C. Michael Kojaian/Grubb & Ellis Company Schedule 13D/A#6

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ecj4VSz/Xk7mY8/4TuJaz22fmCAEBHQwAuoPVBq2/ifxvrG9rJgS9Xi2xc21k38p Bkx7sW7JdqnzRArsd6napQ== 0000905729-05-000031.txt : 20050106 0000905729-05-000031.hdr.sgml : 20050106 20050106144942 ACCESSION NUMBER: 0000905729-05-000031 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050106 DATE AS OF CHANGE: 20050106 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KOJAIAN MIKE CENTRAL INDEX KEY: 0001029458 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: BUSINESS PHONE: 2486447600 MAIL ADDRESS: STREET 1: 1400 NORTH WOODWARD AVE SUITE 250 CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48304 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GRUBB & ELLIS CO CENTRAL INDEX KEY: 0000216039 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 941424307 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32339 FILM NUMBER: 05515460 BUSINESS ADDRESS: STREET 1: 2215 SANDERS RD STREET 2: STE 400 CITY: NORTHBROOK STATE: IL ZIP: 60062 BUSINESS PHONE: 4159561990 MAIL ADDRESS: STREET 1: ONE MONTGOMERY ST STE 3100 STREET 2: TELESIS TWR 9TH FLR CITY: SAN FRANCISCO STATE: CA ZIP: 94104 SC 13D/A 1 kojaian13da6_010605.htm SCHEDULE 13D/AMENDMENT #6 C. Michael Kojaian/Grubb & Ellis Company Schedule 13D/A#6 - 01/05/05

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D/A
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)

(Amendment No. 6)¹

Grubb & Ellis Company

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

40009 52 0

(CUSIP Number)

C. Michael Kojaian
c/o Kojaian Ventures, L.L.C.
39400 Woodward Avenue, Suite 250
Bloomfield Hills, Michigan 48304
Telephone (248) 644-7600

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

January 4, 2005

(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(e), 13d-1(f) or 13d-1(g), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

(Continued on the following pages)
(Page 1 of 8 Pages)

____________________
1 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 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).

CUSIP NO. 40009 52 0

13D

Page 2 of 8 Pages

1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Mike Kojaian

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
		(a) x
		(b) o

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) PF

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

		850,844

	8	SHARED VOTING POWER

		723,840

	9	SOLE DISPOSITIVE POWER

		850,844

	10	SHARED DISPOSITIVE POWER

		723,840

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,574,684

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.4%*

14	TYPE OF REPORTING PERSON IN

* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

CUSIP NO. 40009 52 0

13D

Page 3 of 8 Pages

1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) C. Michael Kojaian

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
		(a) x
		(b) o

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) PF

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

		850,842

	8	SHARED VOTING POWER

		2,061,198

	9	SOLE DISPOSITIVE POWER

		850,842

	10	SHARED DISPOSITIVE POWER

		2,061,198

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,912,040

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.2%*

14	TYPE OF REPORTING PERSON IN

* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

CUSIP NO. 40009 52 0

13D

Page 4 of 8 Pages

1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kojaian Holdings, L.L.C.

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
		(a) x
		(b) o

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) WC

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

6	CITIZENSHIP OR PLACE OF ORGANIZATION Michigan

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

		0

	8	SHARED VOTING POWER

		723,840

	9	SOLE DISPOSITIVE POWER

		0

	10	SHARED DISPOSITIVE POWER

		723,840

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 723,840

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8%*

14	TYPE OF REPORTING PERSON OO

* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

CUSIP NO. 40009 52 0

13D

Page 5 of 8 Pages

1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kojaian Ventures, L.L.C.

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
		(a) x
		(b) o

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) Not applicable

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

6	CITIZENSHIP OR PLACE OF ORGANIZATION Michigan

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

		0

	8	SHARED VOTING POWER

		1,337,358

	9	SOLE DISPOSITIVE POWER

		0

	10	SHARED DISPOSITIVE POWER

		1,337,358

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,337,358

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8%*

14	TYPE OF REPORTING PERSON OO

* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

CUSIP NO. 40009 52 0

13D

Page 6 of 8 Pages

1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kojaian Ventures-MM, Inc.

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
		(a) x
		(b) o

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) Not applicable

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

6	CITIZENSHIP OR PLACE OF ORGANIZATION Michigan

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

		0

	8	SHARED VOTING POWER

		1,337,358

	9	SOLE DISPOSITIVE POWER

		0

	10	SHARED DISPOSITIVE POWER

		1,337,358

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,337,358

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8%*

14	TYPE OF REPORTING PERSON CO

* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

This Amendment No. 6 to Schedule 13D is being filed on behalf of Mike Kojaian and Kojaian Holdings, L.L.C., a Michigan limited liability company ("KH"). This Amendment No. 6 amends in certain respects Amendment No. 1 to Schedule 13D filed by Mike Kojaian and C. Michael Kojaian on February 13, 2001 ("Amendment No. 1"), Amendment No. 2 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, Kojaian Ventures, L.L.C., a Michigan limited liability company ("KV"), and Kojaian Ventures-MM, Inc., a Michigan corporation and managing member of KV ("KVMM")on April 19, 2002 ("Amendment No. 2"), Amendment No. 3 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KV and KVMM on May 16, 2002 ("Amendment No. 3"), and Amendment No. 4 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KV and KVMM on September 27, 2002 ("Amendment No. 4") and Amendment No. 5 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KH, KV, and KVMM on May 9, 2003 ("Amendment No. 5") (col lectively the "Previous Filings"). All items not reported in this Amendment No. 6 are herein incorporated by reference from Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, and Amendment No. 5. To the extent any item is superseded by any later filing, the later filing is operative and controlling.

Item 2.

Identity and Background

This Amendment No. 6 is being filed by C. Michael Kojaian, KVMM and KH (collectively, the "Reporting Persons"). Item 2 of the Previous Filings is here incorporated by reference.

