for each Participant.
(b) DUTIES AND POWERS OF COMMITTEE. It shall be the duty of the
Committee to conduct the general administration of the Plan in accordance with
the provisions of the Plan. The Committee shall have the power to interpret the
Plan and the terms of the Options and to adopt such rules for the
administration, interpretation, and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. In its absolute
discretion, the Board of Directors may at any time and from time to time
exercise any and all rights and duties of the Committee under the Plan. Nothing
contained herein shall empower the Committee to take any actions that requires
shareholder approval pursuant to Section 11.
(c) MAJORITY RULE. The Committee shall act by a majority of its
members in office. The Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of the Committee.
(d) COMPENSATION; PROFESSIONAL ASSISTANCE; GOOD FAITH ACTIONS. All
expenses and liabilities incurred by members of the Committee in connection with
the administration of the Plan shall be borne by the Company. The Committee
may, with the approval of the Board of Directors, employ attorneys, consultants,
accountants, appraisers, brokers or other persons. The Committee, the Company
and its officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon all Participants, the Company and all other interested
persons. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with
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respect to the Plan or the Options, and all members of the Committee shall be
fully protected by the Company in respect to any such action, determination, or
interpretation.
14. NO RIGHTS AS AN EMPLOYEE
Nothing in the Plan shall be construed to give any person (including
any Eligible Employee or Participant) the right to remain in the employ of the
Company, a Parent Corporation or a Subsidiary Corporation or to affect the right
of the Company, any Parent Corporation or any Subsidiary Corporation to
terminate the employment of any person (including any Eligible Employee or
Participant) at any time, with or without cause.
15. MERGER, ACQUISITION OR LIQUIDATION OF THE COMPANY
In the event of the merger or consolidation of the Company into
another corporation, the acquisition by another corporation of all or
substantially all of the Company's assets or 50% or more of the Company's then
outstanding voting stock, the liquidation or dissolution of the Company or any
other reorganization of the Company, the Date of Exercise with respect to
outstanding Options shall be the business day immediately preceding the
effective date of such merger, consolidation, acquisition, liquidation,
dissolution, or reorganization unless the Committee shall, in its sole
discretion, provide for the assumption or substitution of such Options in a
manner complying with Section 424(a) of the Code.
16. EFFECT UPON OTHER PLANS
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company, any Parent Corporation or any
Subsidiary Corporation. Nothing in this Plan shall be construed to limit the
right of the Company, any Parent Corporation or any Subsidiary Corporation (a)
to establish any other forms of incentives or compensation for employees of the
Company, any Parent Corporation or any Subsidiary Corporation or (b) to grant or
assume options otherwise than under this Plan in connection with any proper
corporate purpose, including, but not limited to, the grant or assumption of
options in connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of the business, stock or assets of any corporation,
firm or association.
17. CONDITIONS TO ISSUANCE OF STOCK
The Company shall not be required to issue uncertificated shares or
issue or deliver any certificate or certificates for shares of Stock purchased
upon the exercise of Option prior to fulfillment of all the following
conditions:
(a) The admission of such shares of Stock to listing on all stock
exchanges, if any, on which is then listed; and
(b) The completion of any registration or other qualification of such
shares under the state or federal law or under the rulings or regulations of the
Securities and Exchange omission or any other governmental regulatory body,
which the Committee shall, in its absolute
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discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment of the Company of all amounts which it is required to
withhold under federal, state or local law upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
18. NOTIFICATION OF DISPOSITION
Each Participant shall give prompt notice to the Company of any
disposition or other transfer of any shares of Stock purchased upon exercise of
an Option if such disposition or transfer is made (a) within two (2) years from
the Date of Grant of the Option or (b) within one (1) year after the transfer of
such shares to such Participant upon exercise of such Option. Such notice shall
specify the date of such disposition or other transfer and the amount realized,
in cash, other property, assumption of indebtedness or other consideration, by
the Participant in such disposition or other transfer.
19. NOTICES
Any notice to be given under the terms of the Plan to the Company
shall be addressed to the Company in care of its Vice President, Human Resources
or his or her designee and any notice to be given to any Eligible Employee or
Participant shall be addressed to such Employee at such Employee's last address
as reflected in the Company's records. By a notice given pursuant to this
Section, either party may designate a different address for notices to be given
to it, him or her. Any notice which is required to be given to an Eligible
Employee or a Participant shall, if the Eligible Employee or Participant is then
deceased, be given to the Eligible Employee's or Participant's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section. Any notice shall have
been deemed duly given if enclosed in a properly sealed envelope or wrapper
addressed as aforesaid at the time it is deposited (with postage prepaid) in a
post office or branch post office regularly maintained by the United States
Postal Service.
20. HEADINGS
Headings are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan.
* * * * * * *
I hereby certify that the foregoing Plan was adopted by the Board of
Directors of Grubb & Ellis Company, on June 20, 1997.
