Voting Agreement
(this “ Agreement ”), dated as of May ___, 2007,
by and among NNN REALTY ADVISORS, INC., a Delaware corporation (the
“ Company ”), and the stockholder listed on the
signature pages hereto (the “Stockholder”)
.
WHEREAS,
simultaneously with the execution and delivery of this Agreement,
the Company, Grubb & Ellis Company, a Delaware corporation
(“ Parent ”), and B/C Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (
“Merger Sub” ), 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 “ Parent Shares ”), of the
Parent 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 the Company entering into the Merger Agreement and
incurring the obligations set forth therein, the Company 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:
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 Parent and the Persons that directly, or
indirectly through one or more intermediaries, are controlled by
the Parent. For the avoidance of doubt, no officer or director of
the Parent shall be deemed an Affiliate of another officer or
director of the Parent by virtue of his or her status as a director
or officer of the Parent.
“
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) Parent Shares owned by the Stockholder on the date
hereof as described on Schedule A hereto, (ii) any additional
Parent 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 Parent, 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.
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 Parent held prior to the
Expiration Date (as defined in Section 5.13), however called,
and at every adjournment or
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postponement thereof prior to the
Expiration Date, or in connection with any written consent of, or
any other action by, the stockholders of the Parent 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 the Parent
Certificate of Incorporation Amendment and issuance of shares in
connection with the Merger 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.
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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 Parent’s expense, Stockholder will (a) use all
reasonable efforts to cooperate with the Parent in connection with
the transactions contemplated by the Merger Agreement,
(b) provide any information reasonably requested by the Parent
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) vote Subject Shares in accordance with the
terms of this Agreement, and (ii) prevent creditors in respect
of any pledge of such shares from exercising their rights under
such pledge.
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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 to the Parent 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
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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 Parent from taking all
actions in connection with such Competing Proposal that Parent 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.
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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 Parent and not when acting
or purporting to act as a representative or an officer or director
of the Parent (it being understood that the Parent has separate and
independent obligations to the Company 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 Parent from exercising his
fiduciary duties to the Parent by voting or taking any other action
whatsoever in his capacity as a director or (B) who is an
officer or employee of the Parent from taking any action whatsoever
in such capacity; and (iii) no action taken by the Parent 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 Parent 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 shares (except
for a proxy or proxies to vote in accordance with this
Agreement).
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(b)
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Unless required by applicable law,
neither the Stockholder nor any of its Affiliates or
Representatives shall make any press release or public
announceme
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