**Exhibit 10.17**  **EMPLOYMENT AGREEMENT****By and Between****GRUBB & ELLIS COMPANY****and****FRANCES P. LEWIS**  **As of April 1, 2006**
 

 
**EMPLOYMENT AGREEMENT**     **EMPLOYMENT AGREEMENT**(this “Agreement”) effective as of April 1, 2006 (the “EffectiveDate”), by and between **GRUBB & ELLIS COMPANY**, a Delaware corporation having an address at 500 WestMonroe Street, Suite 2800, Chicago, IL 60661 (the “Company”), and **FRANCES P. LEWIS,**anindividual having an address at 3808 N. Tripp Avenue, Chicago, Illinois 60641(“Executive”).**W****I****T****N****E****S****S****E****T****H****:**     **WHEREAS**, the Company desires to employ Executive and Executive desires to provide herexclusive services to the Company in connection with the Company’s business; and     **WHEREAS**, both parties desire to clarify and specify the rights and obligations which each havewith respect to the other in connection with Executive’s employment.     **NOW, THEREFORE**, in consideration of the agreements and covenants herein set forth, the partieshereby agree as follows:     **1. Employment**     The Company hereby employs Executive as Senior Vice President, Marketing and CorporateCommunications, and Executive hereby accepts such exclusive employment and agrees to renderExecutive’s exclusive services as an employee of the Company, all subject to and on the terms andconditions herein set forth.     **2. Duties and Responsibilities of Executive**     Executive shall be exclusively employed as the Company’s Senior Vice President, Marketing andCorporate Communications, and Executive agrees to provide Executive’s exclusive services to theCompany, subject to the other provisions of this Section 2. Executive’s responsibilities andduties shall be commensurate with those of a similarly situated officer of an entity engaged in thebusiness engaged, or proposed to be engaged, in by the Company. In the performance of her duties,Executive shall initially report to the Company’s Chief Executive Officer, and thereafter mayreport to such officer of the Company as so directed by the Board of Directors. Executive shalluse her best efforts to maintain and enhance the business and reputation of the Company and shallperform such other duties commensurate with Executive’s position as may, from time to time, bedesignated to Executive by the Company’s Chief Executive Officer. Executive shall be available totravel as the reasonable needs of the Company shall require. Executive’s principal place ofemployment shall be the Chicago, Illinois metropolitan area. Nothing contained in this Section2 shall limit Executive’s right to engage in charitable activities or industry activitiesprovided the same do not materially effect the performance of Executive’s responsibilitieshereunder.
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     **3. Compensation**          (a) In consideration for Executive’s services to be performed under this Agreement and ascompensation therefor, Executive shall receive, in addition to all other benefits provided for inthis Agreement, a base salary (the “Base Salary”) at a rate of Two Hundred Thousand Dollars($200,000) per annum. All payments of Base Salary shall be subject to all applicable withholdingsand deductions, and shall be payable in accordance with the Company’s customary payroll practices.The Base Salary shall be subject to annual review by the Compensation Committee of the Board (the“Compensation Committee”).          (b) In addition to the Base Salary, Executive shall be eligible to receive annual bonuscompensation (“Bonus Compensation”) based upon a bonus plan and formula to be establishedeach year during the Term hereof (as defined in Section 5 below) by the CompensationCommittee. The Bonus Compensation plan to be established each year by the Compensation Committeeshall be designed to take into account both the performance of the Executive and the Company. TheBonus Compensation plan for Executive shall provide for up to thirty percent (30%) of the BaseSalary, upon such terms and conditions as determined from time to time by the CompensationCommittee of the Board. All Bonus Compensation shall be payable in accordance with the proceduresestablished from time to time by the Compensation Committee, subject to all applicable withholdingand deductions, and in accordance with the Company’s customary payroll and bonus payment practices.          (c) Executive shall be entitled to participate in the Company’s performance-based Long TermIncentive Plan (the “Incentive Plan”) in an amount equal to up to sixty-five percent (65)% ofExecutive’s Base Salary, and such participation shall be with respect to the Company’s IncentivePlan commencing as of January 1, 2005, and with respect to any performance period commencing insuch calendar year or thereafter, provided that Executive’s participation in such Incentive Plan(and his compensation in respect thereof) shall only be for the actual time periods during whichExecutive was actually employed by the Company. All compensation payable pursuant to the IncentivePlan shall be payable in accordance with the procedures established from time to time by theCompensation Committee, subject to applicable withholdings and deductions, and in accordance withthe Company’s customary payroll and bonus payment practices.**4. Benefits**          (a) In addition to the Base Salary, the Bonus Compensation, and the Incentive Plan, asprovided for in Section 3 hereof, Executive shall be entitled to the benefits and otherarrangements, including, but not limited to, annual vacation (collectively, “Benefits”), consistentwith those Benefits previously provided to Executive by the Company immediately prior to theexecution hereof; provided, that, subsequent to the execution hereof, the Benefits are madeavailable at the absolute and sole discretion of the Company and nothing in this Agreementestablishes any right of the Executive to the availability or continuance of any such plan orarrangement.