Item 4.

Purpose of Transaction.

Item 4 of the Previous Filing is here incorporated by reference.

On December 30, 2004, Grubb & Ellis Company and KV entered into a Preferred Stock Exchange Agreement (the "Agreement"). Pursuant to the Agreement, KV has agreed to exchange 11,275 shares of Series A Preferred Stock for an identical number of Series A-1 Preferred Stock, subject to the terms and conditions of the Agreement. The closing of the transaction and the exchange of the Series A Preferred Stock for the identical number of Series A-1 Preferred Stock occurred on January 4, 2005.

Item 6.

Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer.

Item 6 of the Previous Filings is here incorporated by reference.

Item 7.

Material to Be Filed as Exhibits

Exhibit 1

Preferred Stock Exchange Agreement dated as of December 30, 2004 by and between Grubb & Ellis Company and Kojaian Ventures, L.L.C.

Exhibit 2

Certificate of Designations, Numbers, Voting Powers, Preferences and Rights of Series A-1 Preferred Stock of Grubb & Ellis Company

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: January 4, 2005	/s/ C. Michael Kojaian
	C. Michael Kojaian


Dated: January 4, 2005	KOJAIAN HOLDINGS, L.L.C.

	By Kojaian Management Corporation, its Sole Member

	By	/s/ C. Michael Kojaian
		C. Michael Kojaian, its Executive Vice President


Dated: January 4, 2005	KOJAIAN VENTURES, L.L.C.

	By Kojaian Ventures-MM, Inc., its Managing Member

	By	/s/ C. Michael Kojaian
		C. Michael Kojaian, President

Dated: January 4, 2005	KOJAIAN VENTURES-MM, INC.

	By	/s/ C. Michael Kojaian
		C. Michael Kojaian, President

EX-1 2 kojaianex1_010605.htm EXHIBIT 1 TO SCHEDULE 13D/A#6 Kojaian Exhibit 1 to Schedule 13D/A#6 - 01/05/05

EXHIBIT 1

PREFERRED STOCK

EXCHANGE AGREEMENT

Dated as of

December 30, 2004

By and Between

GRUBB & ELLIS COMPANY

and

KOJAIAN VENTURES, L.L.C.

PREFERRED STOCK EXCHANGE AGREEMENT

This Preferred Stock Exchange Agreement (the "Agreement") is made as of this 30th day of December, 2004 by and between Grubb & Ellis Company, a Delaware corporation (the "Company") and Kojaian Ventures, L.L.C., a Michigan limited liability ("KV").

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

WHEREAS, the Subordinated Note was convertible into shares of the Company's Series A Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"), which bears a cumulative dividend of 12% per annum, and which has such other rights and preferences as set forth in that certain amended and restated certificate of designations, number, voting rights, preferences and rights of Series A Preferred Stock of the Company as filed with the Secretary of State of the State of Delaware on September 13, 2002, and which is annexed hereto as Exhibit A (the "Certificate of Designations"); and

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

WHEREAS, the Board of Directors of the Company has declared that all holders of the Series A Preferred Stock on the close of business on December 31, 2004 (the "Record Date") shall be entitled to receive, subsequent to the Record Date and prior to January 7, 2005, all accrued and unpaid dividends through the Record Date; and

WHEREAS, in accordance with terms and conditions set forth herein, KV has agreed to exchange its 11,725 shares of Series A Preferred Stock for an identical number of shares of a newly created series of preferred stock of the Company, having the voting powers, preferences and rights of such series of preferred stock as shall be set forth in that certificate of designations, number, voting power, preferences and rights of Series A-1 Preferred Stock (the "New Preferred Stock") of the Company as set forth on Exhibit B annexed hereto (the "New Certificate of Designations").

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

1. Exchange of Securities. Subject to the full satisfaction or waiver of all of the conditions to closing set forth in Section 2.1 and Section 2.2 below, on the "Closing Date" (as that term is defined in Section 2.3 below), KV shall deliver to the Company an original certificate or certificates representing all of 11,725 shares of Series A Preferred

Stock owned by KV in exchange for a certificate, issued in the name of KV, representing 11,725 shares of Series A-1 Preferred Stock (the "Preferred Stock Exchange").

2. Closing Conditions.

2.1 Conditions to Closing for KV. Subsequent to December 31, 2004, and on or before the close of business on January 7, 2005, the following shall have occurred:

(i) KV shall have received, via wire transfer in accordance with the wire transfer instructions annexed hereto as Exhibit C, the sum of Three Million Six Hundred Thirty Seven Thousand Four Hundred Ninety Five Dollars and Twenty-Three Cents ($3,637,495.23), representing the accrued and unpaid dividends on the Series A Preferred Stock as of and through December 31, 2004;

(ii) KV shall have received written evidence, satisfactory in form and substance to KV, that the New Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; and

(iii) KV shall have received from the Company a certificate from a duly authorized officer of the Company, dated as of the date of the Closing, and in the form annexed hereto as Exhibit D, verifying and confirming that all of the representations, warranties and covenants of the Company set forth herein are true and correct in all respects as of the date of the Closing.

2.2 Conditions to Closing for the Company. Subsequent to December 31, 2004, and on or before the close of business on January 7, 2005, the following shall have occurred:

(i) the Company shall have received written evidence, satisfactory in form and substance to the Company, that the New Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; and

(ii) the Company shall have received from KV a certificate from a duly authorized representative of KV, dated as of the date of the Closing, and in the form annexed hereto as Exhibit E, stating that all of the representations, warranties and covenants of KV set forth herein are true and correct in all respects as of the date of the Closing.

2.3 Closing. Upon the full satisfaction of all of the conditions set forth in Section 2.1 and Section 2.2 above, the parties shall effect the Preferred Stock Exchange subsequent to the Record Date and prior to the close of business on January 7, 2005 (such date, the "Closing" or the "Closing Date") which shall take place at the offices of Zukerman Gore & Brandeis, LLP, 875 Third Avenue, New York, New York, 10022, or at such other time, at such other place, and in such other manner, as the parties hereto shall agree.