10
<PAGE>
Executed as of this day of , 199 .
---- ------- -
--------------------------------------------
Name:
Title:
* * * * * * *
I hereby certify that the foregoing Plan was approved by the
stockholders of Grubb & Ellis Company on , 199 .
------- -- -
Executed at , on this day of , 199 .
------- ------- --- ---- -
--------------------------------------------
11
<PAGE>
Exhibit 5
December 16, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Grubb & Ellis Company
1,250,000 shares of Common Stock, par value $0.01 per share
-----------------------------------------------------------
Ladies/Gentlemen:
The undersigned is Vice President and Assistant General Counsel of Grubb & Ellis
Company (the "Company"). This legal opinion is being provided in connection
with the registration, under the Securities Act of 1933, as amended, of 500,000
shares of common stock, par value $0.01 per share, of the Company ("Common
Stock") issuable under the 1990 Amended and Restated Stock Option Plan, as
amended effective June 20, 1997 (the "Plan") and 750,000 shares of Common Stock
issuable under the Grubb & Ellis Employee Stock Purchase Plan (the "ESPP") on
Form S-8 to be filed with the Securities and Exchange Commission by the Company
in December 1997. The shares issuable under the Plan and the ESPP are
hereinafter referred to as the "Shares."
In connection with this opinion, the undersigned is familiar with the corporate
proceedings taken by the Company in connection with the issuance of the Shares,
and has made such other examinations of law and fact as considered necessary in
order to form a basis for the opinion hereafter expressed.
Based on the foregoing, the undersigned is of the opinion that the Shares have
been duly authorized and when issued pursuant to the Plan or the ESPP, as
applicable, will be validly issued, fully paid and non-assessable.
The undersigned is opining herein as to the effect on the on the issuance of
shares under the Plan only of the General Corporation Law of the State of
Delaware and the internal laws of the State of California, and expresses no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or, in the case of Delaware, any other laws or as
to any matters of municipal law or the laws of any other local agencies within
any state.
The undersigned consents to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Carol M. Vanairsdale
- -----------------------------
Carol M. Vanairsdale
Assistant General Counsel
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) for the registration of 1,250,000 shares of common stock
pertaining to the Grubb & Ellis Company 1990 Amended and Restated Stock
Option Plan and Grubb & Ellis Employee Stock Purchase Plan of our report
dated August 18, 1997, with respect to the consolidated financial statements of
Grubb & Ellis Company and Subsidiaries included in its Annual Report (Form
10-K) for the year ended June 30, 1997, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
December 18, 1997
<PAGE>
Exhibit 24
GRUBB & ELLIS COMPANY
POWER OF ATTORNEY
FORM S-8
1990 AMENDED AND RESTATED STOCK OPTION PLAN
Each of the undersigned directors of Grubb & Ellis Company, a Delaware
corporation (the "Company"), hereby constitutes and appoints Robert J. Walner
and Carol M. Vanairsdale, jointly and severally, his attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 covering shares of the
common stock of Grubb & Ellis Company issued pursuant to said corporation's 1990
Amended and Restated Stock Option Plan, as amended (the "Plan") and any future
Registration Statements on Form S-8 for additional shares to be issued under the
Plan, and any amendments thereto, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or their substitute or substitutes, may do or cause to be
done by virtue hereof.
This instrument may be executed in a number of identical counterparts, each
of which shall be deemed an original for all purposes and all of which shall
constitute, collectively, one instrument.
IN WITNESS WHEREOF, we have signed these presents this 20th day of June,
1997.
/s/ Lawrence S. Bacow /s/ Reuben S. Leibowitz
- ------------------------- ------------------------------
Lawrence S. Bacow Reuben S. Leibowitz
/s/ Robert J. McLaughlin /s/ John D. Santoleri
- ------------------------- ------------------------------
Robert J. McLaughlin John D. Santoleri
/s/ R. David Anacker /s/ Joe F. Hanauer
- ------------------------- ------------------------------
R. David Anacker Joe F. Hanauer
/s/ Neil Young /s/ Sidney Lapidus
- ------------------------- ------------------------------
Neil Young Sidney Lapidus
/s/ Todd Williams /s/ C. Michael Kojaian
- ------------------------- ------------------------------
Todd Williams C. Michael Kojaian
<PAGE>
POWER OF ATTORNEY
FORM S-8
1990 AMENDED AND RESTATED STOCK OPTION PLAN
The undersigned President and Chief Executive Officer of Grubb & Ellis
Company, a Delaware corporation (the "Company"), hereby constitutes and appoints
Robert J. Walner and Carol M. Vanairsdale, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in his capacity
as President and Chief Executive Officer of the Company, to sign any amendments
to this Registration Statement on Form S-8 covering shares of the common stock
of Grubb & Ellis Company issued pursuant to said corporation's 1990 Amended and
Restated Stock Option Plan, as amended (the "Plan") and any future Registration
Statements on Form S-8 for additional shares to be issued under the Plan, and
any amendments thereto, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or
their substitute or substitutes, may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have signed these presents this 20th day of June,
1997.
