CHANGE OF CONTROL
AGREEMENT
THIS CHANGE OF
CONTROL AGREEMENT (this “ Agreement ”) is
made and entered into effective as of December 23, 2008 (the
“ Effective Date ”), by and between Dylan
Taylor, an individual having an address at 47 Amarath Drive,
Littleton, CO 80127 (“ Executive ”) and Grubb
& Ellis Company, a Delaware corporation having an address at
1551 North Tustin Avenue, Suite 300, Santa Ana, California
92705 (the “Company”).
WHEREAS ,
Executive is a key executive of the Company or a Subsidiary and an
integral part of its management and the Company recognizes that the
possibility of a Change of Control (as defined below) of the
Company may result in the departure or distraction of management to
the detriment of the Company and its shareholders and wishes to
modify and restate the agreement previously applicable under such
circumstance; and
WHEREAS ,
the Board believes that it is in the best interests of the Company
and its stockholders to provide Executive with an incentive to
continue his employment and to motivate Executive to maximize the
value of the Company upon a Change of Control for the benefit of
its stockholders.
NOW,
THEREFORE , in consideration of the mutual covenants herein
contained, and in consideration of the continuing employment of
Employee by the Company and other good and valuable consideration,
the parties agree as follows:
(a)
“ Affiliate ” shall have the meaning given to
such term in Rule 405 under the Securities Act of 1933, as
amended.
(b) A
termination of Executive shall be for “ Cause ”
in the event (i) of Executive’s willful and repeated
refusal, to materially perform his duties with reasonable
diligence, or to follow a lawful directive of the Company,
(ii) Executive’s commission of an act involving fraud,
embezzlement, or theft against the property or personnel of the
Company, (iii) Executive’s engagement in gross reckless
conduct that will have a material adverse affect on the reputation,
business, assets, properties, results of operations or financial
condition of the Company, (iv) Executive shall be convicted of a
felony or shall plead nolo contendere in respect thereof, or
(v) Executive engages in any other criminal conduct or act of moral
turpitude that is materially injurious to the business or
reputation of the Company. As used in this definition, the Company
includes the Company’s subsidiaries and
affiliates.
(c)
“ Change of Control ” shall mean and shall occur
upon: (i) the acquisition by any person, entity or group
(other than a Current Investor, an Affiliate of a Current Investor,
the Company or an Affiliate of the Company) in one or more
transactions, of beneficial ownership (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of 50% or more of the Voting Stock of the Company;
(ii) the completion by any person, entity or group (other than
a Current Investor, an Affiliate of a Current Investor, the Company
or an
Affiliate of
the Company) of a tender offer or an exchange offer for more than
50% of the outstanding Voting Stock of the Company; (iii) the
effective time of (1) a merger or consolidation of the Company
with one or more corporations (other than a corporation or
corporations in which at least 50% the Voting Stock is beneficially
owned by a Current Investor or an Affiliate of a Current Investor)
as a result of which the holders of the outstanding Voting Stock of
the Company immediately prior to such merger or consolidation
directly or indirectly hold less than 50% of the Voting Stock of
the surviving or resulting corporation or (2) a transfer of
all or substantially all of the property or assets of the Company
(other than to an entity in which a Current Investor, an Affiliate
of a Current Investor, the Company or an Affiliate of the Company
owns at least 50% of the Voting Stock); (iv) individuals who
constitute the Board as of the Effective Date (the " Incumbent
Board ”) ceasing for any reason to constitute at least a
majority of the Board (provided, however, that any individual
becoming a director subsequent to such date whose appointment or
election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board
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