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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
GRUBB & ELLIS COMPANY
- ------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
- ------------------------------------------------------------------------------
(Title of Class of Securities)
40009 52 0
---------------------------------
(CUSIP Number)
Patricia A. Maher
Goldman, Sachs & Co.
85 Broad Street, New York, New York 10004
- ------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 24, 1997
-----------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SEC 1746(12-91)
<PAGE>
SCHEDULE 13D
- --------------------- -----------------------------
CUSIP No. 40009520 Page 1 of 10 Pages
- --------------------- -----------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ARCHON GROUP L.P.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 2,500,000
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,500,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,500,000
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ------------------------------------------------------------------------------
*
SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
SCHEDULE 13D
- --------------------- -----------------------------
CUSIP No. 40009520 Page 2 of 10 Pages
- --------------------- -----------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ARCHON GEN-PAR, INC.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 2,500,000
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,500,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,500,000
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ------------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
- --------------------- -----------------------------
CUSIP No. 40009520 Page 3 of 10 Pages
- --------------------- -----------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, L.P.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 2,505,000
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,505,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,505,000
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC/PN
- ------------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
- --------------------- -----------------------------
CUSIP No. 40009520 Page 4 of 10 Pages
- --------------------- -----------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GOLDMAN, SACHS & CO.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |X|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 2,505,000
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,505,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,505,000
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN/BD/IA
- ------------------------------------------------------------------------------
*
SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
CUSIP No. 40009 52 0 PAGE 5 OF 10 PAGES
Item 1. Security and Issuer.
The title of the class of equity securities to which this statement
relates is the common stock, par value $0.01 per share (the "Common Stock"), of
Grubb & Ellis Company, a Delaware corporation (the "Company"). The address of
the Company's principal executive offices is One Montgomery Street, Telesis
Tower, San Francisco, California 94104.
Item 2. Identity and Background.
This statement is being filed by the undersigned on behalf of Archon
Group, L.P. ("ALP"), Archon Gen-Par, Inc. ("AGP"), The Goldman Sachs
Group, L.P. ("GSG") and Goldman, Sachs & Co. ("GSC") (collectively, the
"Reporting Persons").*
The business address of ALP is 600 Las Colinas Blvd., Suite 1980,
Irving, TX 7 5039. The business address of each other Reporting Person is 85
Broad Street, New York, New York 10004.
ALP is a Delaware limited partnership that engages in the business of
investing in debt and equity interests in real estate assets and businesses.
AGP, a Delaware corporation, acts as sole general partner of ALP. AGP does not
engage in any business other than in connection with its role as a general
partner. GSG is a Delaware limited partnership that engages, together with its
directly and indirectly owned subsidiaries or affiliated companies ("Goldman
Sachs"), in the business of buying and selling securities, both foreign and
domestic, and in making investments on behalf of its partners. Goldman Sachs
conducts most of its broker-dealer business in the United States through GSC, a
broker-dealer registered with the Securities and Exchange Commission. The sole
general partner of GSG is The Goldman Sachs Corporation, a Delaware corporation
("GS Corp."). GS Corp. is managed by its Board of Directors. GSC has two general
partners, GSG and the Goldman, Sachs & Co. LLC ("GS LLC"), which is identical to
GS Corp.'s Board of Directors. GS LLC is managed by its Managing Directors.
The names, business addresses, and present principal occupation or
employment of each executive office or director of AGP is listed on Schedule 2A.
The names, business addresses, and present principal occupation or employment of
each member of GS Corp.'s Board of Directors and each Managing Director of GS
LLC are set out in Schedule 2B hereto.
None of the Reporting Persons has, during the last five years, been
convicted in a criminal proceeding. Except as set forth on Schedule 2C hereto,
none of the Reporting Persons has, during the last five years been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Each of the Reporting Persons (and each person listed in the schedules
hereto) is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
ALP purchased 2,500,000 shares of Common Stock for an aggregate cash
consideration of $11,250,000, or $4.50 per share. ALP funded this purchase
through the capital contribution of its partners. The additional 5,000 shares of
Common Stock reported as beneficially owned by GSC are held in discretionary
client accounts. Accordingly, no consideration was paid by GSC in connection
with the acquisition of these shares for its clients' accounts.
- ----------
* Neither the present filing nor anything contained herein shall be construed
as an admission that any Reporting Person constitutes a "person" for any
purpose other than Section 13(d) of the Securities Exchange Act of 1934
or that any such person constitutes a "group" for any purpose.
<PAGE>
CUSIP No. 40009 52 0 PAGE 6 OF 10 PAGES
Item 4. Purpose of the Transaction.
The Common Stock was purchased for investment purposes only.
As of the date of this statement, none of the Reporting Persons has any
plan or proposal which relates to or would result in any of the actions set
forth in parts (a) through (j) of item 4 of Schedule 13D, other than the voting
and registration rights arrangements described in Item 6.
Each Reporting Person expects to evaluate on an ongoing basis the
Company's financial condition and prospects and their interest in, and
intentions with respect to, the Company. Accordingly, each Reporting Person
reserves the right to change its plans and intentions at any time, as it deems
appropriate. In particular, each Reporting Person may at any time and from time
to time acquire additional shares of Common Stock or securities convertible or
exchangeable for Common Stock; may dispose of shares of Common Stock; and/or may
enter into privately negotiated derivative transactions with institutional
counterparties to hedge the market risk of some or all of its positions in the
Common Stock. Any such transactions may be affected at any time and from time to
time. To the knowledge of each Reporting Person, each of the persons listed on
Schedule 2A and 2B hereto may make the same evaluation and may have the same
reservations.
Item 5. Interest in Securities of the Issuer.
The aggregate number and percentage of Common Stock beneficially owned
by each person identified in Item 2 are, and all transaction effected by such
persons during the last 60 days, are listed on Schedule 5A.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
ALP, Mike Kojaian, Kenneth J. Kojaian, C. Michael Kojaian
(collectively, "the Kojaian Shareholders") and Warburg, Pincus Investors, L.P.
("WPI") (along with WPI and ALP, the "Shareholders") are party to a letter
agreement, dated January 24, 1997 (the "Voting Agreement"), whereby each agree
to (i) vote all of the shares of common stock of the Company owned by such
Shareholder, and (ii) cause directors nominated by such Shareholder to vote to
nominate directors, as follows: (i) if and so long as the Kojaian Shareholders,
or any transferee owned or controlled by them that agrees to be bound by the
terms of such letter agreement, beneficially owns 1,250,000 shares of the
Company's common stock, for a director nominee selected by a majority of the
Kojaian Shareholders, who shall be a Kojaian Shareholder or an officer or
partner of any entity owned or controlled by any of the Kojaian Shareholders, to
be nominated and elected to the Company's Board of Directors; (ii) if and so
long as WPI beneficially owns 5,059,169 shares of the Company's common stock,
for those nominees designated by WPI, who shall be officers of WPI or any of its
venture banking affiliates, to be nominated and elected to the Company's Board
of Directors; and (iii) if and so long as ALP beneficially owns 1,250,000 shares
of the Company's common stock, for a director nominee designated by ALP who
shall be an employee of ALP, GSC or an affiliate thereof, to be nominated and
elected to the Company's Board of Directors. The Voting Agreement is terminable
in the event that all directors nominated by any of WPI, the Kojaian
Shareholders, or ALP either resign or decline to be nominated for reelection and
no other nominees are nominated by such Shareholder or such Shareholder fails to
nominate any director or directors for election (a "Terminated Shareholder"), in
which case (i) the rights and obligations of such Terminated Shareholder under
the Voting Agreement shall terminate with respect to such Terminated Shareholder
and (ii) each remaining Shareholder shall have no obligation hereunder toward or
with respect to such Terminated Shareholder or its nominees.
