GRUBB & ELLIS COMPANY

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                                    BYLAWS

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                    Amended and Restated as of May 31, 2000

 

 

                                   ARTICLE I

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                                    Offices

 

     Section 1.01   Principal Office.  The principal office for the transaction

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of the business of Grubb & Ellis Company (hereinafter called the "Corporation")

shall be at One Montgomery Street, Telesis Tower, San Francisco, California

94104.  The Board of Directors (hereinafter called the "Board") is hereby

granted full power and authority to change said principal office from one

location to another, either within or without the State of Delaware.

 

 

                                  ARTICLE II

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                            Meeting of Stockholders

 

     Section 2.01   Annual Meetings.  Annual Meetings of the stockholders of the

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Corporation for the purpose of electing directors and for the transaction of

such other proper business as may come before such meetings may be held at such

time, date and place as the Board shall determine by resolution.

 

     Section 2.02   Special Meetings. Special meetings of the stockholders of

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the Corporation for any purpose or purposes may be called at any time by the

Board, or by a majority of the members of the Board or by a committee of the

Board which has been duly designated by the Board, whose powers and authority,

as provided in a resolution of the Board or in the Bylaws of the Corporation,

include the power to call such meetings, or by the affirmative vote of the

holders of at least a majority of the outstanding shares of capital stock of the

Corporation entitled to vote generally in the election of directors (considered

for this purpose as one class), but such special meetings may not be called by

any other person or persons.

 

     Section 2.03   Place of Business.  All meetings of the stockholders shall

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be held at such places, within or without the State of Delaware, as may from

time to time be designated by the person or persons calling the respective

meetings and specified in the respective notices thereof.

 

     Section 2.04   Notice of Meetings.  Except as otherwise expressly required

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by law, notice of each meeting of the stockholders, whether annual or special,

shall be given not less than ten nor more than sixty days before the date of the

meeting, to each stockholder of record entitled to vote at such meeting by

delivering a typewritten or printed notice thereof to him personally, or by

depositing such notice in the United States mail, in a postage prepaid envelope,

directed to

 

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him at his post office address furnished by him to the Secretary of the

Corporation for such purpose or, if he shall not have furnished to the Secretary

his address for such purposes, then at his post office address as it appears on

the records of the Corporation, or by transmitting a notice thereof to him at

such address by telegraph, cable or wireless. Except as otherwise expressly

required by law, no publication of any notice of a meeting of the stockholders

shall be required. Every notice of a meeting of the stockholders shall state the

time, date and place of the meeting and, in the case of a special meeting, or as

otherwise expressly required by law, shall state the purpose or purposes for

which the meeting is called. Notice of any meeting of stockholders shall not be

required to be given to any stockholder who shall have waived such notice and

such notice shall be deemed waived by any stockholder who shall attend such

meeting in person or by proxy, except a stockholder who shall attend such

meeting for the express purpose of objecting, at the beginning of the meeting,

to the transaction of any business because the meeting is not lawfully called or

convened. Neither the business to be transacted at, nor the purpose of, any

regular or special meeting of stockholders need be specified in any written

waiver of notice. When a meeting is adjourned to another time, date or place,

written notice need not be given of the adjourned meeting if the time, date and

place thereof are announced at the meeting at which the adjournment is taken;

provided, however, that if the date of any adjourned meeting is more than thirty

days after the date for which the meeting was originally noticed, or if a new

record date is fixed for the adjourned meeting, written notice of the time,

date, and place of the adjourned meeting shall be given in conformity herewith.

At any adjourned meeting, any business may be transacted which might have been

transacted at the original meeting.

 

     Section 2.05   Quorum. Except in the case of any meeting for the election

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of directors summarily ordered as provided by law, or as otherwise specified in

the Certificate of Incorporation or these Bylaws, the holders of record of a

majority in voting interest of the shares of stock of the Corporation entitled

to be voted thereat, present in person or by proxy, shall constitute a quorum

for the transaction of business at any meeting of the stockholders of the

Corporation or any adjournment thereof. In the absence of a quorum at any

meeting or any adjournment thereof, a majority in voting interest of the

stockholders present in person or by proxy and entitled to vote thereat or, in

the absence therefrom of all the stockholders, any officer entitled to preside

at, or to act as secretary of, such meeting may adjourn such meeting from time

to time, but no other business may be transacted. At any adjourned meeting at

which a quorum is present any business may be transacted which might have been

transacted at the meeting as originally called. The stockholders present at a

duly called or held meeting at which a quorum is present may continue to do

business until adjournment notwithstanding the withdrawal of enough stockholders

to leave less than a quorum.

 

     Section 2.06   Voting.  (a)  Each stockholder shall, at each meeting of the

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stockholders, be entitled to vote in person or by proxy each share or fractional

share of the stock of the Corporation having voting rights on the matter in

question and which shall have been held by him and registered in his name on the

books of the Corporation:

 

                    (i)  on the date fixed pursuant to Section 6.05 of these

          Bylaws as the record date for the determination of stockholders

          entitled to notice of and to vote at such meeting, or

 

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                    (ii) if no such date shall have been so fixed, then (aa) at

          the close of business on the day next preceding the day on which

          notice of the meeting shall be given or (bb) if notice of the meeting

          shall be waived, at the close of business on the day next preceding

          the day on which the meeting shall be held.

 

          (b)       Shares of its own stock belonging to the Corporation or to

     another corporation if a majority of the shares entitled to vote in the

     election of directors in such other corporation is held, directly or

     indirectly, by the Corporation, shall neither be entitled to vote nor be

     counted for quorum purposes. Persons holding stock of the Corporation in a

     fiduciary capacity shall be entitled to vote such stock. Persons whose

     stock is pledged shall be entitled to vote, unless in the transfer by the

     pledgor on the books of the Corporation he shall have expressly empowered

     the pledgee to vote thereon, in which case only the pledgee, or his proxy,

     may represent such stock and vote thereon. Stock having voting power

     standing of record in the names of two or more persons, whether

     fiduciaries, members of a partnership, joint tenants, tenants in common,

     tenants by the entirety or otherwise, or with respect to which two or more

     persons have the same fiduciary relationship, shall be voted in accordance

     with the provisions of the General Corporation Law of the State of

     Delaware.

