Indemnification Agreement between CNL Retirement Properties, Inc. and Clark Hettinga dated December 31, 2004
EXHIBIT
10.11
between
CNL Retirement Properties, Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
dated
December 31, 2004
THIS
INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the 14th
day of January, 2005 and effective as of the 31st
day of
December, 2004 by and among CNL
RETIREMENT PROPERTIES, INC., a
Maryland corporation (the “Company”) and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
(the
“Indemnitee”).
WITNESSETH:
WHEREAS,
the interpretation of ambiguous statutes, regulations, articles of incorporation
and bylaws regarding indemnification of directors and officers may be too
uncertain to provide such directors and officers with adequate notice of the
legal, financial and other risks to which they may be exposed by virtue of
their
service as such; and
WHEREAS,
damages sought against directors and officers in shareholder or similar
litigation by class action plaintiffs may be substantial, and the costs of
defending such actions and of judgments in favor of plaintiffs or of settlement
therewith may be prohibitive for individual directors and officers, without
regard to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any named
director or officer to the detriment of the corporation; and
WHEREAS,
the issues in controversy in such litigation usually relate to the knowledge,
motives and intent of the director or officer, who may be the only person with
firsthand knowledge of essential facts or exculpating circumstances who is
qualified to testify in his defense regarding matters of such a subjective
nature, and the long period of time which may elapse before final disposition
of
such litigation may impose undue hardship and burden on a director or officer
or
his estate in establishing and maintaining a proper and adequate defense of
himself or his estate against such claims for damages; and
WHEREAS,
the Company is organized under the Maryland General Corporation Law (the “MGCL”)
and Section 2-418 of the MGCL empowers corporations to indemnify and advance
expenses of litigation to a person who is or was a director or officer of the
Company or any of the Affiliates, or a member of any committee of the Board,
or
a person who, while a director or officer of the Company, is or was serving
at
the request of the Company as a director, officer, partner (including service
as
a general partner of any limited partnership), trustee, employee, or agent
of
another foreign or domestic corporation, partnership, joint venture, trust,
other incorporated or unincorporated entity or enterprise or employee benefit
plan, and further provides that the indemnification and advancement of expenses
set forth in said section, subject to certain limitations are not “exclusive of
any other rights, by indemnification or otherwise, to which a director may
be
entitled under the charter, the bylaws, a resolution of stockholders or
directors, an agreement or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office”;
and
WHEREAS,
the Articles of Incorporation of the Company, which may be amended or restated
from time to time (the “Articles of Incorporation”), provide that the Company
shall indemnify and hold harmless directors, advisors, or affiliates, as such
terms are defined in the Articles of Incorporation; and
WHEREAS,
the Board of Directors of the Company (the “Board”) has concluded that it is
reasonable and prudent for the Company to contractually obligate itself to
indemnify the Indemnitee in a reasonable and adequate manner and to assume
for
itself maximum liability for expenses and damages in connection with claims
lodged against Indemnitee for Indemnitee’s decisions and actions as a director
and/or officer of the Company.
NOW,
THEREFORE, in consideration of the foregoing, and of other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each
of
the parties hereto, the parties agree as follows:
I.
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
A. “Board”
shall
mean the Board of Directors of the Company.
B. “Corporate
Status”
shall
mean the status of a person who is or was a director or officer of the Company
or any of the Affiliates, or a member of any committee of the Board, and the
status of a person who, while a director or officer of the Company, is or was
serving at the request of the Company as a director, officer, partner (including
service as a general partner of any limited partnership), trustee, employee,
or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, other incorporated or unincorporated entity or enterprise or employee
benefit plan.
C. “Disinterested
Director”
shall
mean a director of the Company who neither is nor was a party to the Proceeding
in respect of which indemnification is being sought by the
Indemnitee.
D. “Expenses”
shall
mean without limitation expenses of Proceedings including all attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, investigation fees
and expenses, accounting and 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.
E. “Good
Faith Act or Omission”
shall
mean an act or omission of the Indemnitee reasonably believed by the Indemnitee
to be in or not opposed to the best interests of the Company or the Affiliates
and other than (i) one involving negligence or misconduct, or, if the Indemnitee
is an Independent Director, one involving gross negligence or willful
misconduct; (ii) one that was material to the loss or liability and that was
committed in bad faith or that was the result of active or deliberate
dishonesty; (iii) one from which the Indemnitee actually received an improper
personal benefit in the form of money, property or services; or (iv) in the
case
of a criminal Proceeding, one as to which the Indemnitee had cause to believe
his conduct was unlawful.