The Company and ALP are also party to a Registration Rights Agreement,
dated as of January 24, 1997 (the "RRA"). Under the terms of the RRA, ALP has
the right to demand that the Company file up to three registration statements
with respect to sales of Common Stock by ALP. ALP also has certain rights to
participate in other registered offerings of Common Stock by the Company.
The foregoing discussion is qualified in its entirety by reference to
the Voting Agreement and the RRA which are filed as exhibits hereto and are
incorporated by reference in their entirety into this Item 6.
Item 7. Material to be Filed as Exhibits.
The following exhibits are filed with this statement:
1. Letter Agreement among Archon Group L.P., Warburg, Pincus
Investors, L.P. and Mike Kojaian, Kenneth J. Kojaian and C.
Michael Kojaian, dated January 24, 1997.
2. Registration Rights Agreement between Archon Group L.P. and the
Grubb and Ellis Company, dated as of January 24, 1997.
3. Joint Filing Agreement, dated February 6, 1997.
<PAGE>
CUSIP No. 40009 52 0 PAGE 7 OF 10 PAGES
SIGNATURE
Each Reporting Person certifies that, after reasonable inquiry and to
the best of my knowledge and belief, the information set forth in this statement
is true, complete and correct.
Dated: February 18, 1997 /s/Todd A. Williams
----------------------------
Archon Group L.P
By: Archon Gen-Par, Inc.
(General Partner)
Name: Todd A. Williams
Title: Vice President
Dated: February 18, 1997 /s/Todd A. Williams
----------------------------
Archon Gen-Par, Inc.
Name: Todd A. Williams
Title: Vice President
Dated: February 18, 1997 /s/Stuart M. Rothenberg
-----------------------------
The Goldman Sachs Group L.P.
By: The Goldman Sachs Corporation,
(General Partner)
Name: Stuart M. Rothenberg
Title: Executive Vice President
Dated: February 18, 1997 /s/Stuart M. Rothenberg
----------------------------
Goldman, Sachs & Co.
Name: Stuart M. Rothenberg
Title: Managing Director
<PAGE>
CUSIP No. 40009 52 0 PAGE 8 OF 10 PAGES
Schedule 2A
The names and occupations of each of the executive officers of AGP are
set forth below:
Daniel M. Neidich President
David T. Hamamoto Vice President
Stuart M. Rothenberg Vice President, Assistant
Secretary and Assistant
Treasurer
Todd A. Williams Vice President, Assistant
Secretary and Assistant
Treasurer
Michael Klingher Vice President and
Assistant Secretary
Ralph F. Rosenberg Vice President, Assistant
Secretary and Assistant
Treasurer
Edward M. Siskind Vice President, Assistant
Secretary and Assistant
Treasurer
David M. Weil Vice President and
Assistant Treasurer
Kevin D. Naughton Vice President and
Secretary
Elizabeth A. O'Brien Vice President and
Assistant Secretary
Angie D. Madison Vice President and
Assistant Secretary
James B. McHugh Vice President and
Assistant Secretary
Esta E. Stecher Vice President and
Assistant Secretary
David A. Viniar Vice President and
Treasurer
The sole director of AGP is Stuart M. Rothenberg.
Each of the persons listed in this schedule has his or her principal
place of business at 85 Board Street New York, NY 10004.
Schedule 2B
The name, business address, present principal occupation or employment
of GSC's Board of Directors and the Managing Directors of GS LLC are set forth
below.
Unless otherwise indicated, the business address of each
person listed below is 85 Broad Street, New York, NY 10004. The present
principal occupation or employment of each of the listed persons is as a
managing director of GSC or another Goldman Sachs operating entity.
Name Business Address
Jon Z. Corzine
Henry M. Paulson, Jr.
Roy J. Zuckerberg
Robert J. Hurst
<PAGE>
John A. Thain 133 Fleet Street
London EC4A 2BB, England
John L. Thornton 133 Fleet Street
London EC4A 2BB, England
<PAGE>
CUSIP No. 40009 52 0 PAGE 9 OF 10 PAGES
Schedule 2C
In settlement of SEC Administrative Proceeding File No. 3-7646 In the
Matter of the Distribution of Securities Issued by Certain Government Sponsored
Enterprises, GSC without admitting or denying the findings consented to the
entry of an Order dated January 16, 1992 along with numerous other securities
firms. The SEC found that GSC in connection with its participation in the
primary distributions of certain unsecured debt securities issued by Government
Sponsored Enterprises ("GSEs") made and kept certain records that did not
accurately reflect GSC's customers' orders for GSEs' securities and/or offers,
purchases or sales by the Firm of the GSEs' securities effected by the Firm in
violation of Section 17(a) of the Exchange Act and 17 C.F.R. (S)(S) 240.17a-3
and 240.17a-4.
GSC was ordered to cease and desist from committing or causing future
violations of the aforementioned sections of the Exchange Act in connection with
any primary distributions of unsecured debt securities issued by the GSEs, pay a
civil money penalty to the United States Treasury in the amount of $100,000 and
maintain policies and procedures reasonably designed to ensure GSC's future
compliance with the aforementioned sections of the Exchange Act in connection
with any primary distributions of unsecured debt securities issued by the GSES.
In SEC Administrative Proceeding File No. 3-8282 In the Matter of
Goldman, Sachs & Co., GSC without admitting or denying the allegations
settled administrative proceedings involving alleged books and records and
supervisory violations relating to eleven trades in the secondary markets for
U.S. Treasury securities in 1985 and 1986. The SEC alleged that GSC had
failed to maintain certain records required pursuant to Section 17(a) of the
Exchange Act and had also failed to supervise activities relating to the
aforementioned trades in violation of Section 15(b)(4)(E) of the Exchange Act.
GSC was ordered to cease and desist from committing or causing any
violations of the aforementioned sections of the Exchange Act, pay a civil money
penalty to the SEC in the amount of $250,000 and establish policies and
procedures reasonably designed to assure compliance with Section 17(a) of the
Exchange Act and Rules 17a-3 and 17a-4 thereunder.
<PAGE>
CUSIP No. 40009 52 0 PAGE 10 OF 10 PAGES
Schedule 5A
GSG and GSC may be deemed to have beneficial ownership of 5,000 shares
of the Company's Common Stock in discretionary accounts assigned by GSC. No
transactions in the Common Stock were effected by the Reporting Persons, or, to
the knowledge of any of the Reporting Persons, any of the persons listed on
Schedules 2A or 2B hereto, during the past 60 days.
