EXHIBIT 4.24
Stock Subscription Warrant to Subscribe for
150,000 Shares of Common Stock
Stock Subscription Warrant No. 17
THIS STOCK SUBSCRIPTION WARRANT AND ANY SHARES ACQUIRED UPON THE
EXERCISE OF THIS STOCK SUBSCRIPTION WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS STOCK SUBSCRIPTION WARRANT NOR
ANY OF SUCH SHARES MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
NEW STOCK SUBSCRIPTION WARRANT
To Subscribe for and Purchase Shares
of Common Stock of
GRUBB & ELLIS COMPANY
THIS CERTIFIES THAT, for value received,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ("PRUDENTIAL") or
registered assigns, is entitled to subscribe for and purchase from GRUBB & ELLIS
COMPANY (herein called the "Company"), a corporation organized and existing
under the laws of the State of Delaware, at any time or from time to time during
the period specified in paragraph 2 hereof, up to
ONE HUNDRED AND FIFTY THOUSAND
fully paid and nonassessable shares of the Company's Common Stock (the "Common
Stock") at an exercise price per share of $2.375 (the "Exercise Price"). The
number of shares purchasable hereunder and the Exercise Price are subject to
adjustment as provided in paragraph 4 hereof. These Stock Subscription Warrants
were originally issued pursuant to the Agreement. The term "Warrants", as used
herein, shall mean this Stock Subscription Warrant, including all amendments
hereto. The term "Warrant Shares", as used herein, refers to the shares
purchasable upon the exercise of the Warrants.
Certain terms used herein and not elsewhere defined are defined in
paragraph 15 hereof.
This Warrant is subject to the following provisions, terms and
conditions:
1. MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR
SHARES. The rights represented by this Warrant may be exercised by the holder
hereof in whole or in part (but not as to a fractional Warrant Share), by the
surrender of this Warrant, together with a completed Exercise Agreement in the
form attached hereto, during normal business hours on any business
day at the principal office of the Company (or such other office or agency of
the Company in New York, New York or San Francisco, California as it may
designate by notice in writing to the holder hereof at the address of such
holder appearing on the books of the Company) at any time during the period set
forth in paragraph 2 hereof and upon payment to the Company by certified check
or bank draft of the Exercise Price for such shares, or, at the election of the
holder hereof, by delivery of other Warrants equal in value to the aggregate
Exercise Price with respect to such Warrants being exercised, the value of
which other Warrants shall be deemed to equal the difference between the
Market Price of a share of Common Stock on the date immediately preceding the
date of exercise and the then current Exercise Price. The Company agrees that
the shares so purchased shall be and are deemed to be issued to the holder
hereof or its designee as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for such shares as aforesaid. Certificates for the Warrant
Shares so purchased, representing the aggregate number of shares specified in
said Exercise Agreement, shall be delivered to the holder hereof within a
reasonable time, not exceeding five business days, after the rights
represented by this Warrant shall have been so exercised. Each stock
certificate so delivered shall be in such denominations as may be requested by
the holder hereof and shall be registered in the name of said holder or such
other name (upon compliance with the transfer requirements hereinafter set
forth) as shall be designated by said holder. If this Warrant shall have been
exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of said stock certificates,
deliver to said holder a new Warrant representing the number of shares with
respect to which this Warrant shall not then have been exercised. The Company
shall pay all taxes and other expenses and charges payable in connection with
the preparation, execution and delivery of stock certificates (and any new
Warrants) pursuant to this paragraph except that, in case such stock
certificates shall be registered in a name or names other than the holder of
this Warrant or its nominee, funds sufficient to pay all stock transfer taxes
which shall be payable in connection with the execution and delivery of such
stock certificates shall be paid by the holder hereof to the Company at the
time of the delivery of such stock certificates by the Company as mentioned
above.
2. PERIOD OF EXERCISE. This Warrant is exercisable at any time
or from time to time prior to November 1, 1999.
3. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that all Warrant Shares will, upon issuance, be fully paid
and nonassessable and free from preemptive rights and all taxes, liens and
charges with respect to the issue thereof; and without limiting the generality
of the foregoing, the Company covenants and agrees that it will from time to
time take all such action as may be required to assure that the par value per
Warrant Share is at all times equal to or less than the effective Exercise
Price. The Company further covenants and agrees that during the period within
which the rights represented by this Warrant may be exercised, the Company will
at all times have authorized, and reserved for the purpose of issue upon
exercise of the subscription rights evidenced by this Warrant, a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant. The Company shall take all such action as may be
necessary to assure that such shares of Common Stock may be so issued without
violation of any applicable law or regulation and will be approved for listing
on any domestic securities exchange upon which the Common Stock may be listed.
The Company further covenants and agrees that it will, at any time, at its
expense, promptly list
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on each national securities exchange on which any Capital Stock is at the time
listed, upon official notice of issuance, Common Stock issuable upon the
exercise of any Warrant as provided in paragraph 1 hereof, and maintain such
listing of all shares of Common Stock from time to time issuable upon such
exercise, and will, at any time, register under the Securities Exchange Act of
1934, as amended, all shares of Common Stock from time to time issuable upon
such exercise if and at the time that any existing shares of Capital Stock are
so registered.
4. ANTI-DILUTION PROVISIONS. The Exercise Price set forth above
shall be subject to adjustment from time to time as hereinafter provided. For
purposes of this paragraph 4, the term "Capital Stock" as used herein includes
the Company's Common Stock and shall also include any capital stock of any class
of the Company hereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided that the shares
purchasable pursuant to this Warrant shall include only Common Stock. Upon each
adjustment of the Exercise Price, this Warrant shall thereafter represent the
right to purchase, at the Exercise Price resulting from such adjustment, the
largest number of shares of Common Stock obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares of
Common Stock purchasable thereunder immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
In case the Company, at any time, shall be a party to any
Transaction, each holder hereof, upon the exercise hereof at any time on or
after the Consummation Date shall be entitled to receive, and this Warrant shall
thereafter represent the right to receive, in lieu of the Common Stock issuable
upon exercise prior to the Consummation Date, the kind and amount of securities
or property (including cash) which it would have owned or have been entitled to
receive after the happening of such Transaction had this Warrant been exercised
immediately prior to such Transaction.
Notwithstanding anything contained herein to the contrary, the
Company shall not effect any Transaction unless prior to the consummation
thereof each corporation or entity (other than the Company) which may be
required to deliver any securities or other property upon the exercise of
Warrants, the surrender of Warrants or the satisfaction of exercise rights as
provided herein, shall assume, by written instrument delivered to each holder of
Warrants, the obligation to deliver to such holder such securities or other
property to which, in accordance with the foregoing provisions, such holder may
be entitled, and such corporation or entity shall have similarly delivered to
each holder of Warrants an opinion of counsel for such corporation or entity,
satisfactory to each holder of Warrants, which opinion shall state that all the
outstanding Warrants, including, without limitation, the exercise provisions
applicable thereto, if any, shall thereafter continue in full force and effect
and shall be enforceable against such corporation or entity in accordance with
the terms hereof and thereof and, together with such other matters as such
holders may reasonably request.
In case the Company shall (i) pay a dividend in shares of Capital
Stock or securities convertible into Capital Stock or make a distribution to all
holders of shares of Capital Stock in shares of Capital Stock or securities
convertible into Capital Stock, (ii) subdivide its outstanding shares of Capital
Stock, (iii) combine its outstanding shares of Capital Stock into a
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smaller number of shares of Capital Stock or (iv) issue by reclassification of
its shares of Capital Stock other securities of the Corporation, the Exercise
Price shall be adjusted (to the nearest cent) by multiplying the Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares of Capital Stock outstanding immediately prior to the
occurrence of such event, and of which the denominator shall be the number of
shares of Capital Stock outstanding (including any convertible securities issued
pursuant to clause (i) or (iv) above on an as converted basis) immediately
thereafter. An adjustment made pursuant to the foregoing sentence shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(d) NOTICE OF ADJUSTMENT. Upon the occurrence of any event
requiring an adjustment of the Exercise Price, then and in each such case the
Company shall promptly deliver to each holder of Warrants a certificate signed
by the President or any Vice President and the Secretary or any Assistant
Secretary of the Company (an "Officers' Certificate") stating the Exercise Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares of Common Stock issuable upon exercise of the Warrants, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. Within 90 days after each fiscal year in which any
such adjustment shall have occurred, or within 30 days after any request
therefor by any holder of Warrants stating that such holder contemplates
exercise of such Warrants, the Company will obtain and deliver to each holder of
Warrants the opinion of its regular independent auditors or another firm of
independent public accountants of recognized national standing selected by the
Company's Board of Directors who are satisfactory to the registered holder of
this Warrant, which opinion shall confirm the statements in the most recent
Officers' Certificate delivered under this paragraph 4(d).