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

3.1 Corporate Power. The Company has the full legal right, power and authority to enter into this Agreement and to issue and exchange the New Preferred Stock pursuant to this Agreement in accordance with the terms set forth in this Agreement and the delivery to KV of the New Preferred Stock pursuant to the terms of this Agreement will transfer to KV valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind whatsoever.

3.2 Due Authorization. This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principals. The execution and delivery by the Company of this Agreement and the other agreements and instruments, to be executed and delivered by the Company in connection herewith, do not, and the consummation of the transaction contemplated hereby and thereby will not, (i) violate any provision in the certificate of incorporation or by-laws of the Company, (ii) violate any provision of, or result in the termination or acceleration of, or default under, or entitle any party to accelerate (with or after the filing of notice or lapse of time of both) any obligation under, or result in the creation or imposition of any lien, charge, pledge, security interest or other encumbrance upon any of the assets of the Company pursuant to any provision of any mortgage, lien, lease, agreement, license, or instrument, or violate any law, regulation, order, arbitration, award, judgment or decree to which the Company is a party or by which its property is bound; (iii) violate or conflict with, create a default under, any other material restriction of any kind or character to which the Company is subject; (iv) require any governmental consent, authorization, filing, approval, or exemption, except as may be required by regulation promulgated on the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), or (v) violate any consent decree or requirement to which the Company is subject.

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

3.4 Valid Issuance. When exchanged and delivered in accordance with the terms hereof for the consideration expressed herein, the New Preferred Stock

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

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

4. Representations and Warranties of KV. KV hereby represents, warrants and agrees, as of the date hereof and as of the Closing Date, as if made on the Closing Date, as follows:

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

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

4.3 Experience; Certain Risks. KV has substantial experience in evaluating and investing in non-registered securities of publicly traded entities, is capable of evaluating the merits and risks of investment in the Company and has the capacity to protect its own interests. KV hereby acknowledges that: (i) the New Preferred Stock represents a non-registered equity security in a corporate entity that has an accumulated deficit; (ii) no return on investment, whether through distributions, appreciation, transferability or otherwise, and no performance by, through or of the Company, has been promised, assured, represented or warranted by the Company, or by any director, officer, employee, agent or representative thereof; (iii) the New Preferred Stock (x) is not registered under applicable federal or state securities laws, and thus may not be sold, conveyed, assigned or transferred unless registered und er such laws or unless an exemption from registration is available under such laws, as more fully described below, and (y) although there presently is a public market with respect to the shares of the Company's common stock, par value $.01 per share (the "Common Stock"), the New Preferred Stock is not quoted, traded or listed for trading or quotation on any organized market or quotation system, and there have not been any representations made by the Company to KV that the New Preferred Stock will ever be quoted, traded or listed for trading or quotation on any organized market or quotation system or that there ever will be a public market for the New Preferred Stock or that there will continue to be a public market with respect to the Common Stock, and (iv) the acquisition of the New Preferred Stock is a speculative investment, involving a degree of risk, and is suitable only for a person or entity of adequate financial means who has no need for liquidity in this investment in that, among other things, (a) s uch person or entity may not be able to liquidate its investment in the event of an emergency or otherwise, (b) transferability is limited, and (c) in the event of a dissolution or otherwise, such person or entity could sustain a complete loss of its entire investment. KV, an "affiliate" of C. Michael Kojaian, as that term is defined in Rule 405 promulgated under the Securities Act, has adequate means of providing for its current financial needs and possible contingencies and has no need for liquidity of its investment in the New Preferred Stock. KV is able to bear the economic risks inherent in an investment in the New Preferred Stock, and an important consideration bearing on its ability to bear the economic risk of the purchase of the New Preferred Stock is whether KV can afford a complete loss of its investment in the New Preferred Stock, and KV represents and warrants that it can afford such a complete loss. KV has such knowledge and experience in business, financial, investment and banking matters (inc luding, but not limited to investments in restricted, non-listed and non-registered securities) that KV is capable of evaluating the merits, risks and advisability of an investment in the New Preferred Stock.

4.4 Accredited Investor or Business and Financial Experience. KV is an accredited investor as defined in Rule 501 under the Securities Act of 1933.

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

4.6 Access to Information. KV expressly acknowledges and agrees that it has not relied on any representation, warranty or statements, written or oral, other than the express representations and warranties contained herein and the information contained within the Company's regulatory filings with the Securities Exchange Commission, and that KV's decision to exchange the Series A Preferred Stock for the New Preferred Stock is not based on any promotional, marketing or sales materials, and KV and its representatives have been afforded, prior to the acquisition of the New Preferred Stock, access to all documents and information that KV deems material to an investment decision with respect to the acquisition of the New Preferred Stock hereunder.

4.7 Beneficial Ownership. KV is the lawful record and beneficial owner of all the shares of Series A Preferred Stock, free and clear of any liens, claims, encumbrances or restrictions of any kind. KV is not a party to or otherwise subject to any agreement, understanding agreement or arrangement regarding the transfer, sale, distribution, hypothecation or disposition of the Series A Preferred Stock. Upon delivery of the Series A Preferred Stock to the Company at the Closing, the Company will acquire good and marketable title with respect thereto, and will be the undisputed record and beneficial ownership of the Series A Preferred Stock free and clear of any liens, claims, encumbrances and restrictions of any kind whatsoever.

5. Survival of Representations and Warranties; Indemnity

5.1 Survival of Representations and Warranties. The respective representations and warranties, covenants, agreements and obligations of each of the Company and KV contained in this Agreement or in any Exhibit attached hereto, and the indemnification provisions set forth in this Section 5 hereof, shall survive the Closing.