<PAGE>
Exhibit Index
Exhibit Description
- ------- -------------------------------------------------------------------
1. Letter Agreement among Archon Group L.P., Warburg, Pincus
Investors, L.P. and Mike Kojaian, Kenneth J. Kojaian and C.
Michael Kojaian, dated January 24, 1997.
2. Registration Rights Agreement between Archon Group L.P. and
the Grubb and Ellis Company, dated as of January 24, 1997.
3. Joint Filing Agreement, dated February 7, 1997.
Exhibit 1
January 24, 1997
[Letterhead of Archon Group L.P.]
Re: Grubb & Ellis - Voting Agreement
Gentlemen:
This letter shall confirm our understanding that, in
connection with the $11,250,000 investment in Grubb & Ellis Company (the
"Company") by Archon Group L.P. ("Archon"), Mike Kojaian, Kenneth J. Kojaian, C.
Michael Kojaian (collectively, "the Kojaian Shareholders") and Warburg, Pincus
Investors, L.P. ("WPI") and Archon (collectively, the "Shareholders") hereby
agree to (i) vote all of the shares of common stock of the Company owned by such
Shareholder, and (ii) cause directors nominated by such Shareholder to vote to
nominate directors, as follows:
(i) if and so long as the Kojaian Shareholders, or any
transferee owned or controlled by them that agrees to be bound by the terms of
this letter agreement, beneficially owns 1,250,000 shares of the Company's
common stock, for a director nominee selected by a majority of the Kojaian
Shareholders, who shall be a Kojaian Shareholder or an officer or partner of any
entity owned or controlled by any of the Kojaian Shareholders, to be nominated
and elected to the Company's Board of Directors;
(ii) if and so long as WPI beneficially owns 5,059,169 shares
of the Company's common stock, for those nominees designated by WPI, who shall
be officers of WPI or any of its venture banking affiliates, to be nominated and
elected to the Company's Board of Directors; and
(iii) if and so long as Archon beneficially owns 1,250,000
shares of the Company's common stock, for a director nominee designated by
Archon who shall be an employee of Archon, Goldman, Sachs & Co. or an affiliate
thereof, to be nominated and elected to the Company's Board of Directors.
<PAGE>
None of the Shareholders shall enter into any other voting
arrangement or proxy whereby its voting rights would be vested in any other
party, except if such party agrees to be bound by the above.
In the event that all directors nominated by any of WPI, the
Kojaian Shareholders, or Archon either resign or decline to be nominated for
reelection and no other nominees are nominated by such Shareholder or such
Shareholder fails to nominate any director or directors for election (a
"Terminated Shareholder"), then (i) the rights and obligations of such
Terminated Shareholder under this Agreement shall terminate with respect to such
Terminated Shareholder and (ii) each remaining Shareholder shall have no
obligation hereunder toward or with respect to such Terminated Shareholder or
its nominees.
This Agreement may only be varied by an instrument in writing,
and shall be governed under the laws of the State of Delaware.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but which together shall constitute
one and the same instrument.
-2-
<PAGE>
Please countersign one copy indicating your agreement to the
above.
Sincerely,
/s/ Todd A. Williams
Todd A. Williams
Archon Gen-Par, Inc.
ACCEPTED AND AGREED
WARBURG, PINCUS INVESTORS, L.P.:
/s/ John D. Santoleri
Warburg, Pincus & Co.
Name: John D. Santoleri
Title: Partner
KOJAIAN SHAREHOLDERS:
/s/ Mike Kojaian
By: Mike Kojaian
/s/ Kenneth J. Kojaian
By: Kenneth J. Kojaian
/s/ C. Michael Kojaian
By: C. Michael Kojaian
-3-
Exhibit 2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated
as of January 24, 1997, is by and among Grubb & Ellis Company, a Delaware
corporation (the "Company"), and Archon Group, L.P., a Delaware limited
partnership (the "Investor").
WHEREAS, the Investor and the Company have entered into the
Stock Purchase Agreement dated as of January 24, 1997 (the "Stock Purchase
Agreement") pursuant to which the Investor agreed to purchase shares of common
stock of the Company (the "Common Stock").
WHEREAS, the parties hereto desire to provide for certain
rights to register such shares of Common Stock under the Securities Act of 1933,
as amended, in the manner and upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the
terms and conditions herein contained, the parties hereto mutually agree as
follows:
1. Definitions
1.1 Defined Terms. In addition to the capitalized terms defined
elsewhere in this Agreement as used in this Agreement the following terms shall
have the following meanings (with the singular to include the plural, except
where the context otherwise requires):
(a) "Affiliate" of a Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with such Person.
(b) "Board of Directors" shall mean the Board of Directors of
the Company.
(c) "Change of Control" shall mean any Person other than
Warburg shall have the right, directly or indirectly, to elect a majority of the
Board of Directors of the Company.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(f) "Existing Registration Rights Agreement" shall mean the
Registration Rights Agreement dated as of December 11, 1996 by and among the
Company, Warburg, Hanauer and the Kojaian Investors.
(g) "Hanauer" shall mean Joe F. Hanauer.
(h) "Investor Shares" shall mean the aggregate of 2,500,000
shares of Common Stock issued to the Investor pursuant to the Stock Purchase
Agreement.
(i) "Investor Securities" shall mean the Investor Shares and
any and all issued shares of Registrable Securities.
<PAGE>
(j) "Kojaian Investors" shall mean collectively C. Michael
Kojaian, Mike Kojaian and Kenneth J. Kojaian.
(k) "Person" shall mean any individual, corporation,
partnership, association, trust or other entity or organization, including a
government or political subdivision or agency or instrumentality thereof.
(l) "Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(m) "Registration" shall mean a Demand Registration or a
Piggyback Registration.
(n) "Registration Statement" shall mean any registration
statement of the Company which covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
(o) "Securities Act" shall mean the Securities Act of 1933,
as amended.
(p) "Subsidiary" shall mean any corporation, partnership,
joint venture or other entity of which the Company owns, directly or indirectly,
a majority of the capital stock or a majority of the partnership or other equity
interests, or is a general partner.
(q) "Triggering Event" shall mean either (i) a Change in
Control or (ii) the sale or other disposition of 50% or more of the Warburg
Registrable Securities (as defined in the Existing Registration Rights
Agreement) by a means other than pursuant to a registration statement under the
Existing Registration Rights Agreement.
(r) "underwritten registration" or "underwritten offering"
shall mean a sale of securities of the Company to an underwriter for reoffering
to the public.
(s) "Warburg" shall mean Warburg, Pincus Investors, L.P.,
a Delaware limited partnership.
(t) "Warburg/Kojaian Registrable Securities" shall mean
collectively the Warburg Registrable Securities and the Kojaian Registrable
Securities as such terms are defined in the Existing Registration Rights
Agreement.
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2. Registration Rights
2.1 Demand Registrations.
(a) Subject to Section 2.1(b), at any time after the earlier of (i) the
date a Triggering Event occurs and (ii) July 24, 1998 the holder or holders of
at least 30% of the aggregate amount of Registrable Securities may make three
written requests to the Company to effect a registration under and in accordance
with the provisions of the Securities Act of all or part of the Registrable
Securities.