 

          (c)       Any such voting rights may be exercised by the stockholder

     entitled thereto in person or by his proxy appointed by an instrument in

     writing, subscribed by such stockholder or by his attorney thereunto

     authorized and delivered to the Secretary of the meeting; provided,

     however, that no proxy shall be voted or acted upon after three years from

     its date unless said proxy shall provide for a longer period. The

     attendance at any meeting of a stockholder who may theretofore have given a

     proxy shall not have the effect of revoking the same unless he shall in

     writing so notify the secretary of the meeting prior to the voting of the

     proxy. At any meeting of the stockholders all matters, except as otherwise

     provided in the Certificate of Incorporation, in these Bylaws or by law,

     shall be decided by the vote of a majority in voting interest of the

     stockholders present in person or by proxy and entitled to vote thereat and

     thereon, subject to the requirements concerning a quorum set forth in

     Section 2.05. The vote at any meeting of the stockholders on any question

     need not be by written ballot, unless so directed by the chairman of the

     meeting. On a vote by ballot each ballot shall be signed by the stockholder

     voting, or by his proxy, if there be such proxy, and it shall state the

     number of shares voted.

 

          Shares represented by proxies that reflect, with respect to a

     proposal, abstentions or limited voting authority, including "broker non-

     votes" (i.e., shares held by a broker or nominee which are represented at

     the meeting, but with respect to which such broker or nominee is not

     empowered to vote on a particular proposal or proposals), shall be counted

     as shares that are present and entitled to vote for purposes of determining

     the presence of a quorum. For purposes of determining the outcome of any

     proposal, shares represented by such proxies will be treated as not present

     and not entitled to vote with respect to the proposal.

 

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     Section 2.07   List of Stockholders.  The Secretary of the Corporation and

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persons authorized by the Secretary shall prepare and make, at least ten days

before every meeting of stockholders, a complete list of the stockholders

entitled to vote at the meeting, arranged in alphabetical order, and showing the

address of each stockholder and the number of shares registered in the name of

each stockholder.  Such list shall be open to the examination of any

stockholder, for any purpose germane to the meeting, during ordinary business

hours, for a period of at least ten days prior to the meeting, either at a place

within the city where the meeting is to be held, which place shall be specified

in the notice of the meeting, or, if not so specified, at the place where the

meeting is to be held.  The list shall also be produced and kept at the time and

place of the meeting during the entire duration thereof and may be inspected by

any stockholder who is present.

 

     Section 2.08   Judges.  If at any meeting of the stockholders a vote by

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written ballot shall be taken on any question, the chairman of such meeting may

appoint a judge or judges to act with respect to such vote.  If no judge is

appointed, the chairman of such meeting or his designee shall serve as judge.

Such judges shall decide upon the qualification of the voters and shall report

the number of shares represented at the meeting and entitled to vote on such

question, shall conduct and accept the votes, and, when the voting is completed,

shall ascertain and report the number of shares voted respectively for and

against the question.  Reports of the judges shall be in writing and subscribed

and delivered by them to the Secretary of the Corporation.  The judges need not

be stockholders of the Corporation, and any officer of the Corporation may be a

judge on any question other than a vote for or against a proposal in which he

shall have a material interest.

 

     Section 2.09   Organization.  At every meeting of the stockholders the

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Chairman of the Board, or in his absence the President, or in his absence the

Vice President designated by the Chairman of the Board or in the absence of such

designation a chairman (who shall be one of the Vice Presidents, if any is

present) chosen by a majority in interest of the stockholders of the Corporation

present in person or by proxy and entitled to vote, shall act as Chairman.  The

Secretary of the Corporation, or his designee, shall act as Secretary of all

meetings of the stockholders.  In the absence at any such meeting of the

Secretary or Assistant Secretary, the Chairman may appoint another person to act

as Secretary of the meeting.

 

 

                                  ARTICLE III

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                              Board of Directors

 

     Section 3.01.  General Powers.  The property, business and affairs of the

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Corporation shall be managed by or under the direction of the Board.  Individual

directors shall not have the authority to act and shall not act as agents for

the Corporation, nor otherwise to manage its business or affairs, nor to direct

any officer or employee in the manner in which he shall discharge his duties,

unless such director is a duly elected officer of the Corporation or is

specifically authorized by special resolution of the Board to act on behalf of

the Corporation in a specific matter for a limited purpose.

 

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     Section 3.02   Number and Term of Office.  The number of directors of the

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Corporation (exclusive of directors to be elected, if any, by the holders of any

one or more series of Preferred Stock voting separately as a class or classes)

shall not be less than six nor more than eighteen, the exact number of directors

to be determined from time to time by a resolution adopted by the Board.  Unless

these Bylaws are amended by the stockholders of the Corporation to provide for

the division of the directors into classes, at each annual meeting all directors

shall be elected to hold office until their respective successors are elected

and qualified or until their earlier resignation or removal.  Any vacancies in

the Board for any reason, and any newly created directorships resulting from any

increase in the number of directors, may be filled by the Board, acting by a

majority of the directors then in office, although less than a quorum, and any

directors so chosen shall hold office until the next election of directors and

until their successors shall have been duly elected and qualified.  No decrease

in the number of directors shall shorten the term of any incumbent director.

Notwithstanding the foregoing, and except as otherwise required by law, whenever

the holders of any one or more series of Preferred Stock shall have the right,

voting separately as a class, to elect one or more directors of the Corporation,

the terms of the director or directors elected by such holders shall expire at

the next succeeding annual meeting of stockholders.  The stockholders of the

Corporation shall not have cumulative voting rights.

 

     Section 3.03   Director Nominations.  Nominations for the election to the

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Board may be made by the Board or by any stockholder of any outstanding class of

capital stock of the Corporation entitled to vote for the election of directors.

In all cases, such nominations shall be made by notice in writing delivered or

mailed by first class United States mail, postage prepaid, to the Secretary of

the Corporation.  Written notice of nominations by the Board of Directors shall

be given by the Chairman of the Board to the Secretary of the Corporation in the

manner prescribed herein.  Any other written notice shall be given by the

notifying stockholder to the Secretary of the Corporation in the manner

prescribed herein.  Such written notice shall be so mailed or delivered not less

than fourteen days nor more than fifty days prior to any meeting of the

stockholders called for the election of directors; provided, however, that if

less than twenty-one days' notice of the meeting is given to stockholders, such

written notice shall be delivered or mailed, as prescribed, to the Secretary of

the Corporation not later than the close of the seventh day following the day on

which notice of the meeting was mailed to stockholders.  The Secretary shall

file each notice with the corporate records, and such notices shall be open to

inspection by the stockholders at all reasonable times during office hours.

 

     Such written notice must contain the following information to the extent

known:

 

          (a)       The name, age, business address or, if known, residence

     address of each proposed nominee;

 

          (b)       The principal occupation or employment of each proposed

     nominee; and

 

          (c)       The name and residence address of the Chairman of the Board

     for the notice by the Board of Directors, or the name and residence address

     of the notifying shareholder for notice by said shareholder; and

 

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          (d)       The total number of shares that to the best of the knowledge

     and belief of the person giving the notice will be voted for each of the

     proposed nominees.

