INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT is
made and entered into this
day of , 2007
(“Agreement”), by and between NNN Healthcare/Office
REIT, Inc., a Maryland corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, at the request of the
Company, Indemnitee currently serves as a director or officer of
the Company and may, therefore, be subjected to claims, suits or
proceedings arising as a result of his or her service; and
WHEREAS, as an inducement to
Indemnitee to continue to serve as such director or officer, the
Company has agreed to indemnify and to advance expenses and costs
incurred by Indemnitee in connection with any such claims, suits or
proceedings, subject to certain limitations set forth herein;
and
WHEREAS, the parties by this
Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions .
For purposes of this Agreement:
(a) “Change of
Control” means a change in control of the Company occurring
after the Effective Date of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange
Act of 1934, as amended (the “Act”), whether or not the
Company is then subject to such reporting requirement; provided,
however, that, without limitation, such a Change in Control shall
be deemed to have occurred if after the Effective Date (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 15% or more
of the combined voting power of the Company’s then
outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office
immediately prior to such person attaining such percentage
interest; (ii) there occurs a proxy contest, or the Company is
a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least
two-thirds of the members of the Board of Directors then in office,
as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors thereafter; or
(iii) during any period of two consecutive years, other than
as a result of an event described in clause (a)(ii) of this
Section 1, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute
at least a majority of the Board of Directors.
(b) “Corporate
Status” means the status of a person who is or was a
director, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise for which such person is or was serving at
the request of the Company.
(c) “Disinterested
Director” means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) “Effective Date”
means the date set forth in the first paragraph of this
Agreement.
(e) “Expenses” shall
include all reasonable and out-of-pocket attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in
a Proceeding.
(f) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither is, nor in
the past five years has been, retained to represent: (i) the
Company or Indemnitee in any matter material to either such party,
or (ii) any other party to or witness in the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
If a Change of Control has not occurred, Independent Counsel shall
be selected by the Board of Directors, with the approval of
Indemnitee, which approval will not be unreasonably withheld. If a
Change of Control has occurred, Independent Counsel shall be
selected by Indemnitee, with the approval of the Board of
Directors, which approval will not be unreasonably withheld.
(g) “Proceeding”
includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative (including on
appeal).
Section 2. Services by
Indemnitee . Indemnitee will serve as a director or officer of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
Section 3. Indemnification
— General . Subject to the limitations in Section 7,
the Company shall indemnify, and advance Expenses to, Indemnitee
(a) as provided in this Agreement and (b) as otherwise
permitted by Maryland law in effect on the date hereof and as
amended from time to time; provided, however, that no change in
Maryland law shall have the effect of reducing the benefits
available to Indemnitee hereunder based on Maryland law as in
effect on the Effective Date. Subject to the limitations in
Section 7, the rights of Indemnitee provided in this
Section 3 shall include the rights set forth in the other
sections of this Agreement, including any additional
indemnification permitted by Section 2-418(g) of the Maryland
General Corporation Law (“MGCL”).
Section 4. Rights to
Indemnification . Subject to the limitations in Section 7,
if, by reason of his or her Corporate Status, Indemnitee is, or is
threatened to be, made a party to or a witness in any threatened,
pending, or completed Proceeding, Indemnitee shall be indemnified
against all judgments, penalties, fines and amounts paid in
settlement and all Expenses actually and reasonably incurred by him
or her or on his or her behalf unless it is established by clear
and convincing evidence that (i) the act or omission of
Indemnitee was material to the matter giving rise to the Proceeding
and (a) was committed in bad faith or (b) was the result
of active and deliberate dishonesty, (ii) Indemnitee actually
received an improper personal benefit in money, property or
services, or (iii) in the case of any criminal Proceeding,
Indemnitee had reasonable cause to believe that his or her conduct
was unlawful.
Section 5. Court-Ordered
Indemnification . Subject to the limitations in Section 7,
a court of appropriate jurisdiction, upon application of Indemnitee
and such notice as the court shall require, may order
indemnification in the following circumstances:
(a) if it determines Indemnitee
is entitled to reimbursement under Section 2-418(d)(1) of the
MGCL, the court shall order indemnification, in which case
Indemnitee shall be entitled to recover the expenses of securing
such reimbursement; or
(b) if it determines that
Indemnitee is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not Indemnitee
(i) has met the standards of conduct set forth in
Section 2-418(b) of the MGCL or (ii) has been adjudged
liable for receipt of an improper personal benefit under
Section 2-418(c) of the MGCL, in which case the court may
order such indemnification as the court shall deem proper.
Section 6. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful .
Subject to the limitations in Section 7, to the extent that
Indemnitee is, by reason of his or her Corporate Status, made a
party to and is successful, on the merits or otherwise, in the
defense of any Proceeding, he or she shall be indemnified for all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee
under this Section 6 for all Expenses actually and reasonably
incurred by him or her or on his or her behalf in connection with
each successfully resolved claim, issue or matter, allocated on a
reasonable and proportionate basis. For purposes of this Section
and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 7. Limitations on
Indemnification . Notwithstanding any other provision of this
Agreement, the Company shall not be obligated under this Agreement
to make any payment to Indemnitee for indemnification with respect
to any Proceeding:
(a) for any loss or liability
unless all of the following conditions are met: (i) Indemnitee
has determined, in good faith, that the course of conduct that
caused the loss or liability was in the best interests of the
Company, (ii) Indemnitee was acting on behalf of or performing
services for the Company, (iii) such loss or liability was not
the result of negligence or misconduct, or, if Indemnitee is an
independent director, gross negligence or willful misconduct, and
(iv) such indemnification is recoverable only out of the
Company’s net assets and not from the Company’s
stockholders; or
(b) for any loss or liability
arising from an alleged violation of federal or state securities
laws unless one or more of the following conditions are met:
(i) there has been a successful adjudication on the merits of
each count involving alleged securities law violations as to
Indemnitee, (ii) such claims have been dismissed with
prejudice on the merits by a court of competent jurisdiction as to
Indemnitee; or (iii) a court of competent jurisdiction
approves a settlement of the claims against Indemnitee and finds
that indemnification of the settlement and the related costs should
be made, and the court considering the request for indemnification
has been advised of the position of the Securities and Exchange
Commission and of the published position of any state securities
regulatory authority in which securities of the Company were
offered or sold as to indemnification for violations of securities
laws.
Section 8. Advance of
Expenses . The Company shall advance all reasonable Expenses
actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Proceeding (other than a Proceeding brought to
enforce indemnification under this Agreement, applicable law, the
charter or Bylaws of the Company, any agreement or a resolution of
the stockholders entitled to vote generally in the election of
directors or of the Board of Directors) to which Indemnitee is, or
is threatened to be, made a party or a witness, which is initiated
by a third party who is not a stockholder of the Company or which
is initiated by a stockholder of the Company acting in his or her
capacity as such and a court of competent jurisdiction specifically
approves such advancement, and which relates to acts or omissions
with respect to the performance of duties or services on behalf of
the Company, within ten days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by a written affirmation by
Indemnitee of Indemnitee’s good faith belief that the
standard of conduct necessary for indemnification by the Company as
authorized by law and by this Agreement has been met and a written
undertaking by or on behalf of Indemnitee, in substantially the
form attached hereto as Exhibit A or in such form as
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