For purposes of this Section 2, a Person is deemed to be a
holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether or
not such acquisition has actually been effected and disregarding any legal
restrictions upon the exercise of such right.
"Registrable Securities" shall mean the Investor Shares and
all shares of Common Stock issued or issuable upon conversion or exercise of any
securities of the Company, which may be issued or distributed with respect to,
or in exchange for, the Investor Shares pursuant to a stock dividend, stock
split or other distribution, merger, consolidation, recapitalization or
reclassification or otherwise, and any securities of the Company which may be
issued or distributed with respect to, or in exchange for, any such Common Stock
or such other securities pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
otherwise; provided, however, that any such Registrable Securities shall cease
to be Registrable Securities when (i) a Registration Statement with respect to
the sale of such Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities are distributed pursuant to Rule 144
or Rule 144A (or any similar provision then in force) under the Securities Act
or (iii) such Registrable Securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer under
the Securities Act shall have been delivered by the Company and they may be
resold without subsequent registration under the Securities Act; provided,
further, however, that any securities that have ceased to be Registrable
Securities cannot thereafter become Registrable Securities, and any security
that is issued or distributed in respect to securities that have ceased to be
Registrable Securities are not Registrable Securities.
Any registration requested pursuant to Section 2.1(a) shall
hereinafter be referred to as a "Demand Registration." Each request for a Demand
Registration shall specify the kind and aggregate amount of Registrable
Securities to be registered and the intended methods of disposition thereof,
which may be stated in the alternative if a shelf Registration Statement is
requested pursuant to Rule 415 under the Securities Act. The Company shall be
deemed to have effected a Demand Registration if (i) the Registration Statement
relating to such Demand Registration is declared effective by the Commission and
remains effective for at least 30 days; provided, however, that no Demand
Registration shall be deemed to have been effected if (x) such registration,
after it has become effective, is interfered with by any stop order, injunction
or other order or requirement of the Commission or other governmental agency or
court or (y) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied or (ii) at any time after the requisite holders' request a Demand
Registration and prior to
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the effectiveness of the Registration Statement, the preparation of such
Registration Statement is discontinued or such Registration Statement is
withdrawn or abandoned at the request of the holders of a majority of the
Registrable Securities sought to be registered in such Registration Statement
pursuant to Section 2.1(a), unless either (x) the holders of such Registrable
Securities have elected to pay and have paid to the Company in full the
Registration Expenses (as hereinafter defined) in connection with such
Registration Statement or (y) such discontinuation, withdrawal or abandonment is
requested by such holders because of the occurrence of a significant negative
change in market conditions or the Company's business condition or prospects
since the date of the initial request for a Demand Registration.
(b) Demand Notices. Promptly upon receipt of any request for a
demand registration pursuant to Section 2.1(a) of the Existing Registration
Rights Agreement (but in no event more than five business days thereafter), the
Company will serve written notice, which notice shall specify whether the
offering is to be underwritten or is to be on another basis (a "Demand Notice")
of any such Registration request to the beneficial holders of Registrable
Securities who then have the right to request a Demand Registration pursuant to
this Agreement, and the Company shall include in such registration all such
Registrable Securities of any holder with respect to which the Company has
received written requests for inclusion therein, in which the holder has
specified that such inclusion is to be deemed a Demand Registration pursuant to
Section 2.1(a) hereof, within 30 days after the Demand Notice has been given to
the applicable holders of Registrable Securities. Notwithstanding anything in
Section 2.1(a) to the contrary, the Investor may make such a demand pursuant to
this Section 2.1(b) after the effective date hereof. All requests made pursuant
to this Section 2.1(b) shall specify the kind and aggregate amount of
Registrable Securities to be registered, and shall be counted as a demand for
purposes of Section 2.1(a). If such initial request for a Demand Registration
has specified that the offering pursuant thereto shall be underwritten, then
each holder making a request pursuant to this Section 2.1(b) must participate in
such underwritten offering and shall not be permitted to make any other offering
in connection with such demand registration. If such initial request for a
demand registration has specified that the offering pursuant thereto shall be on
any other basis, then each holder making a request pursuant to this Section
2.1(b) must participate in such offering on such basis and shall not be
permitted to make an underwritten offering in connection with such demand
registration.
(c) Priority of Demand Registrations. If the managing
underwriter or agent of a Demand Registration (or, in the case of a Demand
Registration not being underwritten, holders of a majority of the Registrable
Securities sought to be registered therein pursuant to Section 2.1), advises the
Company in writing that in its or their opinion the number of securities
requested to be included in such Demand Registration exceeds the number which
can be sold in such offering without a significant adverse effect on the price,
timing or distribution of the securities offered, the Company will include in
such Registration only the number of securities that, in the opinion of such
underwriter or agent (or holders, as the case may be), can be sold without a
significant adverse affect on the price, timing or distribution of the
securities offered, selected pro rata among the holders that have requested to
be included in such Demand Registration pursuant to Sections 2.1(a) or 2.1(b) or
pursuant to other demand registration rights, based on the number of shares of
Registrable Securities, Warburg/Kojaian Registrable Securities or other
securities requested to be registered by each such holder.
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The Company and other holders of securities of the Company
may include other securities in such Registration if, but only if, such
underwriter or agent (or holders of Registrable Securities, as the case may be)
concludes that such inclusion will not have a significant adverse effect on the
price, timing or distribution of all the securities requested to be included in
such Registration.
(d) The Company's Right to Defer Registration. If the Company
is requested to effect a Demand Registration and the Company furnishes to the
holders of Registrable Securities requesting such Registration a copy of a
resolution of the Board of Directors certified by the Secretary of the Company
stating that in the good faith judgment of the Board of Directors it would be
adverse to the Company and its securityholders for such Registration Statement
to be filed on or before the date such filing would otherwise be required
hereunder because such registration would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its Subsidiaries or would require premature disclosure
thereof, or would require disclosure of material information which the Company
would be justified in not disclosing in the absence of such Registration, the
Company shall have the right to defer such filing for a reasonable period not to
exceed 90 days after receipt of the request for such Registration from such
holders of Registrable Securities. If the Company shall so postpone the filing
of a Registration Statement and if any holder of Registrable Securities
requesting such Demand Registration pursuant to Section 2.1 within 30 days after
receipt of the notice of postponement advises the Company in writing that it has
determined to withdraw its request for Registration, then such Demand
Registration shall be deemed to be withdrawn by it and such request shall be
deemed not to have been exercised for purposes of determining whether such
holder retains the right to Demand Registrations pursuant to this Section 2.1.
In addition, if any holder of Registrable Securities so notifies the Company of
its determination to withdraw its request for Registration and, within the 60
days immediately following the deferral period, any holders of Registrable
Securities make a written request to the Company for Registration of the same
class of Registrable Securities that were subject to the Registration withdrawn
pursuant to the preceding sentence, the Company shall have no right to defer
such Registration pursuant to this paragraph (c).