 

     Section 3.04   Election of Directors. The directors shall be elected by the

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stockholders of the Corporation, and at each election the persons receiving the

greatest number of votes, up to the number of directors then to be elected,

shall be the persons then elected.  The election of directors is subject to any

provisions contained in the Certificate of Incorporation relating thereto.

 

     Section 3.05   Resignations.  Any director of the Corporation may resign at

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any time by giving written notice to the Board or to the Secretary of the

Corporation.  Any such resignation shall take effect at the time specified

therein, or if the time be not specified, it shall take effect immediately upon

its receipt, and, unless otherwise specified therein, the acceptance of such

resignation shall not be necessary to make it effective.

 

     Sections 3.06  Vacancies.  Except as otherwise provided in the Certificate

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of Incorporation, any vacancy in the Board, whether because of death,

resignation, disqualification, an increase in the number of directors, or any

other cause, may be filled by vote of the majority of the remaining directors,

although less than a quorum. Each director so chosen to fill a vacancy shall

hold office until the next election of directors and until his successor shall

have been elected and shall qualify or until he shall resign or shall have been

removed.

 

     Section 3.07   Place of Meeting, etc.  The Board may hold any of its

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meetings at such place or places within or without the State of Delaware as

designated from time to time by resolution of the Board or by written consent of

all members of the Board.  Any meeting shall be valid wherever held, if held by

the written consent of all members of the Board, given either before or after

the meeting and filed with the minutes of the proceedings of the Board.

Directors may participate in any regular or special meeting of the Board by

means of conference telephone or similar communications equipment pursuant to

which all persons participating in the meeting of the Board can hear each other,

and such participation shall constitute presence in person at such meeting.

 

     Section 3.08   First Meeting.  The Board shall meet as soon as practicable

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after each annual election of directors and notice of such first meeting shall

not be required.

 

     Section 3.09   Regular Meetings.  Regular meetings of the Board may be held

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at such time, date and place as the Board shall from time to time by resolution

determine.  If any day fixed for a meeting shall be a legal holiday at the place

where the meeting is to be held, then the meeting shall be held at the same time

and place on the next succeeding business day not a legal holiday.  Except as

provided by law, notice of regular meetings need not be given.

 

     Section 3.10   Special Meetings.  Special meetings of the Board may be

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called at any time by the Chairman of the Board or the President, to be held at

the principal office of the Corporation, or at such other place or places,

within or without the State of Delaware, as the person or persons calling the

meeting may designate.

 

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     Notice of special meetings of the Board in which attendance in person is

required shall be given to each director by two days' service of the same by

telegram, by letter, or personally.  In the case of a meeting in which

attendance in person is not required, notice of such special meeting of the

Board shall be given to each director twenty-four hours prior to such meeting.

Notice may be waived by any director and any meeting shall be a legal meeting

without notice having been given if all the directors shall be present there at

or if those not present shall, either before or after the meeting, sign a

written waiver of notice of, or a consent to, such meeting or shall after the

meeting sign an approval of the minutes thereof.  All such waivers, consents or

approvals shall be filed with the corporate records.

 

     Section 3.11   Quorum and Manner of Acting.  Except as otherwise provided

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in the Certificate of Incorporation, these Bylaws or by law, the presence of a

majority of the authorized number of directors shall be required to constitute a

quorum for the transaction of business at any meeting of the Board, and all

matters shall be decided at any such meeting, a quorum being present, by the

affirmative votes of a majority of the directors present.  In the absence of a

quorum, a majority of directors present at any meeting may adjourn the same from

time to time until a quorum shall be present.  Notice of any adjourned meeting

need not be given.  The directors shall act only as a Board, and the individual

directors shall have no power as such.

 

     Section 3.12   Action by Consent.  Any action required or permitted to be

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taken at any meeting of the Board or of any committee thereof may be taken

without a meeting if a written consent thereto is signed by all members of the

Board or of such committee, as the case may be, and such written consent is

filed with the corporate records of the proceedings of the Board or such

committee.

 

     Section 3.13   Organization.  At every meeting of the Board, the Chairman

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of the Board, or in his absence, the President or in the absence of both, a

director appointed by a majority of directors present shall preside.  The

Secretary of the Corporation shall act, unless the presiding officer appoints

another to act, as Secretary of the Board of Directors.

 

     Section 3.14   Compensation.  By resolution of the Board, directors in

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their capacity as such may be allowed a reasonable annual retainer fee, in

addition to a reasonable fixed fee for attendance at the meetings of the Board

of Directors and expenses of attendance, if any. Members of special or standing

committees may be allowed such compensation for attending committee meetings as

the Board shall determine.

 

     Section 3.15   Committees.  The Board may, by resolution passed by the

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Board, designate one or more committees, each committee to consist of one or

more of the directors of the Corporation. Any such committee, to the extent

provided in a resolution of the Board or these Bylaws, shall have and may

exercise all the powers and authority of the Board in the management of the

business and affairs of the Corporation but no such committee shall have any

power or authority to amend the Certificate of Incorporation, adopt an agreement

of merger or consolidation, recommend to the stockholders the sale, lease or

exchange of all or substantially all of the Corporation's property and assets,

recommend to the stockholders a dissolution of the Corporation or a revocation

of the dissolution, or amend these Bylaws of the Corporation. Any

 

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such committee shall keep written minutes of its meetings and report the same to

the Board at the next regular meetings of the Board.

 

                                  ARTICLE IV

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                                   Officers

 

     Section 4.01   Number.  The officers of the Corporation shall be a

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President, one or more Vice Presidents, including a Chief Financial Officer, a

Secretary, a Controller and a Treasurer, and such other officers as may be

appointed in accordance with the provisions of Section 4.02 of this ARTICLE IV.

The Board may also appoint a Chairman of the Board or a Vice Chairman of the

Board. Either the President or Chairman of the Board of Directors may be

designated as the Chief Executive Officer. Notwithstanding anything in the

Bylaws to the contrary, the Board may establish an Office of the President which

shall consist of one or more of the Corporation's officers. The Office of the

President shall have the powers and duties of the President of the Corporation

as set forth herein or as may be prescribed by the Board from time to time.

 

     Section 4.02   Subordinate Officers, etc.  The Board may appoint such other

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officers, committees or agents as the business of the Corporation may require,

including one or more Assistant Treasurers, one or more Assistant Vice

Presidents and one or more Assistant Secretaries, each of whom shall hold office

for such period, have such authority and perform such duties as the Board may

from time to time determine by resolution which is not inconsistent with these

Bylaws.  The Board may delegate to any officer or committee appointed by it the

power to appoint any such subordinate officers, committees or agents.

