Exhibit 10.1
VOTING AGREEMENT
Voting Agreement (this “
Agreement ”), dated as of May ___, 2007, by and among
GRUBB & ELLIS COMPANY, a Delaware corporation (“
Parent ”), and the stockholder listed on the signature
pages hereto (the “Stockholder”) .
WHEREAS, simultaneously with the
execution and delivery of this Agreement, Parent, B/C Holdings,
Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent ( “Merger Sub” ), and NNN Realty
Advisors, Inc., a Delaware corporation (the “ Company
”), are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the “ Merger Agreement
”), providing, among other things, for the merger of Merger
Sub with and into the Company with the Company continuing as the
surviving corporation and wholly-owned subsidiary of Parent (the
“Merger” ); and
WHEREAS, as of the date hereof, the
Stockholder is the Beneficial Owner (as defined below) of, and has
the sole right to vote, or direct the voting of, and dispose of
that number of shares of common stock, par value $0.01 per share
(the “ Company Shares ”), of the Company set
forth beside the Stockholder’s name on Schedule A
hereto; and
WHEREAS, concurrently with the
execution of the Merger Agreement, and as a condition to Merger Sub
and Parent entering into the Merger Agreement and incurring the
obligations set forth therein, Parent has required that the
Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not
defined in this Agreement are used in this Agreement with the
meanings given to such terms in the Merger Agreement. In addition,
for purposes of this Agreement:
“ Affiliate ”
means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
Person specified. For purposes of this Agreement, with respect to
the Stockholder, “ Affiliate ” shall not include
the Company and the Persons that directly, or indirectly through
one or more intermediaries, are controlled by the Company. For the
avoidance of doubt, no officer or director of the Company shall be
deemed an Affiliate of another officer or director of the Company
by virtue of his or her status as a director or officer of the
Company.
“ Alternative
Transaction ” means (i) any transaction of the type
described in clauses (i) through (iii) of the definition
of Competing Proposal contained in the Merger Agreement other than
the transactions contemplated by the Merger Agreement and
(ii) any other action, agreement or transaction that might
hinder, delay, impede or frustrate the consummation of the
transactions
contemplated by the Merger Agreement.
“Beneficially Owned
” or “ Beneficial Ownership ” with respect
to any securities means having beneficial ownership of such
securities (as determined pursuant to Rule 13d-3 under the
Exchange Act, disregarding the phrase “within
60 days” in paragraph (d)(l)(i) thereof), including
pursuant to any agreement, arrangement or understanding; whether or
not in writing. Without duplicative counting of the same
securities, securities Beneficially Owned by a Person shall include
securities Beneficially Owned by (i) all Affiliates of such
Person, and (ii) all other Persons with whom such Person would
constitute a “Group” within the meaning of Section
13(d) of the Exchange Act and the rules promulgated
thereunder.
“ Beneficial Owner
” with respect to any securities means a Person that has
Beneficial Ownership of such securities.
“ Equity Interest
” means with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of, such
Person’s capital stock or other equity interests (including,
without limitation, partnership or membership interests in a
partnership or limited liability company or any other interest or
participation that confers on a Person the right to receive a share
of the profits and losses, or distributions of assets, of the
issuing Person) whether outstanding on the date hereof or issued
after the date hereof.
“ Person ” means
an individual, corporation, limited liability company, partnership,
association, trust or any other entity or organization, including
any Governmental Entity (as defined in the Merger Agreement).
“ Subject Shares ”
means, with respect to the Stockholder, without duplication, (i)
Company Shares owned by the Stockholder on the date hereof as
described on Schedule A hereto, (ii) any additional Company
Shares acquired by the Stockholder or over which it acquires
Beneficial Ownership, whether pursuant to existing stock option
agreements or otherwise, (iii) any Equity Interests of any
Person that the Stockholder is or becomes entitled to receive by
reason of being a holder of any of the Subject Shares, and
(iv) any Equity Interests or other property into which any of
such Subject Shares shall have been or shall be converted or
changed, whether by amendment to the certificate of incorporation
of the Company, merger, consolidation, reorganization,
reclassification, capital change or otherwise.
“ Transfer ”
means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make
such a sale, transfer or other disposition, and each option,
agreement, arrangement or understanding, whether or not in writing,
to effect any of the foregoing. As a verb, “ Transfer
” shall have a correlative meaning.