(e) Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission (i)
as shall be selected by the Company and as shall be reasonably acceptable to the
holders of a majority of the Registrable Securities requesting a Demand
Registration and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in such holders' requests for such Registration. If, in connection
with any Registration under this Section 2.1 which is proposed by the Company to
be on Form S-3 or any successor form to such Form, the managing underwriter, if
any, shall advise the Company in writing that in its opinion the use of another
permitted form is of material importance to the success of the offering, then
such Registration shall be on such other permitted form.
(f) Selection of Underwriters. If any offering pursuant to a
Demand Registration involves an underwritten offering, the holders of a majority
of the Registrable Securities included in such Demand Registration pursuant to
Section 2.1(a) shall have the right to select the managing underwriter or
underwriters to administer the offering, subject to the consent of the Company,
which consent shall not be unreasonably withheld.
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<PAGE>
2.2 Piggyback Registrations.
(a) Participation. Subject to Section 2.2(b) hereof, if at any
time and from time to time after the date hereof, the Company files a
Registration Statement under the Securities Act with respect to any offering of
any equity securities by the Company for its own account or for the account of
any of its equity holders (other than (i) a registration on Form S-4 or S-8 or
any successor form to such Forms or (ii) any registration of securities as it
relates to an offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement) then, as soon as
practicable (but in no event less than ten days prior to the proposed date of
filing such Registration Statement, unless notice has been given under Section
2.1(b)), the Company shall give written notice of such proposed filing to all
beneficial holders of Registrable Securities, which notice may be the same as
the Demand Notice given pursuant to Section 2.1(b) if applicable, and such
notice shall offer the holders of Registrable Securities the opportunity to
register such number of Registrable Securities as each such holder may request
(a "Piggyback Registration") and shall specify whether the offering is to be
underwritten or is to on another basis. Subject to Section 2.2(b), the Company
shall include in such Registration Statement all Registrable Securities
requested within 30 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
holder) to be included in the Registration for such offering pursuant to a
Piggyback Registration; provided, however, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such Registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holders of Registrable Securities entitled to do so to request that such
Registration be effected as a Registration under Section 2.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. If the offering pursuant to such Registration
Statement is to be underwritten, then each holder making a request for a
Piggyback Registration pursuant to this Section 2.2(a) must participate in such
underwritten offering and shall not be permitted to make any other offering in
connection with such Registration. If the offering pursuant to such Registration
Statement is to be on any other basis, then each holder making a request for a
Piggyback Registration pursuant to this Section 2.2(a) must participate in such
offering on such basis and shall not be permitted to make an underwritten
offering in connection with such Registration. Each holder of Registrable
Securities shall be permitted to withdraw all or part of such holder's
Registrable Securities from a Piggyback Registration at any time prior to the
effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in the Registration for such offering under Section 2.2(a) or pursuant
to other piggyback registration rights granted by the Company, if any
("Piggyback Securities"), to be included on the same terms and conditions as any
similar securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of any such proposed underwritten offerings
informs the Company and the holders of such Registrable Securities in writing
that the total amount or kind of securities, including Piggyback Securities,
which such
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<PAGE>
holders and any other persons or entities intend to include in such offering
would be reasonably likely to adversely affect the price or distribution of the
securities offered in such offering or the timing thereof, then the securities
to be included in such Registration shall be (i) first, 100% of the securities
that the Company or the holder or holders making a request for a Demand
Registration pursuant to Section 2.1 or pursuant to other demand registration
rights, as the case may be, proposes to sell, subject to the provisions of
Section 2.1(c) and (ii) second, the number of securities that, in the opinion of
such underwriter or underwriters, can be sold without an adverse effect on the
price, timing or distribution of the securities to be included, selected pro
rata among holders of Registrable Securities and holders of Piggyback Securities
to the extent any of such holders has requested pursuant to Section 2.2(a) or
pursuant to other incidental registration rights to be included in such
Piggyback Registration, based on the number of shares of Registrable Securities
or Piggyback Securities requested to be registered by each such holder.
(c) No Effect on Demand Registrations. No Registration of
Registrable Securities effected pursuant to a request under this Section 2.2
shall be deemed to have been effected pursuant to Section 2.1 hereof or shall
relieve the Company of its obligation to effect any Registration upon request
under Section 2.1 hereof.
2.3 Hold-Back Agreements.
(a) Restrictions on Public Sale by Holder of Registrable
Securities. Each holder of Registrable Securities agrees, if requested by (i)
the Company, (ii) the managing underwriters in an underwritten offering or (iii)
the holders of a majority of the Registrable Securities included pursuant to
Section 2.1 hereof in a Demand Registration not being underwritten, not to
effect any public sale or distribution of securities of the Company the same as
or similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, in any Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration), during the 14-day period prior to, and
during the 90-day period (or, with respect to a Piggyback Registration, such
longer period of up to 180 days as may be required by such underwriter)
beginning on, the effective date of any Registration Statement (except as part
of such registration) or the commencement of the public distribution of
securities, to the extent timely notified in writing by the Company or the
managing underwriters (or the holders, as the case may be).
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees, if requested by the managing underwriter in an underwritten
offering, not to effect any public sale or distribution of any securities the
same as or similar to those being registered by the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
14-day period prior to, and during the 90-day period (or, with respect to a
Piggyback Registration, such longer period of up to 180 days as may be required
by the underwriter) beginning on, the effective date of a Registration Statement
filed under Section 2.1 or Section 2.2 hereof or the commencement of the public
distribution of securities to the extent timely notified in writing by a holder
of Registrable Securities covered by such Registration Statement or the managing
underwriters (except as part of such registration, if permitted, or pursuant to
registrations on Forms S-4 or S-8 or any successor form to such Forms or any
registration of securities for offering and sale to management of the Company
pursuant to any employee stock plan or other employee benefit plan arrangement).
The Company agrees to use reasonable efforts to obtain from each holder of
restricted securities of the Company the same as or similar to those being
registered by the Company, or any restricted
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securities convertible into or exchangeable or exercisable for any of its
securities, an agreement not to affect any public sale or distribution of such
securities (other than securities purchased in a public offering) during such
period, except as part of any such registration if permitted.
(c) Other Registration Rights Agreements. The Company is
presently a party to the Existing Registration Rights Agreement with respect to
the registration under the Securities Act of certain securities of the Company.
The Company may enter into any other such agreement; provided, however, that the
rights and benefits of a securityholder with respect to registration of the
Company's securities as contained in any such other agreement shall be no more
favorable than the rights and benefits of holders of Registrable Securities as
contained in this Agreement.