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          (b) Executive shall be entitled to reimbursement for all reasonable travel, entertainment andother reasonable expenses incurred in connection with the Company’s business, provided thatsuch expenses are (i) pre-approved by the Company if not in accordance with the Company’s policies,and (ii) adequately documented and vouchered in accordance with the Company’s policies.     **5. Term of Employment**          The term of Executive’s employment hereunder shall commence on the Effective Date and shallterminate on the date immediately preceding the three (3) year anniversary thereof, or such earliertime in accordance with Section 8 hereof (the “Term”). The Term may be extended beyond theperiod provided for in the immediately preceding sentence upon the mutual written agreement of theparties hereto.     **6. Confidentiality**          (a) Executive agrees and covenants that, at any time during which Executive is employed by theCompany (which, for purpose of this Section 6 shall include the Company’s subsidiaries andaffiliates) or thereafter, Executive will not (without first obtaining the express permission ofthe Company) (i) divulge to any individual, partnership, corporation (including a business trust),limited liability company, joint stock company, trust, unincorporated association, joint venture,or other entity, or a government or any political subdivision or agency thereof (“Person”), or use(either by Executive or in connection with any business), any “Confidential Information” (ashereinafter defined in Section 6(c) hereof) or (ii) divulge to any Person, or use (eitherby Executive or in connection with any business), any “Trade Secrets” (as hereinafter defined inSection 6(c) hereof) to which Executive may have had access or which had been revealed toExecutive during the course of Executive’s employment, unless such disclosure is pursuant to acourt order, disclosure in litigation involving the Company or in any reports or applicationsrequired by law to be filed with any governmental agency, but only after at least ten (10) daysprior written consultation with the Company.          (b) Any interest in patents, patent applications, inventions, copyrights, developments,innovations, methods, processes, analyses, drawings, and reports (collectively,“Inventions”) which Executive may develop during the period Executive is employed underthis Agreement (either during regular business hours or otherwise) relating to the fields in whichthe Company may then be engaged shall belong to the Company; and Executive shall disclose theInventions to the Company and forthwith upon request of the Company, Executive shall execute allsuch assignments and other documents and take all such other action as the Company may reasonablyrequest in order to vest in the Company all right, title, and interest in and to the Inventionsfree and clear of all liens, charges, and encumbrances.          (c) As used in this Agreement, the term “Confidential Information” shall mean andinclude all information and data in respect of the Company’s (including its subsidiaries’ andaffiliates’) operations, financial condition, products, customers and business (including, withoutlimitation, artwork, photographs, specifications, facsimiles, samples, business, marketing orpromotional plans, creative written material and information relating to characters, concepts,names, trademarks, tradenames, tradedress and copyrights) which may be
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communicated toExecutive or to which Executive may have access in the course of Executive’s employment by theCompany. Notwithstanding the foregoing, the term “Confidential Information” shall not includeinformation which: (i) is, at the time of the disclosure, a part ofthe public domain through no act or omission by Executive; or  (ii) is hereafter lawfully disclosed to Executive bya third party who or which did not acquire the information under anobligation of confidentiality to or through the Company.     As used in this Agreement, the term “Trade Secrets” shall mean and includeinformation, without regard to form, including, but not limited to, technical or non-technicaldata, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, aprocess, financial data, financial plans, product plans, or a list of actual or potential customersor suppliers which is not commonly known by or available to the public and which information (i)derives economic value, actual or potential, from not being known to, and not being readilyascertainable by proper means by, other persons who can obtain economic value from its disclosureor use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintainits secrecy. In addition, the term “trade secrets” includes all information protectible as “tradesecrets” under applicable law.     Nothing in this Section 6 shall limit any protection, definition or remedy provided tothe Company under any law, statute or legal principle relating to Confidential Information or TradeSecrets.          (d) Executive agrees that at the time of leaving the employ of the Company Executive willdeliver to the Company and not keep or deliver to anyone else any and all notes, notebooks,drawings, memoranda, documents, and in general, any and all material relating to the business ofthe Company (except Executive’s personal files and records) or relating to any employee, officer,director, agent or representative of the Company.     **7. Restrictive Covenants**          (a) **Non-Competition**     Executive hereby agrees and covenants that during the period (“Non-Compete Period”) beginningwith the initial commencement of Executive’s employment with the Company (including subsidiaries oraffiliates) and ending on the last day of Executive’s employment with the Company, Executive willnot, directly or indirectly, engage in or become interested (whether as an owner, principal, agent,stockholder, member, partner, trustee, venturer, lender or other investor, director, officer,employee, consultant or through the agency of any person or entity otherwise in any business orenterprise that at any time during the Non-Compete Period shall be in whole or in substantial partcompetitive with any material part of the business conducted by the Company (which, for purposes ofthis Section 7 shall include the Company’s subsidiaries and affiliates;except that ownership of not more than 1% of the outstanding securities of any class of
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anyentity that are listed on a national securities exchange or traded in the over-the-counter marketshall not be considered a breach of this Section 7(a).          (b) **No-Raid**     Executive agrees and covenants that for the period commencing on the date hereof and endingone (1) year following the termination of Executive’s employment with the Company (the “LimitedPeriod”), Executive will not (without first obtaining the written permission of the Company),directly or indirectly, divert or attempt to divert from the Company any business of any kind inwhich the Company or its subsidiaries or affiliates is engaged or is seeking to be engaged.          (c) **Non-Solicitation**     Executive agrees and covenants that during the Limited Period, Executive will not (withoutfirst obtaining the written permission of the Company), on her own behalf or on behalf of any thirdparty, directly or indirectly, recruit any then current employee, consultant or independentcontractor of the Company, or any individual who has served in any such capacity at any time six(6) months prior thereto, for employment or any other relationship (including but not limited to anindependent contractor), or induce or seek to cause such person to terminate his or her employmentor independent contractor arrangement with the Company. As used in Sections 7(a), 7(b) and 7(c)hereof, all references to the Company includes the Company’s subsidiaries and affiliates.          (d) **Nondisparagement**     Each of the Company and Executive agree that upon inquiry from any third party regarding thetermination of Executive’s employment with the Company, if termination is for reasons other thanfor Cause, such third party shall be advised that Executive has decided to pursue otheropportunities. Each of the Company and Executive represents and agrees that each will not in anyway disparage the other (and with respect to the Company, Executive’s agreement hereunder shallalso apply to the Company’s current, former and future officers and directors), or make anycomments, statements, or communications to the media or to any other third party that may beconsidered to be derogatory or detrimental to the good name or business reputation of any of theaforementioned parties or entities. Executive agrees that she shall direct all third partyinquiries regarding Executive’s employment with the Company to the Company’s Senior Vice Presidentof Human Resources.          (e) **Indemnification**     Executive shall be indemnified by the Company in accordance with the Company’s Bylaws, as samemay be amended from time to time.          (f) **Cooperation by Employee**     With respect to any litigation, arbitration, mediation, administrative hearing, or any otherdispute resolution process to which the Company is a party or which Executive is a witness at
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anytime during or after the expiration of the Term of this Agreement, Executive agrees to fullycooperate fully with the Company, its attorneys and agents, with respect to any process includingbut not limited to, interviews, depositions, preparation for testimony, and testifying or otherwiseproviding evidence at no out of pocket cost to Executive. Executive shall be indemnified by theCompany in connection with Executive’s activities pursuant to this Section 7(f), and the provisionsof this Section 7(f) shall survive the expiration or termination of this Agreement.     **8. Termination**     The following termination provisions and benefits are in lieu of the benefits available underthe Company’s written policies and procedures, as amended, and the Company’s Executive Change ofControl Plan, as amended and the Company’s Executive Incentive Bonus and Severance Plan, asamended. Executive agrees that her termination provisions shall not be governed by such policiesand plans.          (a) **Cause**. Notwithstanding the terms of this Agreement, the Company may discharge Executiveand terminate this Agreement for cause (“Cause”) in the event (i) of Executive’s willfuland repeated refusal, to materially perform her duties hereunder with reasonable diligence, or tofollow a lawful directive of the Board commensurate with the Executive’s position, in each suchcase, after specific written notice and a reasonable opportunity to cure (other than a failure orrefusal resulting from Executive’s incapacity), (ii) Executive’s commission of an act involvingfraud, embezzlement, or theft against the property or personnel of the Company, (iii) Executive’sengagement in gross reckless conduct that the Company in good faith reasonably determines will havea material adverse affect on the reputation, business, assets, properties, results of operations orfinancial condition of the Company, (iv) Executive shall be convicted of a felony or shall pleadnolocontendere in respect thereof, or (v) Executive engages in any other criminalconduct or act of moral turpitude that is injurious to the Company. As used in this section, theCompany includes the Company’s subsidiaries and affiliates. In the event Executive is dischargedpursuant to this Section 8(a), (i) Executive’s Base Salary, Bonus Compensation,participation in the Incentive Plan and all benefits under Section 4 hereof shall terminateimmediately upon such discharge (subject to applicable law, such as pursuant to the applicableprovisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), and (ii) the Companyshall have no further obligations to Executive except for payment and reimbursement to Executivefor any monies due to Executive which right to payment or reimbursement accrued prior to suchdischarge.          (b) **Incapacity**. Should Executive become incapacitated to the extent that Executive is unableto perform Executive’s duties pursuant to this Agreement for a period of more than one hundredtwenty (120) days (consecutive or non-consecutive) in any twelve (12) month period by reason ofillness, disability or other incapacity, the Company may, subject to the requirements of applicablelaw, terminate this Agreement upon one month’s written notice at any time after said one hundredtwenty (120) day period and the Company shall have no further obligations to Executive or her legalrepresentatives except for payment and reimbursement toExecutive or her legal representatives for any monies due to Executive which right to paymentor reimbursement accrued prior to such discharge.
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          (c) **Death**. This Agreement shall terminate immediately upon the death of Executive, in whichcase the Company shall have no further obligations to Executive or her legal representatives exceptfor payment and reimbursement to Executive or her legal representatives for any monies due toExecutive which right to payment or reimbursement accrued prior to Executive’s death.          (d) **Termination Without Cause**. The Company may terminate Executive’s employment with theCompany without Cause (as defined in Section 8(a) above), for any reason at any time, uponwritten notice to Executive, whereupon the Executive shall be entitled to receive (i) all moniesdue to Executive which right to payment or reimbursement accrued prior to such discharge, and (ii)Base Salary in accordance with the Company’s customary payroll practices for a period of twelve(12) months following the date of such termination and (iii) an amount, payable monthly, equal tothe Executive’s monthly COBRA payments, increased to compensate for any amount withheld by theCompany due to federal and state tax withholding requirements until the earlier of (A) twelve (12)months from the termination date or (B) the Executive obtains health coverage from another source.The Company’s payment of any amounts to Executive upon the termination of Executive’s employmentwithout Cause is expressly subject to and contingent upon Executive executing and delivering to theCompany at the time of such termination the Company’s then standard form of release.          (e) **Termination by the Executive for Good Reason**. The Executive may terminate her employmentunder this Agreement at any time for Good Reason by giving written notice to the Company. Forpurposes of this Section 8(e), “Good Reason” shall mean: (i) a material breach of thisAgreement by the Company that is not cured within thirty (30) days after written notice of thebreach has been given to the Company by the Executive; or (ii) Executive is required to permanentlyrelocate from the Chicago metropolitan area. In the event of a termination by Executive for GoodReason, Executive shall be entitled to receive (i) all monies due to Executive which right topayment or reimbursement accrued prior to such discharge, and (ii) Base Salary in accordance withthe Company’s customary payroll practices for a period of twelve (12) months following the date ofsuch termination. The Company’s payment of any amounts to Executive upon Executive’s terminationfor Good Reason is expressly subject to and contingent upon Executive executing and delivering tothe Company at the time of Executive’s termination for Good Reason the Company’s then standard formof release.          (f) **Termination Pursuant to a Change of Control**. In the event that (i) the Executive isterminated by the Company without Cause, or Executive terminates the agreement for “Good Reason”(as defined in Section 8(e) above, but subject to the modification set forth in theimmediately following sentence), within nine (9) months after a “Change in Control” (as definedbelow), or (ii) the Executive is terminated by the Company without Cause, or the Executiveterminates the agreement for Good Reason, six (6) months prior to a Change in Control and inconnection with or contemplation of a Change in Control by the Company, the Executive shall beentitled to receive (i) all monies due to Executive which right to payment or reimbursement accruedprior to such discharge, (ii) the Executive’s Base Salary paid ratably overa period of twelve (12) months following the date of such
