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Title: |
Preferred Stock Exchange Agreement |
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Date: |
2005 |
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Size: |
Preview shows 7KB of 31KB total |
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Price: |
$39 |
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ID: |
#845329 |
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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.
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