exv10w9



 






EXHIBIT 10.9




STOCK ESCROW AGREEMENT




          STOCK
ESCROW AGREEMENT, dated as of                     , 2006 (“Agreement”), by and among GRUBB &
ELLIS REALTY ADVISORS, INC., a Delaware corporation (“Company”), each of the stockholders of the
Company set forth on Exhibit A, annexed hereto (collectively “Initial Stockholders”) and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (“Escrow Agent”).




          WHEREAS, the Company has entered into an Underwriting Agreement, dated                                         ,
2006 (“Underwriting Agreement”), with Deutsche Bank Securities Inc. (“Deutsche Bank”) acting as
representative of the several underwriters (collectively, the “Underwriters”), pursuant to which,
among other matters, the Underwriters have agreed to purchase
19,166,667 units (“Units”) of the
Company. Each Unit consists of one share of the Company’s common stock, par value $.0001 per share
(“Common Stock”), and two warrants (“Warrants”), each Warrant to purchase one share of Common
Stock, all as more fully described in the Company’s final
Prospectus, dated                                         , 2006
comprising part of the Company’s Registration Statement on Form
S-11 (File No. 333-129190) under the
Securities Act of 1933, as amended (“Registration Statement”), declared effective on                                         ,
2006 (“Effective Date”).




          WHEREAS, the Initial Stockholders have agreed as a condition of the sale of the Units to
deposit their shares of Common Stock of the Company, as set forth opposite their respective names
on Exhibit A attached hereto (collectively “Escrow Shares”), in escrow as hereinafter
provided.




          WHEREAS, the Company and the Initial Stockholders desire that the Escrow Agent accept the
Escrow Shares, in escrow, to be held and disbursed as hereinafter provided.




          IT IS AGREED:




     1. Appointment of Escrow Agent. The Company and the Initial Stockholders hereby
appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and
the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.



     2. Deposit of Escrow Shares. On or before the Effective Date, each of the Initial
Stockholders shall deliver to the Escrow Agent certificates (with a medallion guaranteed stock
power) representing his respective Escrow Shares, to be held and disbursed subject to the terms and
conditions of this Agreement. Each Initial Stockholder acknowledges that the certificate
representing his Escrow Shares is legended to reflect the deposit of such Escrow Shares under this
Agreement.



     3. Disbursement of the Escrow Shares. The Escrow Agent shall hold the Escrow Shares
until the third anniversary of the Effective Date (“Escrow Period”), on which date it shall, upon
written instructions from each Initial Stockholder, disburse each of the Initial Stockholder’s



 









 




Escrow Shares to such Initial Stockholder; provided, however, that if the Escrow Agent is notified
by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time
during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates
representing the Escrow Shares; provided further, however, that if, after the
Company consummates a Business Combination (as such term is defined in the Registration Statement),
it (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or
other similar transaction which results in all of the stockholders of such entity having the right
to exchange their shares of Common Stock for cash, securities or other property, then the Escrow
Agent will, upon receipt of a certificate, executed by the Chief Executive Officer or Chief
Financial Officer of the Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated, release the Escrow Shares to the Initial Stockholders upon
consummation of the transaction so that they can similarly participate. The Escrow Agent shall
have no further duties hereunder after the disbursement or destruction of the Escrow Shares in
accordance with this Section 3.




     4. Rights of Initial Stockholders in Escrow Shares.



          4.1 Voting Rights as a Stockholder. Subject to the terms of the Insider Letter
described in Section 4.4 hereof and except as herein provided, the Initial Stockholders shall
retain all of their rights as stockholders of the Company during the Escrow Period, including,
without limitation, the right to vote such shares.




          4.2 Dividends and Other Distributions in Respect of the Escrow Shares. During the
Escrow Period, all dividends payable in cash with respect to the Escrow Shares shall be paid to the
Initial Stockholders, but all dividends payable in stock or other non-cash property (“Non-Cash
Dividends”) shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As
used herein, the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends distributed
thereon, if any.




          4.3 Restrictions on Transfer. During the Escrow Period, no sale, transfer or other
disposition may be made of any or all of the Escrow Shares except (i) by gift to a member of
Initial Stockholder’s immediate family or to a trust, the beneficiary of which is an Initial
Stockholder or a member of an Initial Stockholder’s immediate family, (ii) by virtue of the laws of
descent and distribution upon death of any Initial Stockholder, or (iii) pursuant to a qualified
domestic relations order; provided, however, that such permissive transfers may be
implemented only upon the respective transferee’s written agreement to be bound by the terms and
conditions of this Agreement and of the Insider Letter signed by the Initial Stockholder
transferring the Escrow Shares. During the Escrow Period, the Initial Stockholders shall not
pledge or grant a security interest in the Escrow Shares or grant a security interest in their
rights under this Agreement.




          4.4 Insider Letters. Each of the Initial Stockholders has executed a letter agreement
with the Company, dated as indicated on Exhibit A hereto, and which is filed as an exhibit to the
Registration Statement (“Insider Letter”), respecting the rights and obligations of such Initial
Stockholder in certain events, including but not limited to the liquidation of the Company.