 

     Section 4.03   Divisional Officers, etc.  The Board may appoint such other

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officers, committee or agents as the business of the Corporation may require for

its divisions, including a President, Chief Financial Officer, Secretary,

Controller and Treasurer of such divisions, each of whom shall hold office for

such period, have such authority and perform such duties as the Board may from

time to time determine by resolution.  The Board may delegate to any officer or

committee appointed by it the power to appoint any such divisional officers,

committees or agents.

 

     Section 4.04   Election.  Term of Office and Qualifications.  Each officer

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shall hold his office until his successor is appointed and qualified or until

his earlier resignation or removal.  If an officer is appointed by the Board,

only the Board may remove such officer, unless otherwise specified by the Board

when such officer is appointed.

 

     Section 4.05   Removal.  Any officer may be removed, either with or without

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cause, by the vote of a majority of the Board at any regular or special meeting

of the Board, or, except in the case of any officer appointed by the Board, or

by any superior officer or officers, if the power of removal is conferred upon

such committee or such officer or officers by the Board.

 

     Section 4.06   Resignations.  Any officer may sign at any time by giving

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written notice to the Board or to the Chairman of the Board, the President, or

the Secretary of the Corporation.

 

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Any such resignation shall take effect at the time specified therein; and,

unless otherwise specified therein, the acceptance of such resignation shall not

be necessary to make it effective.

 

     Section 4.07   Vacancies.  A vacancy in any office because of death,

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resignation, removal or disqualification or any other cause, shall be filled in

the manner prescribed in these Bylaws for regular appointment or elections to

such offices.

 

     Section 4.08   Chairman of the Board.  The Chairman of the Board, Vice

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Chairman of the Board or, if none are appointed, the President, shall preside at

all meetings of the stockholders and of the Board.  The Chairman of the Board,

if a person other than the President, shall have such additional duties and

responsibilities and membership on such Committees of the Board as may be

prescribed by the Board or these Bylaws.

 

     Section 4.09   Chief Executive Officer. The Chairman of the Board, if other

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than the President, may be designated as the Chief Executive Officer.  Otherwise

the President may be designated as the Chief Executive Officer.  Subject to the

control of the Board, the Chief Executive Officer shall have general

supervision, direction and control of the business and officers of the

Corporation.

 

     Section 4.10   President.  Subject to such supervisory powers as may be

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given by the Board to the Chairman of the Board, the President shall have the

powers and duties of management usually vested in the office of the president of

a corporation and shall have such other powers and duties as may be prescribed

by the Board or these Bylaws.

 

     Section 4.11   Vice Presidents.  The Vice Presidents shall exercise and

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perform such powers and duties with respect to the administration of the

business and affairs of the Corporation as may from time to time be assigned to

each of them by the Chief Executive Officer or by the Board or as is prescribed

by these Bylaws.  One or more of them may, but need not, be designated as an

Executive Vice President.  In the absence or disability of the President, the

Vice President, in order of their rank as fixed by the Board, or if not ranked,

the Vice President designated by the Board, or failing such designation the

Chief Financial Officer shall until the return or replacement of the President

perform all of the duties of the President and when so acting shall have all of

the powers of and be subject to all the restrictions upon the President.

 

     Section 4.12   Secretary.  The Secretary shall keep, or cause to be kept, a

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book of minutes at the principal office for the transaction of the business of

the Corporation, or such other place as the Board may order, of all meetings of

directors and stockholders, with the time, date and place of holding, whether

regular or special, and if special, how authorized, the names of those present

at directors' meetings, the number of shares present or represented at

stockholders' meetings and the proceedings thereof.

 

     The Secretary shall keep, or cause to be kept, at the principal office for

the transaction of the business of the Corporation or at the office of the

Corporation's transfer agent, a share register, or a duplicate share register,

showing the names of the stockholders and their addresses; the number and

classes of shares held by each; the number and date of certificates issued for

the same; and the number and date of cancellation of every certificate

surrendered for cancellation.

 

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     The Secretary shall give, or cause to be given, notice of all the meetings

of the stockholders and of the Board required by these Bylaws or by law to be

given, and he shall keep the seal of the Corporation in safe custody, and shall

have such other powers and perform such other duties as may be prescribed by the

Board or these Bylaws. If for any reason the Secretary shall fail to give notice

of any special meeting of the Board called by one or more of the persons

identified in Section 3.10, or if he shall fail to give notice of any special

meeting of the stockholders called by the Board, then any such person identified

in Section 3.10 of these Bylaws may give notice of any such special meeting.

 

     Section 4.13   Chief Financial Officer.  The Chief Financial Officer, or in

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his absence, the Chief Executive Officer, shall have responsibility for overall

corporate financial planning.  Subject to the control of the Board, the Chief

Financial Officer, or in his absence, the Chief Executive Officer, shall have

general supervision, direction and control of the functions of the Treasurer and

Controller of the Corporation, each of whom shall report to the Chief Financial

Officer or to such other officer as may be designated by the Chief Executive

Officer.

 

     Section 4.14   Treasurer.  The Treasurer shall keep and maintain, or cause

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to be kept and maintained, adequate and correct accounts of the properties and

business transactions of the Corporation, including accounts of its assets,

liabilities, receipts, disbursements, gains, losses, capital, surplus and

shares.  Any surplus, including earned surplus, paid-in surplus and surplus

arising from a reduction of capital, shall be classified according to source and

shown in a separate account.  The books of account shall at all reasonable times

be open to inspection by the Board.

 

     The Treasurer shall deposit all monies and other valuables in the name and

to the credit of the Corporation with such depositories or in the manner as may

be designated by the Board. He shall disburse the funds of the Corporation as

may be ordered by the Board and subject to any restrictions as may be imposed by

the Board, shall render to the President and Chief Executive Officer, Chief

Financial Officer and the Board, whenever they request it, an account of all of

his transactions as Treasurer and of the financial condition of the Corporation,

and shall have such other powers and perform such other duties as may be

prescribed by the Board or these Bylaws.

 

     Section 4.15   Controller.  The Controller shall supervise the maintenance

                    ----------

of adequate and correct accounts of the properties and business transactions of

all subsidiaries of the Corporation and shall exercise and perform such powers

and duties with respect to the administration of the business and affairs of the

Corporation as may from time to time be assigned to him by the President and

Chief Executive Officer or by any Vice President or by the Board or as is

prescribed by these Bylaws.

 

     Section 4.16   Salaries.  The salaries of the officers shall be fixed from

                    --------

time to time by the Board, and no officer shall be prevented from receiving such

salary by reason of the fact that he is also a director of the Corporation.