(e) OTHER NOTICES. In case at any time:
(i) the Company shall declare or pay to the holders of Capital
Stock any dividend other than a regular periodic cash dividend or any
periodic cash dividend in excess of 115% of the cash dividend for the
comparable fiscal period in the immediately preceding fiscal year;
(ii) the Company shall declare or pay any dividend upon Capital
Stock payable in stock or make any special dividend or other distribution
(other than regular cash dividends) to the holders of Capital Stock;
(iii) the Company shall offer for subscription pro rata to the
holders of Capital Stock any additional shares of stock of any class or
other rights;
(iv) there shall be any capital reorganization, or reclassification
of the Capital Stock of the Company, or consolidation or merger of the
Company with, or sale of all or substantially all of its assets to,
another corporation or other entity;
(v) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(vi) there shall be any other Transaction;
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then, in any one or more of such cases, the Company shall give to the holder of
each Warrant (a) at least 15 days prior to any event referred to in clause (i)
or (ii) above, at least 30 days prior to any event referred to in clause (iii),
(iv) or (v) above, and within five business days after it has knowledge of any
pending Transaction, written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or Transaction and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or Transaction known to the Company, at least 30 days
prior written notice of the date (or, if not then known, a reasonable
approximation thereof by the Company) when the same shall take place. Such
notice in accordance with the foregoing clause (a) shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of Capital Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (b) shall also specify the date on which
the holders of Capital Stock shall be entitled to exchange their Capital Stock
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up or Transaction, as the case may be. Such notice shall also state
that the action in question or the record date is subject to the effectiveness
of a registration statement under the Securities Act or to a favorable vote of
security holders, if either is required.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company covenants and
agrees that:
(a) CERTAIN ACTIONS PROHIBITED. The Company will not by
amendment of its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Warrant and in the taking of all such action as may
reasonably be requested by the holder of any Warrant in order to protect the
exercise rights of the holders of the Warrants. Without limiting the generality
of the foregoing, the Company (i) will not increase the par value of any shares
of Common Stock receivable upon the exercise of the Warrants above the Exercise
Price then in effect, (ii) will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of all Warrants from
time to time outstanding, (iii) will not take any action which results in any
adjustment of the number of shares of Common Stock issuable after the action
upon the exercise of all of the Warrants would exceed the total number of shares
of Common Stock then authorized by the Company's certificate of incorporation
and available for the purpose of issue upon such exercise, and (iv) will not
issue any capital stock of any class which has the right to more than one vote
per share or any capital stock of any class which is preferred as to dividends
or as to the distribution of assets upon voluntary or involuntary dissolution,
liquidation or winding-up, unless the rights of the holders thereof shall be
limited to a fixed sum or percentage (or floating rate related to market yields)
of par value or stated value in aspect of participation in dividends and a fixed
sum or percentage of par value or stated value in any such distribution of
assets.
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(b) SUCCESSORS AND ASSIGNS.This Warrant will be binding upon any
entity succeeding to the Company by merger, consolidation or acquisition of all
or substantially all of the Company's assets.
(c) ISSUANCE OF WARRANT SECURITIES. If the issuance of any
Warrant Shares required to be reserved for purposes of exercise of this Warrant
or for the conversion of such Warrant Shares requires registration with or
approval of any Federal governmental authority under any Federal or state law
(other than any registration under the Securities Act) or listing on any
national securities exchange, before such shares may be issued upon exercise of
this Warrant, the Company will, at its expense, use its best efforts to cause
such shares to be duly registered or approved, or listed on the relevant
national securities exchange, as the case may be, at such time, so that such
shares may be issued in accordance with the terms hereof and so converted.