2.4 Registration Procedures. In connection with the Company's
Registration obligations pursuant to Sections 2.1 and 2.2 hereof, the Company
will use its best efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and, not later than 45 days after receipt of any
request for a Demand Registration, file with the Commission a Registration
Statement or Registration Statements relating to the applicable Demand
Registration or Piggyback Registration including all exhibits and financial
statements required by the Commission to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective under the
Securities Act; provided, however, that the Company may discontinue any
Registration of its securities which are not Registrable Securities (and, under
the circumstances specified in Section 2.1(d), may delay and, under the
circumstances specified in Section 2.2(a), may delay or discontinue Registration
of its securities which are Registrable Securities) at any time prior to the
effective date of the Registration Statement relating thereto;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be requested by
the holders of a majority of the Registrable Securities or as may be necessary
to keep the Registration Statement effective for a period of not less than 270
days (or such shorter period which shall terminate when all Registrable
Securities covered by such Registration Statement have been sold or withdrawn),
or, if such Registration Statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a Prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the provisions of
the Securities Act, the Exchange Act, and the rules and regulations promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities and
the managing underwriters, if any, and (if requested) confirm such advice in
writing, as soon as practicable after notice thereof is received by the Company
(i) when the Registration Statement or any amendment thereto has been filed or
becomes effective, the Prospectus or any amendment or supplement to the
Prospectus has been filed, and, to furnish such selling holders and managing
underwriters with copies
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thereof, (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of any
preliminary Prospectus or Prospectus or the initiation or threatening of any
proceedings for such purposes, (iv) if at any time the representations and
warranties of the Company contemplated by paragraph (m) below cease to be true
and correct and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(d) promptly notify the selling holders of Registrable
Securities and the managing underwriters, if any, when the Company becomes aware
of the happening of any event as a result of which the Registration Statement or
the Prospectus included in such Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein (in the case of the Prospectus and
any preliminary prospectus, in the light of the circumstances under which they
were made) not misleading or, if for any other reason it shall be necessary
during such time period to amend or supplement the Registration Statement or the
Prospectus in order to comply with the Securities Act and, in either case as
promptly as practicable thereafter, prepare and file with the Commission, and
furnish without charge to the selling holders and the managing underwriters, if
any, a supplement or amendment to such Registration Statement or Prospectus
which will correct such statement or omission or effect such compliance;
(e) make every reasonable effort to prevent the issuance of or
to obtain the withdrawal of any stop order or other order suspending the use of
any preliminary Prospectus or Prospectus or suspending any qualification of the
Registrable Securities;
(f) if requested by the managing underwriter or underwriters
or a holder of Registrable Securities being sold in connection with an
underwritten offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and the
holders of a majority of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(g) furnish to each selling holder of Registrable Securities
and each managing underwriter, without charge, one executed copy and as many
conformed copies as they may reasonably request, of the Registration Statement
and any amendment or post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(h) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request (it being understood
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that the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto) and such other documents as such selling holder may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
holder;
(i) on or prior to the date on which the Registration
Statement is declared effective, use its best efforts to register or qualify,
add cooperate with the selling holders of Registrable Securities, the managing
underwriter or agent, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for offer and
sale under the securities or blue sky laws of each state and other jurisdiction
of the United States as any such seller, underwriter or agent reasonably
requests in writing and do any and all other acts or things reasonably necessary
or advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable
Securities and the managing underwriter or agent, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters may request at least two business days prior to any
sale of Registrable Securities to the underwriters;
(k) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates for the
Registerable Securities which are in a form eligible for deposit with The
Depository Trust Company;
(m) make such representations and warranties to the holders of
Registrable Securities being registered, and the underwriters or agents, if any,
in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including a purchase
agreement or underwriting agreement) and take all such other actions as the
holders of at least a majority of any Registrable Securities being sold or the
managing underwriter or agent, if any, reasonably request in order to expedite
or facilitate the registration and disposition of such Registrable Securities;
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(o) obtain for delivery to the holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company, upon consummation of the sale of such
Registrable Securities to the underwriters (the "Closing Date") in customary
form and in form, substance and scope reasonably satisfactory to such holders,
underwriters or agents and their counsel;
(p) obtain for delivery to the Company and the underwriter or
agent, with copies to the holders of Registrable Securities, a cold comfort
letter from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as
the managing underwriter or the holders of at least a majority of the
Registrable Securities being sold reasonably request, dated the effective date
of the Registration Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities and
each underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. (the
"NASD");
(r) use its best efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its security
holders, as soon as reasonably practicable (but not more than fifteen months)
after the effective date of the Registration Statement, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and the rules
and regulations promulgated thereunder;
(s) as promptly as practicable after filing with the
Commission of any document which is incorporated by reference into the
Registration Statement or the Prospectus, provide copies of such document to
counsel for the selling holders of Registrable Securities and to the managing
underwriters, if any;
(t) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and
(u) use its best efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each securities exchange
on which any of the Company's securities are then listed or quoted on each
inter-dealer quotation system on which any of the Company's securities are then
quoted.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding distribution of such securities and such other information
relating to such holder and its ownership of Registrable Securities as the
Company may from time to time reasonably request in writing. Each holder of
Registrable Securities agrees to furnish such information to the Company and to
cooperate with the Company as necessary to enable the Company to comply with the
provisions of this Agreement.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the
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kind described in Section 2.4(d) hereof, such holder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration Statement
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 2.4(d) hereof, or until it is advised in
writing 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 (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time periods
during which such Registration Statement shall be maintained effective
(including the period referred to in Section 2.4(b) hereof) shall be extended by
the number of days during the period from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement either receives the copies of
the supplemented or amended Prospectus contemplated by Section 2.4(d) hereof or
is advised in writing by the Company that the use of the Prospectus may be
resumed.
2.5 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a Registration requested under Section 2.1, the Company will use
reasonable efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, each such holder and the underwriters and to
contain such representations and warranties by the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in Section 2.8.
The holders of the Registrable Securities proposed to be distributed by such
underwriters will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable suggestion
of the Company regarding the form thereof. Such holders of Registrable
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities, such
holder's intended method of distribution and any other representations required
by law.
(b) Incidental Underwritten Offerings. If the Company proposes
to register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed by or through one or more
underwriters, the Company, will, if requested by any holder of Registrable
Securities pursuant to Section 2.2 and subject to the provisions of Section
2.2(b), use its best efforts to arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such holder among the
securities of the Company to be distributed by such underwriters. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters and may,
at their option,
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require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. Any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holders' Registrable Securities and such holder's intended method
of distribution or any other representations required by law.
(c) Participation in Underwritten Registration. No person may
participate in any underwritten registration hereunder unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
2.6 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each Registration Statement, the Company will give the
holders of Registrable Securities registered under such Registration Statement,
their underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such Registration Statement,
each Prospectus included therein or filed with Commission, and, to the extent
practicable, each amendment thereof or supplement thereto, and give each of them
such access to its books and records (to the extent customarily given to
underwriters of the Company's securities) and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act; provided,
however, that any books, records, information or documents that are designated
by the Company in writing as confidential shall be kept confidential by such
Persons unless disclosure thereof is required by law.
