Exhibit 10.2





Exhibit 10.2









CONSULTING AND SEPARATION AGREEMENT AND

GENERAL RELEASE OF ALL CLAIMS




This Separation Agreement and General Release of all Claims (“Agreement”) is made by and
between Richard Pehlke (“Employee”) and Grubb & Ellis Company (“Grubb & Ellis”) (collectively, the
“Parties”).



1.    Separation From Employment. Grubb & Ellis Acknowledges employees’ resignation as
the Chief Financial Officer and from all officer positions within Grubb & Ellis and its
subsidiaries effective at the close of business on May 3, 2010 (the “Resignation Date”). Employee
agrees to relinquish all Officer titles and responsibilities but, continue on in a consulting
capacity until such time that Employee notifies Grubb & Ellis that he has obtained other employment
or December 31, 2010, whichever is sooner (the “Termination Date”) at which time Employee’s
employment will be terminated from all employment with Grubb & Ellis. During the consultancy
period Employee shall provide strategic and financial advice to the senior executives of the
Company at the direction of the CEO. Such consultancy services shall include but not limited to
business development opportunities, financial review and advice or other duties as directed by the
CEO. Employee will be available during normal business hours on a reasonable basis during the
consultancy period. If Employee is required to travel for Company related activities Employee will
continue to be reimbursed for all business travel expenses in accordance with the Company’s
standard practices. On the Resignation Date, all previous compensation for Employee will cease and
payments as outlined in Paragraph 4 will begin.



2.    Resolution of Disputes. The Parties have entered into this Agreement as a way of
severing the employment relationship between them and amicably settling any potential disputes (the
“Disputes”) concerning Employee’s employment with Grubb & Ellis or termination from Grubb & Ellis.
The Parties desire to resolve the above referenced Disputes and all issues raised by the Disputes,
without the further expenditure of time or the expense of contested litigation. Additionally, the
Parties desire to resolve any known or unknown claims as more fully set forth below. For these
reasons, they have entered into this Agreement.



3.    Termination of Employment Benefits. Employee represents, understands and agrees
that Employee’s active employment with Grubb & Ellis ended on the Termination Date as specified
above, that Employee will not otherwise demand further employment with Grubb & Ellis, and that
Employee will no longer be covered by or eligible for any benefits under any Grubb & Ellis employee
benefit plan in which employee currently participates, except as otherwise noted herein.
Employee’s health benefits coverage will continue through the December 31, 2010 and will terminate
January 1, 2011. If Employee terminates prior to December 31, 2010, Employee benefits will
terminate at the end of the month in which termination occurs. Employee will receive by separate
cover information regarding Employee’s rights to health insurance continuation under COBRA and any
Grubb & Ellis 401(k) Plan benefits. As of the Termination Date, Employee shall not be entitled to
any of the rights and privileges established for Grubb & Ellis’s employees except as otherwise
provided in this Agreement.


 


 









 





4.    Payment. In return for Employee’s execution of and compliance with this Agreement,
including the releases that form a material part of this Agreement, Grubb & Ellis shall provide
Employee with certain separation benefits (see below) to which Employee would not otherwise be
entitled:




	 	a.	 	Grubb & Ellis shall pay Employee;







	 	i.	 	$200,000 ( Two Hundred Thousand
Dollars) on July 1, 2010, subject to deductions for state and
federal withholding tax, social security and other employee taxes
and payroll deductions. This payment represents the second
installment of Employee’s 2009 Special Bonus Payment.

	 
	 	ii.	 	$400,000 (Four Hundred Thousand
Dollars) subject to deductions for state and federal withholding
tax, social security and other employee taxes and payroll
deductions. This payment shall be made in equal semi-monthly
installments beginning with the next pay period after the
Effective Date of this Agreement (as defined in paragraph 13) and
ceasing as of December 31, 2010. If Employee discontinues his
work as a consultant for any reason prior to December 31, 2010,
the semi-monthly payments will terminate effective on the
Termination Date.

	 
	 	iii.	 	$37,981 (Thirty —Seven Thousand Nine
Hundred Eighty-One Dollars) subject to deductions for state and
federal withholding tax, social security and other employee taxes
and payroll deductions. This payment represents Employees accrued
but unused PTO balance and will be paid at time of termination in
accordance with the final wage laws in the State of IL.