6. ISSUE TAX. The issuance of certificates for Warrant Shares
upon the exercise of Warrants shall be made without charge to the holders of
such Warrants or such shares for any issuance tax in respect thereof, provided
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than the holder of the Warrant exercised.
7. CLOSING OF BOOKS. The Company will at no time close its
transfer books against the transfer of any Warrant, of any Warrant Shares issued
or issuable upon the exercise of any Warrant or in any manner which interferes
with the timely exercise of this Warrant.
8. AMENDMENTS TO TERMS OF WARRANT SHARES. The Company will not
amend the terms of the Warrant Shares.
9. AVAILABILITY OF INFORMATION. The Company will cooperate with
each holder of any Warrants or Warrant Shares in supplying such information as
may be necessary for such holder to complete and file any information reporting
forms presently or hereafter required by the Securities and Exchange Commission
as a condition to the availability of an exemption from the Securities Act for
the sale of any Warrants or Warrant Shares. The Company will deliver to any
person at the time holding any Warrants, promptly upon their becoming available,
copies of all financial statements, reports, notices and proxy statements sent
or made available generally by the Company to its stockholders, and copies of
all regular and periodic reports and all registration statements and
prospectuses filed by the Company with any securities exchange or with the
Securities and Exchange Commission.
10. NO RIGHTS OR LIABILITIES AS A STOCKHOLDER. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Exercise Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
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11. TRANSFER AND EXCHANGE.
(a) (1) The transfer of this Warrant and all rights hereunder, in
whole or in part, is registrable at the office or agency of the Company referred
to below by the holder hereof in person or by his duly authorized attorney, upon
surrender of this Warrant properly endorsed. Each taker and holder of this
Warrant, by taking or holding the same, consents and agrees that this Warrant,
when endorsed in blank, shall be deemed negotiable, and that the holder hereof,
when this Warrant shall have been so endorsed, may be treated by the Company and
all other persons dealing with this Warrant as the absolute owner and holder
hereof for any purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the registration of transfer hereof on the
books of the Company; and until due presentment for registration of transfer on
such books the Company may treat the registered holder hereof as the owner and
holder for all purposes, and the Company shall not be affected by notice to the
contrary.
(2) The holder of this Warrant, by acceptance hereof, understands
that the Warrant Securities are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being or will be acquired from
the Company in a transaction not involving a public offering and that under such
laws and applicable regulations such Warrant Securities may be resold without
registration under the Securities Act only in certain limited circumstances.
The holder of this Warrant, by acceptance hereof, agrees to comply with all
applicable laws (including, without limitation, any filing required by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976) upon exercise hereof.
The holder of this Warrant, by acceptance hereof, represents that
such holder is acquiring this Warrant and any Warrant Shares to be issued upon
exercise hereof for its own account (including any separate account) for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof. The holder hereof further represents that such holder has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Warrant Securities as
required by Section (b)(2)(ii)(v) of Rule 502 of Regulation D under the
Securities Act.
Without in any way limiting the foregoing, the holder hereof further
agrees not to make any disposition of all or any portion of the Warrant
Securities unless and until:
(x) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such Registration Statement; or
(y) (i) The holder hereof shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii)
shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company (it being understood that if the holder of this
Warrant is a party to the Agreement, counsel who is such party's employee shall
be deemed reasonably satisfactory to the Company), that such disposition will
not require registration of such Warrant Securities under the Securities Act.
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(b) REGISTER. The Company shall maintain, at the principal
office of the Company (or such other office or agency of the Company in New
York, New York or San Francisco, California as it may designate by notice to the
holder hereof), a register for the Warrants, in which the Company shall record
the name and address of the person in whose name a Warrant has been issued, as
well as the name and address of each transferee and each prior owner of such
Warrant. Within 10 days after any holder of Warrants shall by notice request
the same, the Company will deliver to such holder a certificate, signed by one
of its officers, listing the name and address of every other holder of Warrants
and/or Warrant Shares, as such information appears in said register and in the
stock transfer books of the Company at the close of business on the day before
such certificate is signed.