 

                                      -10-

<PAGE>

 

                                   ARTICLE V

 

                Contracts, Checks, Drafts, Bank Accounts, Etc.

 

     Section 5.01   Execution of Contracts.  The Board, except as in these

                    ----------------------

Bylaws otherwise provided, may authorize any officer or officers, agent or

agents, to enter into any contract or execute and deliver any instrument in the

name of and on behalf of the Corporation, and such authority may be general or

confined to specific instances and, unless so authorized, no officer, agent, or

employee shall have any power or authority to bind the Corporation by any

contract or engagement or to pledge its credit or to render it liable

pecuniarily for any purpose or in any amount.

 

     Section 5.02   Loans.  No loans shall be contracted on behalf of the

                    -----

Corporation and no negotiable papers shall be issued in its name, unless and

except as authorized by the Board.  When so authorized by the Board, any officer

or agent of the Corporation may effect loans and advances at any time for the

Corporation from any bank, trust company, or other institution, or from any

firm, corporation or individual, and for such loans and advances may make,

execute and deliver promissory notes, bonds or other evidences of indebtedness

of the Corporation, and when authorized as aforesaid, as security for the

payment of any and all loans, advances, indebtedness, and liabilities of the

Corporation, may pledge, hypothecate or transfer any and all stocks, securities,

and other personal property at any time held by the Corporation, and to that end

endorse, assign and deliver the same.  Such authority may be general or confined

to specific instances.

 

     Section 5.03   Deposits.  All funds of the Corporation shall be deposited

                    --------

from time to time to the credit of the Corporation with such banks, bankers,

trust companies or other depositaries as the Board may select or as may be

selected by any officer or officers, agent or agents of the Corporation to whom

such power may be delegated from time to time by the Board.

 

     Section 5.04   Checks, Drafts, etc.  All checks, drafts or other orders for

                    -------------------

payment of money, notes, acceptances, or other evidence of indebtedness issued

in the name of the Corporation, shall be signed by such officer or officers,

agent or agents of the Corporation and in such manner as shall be determined

from time to time by resolution of the Board.

 

     Section 5.05   General and Special Bank Accounts.  The Board may from time

                    ---------------------------------

to time authorize the opening and keeping of general and special bank accounts

with such banks, trust companies or other depositaries as the Board may select

or as may be selected by any officer or officers, assistant or assistants, agent

or agents, or attorney, or attorneys of the Corporation to whom power shall have

been delegated by the Board. The Board may make such special rules and

regulations with respect to such bank accounts, not inconsistent with the

provisions of these Bylaws, as it may deem expedient.

 

                                      -11-

<PAGE>

 

                                  ARTICLE VI

 

                          Shares and Their Transfers

 

     Section 6.01   Certificates for Stock.  Every owner of stock of the

                    ----------------------

Corporation shall be entitled to have a certificate or certificates, to be in

such form as the Board shall prescribe, certifying the number and class of

shares of the stock of the Corporation owned by him.  The certificates

representing shares of such stock shall be numbered in the order in which they

shall be issued and shall be signed in the name of the Corporation by the

Chairman of the Board, the President, or a Vice President, and by the Secretary

or an Assistant Secretary or by the Treasurer or an Assistant Treasurer.  Any

and all of the signatures on the certificates may be a facsimile.  In case any

officer, transfer agent or registrar who has signed or whose facsimile signature

has been placed upon any such certificate shall thereafter have ceased to be

such officer, transfer agent or registrar before such certificate is issued,

such certificate may nevertheless be issued by the Corporation with the same

effect as though the person who signed such certificate, or whose facsimile

signature shall have been placed thereupon, were such officer, transfer agent or

registrar at the date of issue.  A record shall be kept of the respective names

of the persons, firms or corporations owning the stock represented by such

certificates, the number and class of shares represented by such certificates,

and the respective dates thereof, and in case of cancellation, the respective

dates of cancellation.  Every certificate surrendered to the Corporation for

exchange or transfer shall be canceled, and no new certificate or certificates

shall be issued in exchange for any existing certificate until such existing

certificate shall have been so canceled, excepting cases provided for in Section

6.04.

 

     Section 6.02   Transfer of Stock.  Transfers of shares of stock of the

                    -----------------

Corporation shall be made only on the books of the Corporation by the registered

holder thereof, or by his attorney thereunto authorized by power of attorney

duly executed and filed with the Secretary, or with a transfer clerk or a

transfer agent appointed as provided in Section 6.03, and upon surrender of the

certificate or certificates for such shares properly endorsed and the payment of

all taxes thereon.  The person in whose name shares of stock stand on the books

of the Corporation shall be deemed the owner thereof for all purposes as regards

the Corporation.  Whenever any transfer of shares shall be made for collateral

security, and not absolutely, such fact shall be stated expressly in the entry

of transfer if, when the certificate or certificates shall be presented to the

Corporation for transfer, both the transferor and the transferee request the

Corporation to do so.

 

     Section 6.03   Regulations.  The Board may make such rules and regulations

                    -----------

as it may deem expedient, not inconsistent with these Bylaws, concerning the

issue, transfer and registration of certificates for shares of the stock of the

Corporation. It may appoint, or authorize any officer or officers to appoint,

one or more transfer clerks or one or more transfer agents and one or more

registrars, and may require all certificates for stock to bear the signature or

signatures of any of them.

 

     Section 6.04   Lost, Stolen, Destroyed, and Mutilated Certificates.  The

                    ---------------------------------------------------

holder of any certificate for stock of the Corporation shall immediately notify

the Corporation of any loss, theft, destruction, or mutilation of such

certificates, and the Corporation may issue a new certificate for stock in the

place of any certificate theretofore issued by it alleged to have been

 

                                      -12-

<PAGE>

 

lost, stolen, destroyed, or mutilated. The Board may, in its discretion, require

the owner of the certificate or his legal representatives to give the

Corporation a bond in such sum, not exceeding double the value of the stock, and

with such surety or sureties, as it may direct, sufficient to indemnify the

Corporation, its transfer agents, and registrar against any claim that may be

made against them on account of the alleged loss or destruction of any such

certificate; a new certificate may be so issued without requiring any bond when,

in the judgment of the Secretary, it is proper so to do.