5.2 Indemnification by the Parties

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

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

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

The Indemnifying Party shall be liable for any settlement of any claim against an Indemnified Party made with the Indemnifying Party's written consent or made in connection with the circumstances described in the first sentence of the previous

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

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

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

6. Miscellaneous

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

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

6.3 Publicity. Except as otherwise required by applicable federal securities laws, or as otherwise agreed to by the parties, none of the parties hereto shall issue any press release or make any other public disclosure or statement, in each case relating to, connected with or arising out of this Agreement or the transactions

contemplated herein. Any statement or disclosure so issued or made by either party shall require the prior approval, not to be unreasonably withheld or delayed, of the other party hereto as to the contents and the manner of presentation and publication thereof.

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

if to KV, to:

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

with a copy simultaneously by like means to:

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

if to the Company to:

Grubb & Ellis Company
2215 Sanders Road
Suite 400
Northbrook, Illinois  60062
Telephone No. (847) 753-7500
Facsimile No.  (847) 753-9060
Attn:  Chief Financial Officer

with a copy simultaneously by like means:

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

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

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

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

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

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

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

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

[Signature Page to Follow]

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

COMPANY:

GRUBB & ELLIS COMPANY



By:	/s/ Brain Parker
	Name:	Brian Parker
	Title:	Chief Fiancial Officer

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

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



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

EX-2 3 kojaianex2_010605.htm EXHIBIT 2 TO SCHEDULE 13D/A#6 Kojaian Exhibit 2 to Schedule 13D/A#6 - 01/05/05

EXHIBIT 2

CERTIFICATE OF DESIGNATIONS, NUMBER, VOTING POWERS,
PREFERENCES AND RIGHTS OF SERIES A-1
PREFERRED STOCK
OF
GRUBB & ELLIS COMPANY
(a Delaware corporation)

Pursuant to Section 151 of the
General Corporation Law of the State of Delaware

The undersigned DOES HEREBY CERTIFY that the following resolution was duly adopted by the Board of Directors of Grubb & Ellis Company, a Delaware corporation (hereinafter called the "Corporation"), with the preferences and rights set forth therein relating to dividends, redemption, dissolution and distribution of assets of the Corporation having been fixed by the Board of Directors pursuant to authority granted to it under the Corporation's Certificate of Incorporation and in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware ("GCL"):

RESOLVED: That, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation of the Corporation, the Board of Directors of this Corporation hereby fixes the designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of such shares (the "Certificate of Designation"), in addition to those set forth in the Certificate of Incorporation of the Corporation, as follows:

1. DESIGNATION AND AMOUNT. The shares of such series shall be designated "Series A-1 Preferred Stock," par value $.01 per share, (the "Series A-1 Preferred Stock"), and the number of shares constituting such series shall be up to 60,000 shares.

2. DIVIDENDS.

(a) The holders of Series A-1 Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Corporation (the "Board of Directors"), out of the net profits of the Corporation, dividends per share based upon the Assumed Share Number, which shall in all instances be paid pari passu with any dividends declared, set apart for or paid upon the common stock, par value $.01 per share (the "Common Stock") of the Corporation, if any, or any other stock ranking with respect to dividends or on liquidation junior to the Series A-1 Preferred Stock (such stock being referred to hereinafter collectively as "Junior Stock") in any year.

(b) For so long as the Series A-1 Preferred Stock remains outstanding, the Corporation shall not, without the prior consent of the holders of a majority of the outstanding shares of Series A-1 Preferred Stock, pay any dividend upon the Junior Stock, whether in cash or other property (other than shares of Junior Stock), or purchase, redeem or otherwise acquire any such Junior Stock unless it simultaneously pays the dividend to the holders of the Series A-1

Preferred Stock as described above. Notwithstanding the provisions of this Section 2(b), without declaring or paying dividends on the Series A-1 Preferred Stock, the Corporation may, subject to applicable law, repurchase or redeem shares of capital stock of the Corporation from current or former officers or employees of the Corporation pursuant to the terms of repurchase or similar agreements in effect from time to time, provided that such agreements have been approved by the Board of Directors and the terms of such agreements provide for a repurchase or redemption price not in excess of the price per share paid by such employee for such share.

3. LIQUIDATION, DISSOLUTION OR WINDING UP.

(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (a "Liquidation"), the holders of shares of Series A-1 Preferred Stock then outstanding shall, subject to the provisions of Section 3(d) below, be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after and subject to the payment in full of all amounts required to be distributed to the holders of any other series of preferred stock of the Corporation ranking on liquidation prior and in preference to the Series A-1 Preferred Stock (any such preferred stock being referred to hereinafter as "Senior Preferred Stock") upon such Liquidation, but before payment of any consideration shall be made to the holders of Junior Stock, consideration equal to the greater of (i) 150% of the Stated Value per share, or (ii) the amount such holder would have receiv ed assuming that each share of Series A-1 Preferred Stock equaled 998 shares (the "Assumed Share Number") of Common Stock, which Assumed Share Number is based upon the number of "Adjusted Outstanding Shares" (as that term is defined in paragraph 5(b) below) on April 14, 2002, subject to further adjustment as provided in Section 5 and Section 6 hereof; provided, however, that notwithstanding anything set forth herein to the contrary, in the event that a Liquidation does not occur, or a binding agreement to effect any such Liquidation has not been executed and delivered by the Company on or before May 13, 2003 (the "Adjustment Date"), then subclause (i) of this sentence shall automatically be deemed to be amended to be 200% of the Stated Value per share. If upon any Liquidation, at any time, the remaining assets of the Corporation available for the distribution to its stockholders after payment in full of amounts required to be paid or distributed to holders of Senior Preferred Stock shall be ins ufficient to pay the holders of shares of Series A-1 Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series A-1 Preferred Stock, and any class of stock ranking on liquidation on a parity with the Series A-1 Preferred Stock, shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective amounts which would otherwise be payable in respect to the shares held by them upon such distribution if all amounts payable on or with respect to said shares were paid in full.