(c) WARRANTS EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant is exchangeable, upon the surrender hereof by the holder hereof at the
office or agency of the Company referred to in paragraph 11(b), for new Warrants
of like tenor representing in the aggregate the right to subscribe for and
purchase the number of shares which may be subscribed for and purchased
hereunder of Common Stock, each of such new Warrants to represent the right to
subscribe for and purchase such number of shares as shall be designated by said
holder hereof at the time of such surrender.
(d) REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity bond (or, in the case of any institutional holder, an
indemnity agreement) reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
(e) CANCELLATION; PAYMENT OF EXPENSES. Upon the surrender of
this Warrant in connection with any exchange, transfer or replacement as
provided in this paragraph 11, this Warrant shall be promptly cancelled by the
Company. The Company shall pay all taxes (other than securities transfer taxes)
and all other expenses and charges payable in connection with the preparation,
execution and delivery of Warrants pursuant to this paragraph 11.
12. NOTICES. All notices, requests and other communications
required or permitted to be given or delivered to the holders of Warrants shall
be in writing, and shall be delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed, to each holder at the address
shown on the register for the Warrants, or at such other address as shall have
been furnished to the Company by notice from such holder. All notices, requests
and other communications required or permitted to be given or delivered to the
Company shall be in writing, and shall be delivered, or shall be sent by
certified or registered mail, postage prepaid and addressed, to the office of
the Company, at One Montgomery Street, San Francisco, California 94104,
Attention: Chief Financial Officer, with a copy to General Counsel, or at such
other address as shall have been furnished to the holders of Warrants by notice
from the Company. Any such notice, request or other communication may be sent
by telegram or telex, but shall in such case be subsequently confirmed by a
writing delivered or sent by certified or registered mail as provided above.
All notices shall be deemed to have been given either at the time of the
delivery thereof to (or the receipt by, in the case of a telegram or telex) any
officer or employee of the person entitled to receive such notice at the address
of such person for purposes of this paragraph
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12, or, if mailed, at the completion of the third full day following the time of
such mailing thereof to such address, as the case may be.
13. GOVERNING LAW. This Warrant shall be construed in accordance
with and governed by the laws of the State of New York without regard to the
principles of conflicts of laws.
14. REMEDIES. The Company stipulates that the remedies at law of
the holder of this Warrant in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
15. DEFINITIONS. For the purpose of this Warrant, the following
terms shall have the following meanings:
"ADDITIONAL SHARES OF CAPITAL STOCK" shall mean all shares
(including treasury shares) of Capital Stock issued or sold (or, pursuant to
paragraph 4(a) deemed to be issued) by the Company after the date hereof,
whether or not subsequently reacquired or retired by the Company, other than
shares of Common Stock issued upon the exercise of the Warrants.
"CAPITAL STOCK" shall have the meaning assigned to such term in
paragraph 4.
"CONSUMMATION DATE" shall mean the date of the consummation of a
Transaction.
"CONVERTIBLE SECURITIES" shall mean any evidences of indebtedness,
shares of stock (other than Common Stock) or securities directly or indirectly
convertible into or exchangeable for Additional Shares of Capital Stock.
"MARKET PRICE" shall mean, on any date specified herein, (A) if
any class of Capital Stock is listed or admitted to trading on any national
securities exchange, the highest price obtained by taking the arithmetic mean
over a period of twenty consecutive Trading Days ending the second Trading Day
prior to such date of the average, on each such Trading Day, of the high and low
sale price of shares of each such class of Capital Stock or if no such sale
takes place on such date, the average of the highest closing bid and lowest
closing asked prices thereof on such date, in each case as officially reported
on all national securities exchanges on which each such class of Capital Stock
is then listed or admitted to trading, or (B) if no shares of any class of
Capital Stock are then listed or admitted to trading on any national securities
exchange, the highest closing price of any class of Capital Stock on such date
in the over-the-counter market as shown by NASDAQ or, if no such shares of any
class of Capital Stock are then quoted in such system, as published by the
National Quotation Bureau, Incorporated or any similar successor organization,
and in either case as reported by any member firm of the New York Stock Exchange
selected by the Company. If no shares of any class of Capital Stock are then
listed or admitted to trading on any national securities exchange and if no
closing bid and asked prices thereof are then so quoted or published in the
over-the-counter market, "Market Price" shall mean the higher of (x) the book
value per share of Capital Stock (assuming for the purposes of this calculation
the economic equivalence of all shares of all classes of Capital Stock) as
determined on a fully diluted
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basis in accordance with generally accepted accounting principles by a firm of
independent public accountants of recognized standing (which may be its regular
auditors) selected by the Board of Directors of the Company as of the last day
of any month ending within 60 days preceding the date as of which the
determination is to be made or (y) the fair value per share of Capital Stock
(assuming for the purposes of this calculation the economic equivalence of all
shares of all classes of Capital Stock), as determined on a fully diluted basis
in good faith by an independent brokerage firm or Standard & Poor's Corporation
(as selected by the Board of Directors of the Company), as of a date which is 15
days preceding the date as of which the determination is to be made.