After Grubb & Ellis has completed processing its payroll for this calendar year, Grubb & Ellis will
issue to Employee an IRS Form W-2 which will include the payment.



b.    Grubb & Ellis makes no representations regarding the taxability or legal effect of the
payment described in this paragraph, and Employee is not relying on any statement or representation
of Grubb & Ellis in this regard. Employee will be solely responsible for the payment of any taxes
and penalties assessed on the payment and will defend, indemnify and hold Grubb & Ellis free and
harmless from and against any claims relating to the taxability, if any, of the payment.



5.    Releases. In consideration of and in return for the promises and covenants
undertaken in this Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged, except as noted below, Employee does hereby acknowledge full and complete
satisfaction of and does hereby release, absolve and discharge Grubb & Ellis and each of Grubb &
Ellis’s predecessors, parents, subsidiaries, affiliates, associates, owners, divisions, related
companies and business concerns, past and present, and each of them, as well as each of their
partners, trustees, directors, officers, shareholders, agents, attorneys, servants and


 


Page 2 of 8









 






employees, past and present, and each of them (collectively referred to as “Releasees”) from
any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of
action, grievances, wages, vacation or PTO payments, severance payments, obligations, commissions,
overtime payments, debts, profit sharing claims, expenses, damages, judgments, orders and
liabilities of whatever kind or nature in state or federal law, equity or otherwise, whether known
or unknown to Employee (collectively, the “Claims”), which Employee now owns or holds or has at any
time owned or held as against Releasees, or any of them, including specifically but not exclusively
and without limiting the generality of the foregoing, any and all Claims known or unknown,
suspected or unsuspected: (1) arising out of Employee’s employment with Grubb & Ellis or
termination of that employment; or (2) arising out of or in any way connected with any claim, loss,
damage or injury whatsoever, known or unknown, suspected or unsuspected, resulting from any act or
omission by or on the part of Releasees, or any of them, committed or omitted on or before the date
this Agreement is executed by Employee. Also, without limiting the generality of the foregoing,
Employee specifically releases Releasees from any claim for attorneys’ fees. EMPLOYEE ALSO
SPECIFICALLY AGREES AND ACKNOWLEDGES EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY BASED ON STATE OR
FEDERAL AGE, SEX, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION, VETERAN
STATUS, DISABILITY, SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS,
INCLUDING, WITHOUT LIMITATION, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT, THE EQUAL PAY ACT, THE AMERICANS WITH DISABILITIES ACT, THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT, THE WORKER ADJUSTMENT RETRAINING AND NOTIFICATION ACT, THE FAIR LABOR
STANDARDS ACT, THE ILLINOIS HUMAN RIGHTS ACT, 775 ILCS 5/ et. seq.; THE CONSTITUTION OF THE STATE
OF ILLINOIS, THE ILLINOIS WAGE PAYMENT AND COLLECTION ACT, 820 ILCS 115/ et. seq.; THE ILLINOIS
MINIMUM WAGE LAW, 820 ILCS 105/4 et. seq.; THE STATUTORY PROVISION PROHIBITING DISCRIMINATION
AND/OR RETALIATION UNDER SECTION 4(H) OF THE ILLINOIS WORKERS’ COMPENSATION ACT, 820 ILCS 305/et.
seq.; AND SIMILAR DOCTRINES WHICH ARE JUDICIALLY-RECOGNIZED EXCEPTIONS TO THE EMPLOYMENT-AT-WILL
DOCTRINE IN ILLINOIS, AND ALL OTHER STATE LAWS, ALL AS AMENDED, WHETHER SUCH CLAIM BE BASED UPON AN
ACTION FILED BY EMPLOYEE OR BY A GOVERNMENTAL AGENCY. Employee acknowledges and agrees that
Employee has been properly paid for all hours worked, that Employee has not suffered any on-the job
injury for which Employee has not already filed a claim, that Employee has been properly provided
any leave of absence because of Employee’s, or a family member’s, serious health condition, and
that Employee has not been subjected to any improper treatment, conduct or actions due to or
related to Employee’s request, if any, or Employee’s taking of, any leave of absence because of
Employee’s own, or a family member’s serious health condition.



This Release does not apply to any claim that, as a matter of law cannot be released, including but
not limited to claims for unemployment insurance benefits and/or workers’ compensation claims.
This Release also does not preclude Employee from filing suit to challenge Grubb & Ellis’s
compliance with the waiver requirements of the Age Discrimination in Employment Act, as amended by
the Older Workers Benefit Protection Act. This Agreement does not include rights or claims that
may arise after the date Employee executes this Agreement.