 

     Section 6.05   Fixing Date of Determination of Stockholders of Record.  In

                    ------------------------------------------------------

order that the Corporation may determine the stockholders entitled to notice of

or to vote at any meeting of stockholders or any adjournment thereof, or

entitled to receive payment of any dividend or other distribution or allotment

of any rights, or entitled to exercise any rights in respect to any other

change, conversion or exchange of stock or for the purpose of any other lawful

action, the Board may fix, in advance, a record date, which shall not be more

than sixty nor less than ten days before the date of such meeting, nor more than

sixty days prior to any other action.  If, in any case involving the

determination of stockholders for any purpose other than notice of or voting at

a meeting of stockholders, the Board shall not fix such a record date, the

record date for determining stockholders for such purpose shall be the close of

business on the day on which the Board shall adopt the resolution relating

thereto.  A determination of stockholders entitled to notice of or to vote at a

meeting of stockholders shall apply to any adjournment of such meeting;

provided, however, that the Board may fix a new record date for the adjourned

meeting.

 

                                  ARTICLE VII

                                  -----------

 

                                Indemnification

 

     Section 7.01   Right to Indemnification.  (a)  Each person who was or is

                    ------------------------

made a party or is threatened to be made a party to or is involved in any

action, suit or proceeding, whether civil, criminal, administrative or

investigative (hereinafter, a "proceeding"), by reason of the fact that he or

she, or a person of whom he or she is the legal representative, is or was a

director, officer or employee of the Corporation or, as a director, officer or

employee of the Corporation, is or was serving at the request of the Corporation

as a director, officer or employee of another corporation or of a partnership,

joint venture, trust or other enterprise, including service with respect to

employee benefit plans, whether the basis of such proceeding is alleged action

in an official capacity as a director, officer, employee or agent or in any

other capacity while serving as a director, officer or employee, shall be

indemnified and held harmless by the Corporation to the fullest extent

authorized by the Delaware General Corporation Law, as the same exists or may

hereafter be amended (but, in the case of any such amendment, only to the extent

that such amendment permits the Corporation to provide broader indemnification

rights than said law permitted the Corporation to provide prior to such

amendment), against all expense, liability and loss (including attorneys' fees,

judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid

in settlement) reasonably incurred or suffered by such person in connection

therewith, and such indemnification shall continue as to such person who has

ceased to be a director, officer or employee and shall inure to the benefit of

his or her heirs, executors and administrators; provided, however, that, except

as provided in paragraph (b) hereof, the Corporation shall indemnify any such

person seeking indemnification in connection with a

 

                                      -13-

<PAGE>

 

proceeding (or part thereof) initiated by such person only if such proceeding

(or part thereof) was authorized by the Board of Directors of the Corporation.

The right to indemnification conferred in this Section shall be a contract right

and shall include the right to be paid by the Corporation the expenses incurred

in defending any such proceeding in advance of its final disposition; provided,

however, that, if the Delaware General Corporation Law requires, the payment of

such expenses incurred by such person in his or her capacity as a director or

officer (and not any other capacity in which service was or is rendered by such

person while a director or officer, including, without limitation, service to an

employee benefit plan) in advance of the final disposition of a proceeding shall

be made only upon delivery to the Corporation of an undertaking, by or on behalf

of such person, to repay all amounts so advanced if it shall ultimately be

determined that such person is not entitled to be indemnified under this Section

or otherwise. The Corporation may, by action of its Board of Directors, provide

indemnification and advance expenses to any agent of the Corporation with the

same scope and effect as the foregoing indemnification of directors, officers

and employees.

 

          (b)  Right of Claimant to Bring Suit.  If a claim under paragraph (a)

               -------------------------------

     of this Section is not paid in full by the Corporation within thirty days

     after a written claim has been received by the Corporation, the claimant

     may at any time thereafter bring suit against the Corporation to recover

     the unpaid amount of the claim, and, if successful in whole or in part, the

     claimant shall also be entitled to be paid the expense of prosecuting such

     claim. It shall be a defense to any such action (other than an action

     brought to enforce a claim for expenses incurred in defending any

     proceeding in advance of its final disposition where the required

     undertaking, if any is required, has been tendered to the Corporation) that

     the claimant has not met the standards of conduct which make it permissible

     under the Delaware General Corporation Law for the Corporation to indemnify

     the claimant for the amount claimed, but the burden of proving such defense

     shall be on the Corporation. Neither the failure of the Corporation

     (including its Board of Directors, independent legal counsel or its

     stockholders) to have made a determination prior to the commencement of

     such action that indemnification of the claimant is proper in the

     circumstances because he or she has met the applicable standards of conduct

     set forth in the Delaware General Corporation Law, nor an actual

     determination by the Corporation (including its Board of Directors,

     independent legal counsel or its stockholders) that the claimant has not

     met such applicable standards of conduct, shall be a defense to such action

     or create a presumption that the claimant has not met the applicable

     standards of conduct.

 

          (c)  Non-Exclusivity of Rights.  The rights to indemnification and

               -------------------------

     the payment of expenses incurred in defending a proceeding in advance of

     its final disposition conferred in this Section shall not be exclusive of

     any other right which any person may have or hereafter acquire under any

     statute, provision of the Certificate of Incorporation, bylaw, agreement,

     vote of stockholders or disinterested directors or otherwise.

 

          (d)  Insurance.  The Corporation may maintain insurance, at its

               ---------

     expense, to protect itself and any director, officer or employee of the

     Corporation or another corporation, partnership, joint venture, trust or

     other enterprise against any such expense, liability or loss, whether or

     not the Corporation would have the power to indemnify such person against

     such expense, liability or loss under the Delaware General Corporation Law.

 

                                      -14-

<PAGE>

 

                                 ARTICLE VIII

 

     Section 8.01   Seal.  The Board shall provide a corporate seal, which

                    ----

shall be in the form of a circle and shall bear the name of the Corporation and

word and figures showing that the Corporation was incorporated in the State of

Delaware and year of incorporation.

 

     Section 8.02   Waiver of Notices.  Whenever notice is required to be given

                    -----------------

by these Bylaws or the Certificate of Incorporation or by law, the person

entitled to said notice may waive such notice in writing, either before or after

the time stated therein, and such waiver shall be deemed equivalent to notice.

 

     Section 8.03   Fiscal Year.  The fiscal year of the Corporation shall,

                    -----------

unless otherwise fixed by resolution of the Board of Directors, end on the last

day of December in each year.

 

     Section 8.04   Inspection of Books.  All books and records of the

                    -------------------

Corporation shall be open to inspection to the extent expressly provided by law

and not otherwise. Any permissible inspection shall be arranged as far in

advance as possible with the President of the Corporation, or such other person

as the President may designate from time to time. Such inspection shall not

interrupt or interfere with the business and employees of the Corporation.

Confidential Information obtained by such inspection shall be used only as

provided in these Bylaws.

 

     Section 8.05   Amendments.  These Bylaws may be amended, altered or

                    -----------

repealed, and new Bylaws may be adopted, (i) by the affirmative vote of the

holders of at least a majority of the outstanding shares of capital stock of the

Corporation entitled to vote generally in the election of directors (considered

for this purpose as one class) or (ii) by an affirmative vote of the majority of

the Board but such right of the directors shall not divest or limit the right of

the stockholders to adopt, alter or repeal these Bylaws.