(b) After the payment of all preferential amounts required to be paid to the holders of Senior Preferred Stock and Series A-1 Preferred Stock and any other series of preferred stock ("Preferred Stock") upon Liquidation, the holders of shares of Common Stock then outstanding shall be entitled to receive the remaining assets and funds of the Corporation available for distribution to its stockholders.

(c) Liquidation as used in this Section 3 shall be deemed to include any transaction which is referred to in any one or more of the following clauses (i) through (iii):

(i) any merger or consolidation involving the Corporation which meets the criteria set forth in clause (iii) below;

(ii) the acquisition of the Corporation either (x) through the sale, conveyance, mortgage, pledge or lease of all or substantially all the assets of the Corporation, or (y) through the acquisition of an interest in the common stock of the Corporation by way of purchase (whether by public tender offer or otherwise), merger or consolidation, or (z) otherwise; or

(iii) Any transaction or series of transactions, where, other than any person or group who is or are current stockholders of the Corporation as of April 14, 2002 and/or any of their respective affiliates, a "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes the "beneficial owner" (as defined by Rules 13d-3 and 13d-5 of the Exchange Act), directly or indirectly, of 50% or more of the outstanding capital stock of the Corporation.

(d) (i) Notwithstanding anything set forth herein to the contrary, in the event that the Corporation enters into a definitive binding agreement with respect to a transaction which is deemed to be a Liquidation as defined in Section 3(c)(ii) herein above (a "Section 3(c)(ii) Liquidation") on or before the "Non-Voting Date," as such term is defined in, and as such date may be extended pursuant to, Section 4(d) below, and the Section 3(c)(ii) Liquidation, or any transaction contemplated or permitted by the definitive binding agreement relating to the Section 3(c)(ii) Liquidation, closes on or before the Non-Voting Date, then the holder shall not be entitled to receive the consideration set forth in Section 3(a) above, but rather, shall be entitled to receive, before payment of any consideration shall be made to the holders of Junior Stock, 100% of the Stated Value per share plus any dividends thereon that a re accrued but unpaid (the "Series A Investment") plus Two Million Dollars ($2,000,000) (the "Alternate Liquidation Amount"), provided, however, that in the event that holder accepts the Alternate Liquidation Amount, then the holder expressly agrees that holder shall not, shall cause the Holder's "affiliates" (as defined in Section 4(c) below) not to, and shall not assist or encourage any stockholder of the Corporation to, under any circumstances whatsoever, seek, or be permitted to seek, to exercise any appraisal rights under Section 262 of the GCL, or otherwise seek, or be permitted to seek, to challenge the Section 3(c)(ii) Liquidation. Unless the holder expressly notifies the Corporation in writing within seven (7) days after holder has received the Alternate Liquidation Amount, which notice, to be effective, must be in accordance with the notice provisions set forth in Section (d)(ii) below and must also include the return of the entire Alternate Liquidation Amount, time being of the essen ce, that it does not accept the Alternate Liquidation Amount, then the holder shall automatically and irrevocably be deemed to have accepted the Alternate Liquidation Amount. In the event that, in accordance with the provisions of the immediately preceding sentence, the holder duly notifies the Corporation that it does not accept the Alternate Liquidation Amount, the holder shall be deemed to have irrevocably waived its right to receive such Alternate Liquidation Amount. As used in this Certificate of Designation, the term Section 3(c)(ii) Liquidation shall mean not only

the transaction that is deemed to be a Liquidation as defined in Section 3(c)(ii) above, but shall also include any transaction contemplated or permitted by the definitive binding agreement relating to the Section 3(c)(ii) Liquidation transaction.

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

If to the Corporation to:

Grubb & Ellis Company
2215 Sanders Road
Suite 400
Northbrook, Illinois  60062
Telephone No. (847) 753-7500
Facsimile No. (847) 753-9060
Attn:  Chief Financial Officer

with a copy simultaneously by like means:

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

If to the holder of the Series A-1 Preferred Stock:

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

with a copy simultaneously by like means to:

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

(e) In the event of any Liquidation, each holder of Series A-1 Preferred Stock shall have the right to elect to receive the benefits of Section 6(e) in lieu of receiving payment in Liquidation, pursuant to this Section 3. Upon payment of all amounts due under this Section 3, the holder of any shares of Series A-1 Preferred Stock shall have no further rights in respect of such shares.

4. VOTING.

(a) Each issued and outstanding share of Series A-1 Preferred Stock shall be entitled to the number of votes equal to the Assumed Share Number (as adjusted from time to time pursuant to Section 5 and Section 6), at each meeting of stockholders of the Corporation (or pursuant to any action by written consent) with respect to any and all matters presented to the stockholders of the Corporation (including increasing or decreasing the number of authorized shares of capital stock of the Corporation) for their action or consideration.

(b) In addition to any other rights provided by law, the Corporation shall not, without first obtaining the affirmative vote or written consent of the holders of a majority of the outstanding shares of Series A-1 Preferred Stock:

(i) amend or repeal any provision of the Corporation's Certificate of Incorporation or By-Laws;

(ii) authorize or effect the payment of dividends or the redemption or repurchase of any capital stock of the Corporation or rights to acquire capital stock of the Corporation; or

(iii) authorize or effect the issuance by the Corporation of any shares of capital stock or rights to acquire capital stock other than (x) pursuant to options, warrants, conversion or subscription rights in existence on March 7, 2002 (the "Initial Issuance Date") or thereafter approved with the consent of the holders of a majority of the then outstanding shares of Series A-1 Preferred Stock or (y) pursuant to stock option, stock bonus or other employee stock plans for the benefit of the employees and consultants and outside directors of the Corporation or its subsidiaries in existence as of such date or thereafter approved with the consent of the holders of a majority of the then outstanding shares of Series A-1 Preferred Stock.