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F. “Independent
Director”
shall
mean any director, manager or officer designated in the corporate records of
the
Company or the Company's subsidiaries as independent.
G. “Liabilities”
shall
mean liabilities of any type whatsoever, including, without limitation, any
judgments, fines, excise taxes and penalties under the Employee Retirement
Income Security Act of 1974, as amended, in addition to penalties and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection with or in respect of such judgments, fines, penalties
or amounts paid in settlement) in connection with the investigation, defense,
settlement or appeal of any Proceeding or any claim, issue or matter
therein.
H. “Proceeding”
shall
mean any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any
other
actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, or any appeal therefrom, arising as a result
of
Indemnitee’s Corporate Status.
I. “Voting
Securities”
shall
mean any securities of the Company that are entitled to vote generally in the
election of directors.
II.
TERMINATION
OF AGREEMENT
This
Agreement shall continue until, and terminate upon the later to occur of (i)
the
death of the Indemnitee; or (ii) the final termination of all Proceedings
(including possible Proceedings) in respect of which the Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by the Indemnitee regarding the interpretation or
enforcement of this Agreement. Notwithstanding the foregoing, the
indemnification provided by this Agreement shall be replaced by and convert
to
the level of indemnification provided pursuant to a uniform indemnification
that
the Company has approved for all persons who have obtained Corporate Status
following the effective date of this Agreement.
III.
SERVICE
BY INDEMNITEE, NOTICE OF
PROCEEDINGS,
DEFENSE OF CLAIMS
A. Notice
of Proceedings.
The
Indemnitee agrees to notify the Company promptly in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder, but the
Indemnitee’s omission to so notify the Company shall not relieve the Company
from any liability which it may have to the Indemnitee under this
Agreement.
B. Defense
of Claims.
The
Company shall be entitled to participate, at its own expense, in any Proceeding
of which it has notice. The Company jointly with any other indemnifying party
similarly notified of any Proceeding shall be entitled to assume the defense
of
the Indemnitee therein, with counsel reasonably satisfactory to the Indemnitee;
provided, however, that the Company shall not be entitled to assume the defense
of the Indemnitee in any Proceeding if the Indemnitee has reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
with respect to such Proceeding. The Company shall not be liable to the
Indemnitee under this Agreement for any Expenses incurred by the Indemnitee
in
connection with the defense of any Proceeding, other than reasonable costs
of
investigation or as otherwise provided below, after notice from the Company
to
the Indemnitee of its election to assume the defense of the Indemnitee therein.
The Indemnitee shall have the right to employ his own counsel in any such
Proceeding, but the fees and expenses of such counsel incurred after notice
from
the Company of its assumption of the defense thereof shall be at the expense
of
the Indemnitee unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company; (ii) the Indemnitee shall have reasonably concluded
that counsel employed by the Company may not adequately represent the Indemnitee
and shall have so informed the Company in writing; or (iii) the Company shall
not in fact have employed counsel to assume the defense of the Indemnitee in
such Proceeding or such counsel shall not, in fact, have assumed such defense
or
such counsel shall not be acting, in connection therewith, with reasonable
diligence; and in each such case the fees and expenses of the Indemnitee’s
counsel shall be advanced by the Company in accordance with this
Agreement.
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C. Settlement
of Claims.
The
Company shall not settle any Proceeding in any manner which would impose any
liability, penalty or limitation on the Indemnitee without the written consent
of the Indemnitee; provided, however, that the Indemnitee will not unreasonably
withhold or delay consent to any proposed settlement. The Company shall not
be
liable to indemnify the Indemnitee under this Agreement or otherwise for any
amounts paid in settlement of any Proceeding effected by the Indemnitee without
the Company’s written consent, which consent shall not be unreasonably withheld
or delayed.
IV.
INDEMNIFICATION
A. In
General.
Upon
the terms and subject to the conditions set forth in this Agreement, the Company
shall hold harmless and indemnify the Indemnitee against any and all Liabilities
actually incurred by or for him in connection with any Proceeding (whether
the
Indemnitee is or becomes a party, a witness or otherwise is a participant in
any
role) to the fullest extent required or permitted by the Articles of
Incorporation and by applicable law in effect on the date hereof and to such
greater extent as applicable law may hereafter from time to time permit. For
all
matters for which the Indemnitee is entitled to indemnification under this
Article IV, the Indemnitee shall be entitled to advancement of Expenses in
accordance with Article V hereof.