[As Filed: 09/28/2000]

 

 

 

 

AMENDMENT

TO THE

AMENDED AND RESTATED BYLAWS

OF

GRUBB & ELLIS COMPANY

     This amendment (the “Amendment”) to the Bylaws of Grubb & Ellis Company (the “Corporation”), as amended and restated effective May 31, 2000 (the “Bylaws”), is made and shall be effective as of the 7th day of December, 2007.

     The Bylaws of the Corporation are hereby amended as follows:

     1. Section 3.02 is amended and restated in its entirety to read as follows:

“Section 3.02 Number and Term of Office. Unless the Certificate of Incorporation of the Corporation provides otherwise, the number of directors of the Corporation (exclusive of directors to be elected, if any, by the holders of any one or more series of Preferred Stock voting separately as a class or classes) shall not be less than six nor more than eighteen, the exact number of directors to be determined from time to time by a resolution adopted by the Board. Unless the Certificate of Incorporation of the Corporation provides for the division of the directors into classes, at each annual meeting all directors shall be elected to hold office until their respective successors are elected and qualified or until their earlier resignation or removal. Any vacancies in the Board for any reason, and any newly created directorships resulting from any increase in the number of directors, may be filled by the Board, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next election of directors and until their successors shall have been duly elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the terms of the director or directors elected by such holders shall expire at the next succeeding annual meeting of stockholders. The stockholders of the Corporation shall not have cumulative voting rights.”

     2. Section 6.01 is amended and restated in its entirety to read as follows:

“Section 6.01 Certificates for Stock. The Board may authorize the issuance of shares of the Corporation either in certificated or uncertificated form, which uncertificated shares may be evidenced by a book-entry system maintained by the Corporation’s transfer agent or registrar, or a combination of both. Shares issued in certificated form shall be represented by certificates which shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman of the Board, the President, or a Vice President, and by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any and all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so canceled, excepting cases provided for in Section 6.04. If shares are issued in uncertificated form, each stockholder shall be entitled, upon written request, to a stock certificate or certificates in the form prescribed above.”

     3. Section 6.02 is amended and restated in its entirety to read as follows:

“Section 6.02 Transfer of Stock. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03, and upon surrender of the certificate or certificates for such shares properly endorsed, or other evidence of ownership if no certificate shall have been issued, and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates, or other evidence of ownership if no certificate shall have been issued, shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.”

     4. Except as aforesaid, the Bylaws shall remain unchanged and be in full force and effect.

[As Filed: 12/13/2007]

 

 

 

 

AMENDMENT TO THE
AMENDED AND RESTATED BYLAWS
OF
GRUBB & ELLIS COMPANY,
a Delaware Corporation

     This amendment (the “Amendment”) to the Bylaws of Grubb & Ellis Company (the “Corporation”), as amended and restated effective May 31, 2000 (the “Bylaws”), is made and shall be effective as of the 25th day of January, 2008.

     Section 3.16 of the Bylaws of the Corporation shall be added as follows:

     “Section 3.16 Corporate Opportunities. Members of the Board who are not an employee or executive officer of the Corporation shall be referred to as “Non-Management Directors.” Each such Non-Management Director has the right to directly or indirectly engage in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries including those deemed to be competing with the Corporation or any of its subsidiaries. In the event that such Non-Management Director acquires knowledge, other than as a result of his or her position as a director of the Corporation, of a potential transaction or matter that may be a corporate opportunity for the Corporation or any of its subsidiaries (whether such potential transaction or matter is proposed by a third party or is conceived of by such Non-Management Director), such Non-Management Director shall be entitled to offer such corporate opportunity to the Corporation as such Non-Management Director deems appropriate under the circumstances in his sole discretion. No such Non-Management Director shall be liable to the Corporation or its stockholders for usurping a corporate opportunity or failing to act in (or not opposed to) the best interests of the Corporation or deriving any improper personal benefit by reason of the fact that such Non-Management Director, directly or indirectly, (i) pursued or acquired such corporate opportunity for himself or herself, (ii) directed or offered such corporate opportunity to another corporation for which such Non-Management Director serves as a director or officer, or (iii) failed to communicate or present information regarding such corporate opportunity to the Corporation or any of its subsidiaries. To the fullest extent permitted by Delaware General Corporation Law, the Corporation hereby renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any such corporate opportunity, and any other potential transaction or matter that may be a corporate opportunity for the Corporation or any of its subsidiaries, except to the extent that an Non-Management Director acquires such knowledge as a result of his or her position as a director of the Corporation.”

[As Filed: 01/31/2008]

 

 

 

AMENDMENT

TO THE

AMENDED AND RESTATED BYLAWS

OF

GRUBB & ELLIS COMPANY

     This amendment (the “Amendment”) to the Bylaws of Grubb & Ellis Company (the “Corporation”), as amended and restated effective May 31, 2000, as further amended on December 7, 2007 and January 25, 2008 (the “Bylaws”), is made and shall be effective as of the 26th day of October, 2008.

     The Bylaws of the Corporation are hereby amended as follows:

     1. Section 2.07 is amended and restated in its entirety to read as follows:

“Section 2.07 List of Stockholders. The Secretary of the Corporation and persons authorized by the Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in this Section shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.”

     2. Except as aforesaid, the Bylaws shall remain unchanged and be in full force and effect.

[As Filed: 10/29/2008]

 

AMENDMENT

TO THE

AMENDED AND RESTATED BYLAWS

OF

GRUBB & ELLIS COMPANY

     This amendment (the “Amendment”) to the Bylaws of Grubb & Ellis Company (the “Corporation”), as amended and restated effective May 31, 2000, as further amended on December 7, 2007, January 25, 2008 and October 26, 2008 (the “Bylaws”), is made and shall be effective as of the 5th day of February, 2009.

     The Bylaws of the Corporation are hereby amended as follows:

     1. Section 2.02 is amended and restated in its entirety to read as follows:

“Section 2.02 Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board, or by a majority of the members of the Board or by a committee of the Board which has been duly designated by the Board, whose powers and authority, as provided in a resolution of the Board or in the Bylaws of the Corporation, include the power to call such meetings, or by the affirmative vote of the holders of at least a majority of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class), but such special meetings may not be called by any other person or persons. In the event that a special meeting is called by the affirmative vote of the holders of at least a majority of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, such stockholders calling the meeting shall provide written notice to the Secretary of the Corporation. Such notice shall provide the information required for the Corporation to comply with the requirements of Section 2.04.”