 


Page 3 of 8









 





Except as described below, Employee agrees and covenants not to file any suit, charge, or complaint
against Releasees in any court or administrative agency, with regard to any claim, demand,
liability or obligation arising out of Employee’s employment with Grubb & Ellis, or separation
there from. Employee further represents that no claims, complaints, charges, or other proceedings
are pending in any court, administrative agency, commission or other forum relating directly or
indirectly to your employment with, or separation from, Grubb & Ellis. Nothing in this Agreement
shall be construed to prohibit Employee from filing a charge with the Equal Employment Opportunity
Commission (“Commission”) and/or National Labor Relations Board (“NLRB”) or other federal, state,
or local agency or participating in any investigation or proceeding conducted by such
administrative agencies. However, Employee is waiving any claim Employee may have to receive
monetary damages in connection with any Commission and/or NLRB or other agency proceeding
concerning matters covered by this Agreement.



6.    Non-Disparagement. Employee agrees that Employee will not in any way disparage the
name or reputation of Grubb & Ellis, including: (1) Employee agrees not to make any derogatory or
negative remarks about Grubb & Ellis; (2) Employee agrees not to make any negative or derogatory
remarks about the Releasees; and (3) Employee agrees not to make any remarks about any disputes
Employee has had with Grubb & Ellis or Releasees.



7.    Non-Solicitation/Non-Raid. Employee herby expressly acknowledges, agrees and
reaffirms that the provision set forth in Section 7(a) and 7(b) set forth in Employee’s
Employment Agreement Dated February 9, 2007 are and still remain in full force and effect in
accordance with their respective terms.



8.    Return of Grubb & Ellis Information/Documentation. Employee agrees that on the
Termination Date employee shall return all Grubb & Ellis information, including but not limited to
any confidential information, and all copies of such information to Grubb & Ellis, and Employee
shall destroy all extracts, memoranda, notes, spreadsheets and any other material prepared by
Employee or Grubb & Ellis based upon Grubb & Ellis confidential information. Grubb & Ellis
information includes, but is not limited to, all information, equipment, books, files, reports,
records, employee lists, correspondence, materials, and other documents including all
reproductions, that may be considered to be property of Grubb & Ellis or that contain proprietary
information, whether in paper, magnetic, electronic, or other form, that Employee has relating to
the Company’s practices, procedures, trade secrets, financial and accounting information, client
lists, client information, client billing and payment information, or marketing of Grubb & Ellis’
services.



9.    Confidentiality.



Employee agrees: (1) the terms and conditions of this Agreement; and (2) any and all actions
taken by Releasees in accordance with this Agreement, are confidential, and shall not be disclosed,
discussed or revealed by any of them to any other person or entity except Employee’s immediate
family, attorney and/or accountant. Nothing in this paragraph is intended to restrict either Party
or his/her/its agents from disclosing any provision of this Agreement to any taxing authority or to
any tax advisor to such Party. Should Employee at any time be served with a subpoena under which
Employee would arguably be required to disclose any of the confidential information covered by this
Agreement, then Employee shall immediately contact
Grubb & Ellis’s Senior Vice President, Human Resources, so that Grubb & Ellis shall have adequate
time to take those steps necessary to prevent disclosure.


 


Page 4 of 8









 





Employee understands that Grubb & Ellis would not have entered in to this Agreement without
the agreement of Employee to treat the terms of this Agreement confidentially. Employee agrees to,
in the event of a breach of this provision, it would be impractical or extremely difficult to fix
actual damages, and therefore agrees that in the event of a breach, Employee shall pay to Grubb &
Ellis, as liquidated damages and not as a penalty, the sum of $20,000.00 (Twenty Thousand Dollars
and No Cents) per breach, which represents reasonable compensation for the loss incurred because of
such breach. In an action to enforce this liquidated damages provision, the prevailing party shall
be entitled to recover Grubb & Ellis’s/Employee’s attorneys’ fees and costs.