"OPTIONS" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Additional Shares of Capital Stock or
Convertible Securities.
"OTHER SECURITIES" shall mean any stock (other than Capital Stock)
and any other securities of the Company or any other Person (corporate or
otherwise) which the holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise or partial exercise of the
Warrants, in lieu of or in addition to Common Stock.
"PRUDENTIAL WARRANTS" shall mean all warrants, including any
amendments thereto, issued pursuant to the Securities Purchase Agreement dated
November 2, 1992 between the Company and Prudential.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"TRADING DAY" shall mean any day on which the New York Stock
Exchange is open for trading on a regular basis.
"TRANSACTION" shall mean any transaction to which the Company is a
party at any time (including, without limitation, a merger, consolidation, sale
of all or substantially all of the Company's assets, liquidation or
recapitalization of the Capital Stock) in which the previously outstanding
Capital Stock shall be changed into or exchanged for different securities of the
Company or common stock or other securities of another corporation or interests
in a noncorporate entity or other property (including cash) or any combination
of any of the foregoing or in which the Capital Stock ceases to be a publicly
traded security either listed on the New York Stock Exchange or the American
Stock Exchange or quoted by NASDAQ or any successor thereto or comparable
system.
"WARRANT SECURITIES" shall mean the Warrants and the Warrant
Shares.
16. MISCELLANEOUS.
(a) AMENDMENTS. This Warrant and any provision hereof may be
amended or waived only by an instrument in writing signed by the holders of then
outstanding Prudential Warrants representing the right to purchase not less
than a majority of the total number of shares of Common Stock issuable upon
exercise of all then outstanding Prudential Warrants then not transferable
without registration under the Securities Act and, if it is to be bound thereby,
by the Company.
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(b) DESCRIPTIVE HEADINGS. The descriptive headings of the
several paragraphs of this Warrant are inserted for purposes of reference only,
and shall not affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, GRUBB & ELLIS COMPANY has caused this Stock
Subscription Warrant to be signed by its duly authorized officer under its
corporate seal, attested by its duly authorized officer, and the Warrant to be
dated as of November 1, 1994.
GRUBB & ELLIS COMPANY
By ____________________________
Robert J. Walner
Senior Vice President
Attest:
By ____________________________
Carol M. Vanairsdale
Assistant
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FORM OF EXERCISE AGREEMENT
Date
To:
The undersigned, pursuant to the provisions set forth in the within
Stock Subscription Warrant, hereby agrees to subscribe for and purchase ________
shares of Common Stock covered by such Stock Subscription Warrant, and makes
payment herewith in full therefor at the price per share provided by such Stock
Subscription Warrant [in cash] [by delivery of $_____ principal amount of ______
Notes] [by cancellation of $______ of accrued and unpaid interest on ______
Notes].
Name__________________________
Title_________________________
Company_______________________
Signature_____________________
Address_______________________
______________________________
ASSIGNMENT
FOR VALUE RECEIVED
hereby sells, assigns and transfers all of the rights of the undersigned under
the within Stock Subscription Warrant, with respect to the number of Warrant
Shares covered thereby set forth hereinbelow to:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: ___________, 19__.
Name__________________________
Title_________________________
Company_______________________
Signature_____________________
Witness_______________________