(c) The Corporation shall not amend, alter or repeal the preferences, special rights or other powers of the Series A-1 Preferred Stock so as to affect adversely the Series A-1 Preferred Stock, without the written consent or affirmative vote of the holders of at least a

majority of the then outstanding shares of Series A-1 Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class. For this purpose, the authorization or issuance of any series of Preferred Stock with preference or priority over, or being on a parity with the Series A-1 Preferred Stock as to the right to receive either dividends or amounts distributable upon liquidation, dissolution or winding up of the Corporation shall be deemed so to affect adversely the Series A-1 Preferred Stock.

(d) Notwithstanding anything set forth herein to the contrary, prior to May 31, 2002 (as same may be extended as provided below, the "Non-Voting Date"), the holder shall not exercise any voting rights, of any equity securities of the Corporation beneficially owned by the holder, in any manner whatsoever, that could directly or indirectly hinder, prohibit, delay or prevent the consummation of, or materially alter the terms of, a proposed Section 3(c)(ii) Liquidation, provided, that in the event the Corporation enters into a definitive binding agreement with respect to a Section 3(c)(ii) Liquidation on or before the Non-Voting Date, then the Non-Voting Date shall automatically be extended to September 30, 2002. In addition, prior to the expiration of the Non-Voting Date, the holder shall not have the right, and shall cause its controlling member not to, and not to agree, to voluntarily transfer, do nate, sell, assign or otherwise dispose of any preferred, common or other equity securities of the Corporation or any other interest therein. As used herein, the term "affiliate" or any correlative term shall mean, with respect to any party, any other party directly or indirectly controlling, controlled by, or under direct or indirect common control with, such party, or other than the father of the controlling member of Kojaian Ventures, L.L.C.

5. CALCULATION OF ASSUMED SHARE NUMBER. The Assumed Share Number shall be determined by dividing the Stated Value by the Strike Price then in effect.

(a) The initial strike price, subject to adjustment as provided herein, is equal to $1.00 (the "Strike Price") based upon the Adjusted Outstanding Shares as of April 14, 2002 as adjusted pursuant to Sections 5 and 6 hereof. The applicable Assumed Share Number and Strike Price from time to time in effect is subject to adjustment as hereinafter provided. The Assumed Share Number shall be calculated to the nearest share of Common Stock.

(b) As used herein, the term "Adjusted Outstanding Shares" shall mean the shares of Common Stock outstanding as of April 14, 2002, plus the shares of Common Stock underlying and either issuable or issued upon (i) those Common Stock options that have been granted prior to and were outstanding on April 14, 2002, and that have an exercise price equal to or less than $5.00 per share (other than such Common Stock options, if any, that are cancelled on or before the Adjustment Date), plus (ii) all Common Stock options that are authorized as of April 14, 2002, and thereafter granted on or before the Adjustment Date, plus (iii) 50% of all Common Stock options, if any, authorized after April 14, 2002, and thereafter granted on or before the Adjustment Date ("Newly Authorized Options"), provided that the number of Newly Authorized Options to be taken into account for the purposes of this subclause (iii) shall not exceed the number of any Common Stock options cancelled on or before the Adjustment Date. Notwithstanding anything set forth herein to the contrary, in the event that a Liquidation shall be consummated before the Adjustment Date, then for purposes of calculating the Adjusted

Outstanding Shares, the Adjustment Date shall be deemed to be the date of consummation of such liquidation.

(c) Whenever the Assumed Share Number and Strike Price shall be adjusted as provided in Section 6 hereof, the Corporation shall forthwith file at each office designated for the conversion of Series A-1 Preferred Stock, a statement, signed by the Chairman of the Board, the President, any Vice President or Treasurer of the Corporation, showing in reasonable detail the facts requiring such adjustment and the Assumed Share Number that will be effective after such adjustment. The Corporation shall also cause a notice setting forth any such adjustments to be sent by mail, first class, postage prepaid, to each record holder of Series A-1 Preferred Stock at his or its address appearing on the stock register.

6. ANTI-DILUTION PROVISIONS.

(a) The Strike Price shall be subject to adjustment from time to time in accordance with this Section 6 commencing on April 14, 2002 (whether shares of the Series A-1 Preferred Stock are outstanding or not). For purposes of this Section 6, the term "Number of Common Shares Deemed Outstanding" at any given time shall mean the number of Adjusted Outstanding Shares at such time (including (x) certain options, warrants and securities convertible into or exchangeable for shares of Common Stock and (y) without duplication, the number of shares of the Common Stock deemed to be outstanding under paragraphs 6(b)(1) to (9), inclusive, at such time, all in accordance with the provisions of this Section 6).

(b) Except as provided in Section 6(c), 6(d) or 6(f) hereof, if and whenever on or after the Initial Issuance Date, the Corporation shall issue or sell, or shall in accordance with paragraphs 6(b)(1) to (9), inclusive, be deemed to have issued or sold any shares of its Common Stock for a consideration per share less than the Strike Price in effect immediately prior to the time of such issue or sale, then forthwith upon such issue or sale (the "Triggering Transaction"), the Strike Price shall, subject to paragraphs (1) to (9) of this Section 6(b), be reduced to the Strike Price (calculated to the nearest tenth of a cent) determined by dividing:

(i) an amount equal to the sum of (x) the product derived by multiplying the Number of Common Shares Deemed Outstanding immediately prior to such Triggering Transaction by the Strike Price then in effect, plus (y) the consideration, if any, received by the Corporation upon consummation of such Triggering Transaction, by

(ii) an amount equal to the sum of (x) the Number of Common Shares Deemed Outstanding immediately prior to such Triggering Transaction plus (y) the number of shares of Common Stock issued (or deemed to be issued in accordance with paragraphs 6(b)(1) to (9)) in connection with the Triggering Transaction.