2.7 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
(i) all registration and filing fees, any other fees and expenses associated
with filings required to be made with the Commission or the NASD (including, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel as may be required by the rules and regulations of the NASD), (ii)
all fees and expenses of compliance with state securities or blue sky laws
(including fees and disbursements of counsel for the underwriters or selling
holders in connection with blue sky qualifications of the Registrable Securities
and determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a majority of the
Registrable Securities being sold may designate), (iii) all printing and related
messenger and delivery expenses (including expenses of printing certificates for
the Registrable Securities in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses), (iv) all fees and disbursements of
counsel for the Company and of all independent certified public accountants of
the Company (including the expenses of any special audit and cold comfort
letters required by or incident to such performance), (v) reasonable premiums
for Securities Act liability insurance if the Company so desires or the
underwriters to reasonably require in accordance with then customary
underwriting practice, (vi) all
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fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or quotation of the Registrable Securities
on any inter-dealer quotation system, (vii) all reasonable fees and
disbursements of one counsel selected by the holders of a majority of the
Piggyback Securities being registered in the case of a Piggyback Registration,
or one counsel selected by the holder or holders of at least a majority of the
Registrable Securities in the case of a Demand Registration requested by the
Investor pursuant to Section 2.1, in each case to represent such holders in
connection with such registration, (viii) all fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities, excluding
underwriting discounts and commissions and transfer taxes, if any, and excluding
fees and disbursements of counsel to such underwriters (other than such fees and
disbursements incurred in connection with any registration or qualification of
Registrable Securities under the securities or blue sky laws of any state), (ix)
all fees and expenses of accountants to the holders of Registrable Securities
being sold and (x) fees and expenses of other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
by the Company, regardless of whether the Registration Statement becomes
effective (except as provided in Section 2.1 hereof). The Company will, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any audit and the fees and expenses of any Person,
including special experts, retained by the Company.
2.8 Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each holder of Registrable
Securities, its officers, directors, employees, partners, shareholders and
agents and each Person who controls such holder (within the meaning of the
Securities Act or the Exchange Act) from and against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and legal expenses) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary Prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company, by such holder expressly
for use therein; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such preliminary Prospectus if (i)
it is determined that it was the responsibility of such holder to provide the
Person asserting such loss, claim, damage, liability or expense with a current
copy of the Prospectus and such holder failed to deliver or cause to be
delivered a copy of the Prospectus to such Person after the Company had
furnished such holder with a sufficient number of copies of the same and (ii)
the Prospectus completely corrected in a timely manner such untrue statement or
omission. This indemnity shall be in addition to any liability the Company may
otherwise have, shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such officer, director,
employee, agent, partner, shareholder or controlling Person and shall survive
termination of this Agreement and the transfer of Registrable Securities by such
holder. The Company will also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, partners, shareholders and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above (with
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appropriate modification) with respect to the indemnification of the holders of
Registrable Securities, if requested.
(b) Indemnification by the Selling Holder of Registrable
Securities. Each selling holder of Registrable Securities agrees to indemnify
and hold harmless, to the full extent permitted by law, the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act or the Exchange Act) from and against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement of
a material fact or any omission of a material fact required to be stated in the
Registration Statement, Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is caused by or contained in any
information furnished in writing by such selling holder to the Company
specifically for inclusion in such Registration Statement or Prospectus and has
not been corrected in a subsequent writing prior to or concurrently with the
sale of
the Registrable Securities to the Person asserting such loss, claim, damage,
liability or expense. This indemnity shall be in addition to any liability such
selling holder may otherwise have, shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
officer, director or controlling Person and shall survive termination of this
Agreement and the transfer of Registrable Securities by such selling holder. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above (with
appropriate modification) with respect to information so furnished in writing by
such Persons specifically for inclusion in any Prospectus or Registration
Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any delay or failure to so notify the indemnifying party shall relieve the
indemnifying party of its obligations hereunder only to the extent, if at all,
that it is prejudiced by reason of such delay or failure; provided further,
however, that any Person entitled to indemnification hereunder shall have the
right to select and 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 (i) the indemnifying party has agreed in writing to pay such
fees or expenses, or (ii) the indemnifying party shall have failed to assume the
defense of such claim within a reasonable time after receipt of notice of such
claim from the Person entitled to indemnification hereunder and employ counsel
reasonably satisfactory to such Person, or (iii) in the reasonable judgment of
any such Person, based upon advice of its counsel, a 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, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld), provided that an indemnifying party shall not be
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnifying party other than financial obligations for which such indemnified
party will be indemnified hereunder. No indemnifying party shall consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. Whenever the indemnified
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party or the indemnifying party receives a firm offer to settle a claim for
which indemnification is sought hereunder, it shall promptly notify the other of
such offer. If the indemnifying party refuses to accept such offer within 20
business days after receipt of such offer (or of notice thereof), such claim
shall continue to be contested and, if such claim is within the scope of the
indemnifying party's indemnity contained herein, the indemnified party shall be
indemnified pursuant to the terms hereof. If the indemnifying party notifies the
indemnified party in writing that the indemnifying party desires to accept such
offer, but the indemnified party refuses to accept such offer within 20 business
days after receipt of such notice, the indemnified party may continue to contest
such claim and, in such event, the total maximum liability of the indemnifying
party to indemnify or otherwise reimburse the indemnified party hereunder with
respect to such claim shall be limited to and shall not exceed the amount of
such offer, plus reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and disbursement) to the date of notice that the
indemnifying party desires to accept such offer, provided that this sentence
shall not apply to any settlement of any claim involving the imposition of
equitable remedies or to any settlement imposing any material obligations on
such indemnified party other than financial obligations for which such
indemnified party will be indemnified hereunder. 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 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 written opinion of counsel to the
indemnified party reasonably satisfactory to the indemnifying party, use of one
counsel by the underwriters on the one hand, and by the securityholders on the
other, would be expected to give rise to a conflict of interest between such
underwriters, on the one hand and such securityholders on the other with respect
to such claim, in which event the indemnifying party shall be obligated to pay
the fees and expenses of one such additional counsel.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated by the
preceding paragraphs (a) and (b), then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations,
provided that no selling holder of Registrable Securities shall be required to
contribute in an amount greater than the dollar amount of the proceeds received
by such selling holder with respect to the sale of any such Registrable
Securities. 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.
2.9 Rules 144 and 144A. The Company covenants that it 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 Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
holder of Registrable Securities after the date that is the second anniversary
of the date thereof, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 or 144A under the Securities
Act), and it will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the
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limitation of the exemptions provided by (i) Rules 144 or 144A under the
Securities Act, as such Rules may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company will deliver to such holder
a written statement as to whether it has complied with such requirements.
3. Transfer of Securities.
3.1 Notice of Proposed Transfer. At the time of any transfer or sale or
proposed transfer or sale of any Investor Securities, the Company may require
written notice describing briefly the manner of such transfer or sale and a
written opinion of counsel for the holder thereof (who may be inside counsel) to
the effect that such transfer or sale may be effected without the registration
of such Investor Securities under the Securities Act and will be made in
compliance with applicable state securities and blue sky laws. The Company shall
thereupon permit or cause its transfer agent (if any) to permit such transfer or
sale to be effected unless the Company, within five days after receipt of such
notice and opinion, shall furnish to such holder and such holder's counsel (if
any) an opinion of the Company's outside counsel which (i) states that such sale
or transfer may not be effected without the registration of such Investor
Securities under the Securities Act (or will not be made in compliance with
applicable securities and blue sky laws) and (ii) specifies the reasons,
factual, legal or both, why such counsel's opinion differs from that of holder's
counsel. However, if in such written notice to the Company the transferring
holder informs the Company that the transfer or sale is to a purchaser or
transferee whom the transferring holder knows or reasonably believes to be a
"qualified institutional buyer," as that term is defined in Rule 144A
promulgated under the Securities Act, no opinion of counsel shall be required.