B. Proceeding
Other Than a Proceeding by or in the Right of the Company.
If the
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (whether the Indemnitee is or becomes a party, a witness or otherwise
is a participant in any role) (other than a Proceeding by or in the right of
the
Company or any Affiliate) by reason of Indemnitee’s Corporate Status, or by
reason of alleged action or inaction by Indemnitee in any such capacity, the
Company shall, subject to the limitations set forth in Section IV.F. below,
hold
harmless and indemnify Indemnitee against any and all Expenses and Liabilities
actually and reasonably incurred by or for the Indemnitee in connection with
the
Proceeding if the act(s) or omission(s) of the Indemnitee giving rise thereto
were Good Faith Act(s) or Omission(s).
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C. Proceedings
by or in the Right of the Company.
If the
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (whether the Indemnitee is or becomes a party, a witness or otherwise
is a participant in any role) by or in the right of the Company or any Affiliate
to procure a judgment in its favor by reason of Indemnitee’s Corporate Status,
or by reason of any action or inaction by Indemnitee in any such capacity,
the
Company shall, subject to the limitations set forth in Section IV.F. below,
hold
harmless and indemnify Indemnitee against any and all Expenses actually incurred
by or for Indemnitee in connection with the investigation, defense, settlement
or appeal of such Proceeding if the act(s) or omission(s) of the Indemnitee
giving rise to the Proceeding were Good Faith Act(s) or Omission(s); except
that
no indemnification under this Section IV.C. shall be made in respect of any
claim, issue or matter as to which the Indemnitee shall have been finally
adjudged to be liable to the Company or any Affiliate, unless a court of
appropriate jurisdiction (including, but not limited to, the court in which
such
Proceeding was brought) shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
regardless of whether the Indemnitee’s act(s) or omission(s) were found to be
Good Faith Act(s) or Omission(s), the Indemnitee is fairly and reasonably
entitled to indemnification for such Expenses which such court shall deem
proper.
D. Indemnification
of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is, by reason of the Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Indemnitee shall
be indemnified by the Company to the maximum extent consistent with applicable
law, against all Expenses and Liabilities actually incurred by or for him in
connection therewith. If the 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
hold harmless and indemnify the Indemnitee to the maximum extent consistent
with
applicable law, against all Expenses and Liabilities actually and reasonably
incurred by or for Indemnitee in connection with each successfully resolved
claim, issue or matter in such Proceeding. Resolution of a claim, issue or
matter by dismissal, with or without prejudice, except as provided in subsection
F hereof, shall be deemed a successful result as to such claim, issue or matter,
so long as there has been no finding that the act(s) or omission(s) of the
Indemnitee giving rise thereto were not Good Faith Act(s) or
Omission(s).
E. Indemnification
for Expenses of Witness.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee, by reason of the Indemnitee’s Corporate Status, has prepared to
serve or has served as a witness in any Proceeding, or has participated in
discovery proceedings or other trial preparation, the Indemnitee shall be held
harmless and indemnified against all Expenses actually and reasonably incurred
by or for him in connection therewith.
F. Specific
Limitations on Indemnification.
In
addition to the other limitations set forth in this Article IV, and
notwithstanding anything in this Agreement to the contrary, the Company shall
not be obligated under this Agreement to make any payment to the Indemnitee
for
indemnification with respect to any Proceeding:
6
1. To
the
extent that payment is actually made to the Indemnitee under any insurance
policy or is made on behalf of the Indemnitee by or on behalf of the Company
otherwise than pursuant to this Agreement.
2. If
a
court in such Proceeding has entered a judgment or other adjudication which
is
final and has become nonappealable and establishes that a claim of the
Indemnitee for such indemnification arose from: (i) a breach by the Indemnitee
of the Indemnitee’s duty of loyalty to the Company or its shareholders; (ii)
acts or omissions of the Indemnitee that are not Good Faith Acts or Omissions
or
which are the result of active and deliberate dishonesty; (iii) acts or
omissions of the Indemnitee which the Indemnitee had reasonable cause to believe
were unlawful; or (iv) a transaction in which the Indemnitee actually received
an improper personal benefit in the form of money, property or
services.
3. For
Liabilities in connection with Proceedings settled without the consent of the
Company which consent, however, shall not be unreasonably withheld.
4. 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 the Indemnitee; (ii) such claims have
been dismissed with prejudice on the merits by a court of competent jurisdiction
as to the Indemnitee; or (iii) a court of competent jurisdiction approves a
settlement of the claims against the 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.