10.  Trade Secrets and Confidential Information. Employee acknowledges that during
Employee’s employment, Employee may have had access to trade secrets and confidential information
about Grubb & Ellis, its products and services, its customers, and its methods of doing business,
including but not limited to files, customer lists, pricing lists, technical data, financial data
and business processes. Employee agrees that Employee shall not disclose any information relating
to the trade secrets or confidential information of Grubb & Ellis or its customers which has not
already been disclosed to the general public. Employee understands and acknowledges that
Employee’s obligations under prior agreements with Grubb & Ellis, if any, including but not limited
to, any Confidentiality, Intellectual Property, Trade Secrets, Non-Solicitation, Stock Options, and
Employee Stock Purchase Plan, will remain in full force following Employee’s termination of
employment and that Employee will continue to abide by any such prior agreements.



11.  Twenty-One Days To Consider Agreement. Grubb & Ellis advises Employee to discuss
this Agreement with an attorney before executing it. Employee’s decision whether to sign this
Agreement is made with full knowledge that Grubb & Ellis has advised Employee to consult with an
attorney. Employee acknowledges Employee has been provided with at least 21 days within which to
review and consider this Agreement before signing it. Should Employee decide not to use the full
21 days, then Employee knowingly and voluntarily waives any claim that Employee was not in fact
given that period of time or did not use the entire 21 days to consult an attorney and/or consider
this Agreement. Employee acknowledges that Grubb & Ellis has not asked Employee to shorten the
21-day time period for consideration of whether to sign this Agreement. The Parties agree that any
changes, whether material or immaterial, to this Agreement, do not restart the running of the
21-day period.



12.  Right of Revocation. Within three calendar days of signing and dating this
Agreement, Employee shall deliver the executed original of the Agreement to Amanda Piwonka, SVP,
Human Resources at 1551 N. Tustin Suite 200, Santa Ana, CA 92705. However, the Parties acknowledge
and agree that Employee may revoke this Agreement for up to seven (7) calendar days following
Employee’s execution of this Agreement and that it shall not become effective or enforceable until
the revocation period has expired. The Parties further acknowledge and agree that such revocation
must be in writing addressed to and received by Amanda Piwonka, SVP, Human Resources at 1551 N.
Tustin Suite 200, Santa Ana, CA 92705 not later than noon on the eighth (8th) day
following execution of this Agreement by Employee. If
Employee revokes this Agreement under this Paragraph, this Agreement shall not be effective or
enforceable and Employee will not receive the monies and benefits described above, including those
described in Paragraph 4 above.


 


Page 5 of 8









 





13.  Effective Date. If Employee does not revoke this Agreement in the time frame
specified in the preceding paragraph, the Agreement shall be effective at 12:00:01 p.m. on the
eighth (8th) day after it is signed by Employee (the “Effective Date”).



14.  Choice of Law. This Agreement shall be construed in accordance with, and be deemed
governed by, the laws of the State of Illinois without regard to its conflict of laws provisions.



15.  Non-Admission. Even though Grubb & Ellis will provide consideration for Employee
to release Claims, Grubb & Ellis does not admit that it engaged in any unlawful or improper conduct
toward Employee. Employee agrees that this Agreement shall not be construed as an admission by
Grubb & Ellis that it has violated any statute, law or regulation, breached any contract or
agreement, or engaged in any improper conduct. Employee is not aware, to the best of Employee’s
knowledge, of any conduct on Employee’s part or on the part of another Grubb & Ellis employee who
violated the law or otherwise exposed Grubb & Ellis to any liability, whether criminal or civil,
whether to any government, individual or other entity. Further, Employee acknowledges that
Employee is not aware of any material violations by Grubb & Ellis and/or its employees, officers,
directors and agents of any statute, regulation or other rules that have not been addressed by
Grubb & Ellis through appropriate compliance and/or corrective action.



16.  General Terms And Conditions.



a.    If any provision of this Agreement or any application of any provision of this Agreement is
held invalid, the invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provision or application. To this end, the provisions
of this Agreement are severable.



b.    Employee represents and warrants that Employee has not heretofore assigned or transferred
or purported to assign or transfer to any person, firm or corporation any claim, demand, right,
damage, liability, debt, account, action, cause of action, or any other matter herein released.
Employee agrees to indemnify and hold Grubb & Ellis harmless against any claim, demand, right,
damage, debt, liability, account, action, cause of action, cost or expense, including attorneys’
fees or costs, actually paid or incurred, arising out of or in any way connected with any such
transfer or assignment or any such purported or claimed transfer or assignment.



c.    This Agreement and all covenants and releases set forth herein shall be binding upon and
shall inure to the benefit of the respective Parties hereto, their legal successors, heirs,
assigns, partners, representatives, parent companies, subsidiary companies, agents, attorneys,
officers, employees, directors and shareholders.