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termination in accordance with theCompany’s customary payroll practices, and (iii) the Executive’s “Applicable Bonus” (as definedbelow) paid ratably over a period of twelve (12) months following the date of such termination inaccordance with the Company’s customary payroll practices. The Company’s payment of any amounts toExecutive upon Executive’s termination upon a Change in Control is expressly subject to andcontingent upon Executive executing and delivering to the Company at the time of such terminationthe Company’s then standard form of release.     For purposes of this Agreement, the term “Change of Control” shall mean any of the following:(a) a transaction or series of transactions which results in the stockholders of Company,immediately prior to any such transaction or series of transactions, failing to beneficially own,immediately after the effective time of such transaction, securities of Company representing morethan fifty percent (50%) of the combined voting power of Company’s then outstanding securitiesnecessary to elect a majority of the Company’s directors, (b) Company shall in one transaction or aseries of transactions effect a merger, consolidation, or exchange of its securities with any otherentity which results in the stockholders of Company immediately before the effective time of suchtransaction failing to beneficially own, immediately after the effective time of such transaction,securities representing more than fifty percent (50%) of the combined voting power of the merged,combined or new entity’s outstanding securities necessary to elect a majority of the directors ofthe merged, combined or new entity, or (c) any person or entity, or persons or entities, acquiresin a transaction or series of transactions, substantially all the assets of the Company.     For purposes of this Agreement, the term “Applicable Bonus” shall mean (i) if the Change inControl occurs on or before, or as of, December 31, 2006, the cash bonus paid (or earned, if earnedbut not actually paid in full) pursuant to the Bonus Compensation payable pursuant to Section 3(b)above, (ii) if the Change in Control occurs subsequent to (and not as of) December 31, 2006, theaverage of the cash bonuses paid (or earned, if earned but not actually paid in full) to Executiveduring the immediately preceding two (2) years; and (iii) if the Change in Control occurssubsequent to (and not as of) December 31, 2007, the average of the cash bonuses paid (or earned,if earned but not actually paid in full) to Executive during the immediately preceding three (3)years.          (g) **Exclusivity of Severance Provisions**     The Change in Control payment contemplated in Section 8(f) and the Severance paymentcontemplated in Section 8(d) or Section 8(e), are mutually exclusive (i.e. Executive may beentitled to one or the other, but not both).     **9. Specific Performance; Damages**     In the event of a breach or threatened breach of the provisions of Section 6 orSection 7 hereof, Executive agrees that the injury which could be suffered by the Company(which for purposes of this Section 9 shall include the Company’s successor-in-interest,subsidiaries and affiliates) would be of a character which could not be fully compensated forsolely by a recovery of monetary damages. Accordingly, Executive agrees that in the event of abreach or threatenedbreach of Section 6 or Section 7 hereof, in addition to and not in lieu of anydamages sustained by the Company and any other remedies which the Company may pursue hereunder orunder any applicable law, the Company shall have the right to equitable relief, including but notlimited to the issuance of a temporary or permanent injunction or restraining order, by any courtof
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competent jurisdiction against the commission or continuance of any such breach or threatenedbreach, without the necessity of proving any actual damages. In addition to, and not in limitationof the foregoing, Executive understands and confirms that, in the event of a breach or threatenedbreach of Section 6 or Section 7 hereof, Executive may be held financially liableto the Company for any loss suffered by the Company as a result.     **10. Notices**          Any and all notices, demands or requests required or permitted to be given under thisAgreement shall be given in writing and sent, by registered or certified U.S. mail, return receiptrequested, by hand, or by overnight courier, addressed to the parties hereto at their addresses setforth above or such other addresses as they may from time-to-time designate by written notice,given in accordance with the terms of this Section, together with copies thereof as follows:     In the case of the Company, with a copy simultaneously by like means, to:Grubb & Ellis Company