2. Section 2.09 is amended and restated in its entirety to read as follows:

“Section 2.09 Organization. At every meeting of the stockholders the Chairman of the Board or a director or executive officer designated by the Chairman of the Board, or in the absence of the Chairman of the Board or his designee, the Chief Executive Officer, or in his absence, the President, or in his absence the Vice President designated by the Chairman of the Board or in the absence of such designation a chairman (who shall be one of the Vice Presidents, if any is present) chosen by a majority in interest of the stockholders of the Corporation present in person or by proxy and entitled to vote, shall act as Chairman. The Secretary of

1


 

the Corporation, or his designee, shall act as Secretary of all meetings of the stockholders. In the absence at any such meeting of the Secretary or Assistant Secretary, the Chairman may appoint another person to act as Secretary of the meeting.”

3. Section 2.10 shall be added as follows:

“Section 2.10. Notice of Stockholder Business and Nominations.

(A) Annual Meetings of Stockholders. (1) Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the Board or any committee thereof or (c) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the time the notice provided for in this Section 2.10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.10.

     (2) For any nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.10, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business (other than the nominations of persons for election to the Board) must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election as a director (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, and (ii) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (b) as to any other business that the stockholder

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proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (iii) a description of any agreement, arrangement or understanding with respect to the nomination or proposal between or among such stockholder and/or such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, (iv) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice by, or on behalf of, such stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to shares of stock of the Corporation, (v) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (vi) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies from stockholders in support of such proposal or nomination, and (vii) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The foregoing notice requirements of this Section 2.10 shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.

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     (3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.10 to the contrary, in the event that the number of directors to be elected to the Board is increased effective at the annual meeting and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 2.10 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

(B) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board or any committee thereof (or stockholders pursuant to Section 2.02 hereof) or (2) provided that the Board (or stockholders pursuant to Section 2.02 hereof) has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 2.10. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of this Section 2.10 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(C) General. (1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.10 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have

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been brought before the meeting in accordance with the procedures set forth in this Section 2.10. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(c)(vi) of this Section 2.10) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 2.10, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.10, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

     (2) For purposes of this Section 2.10, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

     (3) Notwithstanding the foregoing provisions of this Section 2.10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.10; provided however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.10 (including paragraphs A(1)(c) and B hereof), and compliance with paragraphs A(1)(c) and B of this Section 2.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of A(2), matters brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in this Section 2.10 shall be deemed to affect any rights (a)

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of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the certificate of incorporation.”

4. Section 3.03 is amended and restated in its entirety to read as follows:

“Section 3.03 Director Nominations. Nominations for the election to the Board shall be made pursuant to Section 2.10 of these Bylaws.”

5. Section 4.01 is amended and restated in its entirety to read as follows:

“Section 4.01 Number. The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, including a Chief Financial Officer, a Secretary, a Controller and a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.02 of this Article IV. The Board may also appoint a Chairman of the Board or a Vice Chairman of the Board.”

6. Section 4.06 is amended and restated in its entirety to read as follows:

“Section 4.06 Resignations. Any officer may resign at any time by giving written notice to the Board or to the Chairman of the Board, the President, or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.”

7. Section 4.08 is amended and restated in its entirety to read as follows:

“Section 4.08 Chairman of the Board. Subject to Section 2.09 hereof, the Chairman of the Board, Vice Chairman of the Board or, if none are appointed, the Chief Executive Officer, or if not appointed, the President, shall preside at all meetings of the stockholders and of the Board. The Chairman of the Board, if a person other than the Chief Executive Officer or the President, shall have such additional duties and responsibilities and membership on such Committees of the Board as may be prescribed by the Board or these Bylaws.”

8. Section 4.09 is amended and restated in its entirety to read as follows:

“Section 4.09 Chief Executive Officer. The Board may designate the Chairman of the Board or the President as the Chief Executive Officer. The Board may also designate any other individual as the Chief Executive Officer. Subject to the control of the Board, the Chief Executive Officer shall have general supervision, direction and control of the business and officers of the Corporation and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.”

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9. Section 8.04 is amended and restated in its entirety to read as follows:

“Section 8.04 Inspection of Books. All books and records of the Corporation shall be open to inspection to the extent expressly provided by law and not otherwise. Any permissible inspection shall be arranged as far in advance as possible with the Chief Executive Officer or the President of the Corporation, or such other person as the President may designate from time to time. Such inspection shall not interrupt or interfere with the business and employees of the Corporation. Information obtained by such inspection shall be used only as permitted under law and pursuant to any undertakings or agreements entered into by such person conducting such inspection.”

10. Except as aforesaid, the Bylaws shall remain unchanged and be in full force and effect.

[As Filed: 02/05/2009]

 

 

AMENDMENT
TO THE
AMENDED AND RESTATED BYLAWS
OF
GRUBB & ELLIS COMPANY

     This amendment (the “Amendment”) to the Bylaws of Grubb & Ellis Company (the “Corporation”), amended and restated effective May 31, 2000, as further amended on each of December 7, 2007, January 25, 2008, October 26, 2008 and February 5, 2009 (the “Bylaws”), is made and shall be effective as of the 17th day of December 2009.

     The Bylaws of the Corporation are hereby amended as follows:

     1. Section 3.02 is amended and restated in its entirety to read as follows:

     “Section 3.02 Number and Term of Office. Unless the Certificate of Incorporation provides otherwise, the number of directors of the Corporation shall not be less than three (3) nor more than eight (8), the exact number of directors to be determined from time to time by a resolution adopted by the Board. At each annual meeting, all directors shall be elected to hold office until their respective successors are elected and qualified or until their earlier resignation or removal. Any vacancies in the Board for any reason, and any newly created directorships resulting from any increase in the number of directors, may be filled by the Board, acting by a majority of directors then in office, although less than a quorum, and any directors so chose shall hold office until the next election of directors and until their successors shall have been duly elected and qualified. Unless the Certificate of Incorporation (including, without limitation, the Certificate of the Powers, Designations, Preferences and Rights of the 12% Cumulative Participating Perpetual Convertible Preferred Stock filed on November 4, 2009 (the “12% Preferred Stock Certificate of Designations”)) provides otherwise, no decrease in the number of directors shall shorten the term of any incumbent director. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class or with other series or classes of preferred stock with similar voting rights, to elect one or more directors of the Corporation, the term of the director or directors elected by such holders shall expire as set forth in accordance with the terms of the Certificate of Incorporation, including without limitation, the 12% Preferred Stock Certificate of Designations. The stockholders of the Corporation shall not have cumulative voting rights.”

     2. Except as aforesaid, the Bylaws shall remain unchanged and be in full force and effect.

  [As Filed: 12/23/2009]