V.
ADVANCEMENT
OF EXPENSES
Notwithstanding
any provision to the contrary in Article VI hereof, the Company shall advance
to
the Indemnitee all Expenses which, by reason of the Indemnitee’s Corporate
Status, were incurred by or for Indemnitee in connection with any Proceeding
for
which the Indemnitee is entitled to indemnification pursuant to Article IV
hereof, in advance of the final disposition of such Proceeding, provided that
all of the following are satisfied: (i) the Indemnitee was made a party to
the
proceeding by reason of Indemnitee’s Corporate Status; (ii) the Indemnitee
provides the Company with written affirmation of Indemnitee’s good faith belief
that Indemnitee has met the standard of conduct necessary for indemnification
by
the Company pursuant to Article IV hereof; (iii) the Indemnitee provides the
Company with a written agreement (the “Undertaking”) to repay the amount paid or
reimbursed by the Company, together with the applicable legal rate of interest
thereon, if it is ultimately determined that the Indemnitee did not comply
with
the requisite standard of conduct; and (iv) the legal proceeding was initiated
by a third party who is not a stockholder of the Company or, if by a stockholder
of the Company acting in his or her capacity as such, a court of competent
jurisdiction approves such advancement. The Indemnitee shall be required to
execute and submit the Undertaking to repay Expenses advanced in the form of
Exhibit A attached hereto or in such form as may be required under applicable
law as in effect at the time of execution thereof. The Undertaking shall
reasonably evidence the Expenses incurred by or for the Indemnitee and shall
contain the written affirmation by the Indemnitee, described above, of
Indemnitee’s good faith belief that the standard of conduct necessary for
indemnification has been met. The Company shall advance such expenses within
five (5) business days after the receipt by the Company of the Undertaking.
The
Indemnitee hereby agrees to repay any Expenses advanced hereunder if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and the undertaking to repay pursuant to
this Article V shall be unsecured.
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VI.
PROCEDURE
FOR PAYMENT OF LIABILITIES;
DETERMINATION
OF RIGHT TO INDEMNIFICATION
A. Procedure
for Payment.
To
obtain indemnification for Liabilities under this Agreement, the Indemnitee
shall submit to the Company a written request for payment, including with such
request such documentation as is reasonably available to the Indemnitee and
reasonably necessary to determine whether, and to what extent, the Indemnitee
is
entitled to indemnification and payment hereunder. The Secretary of the Company,
or such other person as shall be designated by the Board of Directors, promptly
upon receipt of a request for indemnification shall advise the Board of
Directors, in writing, of such request. Any indemnification payment due
hereunder shall be paid by the Company no later than five (5) business days
following the determination, pursuant to this Article VI, that such
indemnification payment is proper hereunder.
B. No
Determination Necessary when the Indemnitee was Successful.
To the
extent the Indemnitee has been successful, on the merits or otherwise, in
defense of any Proceeding referred to in Sections IV.B. or IV.C. above or in
the
defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred
by or
for Indemnitee in connection with the investigation, defense or appeal of such
Proceeding.
C. Determination
of Good Faith Act or Omission.
In the
event that Section VI.B. is inapplicable, the Company also shall hold harmless
and indemnify the Indemnitee unless the Company shall prove by clear and
convincing evidence that the act(s) or omission(s) of the Indemnitee giving
rise
to the Proceeding were not Good Faith Act(s) or Omission(s).
VII.
PRESUMPTIONS
AND EFFECT
OF
CERTAIN PROCEEDINGS
A. Burden
of Proof.
In
making a determination with respect to entitlement to indemnification hereunder,
the person, persons, entity or entities making such determination shall presume
that the Indemnitee is entitled to indemnification under this Agreement and
the
Company shall have the burden of proof to overcome that
presumption.
8
B. Effect
of Other Proceedings.
The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order or settlement shall not create a presumption that the act(s)
or
omission(s) giving rise to the Proceeding were not Good Faith Act(s) or
Omission(s). The termination of any Proceeding by conviction, or upon a plea
of
non contendere, or its equivalent, or an entry of an order of probation prior
to
judgment, shall create a rebuttable presumption that the act(s) or omission(s)
of the Indemnitee giving rise to the Proceeding were not Good Faith Act(s)
or
Omission(s).
C. Reliance
as Safe Harbor.