For purposes of determining the adjusted Strike Price under this Section 6(b), the following paragraphs (1) to (9), inclusive, shall be applicable:

(1) In case the Corporation at any time shall in any manner grant (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or

any stock or other securities convertible into or exchangeable for Common Stock (such rights or options being herein called "Options" and such convertible or exchangeable stock or securities being herein called "Convertible Securities"), whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable and the price per share for which the Common Stock is issuable upon exercise, conversion or exchange (determined by dividing (x) the total amount, if any, received or receivable by the Corporation as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Corporation upon the exercise of all such Options, plus, in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (y) the total maximum number of sha res of Common Stock issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities) shall be less than the Strike Price in effect immediately prior to the time of the granting of such Option, then the total maximum amount of Common Stock issuable upon the exercise of such Options or in the case of Options for Convertible Securities, upon the conversion or exchange of such Convertible Securities shall (as of the date of granting of such Options) be deemed to be outstanding and to have been issued and sold by the Corporation for such price per share. No adjustment of the Strike Price shall be made upon the actual issue of such shares of Common Stock or such Convertible Securities upon the exercise of such Options, except as otherwise provided in paragraph (3) below.

(2) In case the Corporation at any time shall in any manner issue (whether directly or by assumption in a merger or otherwise) or sell any Convertible Securities, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (x) the total amount received or receivable by the Corporation as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Corporation upon the conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Strike Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon conver sion or exchange of all such Convertible Securities shall (as of the date of the issue or sale of such Convertible Securities) be deemed to be outstanding and to have been issued and sold by the Corporation for such price per share. No adjustment of the Strike Price shall be made upon the actual issue of such Common Stock upon exercise of the rights to exchange or convert under such Convertible Securities, except as otherwise provided in paragraph (3) below.

(3) If the purchase price provided for in any Options referred to in paragraph (1), the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in paragraphs (1) or (2), or the rate at which any Convertible Securities referred to in paragraphs (1) or (2) are convertible into or exchangeable for Common Stock shall change at any time, the Strike Price in effect at the time of such change shall forthwith be readjusted to the Strike Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold.

(4) On the expiration of any Option, the issuance of which initially caused a reduction in the Conversion Price in accordance with the provisions of this Section 6(b), or the termination of any right to convert or exchange any Convertible Securities, the issuance of which initially caused a reduction in the Conversion Price in accordance with the provisions of this Section 6(b), the Strike Price then in effect hereunder shall forthwith be increased to the Strike Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Securities, to the extent outstanding immediately prior to such expiration or termination, never been issued.

(5) In case any Options shall be issued in connection with the issue or sale of other securities of the Corporation, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.

(6) In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Corporation therefor. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Corporation shall be the fair value of such consideration as determined in good faith by the Board of Directors. In case any shares of Common Stock, Options or Convertible Securities shall be issued in connection with any merger or acquisition in which the Corporation is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving corporation as shall be attributable to such Common Stock, Opt ions or Convertible Securities, as the case may be.

(7) The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the disposition of any shares so owned or held shall be considered an issue or sale of Common Stock for the purpose of this Section 6(b).

(8) In case the Corporation shall declare a dividend or make any other distribution upon the stock of the Corporation payable in Options or Convertible Securities, then in such case any Options or Convertible Securities, as the case may be, issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration.

(9) For purposes of this Section 6(b), in case the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them (x) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities, or (y) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right or subscription or purchase, as the case may be.

(c) In the event the Corporation shall declare a dividend upon the Common Stock (other than a dividend payable in Common Stock) payable otherwise than out of earnings or earned surplus, determined in accordance with generally accepted accounting principles, including the making of appropriate deductions for minority interests, if any, in subsidiaries (herein referred to as "Liquidating Dividends"), then, Corporation shall pay the holders of the Series A-1 Preferred Stock an amount equal to the aggregate value at the time of such exercise of all Liquidating Dividends based upon the Assumed Share Number, at the then applicable Strike Price prior to any payment to holders of Common Stock. For the purposes of this Section 6(c), a dividend other than in cash shall be considered payable out of earnings or earned surplus only to the extent that such earnings or earned surplus are charged an amount equal to the fair value of such dividend as determined in good faith by the Board of Directors.

(d) In case the Corporation shall at any time (i) subdivide the outstanding Common Stock or (ii) issue a dividend on its outstanding Common Stock payable in shares of Common Stock, the Assumed Share Number in effect immediately prior to such dividend or combination shall be proportionately increased by the same ratio as the subdivision or dividend (with appropriate adjustments to the Strike Price in effect immediately prior to such subdivision or dividend). In case the Corporation shall at any time combine its outstanding Common Stock, the Assumed Share Number in effect immediately prior to such combination shall be proportionately decreased by the same ratio as the combination (with appropriate adjustments to the Strike Price in effect immediately prior to such combination).

(e) If any capital reorganization or reclassification of the capital stock of the Corporation, or consolidation or merger of the Corporation with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or other property with respect to or in exchange for Common Stock, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holders of the Series A-1 Preferred Stock shall have the right to acquire and receive, which right shall be prior to the rights of the holders of Junior Stock (but after and subject to the rights of holders of Senior Preferred Stock, if any), such shares of stock, securities, cash or other

property issuable or payable (as part of the reorganization, reclassification, consolidation, merger or sale) with respect to or in exchange for such number of outstanding shares of Common Stock as would have been received based upon the Assumed Share Number at the Strike Price then in effect. The Corporation will not effect any such consolidation, merger or sale, unless prior to the consummation thereof the successor corporation (if other than the Corporation) resulting from such consolidation or merger or the corporation purchasing such assets shall assume by written instrument mailed or delivered to the holders of the Series A-1 Preferred Stock at the last address of each such holder appearing on the books of the Corporation, the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to purchase.

(f) The provisions of this Section 6 shall not apply to any Common Stock issued, issuable or deemed outstanding under paragraphs 6(b)(1) to (9) inclusive: (i) pursuant to options, warrants and conversion rights that are not deemed to be Adjusted Outstanding Shares, (ii) on conversion of the Series A-1 Preferred Stock or the sale of any additional shares of Series A-1 Preferred Stock, or (iii) any issuance of stock for which the holders of a majority of the outstanding shares of Series A-1 Preferred Stock have waived in writing the rights contained in this Section 6.