 


Page 6 of 8









 





d.    The Parties acknowledge each has read this Agreement, that each fully understands
his/her/its rights, privileges and duties under the Agreement, and that each enters this Agreement
freely and voluntarily. The parties acknowledge that each has had the opportunity to consult with
an attorney of his/her/its choice to explain the terms of this Agreement and the consequences of
signing this Agreement.



e.    Employee acknowledges Employee may later discover facts different from, or in addition to,
those Employee now knows or believes to be true with respect to the Claims released in this
Agreement, and agrees the release shall be and remain in effect in all respects as a complete and
general release as to all matters released, notwithstanding any such different or additional facts.



f.    This Agreement and the provisions contained herein shall not be construed or interpreted
for or against any Party hereto because that Party drafted or caused that Party’s legal
representative to draft any of its provisions.



g.    The undersigned each acknowledge and represent that no promise or representation not
contained in this Agreement has been made to them and acknowledge and represent that this Agreement
contains the entire understanding between the Parties and contains all terms and conditions
pertaining to the compromise and settlement of the subjects referenced in this Agreement. Each
Party acknowledges that he/she/it has relied solely upon his/her/its own legal and tax advisors and
that the lawyers, accountants and advisors to the other Party have not given any legal or tax
advice to such Party in connection with this Agreement.



h.    Except as otherwise provided in Paragraph 6, in the event Employee breaches any term of
this Agreement or has misrepresented any fact stated herein, disparages the reputation of Grubb &
Ellis or its respective products, personnel, or business capabilities, or conducts him/herself in a
manner so as to interfere with any business relationship of Grubb & Ellis, all compensation shall
cease, and Grubb & Ellis and its successors shall have the right to recover all money paid or
provided hereunder.



i.    Employee also agrees to cooperate with Grubb & Ellis regarding any pending or subsequently
filed litigation, claims, or other disputes involving Grubb & Ellis that relate to matters within
the knowledge or responsibility of Employee during his/her employment with Grubb & Ellis. Without
limiting the foregoing, Employee agrees (i) to meet with Grubb & Ellis representatives, its
counsel, or other designees at mutually convenient times and places with respect to any items with
the scope of this provision; (ii) to provide truthful testimony regarding same to any court,
agency, or other adjudicatory body; and (iii) to provide Grubb & Ellis with notice of contact by
any adverse party or such adverse party’s representative, except as may be required by law. Grubb
& Ellis will reimburse Employee for all reasonable expenses in connection with the cooperation
described in this paragraph.



j.    Any modifications to this Agreement must be made in writing and signed by Employee and
Amanda Piwonka, SVP Human Resources or Andrea Biller, EVP, General Counsel of Grubb & Ellis Company.


 


Page 7 of 8









 





PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A

GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.




EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS BEEN ADVISED THAT THIS AGREEMENT IS
A BINDING AND LEGAL DOCUMENT. EMPLOYEE FURTHER AGREES THAT S/HE HAS HAD AT LEAST
TWENTY-ONE (21) DAYS TO REVIEW THE PROVISIONS OF THIS AGREEMENT AND HAS BEEN ADVISED
TO SEEK LEGAL ADVICE REGARDING ALL ITS ASPECTS, AND THAT IN EXECUTING THIS AGREEMENT
EMPLOYEE HAS ACTED VOLUNTARILY AND HAS NOT RELIED UPON ANY REPRESENTATION MADE BY
GRUBB & ELLIS OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES REGARDING THIS AGREEMENT’S
SUBJECT MATTER AND/OR EFFECT. EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS
AGREEMENT AND VOLUNTARILY AGREES TO ITS TERMS.



AGREED AND UNDERSTOOD:



	 	 	 	 	 
	 	 	 
	Date: 05/03/10 	/s/ Richard Pehlke
 	 
	 	Richard Pehlke 	 
	 	 	 
	 
	Date: 05/03/10 	GRUBB & ELLIS COMPANY

 	 
	 	By:  	/s/ Thomas D'Arcy
 	 
	 	 	Thomas D'Arcy 	 
	 	 	Chief Executive Officer 	 
	 




 


Page 8 of 8