/s/ Neil Young
------------------------------
Neil Young
President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
FORM S-8
1990 AMENDED AND RESTATED STOCK OPTION PLAN
The undersigned Senior Vice President and Chief Financial Officer of Grubb
& Ellis Company, a Delaware corporation (the "Company"), hereby constitutes and
appoints Robert J. Walner and Carol M. Vanairsdale, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in his capacity
as Senior Vice President and Chief Financial Officer of the Company, to sign any
amendments to this Registration Statement on Form S-8 covering shares of the
common stock of Grubb & Ellis Company issued pursuant to said corporation's 1990
Amended and Restated Stock Option Plan, as amended (the "Plan") and any future
Registration Statements on Form S-8 for additional shares to be issued under the
Plan, and any amendments thereto, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or their substitute or substitutes, may do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have signed these presents this 17th day of June,
1997.
/s/ Brian Parker
----------------------------------------
Brian Parker
Senior Vice President and
Chief Financial Officer
<PAGE>
GRUBB & ELLIS COMPANY
POWER OF ATTORNEY
FORM S-8
NEW EMPLOYEE STOCK PURCHASE PLAN
Each of the undersigned directors of Grubb & Ellis Company, a Delaware
corporation (the "Company"), hereby constitutes and appoints Robert J. Walner
and Carol M. Vanairsdale, jointly and severally, his attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign the
Registration Statement on Form S-8 covering shares of the common stock of Grubb
& Ellis Company issued pursuant to said corporation's New Employee Stock
Purchase Plan (the "Plan"), and any amendments thereto, and any future
Registration Statements on Form S-8 for additional shares to be issued under the
Plan, and any amendments thereto, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or their substitute or substitutes, may do or cause to be
done by virtue hereof.
This instrument may be executed in a number of identical counterparts, each
of which shall be deemed an original for all purposes and all of which shall
constitute collectively, one instrument.
IN WITNESS WHEREOF, we have signed these presents this 20th day of June,
1997.
/s/ Lawrence S. Bacow /s/ Reuben S. Leibowitz
- ------------------------- ------------------------------
Lawrence S. Bacow Reuben S. Leibowitz
/s/ Robert J. McLaughlin /s/ John D. Santoleri
- ------------------------- ------------------------------
Robert J. McLaughlin John D. Santoleri
/s/ R. David Anacker /s/ Joe F. Hanauer
- ------------------------- ------------------------------
R. David Anacker Joe F. Hanauer
/s/ Neil Young /s/ Sidney Lapidus
- ------------------------- ------------------------------
Neil Young Sidney Lapidus
/s/ Todd Williams /s/ C. Michael Kojaian
- ------------------------- ------------------------------
Todd Williams C. Michael Kojaian
<PAGE>
GRUBB & ELLIS COMPANY
POWER OF ATTORNEY
FORM S-8
NEW EMPLOYEE STOCK PURCHASE PLAN
The undersigned, President and Chief Executive Officer of Grubb & Ellis
Company, a Delaware corporation (the "Company"), hereby constitutes and appoints
Robert J. Walner and Carol M. Vanairsdale, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in his capacity
as President and Chief Executive Officer, to sign the Registration Statement on
Form S-8 covering shares of the common stock of Grubb & Ellis Company issued
pursuant to said corporation's New Employee Stock Purchase Plan (the "Plan"),
and any amendments thereto, and any future Registration Statements on Form S-8
for additional shares to be issued under the Plan, and any amendments thereto,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or their substitute or
substitutes, may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have signed these presents this 20th day of June,
1997.
/s/ Neil Young
----------------------------------------
Neil Young
President and Chief Executive Officer
<PAGE>
GRUBB & ELLIS COMPANY
POWER OF ATTORNEY
FORM S-8
NEW EMPLOYEE STOCK PURCHASE PLAN
The undersigned, Senior Vice President and Chief Financial Officer of Grubb
& Ellis Company, a Delaware corporation (the "Company"), hereby constitutes and
appoints Robert J. Walner and Carol M. Vanairsdale, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in his capacity
as Senior Vice President and Chief Financial Officer, to sign the Registration
Statement on Form S-8 covering shares of the common stock of Grubb & Ellis
Company issued pursuant to said corporation's New Employee Stock Purchase Plan
(the "Plan"), and any amendments thereto, and any future Registration Statements
on Form S-8 for additional shares to be issued under the Plan, and any
amendments thereto, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or
their substitute or substitutes, may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have signed these presents this 17th day of June,
1997.
/s/ Brian Parker
------------------------------
Brian Parker
Senior Vice President and
Chief Financial Officer