(g) If at any time or from time to time on or after the Initial Issuance Date, the Corporation shall grant, issue or sell any Options, Convertible Securities or rights to purchase property (the "Purchase Rights") pro rata to the record holders of any class of Common Stock and such grants, issuances or sales do not result in an adjustment of the Strike Price under Section 6(b) hereof, then each holder of Series A-1 Preferred Stock shall be entitled to acquire (within thirty (30) days after the later to occur of the initial exercise date of such Purchase Rights or receipt by such holder of the notice concerning Purchase Rights to which such holder shall be entitled under Section 6(g)) and upon the terms applicable to such Purchase Rights either:

(i) the aggregate Purchase Rights which such holder could have acquired if it had held the Assumed Share Number of shares of Common Stock immediately before the grant, issuance or sale of such Purchase Rights; provided that if any Purchase Rights were distributed to holders of Common Stock without the payment of additional consideration by such holders, corresponding Purchase Rights shall be distributed to the exercising holders of the Series A-1 Preferred Stock as soon as possible after such exercise and it shall not be necessary for the exercising holder of the Series A-1 Preferred Stock specifically to request delivery of such rights; or

(ii) in the event that any such Purchase Rights shall have expired or shall expire prior to the end of said thirty (30) day period, the number of shares of Common Stock or the amount of property which such holder could have acquired upon such exercise at the time or times at which the Corporation granted, issued or sold such expired Purchase Rights.

If any event occurs as to which, in the opinion of the Board of Directors, the provisions of this Section 6 are not strictly applicable or if strictly applicable would not fairly protect the rights of the holders of the Series A-1 Preferred Stock in accordance with the essential intent and principles of such provisions, then the Board of Directors shall make an

adjustment in the application of such provisions, in accordance with such essential intent and principles, so as to protect such rights as aforesaid, but in no event shall any adjustment have the effect of increasing the Strike Price as otherwise determined pursuant to any of the provisions of this Section 6 except in the case of a combination of shares of a type contemplated in Section 6(d) hereof and then in no event to an amount larger than the Strike Price as adjusted pursuant to Section 6(d) hereof.

7. SERIES A DIRECTORS.

(a) During the period commencing upon September [19], 2002 and concluding thirty-six (36) months thereafter (the "36 Month Period"), the holders of a majority in interest of the Series A-1 Preferred Stock shall have the right, at any time and from time to time during such 36 Month Period, to designate three directors the "Series A Directors". The Series A Directors, acting as a committee, shall have the right, during the 36 Month Period, to approve (by the affirmative vote of the majority the Series A Directors) any of the transactions set forth in Section 7(b) below. Any meeting of the Series A Directors may be called by its Chairman, in the event that the Series A Directors elect to designate one of its members as its Chairman, or by a majority of the members of the Series A Directors. It is expressly understood and agreed that the designation of Series A Directors shall not in any fashion prohibit or limit the Board of Directors of the Company with respect to its duties, abilities or responsibilities under the GCL to consider, examine, review, analyze, discuss and/or vote on any matter that may legally come before the Board of Directors, including but not limited to those matters set forth in Section 7(b) below; provided that it is further expressly understood and agreed that in the event that the Series A Directors seek to exercise their right with respect to approving any transaction set forth in Section 7(b) below, then in order for the Company to approve, effect or implement any action set forth in Section 7(b) below, in addition to any approval of the Board of Directors or stockholders of the Company that may be required by the Certificate of Incorporation, Bylaws or applicable law, the affirmative approval of the Series A Directors shall be required as provided in this Section 7. The Series A Directors shall be full voting members of the Board of Directors.

(b) During the 36 Month Period, the Series A Directors shall have a right of approval with respect to any of the following transactions:

(i) the authorization or effecting of (a) any sale, lease, transfer or other disposition of all or substantially all the assets of the Corporation; (b) any merger or consolidation or other reorganization of the Corporation with or into another corporation, (c) the acquisition by the Corporation of another entity by means of a purchase of all or substantially all of the capital stock or assets of such entity, or (d) a liquidation, winding up, dissolution or adoption of any plan for the same.

It is expressly understood and agreed that upon the expiration of the 36 Month Period, all of the terms and provisions of this Section 7 shall automatically terminate and shall be of no further force and effect.

8. LEGENDS. All shares of Series A-1 Preferred Stock and Common Stock issuance upon conversion of the Series A-1 Preferred Stock shall bear one or all of the following legends:

(a) The Securities represented hereby have not been registered under the Securities Act of 1933, as amended (the "Act"), or under the Securities Laws of certain states. These securities are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Act and applicable state securities laws, pursuant to registration or exemption therefrom. Investors should be aware that they may be required to bear the financial risks of this investment for an indefinite period of time. The issuer of these securities may require an opinion of counsel in form and substance reasonably satisfactory to the issuer to the effect that any proposed transfer or resale is in compliance with the act and any applicable state securities laws."

(b) Any legend required by the Blue Sky laws of any state to the extent such laws are applicable to the securities represented by the certificate so legended.

IN WITNESS WHEREOF, Grubb & Ellis Company has caused this Certificate of Designations, Number, Voting Powers, Preferences and Rights of Series A-1 Convertible Preferred Stock to be duly executed by its Chief Financial Officer this 4th day of January, 2005.

GRUBB & ELLIS COMPANY


By:	/s/ Brian Parker
	Name:	Brian Parker
	Title:	Chief Financial Officer

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Exhibit 1	Preferred Stock Exchange Agreement dated as of December 30, 2004 by and between Grubb & Ellis Company and Kojaian Ventures, L.L.C.

Exhibit 2	Certificate of Designations, Numbers, Voting Powers, Preferences and Rights of Series A-1 Preferred Stock of Grubb & Ellis Company