For
purposes of any determination of whether any act or omission of the Indemnitee
was a Good Faith Act or Omission, each act of the Indemnitee shall be deemed
to
be a Good Faith Act or Omission if the Indemnitee’s action is reasonably based
on the records or books of accounts of the Company or its Affiliates, including
financial statements, or on information supplied to the Indemnitee by the
officers of the Company or its Affiliates in the course of their duties, or
on
the advice of legal counsel for the Company or its Affiliates or on information
or records given or reports made to the Company or its Affiliates by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or its Affiliates. The provisions
of this Section VII.C. shall not be deemed to be exclusive or to limit in any
way the other circumstances in which the Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement or under
applicable law.
D. Actions
of Others.
The
knowledge and/or actions, or failure to act, of any director, officer, agent
or
employee of the Company or its Affiliates shall not be imputed to the Indemnitee
for purposes of determining the right to indemnification under this
Agreement.
VIII.
INSURANCE
In
the
event that the Company maintains officers’ and directors’ or similar liability
insurance to protect itself and any director or officer of the Company or its
Affiliates against any expense, liability or loss, such insurance shall cover
the Indemnitee to at least the same degree as each other director and/or officer
of the Company or its Affiliates.
IX.
OBLIGATIONS
OF THE COMPANY
UPON
A CHANGE IN CONTROL
Upon
Indemnitee’s written request, the Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of its respective assets or business,
by
written agreement in form and substance reasonably satisfactory to the
Indemnitee, expressly to assume and agree to be bound by and to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform absent such succession or assignment.
9
X.
ARBITRATION
A. Arbitration
Procedures.
All
disputes between the parties or any claims concerning the performance, breach,
construction or interpretation of this Agreement, or in any manner arising
out
of this Agreement, shall be submitted to binding arbitration in accordance
with
the commercial arbitration rules, as amended from time to time, of the American
Arbitration Association (the “AAA”), which arbitration shall be carried out in
the manner set forth below.
B. Within
fifteen (15) days after written notice by one party to the other party of its
demand for arbitration, which demand shall set forth the name and address of
its
designated arbitrator, the other party shall appoint its designated arbitrator
and so notify the demanding party. Within fifteen (15) days thereafter, the
two
arbitrators so appointed shall appoint the third arbitrator. If the two
appointed arbitrators cannot agree on the third arbitrator, then the AAA shall
appoint an independent arbitrator as the third arbitrator. The dispute shall
be
heard by the arbitrators within ninety (90) days after appointment of the third
arbitrator. The decision of any two or all three of the arbitrators shall be
binding upon the parties without any right of appeal. The decision of the
arbitrators shall be final and binding upon the Company, its successors and
assigns, and the Indemnitee.
C. The
arbitration proceedings shall take place in Orlando, Florida and the judgment
and determination of such proceedings shall be binding on all parties. Judgment
upon any award rendered by the arbitrators may be entered into any court having
competent jurisdiction without any right of appeal.
D. The
fees
and expenses of the arbitration shall be paid by the prevailing party. The
decision of any two or all three of the arbitrators shall be final and binding
upon the Indemnitee and the Company and its successors and assigns.
XI.
NON-EXCLUSIVITY,
SUBROGATION
AND MISCELLANEOUS
A. Non-Exclusivity.
The
rights of the Indemnitee hereunder shall not be deemed exclusive of any other
rights to which the Indemnitee may at any time be entitled under any provision
of law, the Articles of Incorporation, the Bylaws of the Company, as the same
may be in effect from time to time, any agreement, a vote of shareholders of
the
Company or a resolution of directors of the Company or otherwise, and to the
extent that during the term of this Agreement the rights of the then-existing
directors and officers of the Company are more favorable to such directors
or
officers than the rights currently provided to the Indemnitee under this
Agreement, the Indemnitee shall be entitled to the full benefits of such more
favorable rights. No amendment, alteration, rescission or replacement of this
Agreement or any provision hereof which would in any way limit the benefits
and
protections afforded to the Indemnitee hereby shall be effective as to the
Indemnitee with respect to any action or inaction by the Indemnitee in the
Indemnitee’s Corporate Status prior to such amendment, alteration, rescission or
replacement.
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B. Subrogation.
In the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of the Indemnitee,
who shall execute all documents required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.
C. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) if delivered by hand,
by
courier or by telegram and receipted for by the party to whom said notice or
other communication shall have been directed at the time indicated on such
receipt; (ii) if by facsimile at the time shown on the confirmation of such
facsimile transmission; or (iii) if by U.S. certified or registered mail, with
postage prepaid, on the third business day after the date on which it is so
mailed:
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If
to the Indemnitee, as shown with the Indemnitee’s signature
below.