3.2 Termination of Restrictions. Notwithstanding the foregoing
provisions of this Section 3, the restrictions imposed by this Section 3 upon
the transferability of the Investor Securities shall terminate as to any
particular Investor Securities when (i) such Investor Securities shall have been
effectively registered under the Securities Act and sold by the holder thereof
in accordance with such registration, (ii) such Investor Securities have been
sold in accordance with Rule 144 or 144A promulgated under the Securities Act,
or (iii) written opinions to the effect that such restrictions are no longer
required or necessary under any federal or state law or regulation have been
received from counsel for the holder of thereof (who may be inside counsel) and,
if the Company shall so require, from counsel for the Company.
3.3 Exchange, Transfer and Replacement of Certificates. Subject to the
foregoing provisions of this Section 3, upon surrender of any certificate
representing Investor Securities duly endorsed for exchange or transfer, the
Company will, at its expense, or will cause its transfer agent, at the Company's
expense, to issue in exchange therefor new certificates in such denominations as
may be requested by the certificate so surrendered and registered as such
stockholder may request. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of any certificate
representing Investor Securities and, in the case of any such loss, theft or
destruction, upon delivery of an agreement of indemnity satisfactory to the
Company, or, in the case of any such mutilation, upon surrender and cancellation
of such certificate, the Company will issue, at its expense, or will cause its
transfer agent, at the Company's expense, to issue a new certificate
representing the same aggregate number of Investor Securities represented by
such lost, stolen, destroyed or mutilated certificate; provided, however, that
in the event of any loss, theft or destruction of any certificate representing
Investor Securities registered in the name of the Investor or any of its
Affiliates, or in the name of any other holder which is an institutional
investor or its nominee, the Company shall not require such person or Affiliate
or any other holder which is an institutional investor or its nominee to furnish
any indemnity or surety bond in connection with the
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issuance of a new certificate therefor if the Company is furnished with an
affidavit of the holder (if the holder is an individual) or, otherwise, the
Chairman of the Board, President, any Vice President, Treasurer or any Assistant
Treasurer of the holder (or, in the case of a nominee, the beneficial owner for
which such holder is serving as nominee) setting forth the fact of such loss,
theft or destruction and, together with such affidavit, such holder furnishes
(or, in case of a nominee, the beneficial owner for which such holder is serving
as nominee furnishes) to the Company its written agreement to indemnify the
Company with respect to such loss, theft or destruction; the Company shall,
however, have the right to require any holder of Investor Securities other than
the Investor or any of its Affiliates or any other holder which is an
institutional investor or its nominee to furnish such an indemnity or surety
bond. The party delivering any certificate representing Investor Securities
pursuant to this Section 3.3 will pay the cost of such delivery (including the
cost of insurance against loss or theft in an amount satisfactory to the
sender).
4. Miscellaneous.
4.1 Injunctive Relief. Remedies for breach by the Company of its
obligations to register the Registrable Securities shall be as otherwise set
forth herein. It is hereby agreed and acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved Person will be irreparably damaged and will
not have an adequate remedy at law. Any such Person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
4.2 Notices. All notices, other communications or documents provided
for or permitted to be given hereunder, shall be made in writing and shall be
given either personally by hand-delivery, by facsimile transmission, by mailing
the same in a sealed envelope, registered first-class mail, postage prepaid,
return receipt requested, or by air courier guaranteeing overnight delivery:
(a) If to the Company: Grubb & Ellis Company
2215 Sanders Road, 4th Floor
Northbrook, Illinois 60062
Attention: General Counsel
Telecopy number: (847) 753-9034
With a copy to: Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
Attention: Scott R. Haber, Esq.
Telecopy number: (415) 395-8095
(b) If to the Investor: Archon Group, L.P.
600 Las Colinas Blvd.
Irving, Texas 75039
Attention: General Counsel
Telecopy number: (972) 831-2377
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With copies to: Goldman, Sachs & Co.
100 Crescent Court, Suite 1000
Dallas, Texas 75201
Attention: Todd A. Williams
Telecopy number: (214) 855-6305
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Anthony Colletta, Esq.
Telecopy number: (212) 558-3588
Each party hereto, by written notice given to the other
parties hereto in accordance with this Section 4.2 may change the address to
which notices, other communications or documents are to be sent to such party.
All notices, other communications or documents shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) when
receipt is acknowledged by electronic confirmation, if by facsimile
transmission; (iii) four business days after being deposited in the mail,
postage prepaid, if mailed; and (iv) on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery; provided, however,
that notices of a change of address shall be effective only upon receipt.
4.3 Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be
binding upon the parties, and successors and assigns of each of the parties.
(b) All of the terms, covenants and agreements contained in
this Agreement are solely for the benefit of the parties hereto and their
respective successors and assigns as provided in Section 4.3(a), and no other
parties (including, without limitation, any other stockholder or creditor of the
Company, or any director, officer or employee of the Company) are intended to be
benefitted by, or entitled to enforce, this Agreement.
4.4 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws.
4.5 Headings. The headings in this Agreement are inserted herein for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
4.6 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
4.7 Entire Agreement; Amendment. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter contained
herein, supersedes all prior agreements,
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negotiations and understandings, whether written or oral, with respect to the
subject matter hereof, and may not be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may not be given,
except by an instrument in writing signed the holders of not less than a
majority of the Registrable Securities and by the Company. There are no
restrictions, promises, warranties or undertakings, other than those set forth
in this Agreement.
4.8 Waiver. No action taken pursuant to this Agreement shall be deemed
to constitute a waiver by the party taking such action of compliance with any
covenants or agreements contained herein. No failure to exercise and no delay in
exercising any right, power or privilege of a party hereunder shall operate as a
waiver nor a consent to the modification of the terms hereof unless given by
that party in writing. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach.
4.9 Inspection. So long as this Agreement shall be in effect, this
Agreement shall be made available for inspection by an stockholder of the
Company at the principal offices of the Company.
4.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and of all which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
GRUBB & ELLIS COMPANY
By: /s/ Robert J. Walner
Robert J. Walner
ARCHON GROUP, L.P.
By Archon Gen-Par, Inc.
General Partner
By: /s/ Todd A. Williams
Todd A. Williams
Exhibit 3
February 3, 1997
Each of the Reporting Persons hereby agrees to make this
joint filing pursuant to Rule 13d-1(f) of the Exchange Act of 1934.
/s/ Todd A. Williams /s/ Stuart M. Rothenberg
- ------------------------- ----------------------------
Archon Group L.P The Goldman Sachs Group L.P.
By: Archon Gen-Par, Inc. By: The Goldman Sachs Corporation,
(General Partner) (General Partner)
Name: Todd A. Williams Name: Stuart M. Rothenberg
Title: Vice President Title: Managing Director
/s/ Todd A. Williams /s/ Stuart M. Rothenberg
- ------------------------- -----------------------------
Archon Gen-Par, Inc. Goldman, Sachs & Co.
Name: Todd A. Williams Name: Stuart M. Rothenberg
Title: Vice President Title: Managing Director