ARTICLE II
COVENANTS OF THE STOCKHOLDER
Section 2.1 Agreement to
Vote . The Stockholder agrees as follows:
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(a) |
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At any meeting of the stockholders of the Company held prior to
the Expiration Date (as defined in Section 5.13), however
called, and at every adjournment or postponement thereof prior to
the Expiration Date, or in connection with any written consent of,
or any other action by, the stockholders of the Company given or
solicited prior to the Expiration Date, Stockholder shall vote or
cause to be voted, or provide or cause to be provided, a consent
with respect to, all of the Subject Shares entitled to vote or to
consent thereon (a) in favor of approval of adoption of the
Merger Agreement and the transactions contemplated thereby, and any
actions required in furtherance thereof and (b) against any
Alternative Transaction. |
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(b) |
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Stockholder shall not enter into any agreement or understanding
with any Person prior to the Expiration Date directly or indirectly
to vote, grant any proxy or give instructions with respect to the
voting of, the Subject Shares, in a manner inconsistent
herewith. |
Section 2.2 Revocation of
Proxies: Cooperation . The Stockholder agrees as follows:
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(a) |
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Stockholder agrees to the duties of the Stockholder under this
Agreement. |
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(b) |
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Stockholder hereby represents and warrants that any proxies
heretofore given in respect of the Subject Shares are not
irrevocable and Stockholder hereby revokes any and all prior
proxies with respect to such Subject Shares. Prior to the
Expiration Date, Stockholder shall not directly or indirectly grant
any proxies (other than a proxy or proxies to vote in accordance
with this Agreement) or powers of attorney with respect to the
matters set forth in Section 2.1, deposit any of the Subject
Shares or enter into a voting agreement (other than this Agreement)
with respect to any of the Subject Shares. |
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(c) |
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At the Company’s expense, Stockholder will (a) use
all reasonable efforts to cooperate with the Company and Merger Sub
in connection with the transactions contemplated by the Merger
Agreement, and (b) provide any information reasonably
requested by the Company and Merger Sub for any regulatory
application or filing made or approval sought for such
transactions. |
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(d) |
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Stockholder will take all action necessary to (i) permit
the Subject Shares to be acquired in the Merger, (ii) vote
such shares in accordance with the terms of this Agreement, and
(iii) prevent creditors in respect of any pledge of such
shares from exercising their rights under such pledge. |
Section 2.3 No
Solicitation . Stockholder agrees that:
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(a) |
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Stockholder shall not, and shall cause its Affiliates and its
and their directors, officers, employees, agents and attorneys
(“Representatives”) not to, directly or indirectly,
(i) solicit, initiate, encourage or take any other action to
facilitate the submission of any Competing Proposal or other
proposal related to an Alternative Transaction,
(ii) participate or engage in discussions or negotiations
with, or disclose or provide any non-public information
relating |
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to the Company or its Subsidiaries to, any Person with respect
to, or take any other action knowingly to facilitate, any inquiries
or the making of any proposal that constitutes, that would
reasonably be expected to lead to any Competing Proposal or any
Alternative Transaction, (iii) approve, endorse or recommend
any Competing Proposal or Alternative Transaction or
(iv) enter into any agreement or agreement in principle,
letter of intent or similar document contemplating or otherwise
relating to any Competing Proposal; provided, however, that nothing
set forth in this Agreement shall prohibit such Shareholder or
Representative who is a Representative of the Company from taking
all actions in connection with such Competing Proposal that the
Company and its Representatives are permitted to take under
Section 6.3 and 8.1 of the Merger Agreement. |
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(b) |
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Stockholder shall not enter into any agreement with any Person
that provides for, or could reasonably be expected to materially
facilitate or is designed to facilitate, a Competing Proposal. |
Section 2.4 Stockholder Capacity Only . Notwithstanding
anything to the contrary contained in this Agreement: (i) the
provisions of this Agreement apply solely to the Stockholder when
acting in his or its capacity as a Stockholder of the Company and
not when acting or purporting to act as a representative or an
officer or director of the Company (it being understood that the
Company has separate and independent obligations to Parent and
Merger Sub under Section 6.3 of the Merger Agreement);
(ii) none of the provisions of this Agreement shall be
construed to prohibit, limit or restrict the Stockholder or any of
its Representatives (A) who is a member of the Board of
Directors of the Company from exercising his fiduciary duties to
the Company by voting or taking any other action whatsoever in his
capacity as a director or (B) who is an officer or employee of
the Company from taking any action whatsoever in such capacity; and
(iii) no action taken by the Company in respect of any
Competing Proposal shall serve as the basis of a claim that the
Stockholder is in breach of its obligations hereunder
notwithstanding the fact that the Stockholder or its
Representatives have provided advice or assistance to the Company
in connection therewith.
Section 2.5 No Transfer of Subject Shares: Publicity .
Stockholder agrees that:
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(a) |
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During the term of this Agreement, Stockholder shall not
(i) subject any of the Subject Shares to, or suffer to exist
on any of the Subject Shares, any Encumbrance (as defined in the
Merger Agreement) or (ii) Transfer or agree to Transfer any of
the Subject Shares (other than by operation of the Merger) or grant
any proxy or power-of-attorney with respect to any of the Subject
Sh |
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