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     5. Concerning the Escrow Agent.



          5.1 Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of
counsel (including counsel chosen by the Escrow Agent), statement,
instrument, report or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Escrow Agent to be genuine and to be signed or
presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced
by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties
or rights of the Escrow Agent are affected, unless it shall have given its prior written consent
thereto.




          5.2 Indemnification. The Escrow Agent shall be indemnified and held harmless by the
Company from and against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding involving any claim
which in any way, directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than expenses or
losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after
the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action,
suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the
event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an
action in the nature of interpleader in an appropriate court to determine ownership or disposition
of the Escrow Shares or it may deposit the Escrow Shares with the clerk of any appropriate court or
it may retain the Escrow Shares pending receipt of a final, non-appealable order of a court having
jurisdiction over all of the parties hereto directing to whom and under what circumstances the
Escrow Shares are to be disbursed and delivered. The provisions of this Section 5.2 shall survive
in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.




          5.3 Compensation. The Escrow Agent shall be entitled to reasonable compensation from
the Company for all services rendered by it hereunder. The Escrow Agent shall also be entitled to
reimbursement from the Company for all expenses paid or incurred by it in the administration of its
duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and
disbursements and all taxes or other governmental charges.




          5.4 Further Assurances. From time to time on and after the date hereof, the Company
and the Initial Stockholders shall deliver or cause to be delivered to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is protected in acting
hereunder.




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          5.5 Resignation. The Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation shall become
effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed
by the Company, the Escrow Shares held hereunder. If no new escrow agent is so appointed within
the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit
the Escrow Shares with any court it reasonably deems appropriate.




          5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from
its duties as escrow agent hereunder if so requested in writing at any time by
the other parties hereto, jointly, provided, however, that such resignation shall become effective
only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.




          5.7 Liability. Notwithstanding anything herein to the contrary, the Escrow Agent
shall not be relieved from liability hereunder for its own gross negligence or its own willful
misconduct.




          6. Miscellaneous.




          6.1 Governing Law. This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of New York, without giving effect
to conflicts of law principles that would result in the application of the substantive laws of
another jurisdiction.




          6.2 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as expressly provided herein, may not
be changed or modified except by an instrument in writing signed by the party to the charged. It
may be executed in several original or facsimile counterparts, each one of which shall constitute
an original, and together shall constitute but one instrument.




          6.3 Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation thereof.




          6.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their legal representatives, successors and assigns.




          6.5 Notices. Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally or be mailed, certified or
registered mail, or by private national courier service, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, two days after the date of
mailing, as follows:



If to the Company, to:


Grubb & Ellis Realty Advisors, Inc.

2215 Sanders Road, Suite 400



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Northbrook, Illinois 60062

Attn: Mark E. Rose, Chief Executive Officer

Fax No.: (847) 441-8267


If to a Stockholder, to his address set forth in Exhibit A.


and if to the Escrow Agent, to:


Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman

Fax No.: (212) 509-5150


A copy of any notice sent hereunder shall be sent to:


Zukerman Gore & Brandeis, LLP

875 Third Avenue

New York NY 10022

Attn: Clifford Brandeis, Esq.

Fax No.: (212) 223-6433



          The parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in the manner provided
herein for giving notice.




          6.6 Liquidation of the Company. The Company shall give the Escrow Agent written
notification of the liquidation and dissolution of the Company in the event that the Company fails
to consummate a Business Combination within the time period(s) specified in the Registration
Statement.




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     IN
WITNESS WHEREOF, the parties have duly executed this Stock Escrow
Agreement as of the date first written above.



	 	 	 	 	 	 	 
	 	 	GRUBB & ELLIS REALTY ADVISORS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Mark E. Rose	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	INITIAL STOCKHOLDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	GRUBB & ELLIS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Mark E. Rose	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	C. Michael Kojaian	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Mark E. Rose	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	William H. Downey	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Melvin F. Lazar	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Alan M. Stillman	 	 
	 
	 	 	 	 	 	 
	 	 	ESCROW AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	CONTINENTAL STOCK TRANSFER & TRUST COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






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EXHIBIT A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name and Address of	 	Number	 	Stock	 	Date of
	Initial Stockholder	 	of Shares	 	Certificate Number	 	Insider Letter
	Grubb & Ellis Company

2215 Sanders Road, Suite 400

Northbrook, Illinois 60062
	 	 	5,667,719	 	 	 	—	 	 	October 21, 2005
	 
	C. Michael
Kojaian
	 	 	41,670	 	 	 	—	 	 	January 6, 2006
	 
	Mark E. Rose
	 	 	41,670	 	 	 	—	 	 	January 6, 2006
	 
	William H. Downey
	 	 	41,670	 	 	 	—	 	 	October 21, 2005
	 
	Melvin F. Lazar
	 	 	41,670	 	 	 	—	 	 	October 21, 2005
	 
	Alan M. Stillman
	 	 	41,670	 	 	 	—	 	 	October 21, 2005