EXHIBIT 4.12
Stock Subscription Warrant to Subscribe for
185,714 Shares of Common Stock
Stock Subscription Warrant No. 21
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.
STOCK SUBSCRIPTION WARRANT
To Subscribe for and Purchase Shares
of Common Stock of
GRUBB & ELLIS COMPANY
THIS CERTIFIES THAT, for value received,
WARBURG, PINCUS INVESTORS, L.P. 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 EIGHTY FIVE THOUSAND SEVEN HUNDRED FOURTEEN
fully paid and nonassessable shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), at an exercise price per share of $3.50
(the "Exercise Price"). The number of shares purchasable hereunder and the
Exercise Price are subject to adjustment as provided in paragraph 4 hereof.
This Stock Subscription Warrant is being issued pursuant to the Agreement. The
term "Warrant," 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 January 29, 2002.
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
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covenants and agrees that it will, at any time, at its expense, promptly list 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.
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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 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;
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(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;
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
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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.
(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.
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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.
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)(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
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(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.
(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 canceled 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
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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 10275 West
Higgins Road, Suite 300, Rosemont, Illinois 60018, 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 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:
"AGREEMENT" shall mean the Tri-Party Agreement dated December 11, 1996
by and among the Company, Warburg, Pincus Investors, L.P. and Joe F. Hanauer.
"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.
"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
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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 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.
"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.
"WARBURG/HANAUER WARRANTS" shall mean (i) this Stock Subscription
Warrant No. 21, (ii) the Stock Subscription Warrant No. 20 issued to Joe F.
Hanauer Trust to purchase 14,286 shares of Common Stock, (iii) the Stock
Subscription Warrant No. 22 issued to Joe F. Hanauer Trust to purchase 10,714
shares of Common Stock, and (iv) the Stock Subscription Warrant No. 23 issued to
Warburg, Pincus Investors, L.P. to purchase 139,286 shares of Common Stock, and
including any amendments to the warrants referred to in (i), (ii), (iii) and
(iv) of this definition.
"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 Warburg/Hanauer 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
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Warburg/Hanauer Warrants then not transferable without registration under the
Securities Act and, if it is to be bound thereby, by the Company.
(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.
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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 December 11, 1996.
GRUBB & ELLIS COMPANY
By /s/ Robert J. Walner
---------------------------------
Name: Robert J. Walner
Title: Senior Vice President
Attest:
By /s/ Carol Vanairsdale
------------------------------
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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_______________________