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If
to the Company to:
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CNL
Retirement Properties, Inc.
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
President
Facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇
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or
to
such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
D. Governing
Law.
The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Maryland,
without application of the conflict of laws principles thereof.
E. Binding
Effect.
Except
as otherwise provided in this Agreement, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns. The
Company shall require any successor or assignee (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all of
its
respective assets or business, by written agreement in form and substance
reasonably satisfactory to the Indemnitee, expressly to assume and agree to
be
bound by and to perform this Agreement in the same manner and to the same extent
as the Company would be required to perform absent such succession or
assignment.
F. Waiver.
No
termination, cancellation, modification, amendment, deletion, addition or other
change in this Agreement, or any provision hereof, or waiver of any right or
remedy herein, shall be effective for any purpose unless specifically set forth
in a writing signed by the party or parties to be bound thereby. The waiver
of
any right or remedy with respect to any occurrence on one occasion shall not
be
deemed a waiver of such right or remedy with respect to such occurrence on
any
other occasion.
G. Entire
Agreement.
This
Agreement, constitutes the entire agreement and understanding among the parties
hereto in reference to the subject matter hereof; provided, however, that the
parties acknowledge and agree that the Articles of Incorporation of the Company,
and any subsequent amendments may contain provisions on the subject matter
hereof and that this Agreement is not intended to, and does not, limit the
rights or obligations of the parties hereto pursuant to such
instruments.
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H. Titles.
The
titles to the articles and sections of this Agreement are inserted for
convenience of reference only and should not be deemed a part hereof or affect
the construction or interpretation of any provisions hereof.
I. Invalidity
of Provisions.
Every
provision of this Agreement is severable, and the invalidity or unenforceability
of any term or provision shall not effect the validity or of the remainder
of
this Agreement.
J. Pronouns
and Plurals.
Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice
versa.
K. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together constitute one agreement binding
on all the parties hereto.
[SIGNATURE
PAGES TO FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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Signed,
Sealed and Delivered
In
the presence of:
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CNL
RETIREMENT PROPERTIES, INC., a
Maryland corporation
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By:
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/s/
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Name:
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Name:
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▇. ▇▇▇▇▇▇▇▇▇
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Title:
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EVP
of Acquisitions & Finance
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/s/
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Name:
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“Indemnitee”
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Signed,
Sealed and Delivered
In
the presence of:
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/s/
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/s
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Address:
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Name:
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Wi▇▇▇▇▇▇▇▇,
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/s/
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Name:
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EXHIBIT
A
FORM
OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The
Board
of Directors of CNL Retirement Properties, Inc.
Re: Undertaking
to Repay Expenses Advanced
Ladies
and Gentlemen:
This
undertaking is being provided pursuant to that certain Indemnification Agreement
dated the________ day of __________, 20____, by and among
_______________________. and the undersigned Indemnitee (the “Indemnification
Agreement”), pursuant to which I am entitled to advancement of expenses in
connection with [Description of Proceeding] (the “Proceeding”). Terms used
herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I
am
subject to the Proceeding by reason of my. Corporate Status or by reason of
alleged actions or omissions by me in such capacity. During the period of time
to which the Proceeding relates I was — [name of office(s) held] of
___________________________. Pursuant to Section IV of the Indemnification
Agreement, the Company is obligated to reimburse me for Expenses that are
actually and reasonably incurred by or for me in connection with the Proceeding,
provided that I execute and submit to the Company an Undertaking in which I
(i)
undertake to repay any Expenses paid by the Company on my behalf, together
with
the applicable legal rate of interest thereon, if it shall be ultimately
determined that I am not entitled to be indemnified thereby against such
Expenses; (ii) affirm my good faith belief that I have met the standard of
conduct necessary for indemnification; and (iii) reasonably evidence the
Expenses incurred by or for me.
[Description
of expenses incurred by or for Indemnitee]
This
letter shall constitute my undertaking to repay to the Company any Expenses
paid
by it on my behalf, together with the applicable legal rate of interest thereon,
in connection with the Proceeding if it is ultimately determined that 1 am
not
entitled to be indemnified with respect to such Expenses as set forth above.
I
hereby affirm my good faith belief that I have met the standard of conduct
necessary for indemnification and that I am entitled to such
indemnification.
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Signature
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Name
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Date
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