exv10w29



 





Exhibit
10.29




EMPLOYMENT AGREEMENT OF JEFFREY T. HANSON




          THIS EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of October 23, 2006 between
NNN Realty Advisors, Inc., a Delaware corporation, having its principal place of business at 1551
North Tustin Boulevard, Suite 200, Santa Ana, California 92705 (the “Company”), and Jeffrey
T. Hanson, an individual residing at the address set forth below the individual’s name on the
signature page hereof (the “Executive”).



          The Company and the Executive enter this Agreement on the basis of the following facts,
understandings and intentions:



          A. Triple Net Properties, LLC, Triple Net Properties Realty, Inc. and the Executive previously
entered into an Employment Agreement, dated as of July 29, 2006 (the “Prior Agreement”),
and the Executive presently is employed by Triple Net Properties Realty, Inc. and Triple Net
Properties, LLC pursuant to the terms and conditions set forth in the Prior Agreement.



          B. The Executive desires to become employed by the Company and the Company desires to assure
itself of the services of Executive;



          C. The Company intends to complete a financing transaction involving the offering and sale of
shares of the Company’s common stock (the “Financing”) in a manner exempt from the
registration requirements of the Securities Act of 1933, as amended (the “Securities Act”);
and



          D. The Company and the Executive desire to provide for the terms and conditions of the
Executive’s employment by the Company commencing on the completion of the Financing.



          NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the
Executive agree as follows:



     1. Employment.



          (a) Subject to subsection (b), the Company hereby agrees to employ the Executive, and the
Executive hereby agrees to be employed by the Company, on the terms and conditions set forth
herein, commencing as of the date of completion of the Financing. The date of the completion of
the Financing is referred to herein as the “Effective Date.”



          (b) In the event that the Financing is not completed on or before December 31, 2006, this
Agreement and any and all of the rights, obligations and liabilities of the parties thereunder
shall terminate and be null and void.



     2. Term.



     (a) The employment of the Executive by the Company as provided in Section 1 above shall
commence on the Effective Date, and shall terminate on the third anniversary of



 









 







the Effective Date
(such term being the “Original Term”), unless earlier terminated pursuant to the provisions
of Section 5 of this Agreement.



     (b) On the final day of the Original Term and on each anniversary thereafter (each an
“Extension Date”), the term of this Agreement shall be extended automatically one year,
such extension to commence on the Extension Date and terminate one year after the Extension Date
(each such period being a “Renewal Term”), unless written notice that the term of this
Agreement shall not be so extended is given by either party to the other at least one year prior to
the Extension Date. The employment of the Executive by the Company shall terminate upon the
expiration of the last Renewal Term, unless earlier terminated pursuant to the provisions of
Section 5 of this Agreement.



     (c) The Original Term and any Renewal Terms, in their full duration, are herein referred to as
“Employment Terms,” and the period of the Executive’s employment under this Agreement
consisting of the Original Term and all Renewal Terms, except as may be terminated early pursuant
to Section 5, is herein referred to as the “Employment Period.”



     3. Position.



          (a) Title and Position. During the Employment Period, the Executive shall be employed
as an executive officer of the Company with the title of Chief Investment Officer or in such other
executive position as the Board of Directors of the Company (the “Board”) may from time to
time determine with the consent of the Executive. In the performance of the Executive’s duties as
an executive officer, the Executive shall be subject to the direction of the Board and the Chief
Executive Officer of the Company and shall not be required to take direction from or report to any
other person unless otherwise directed by the Board or the Chief Executive Officer of the Company.
The Executive’s duties and authority shall be commensurate with the Executive’s title and position
with the Company.



          (b) Place of Employment. During the Employment Period, the Executive shall perform
the services required by this Agreement at the Company’s principal place of business in Santa Ana,
California; provided, however, that the Company may require the Executive to travel
to other locations on the Company’s business.



          (c) Duties; Authority. The Executive shall devote commercially reasonable efforts and
substantially full working time and attention to the promotion and advancement of the Company and
its welfare. The Executive shall serve the Company faithfully and to the best of the Executive’s
ability, and shall perform such services and duties in connection with the business, affairs and
operations of the Company as may be assigned or delegated to the Executive from time to time by the
Board or under, and in accordance with, the authority and direction of the Board. The Company
shall retain the right to direct and control the means and methods by which the Executive performs
the above services. The Company shall provide the Executive with all necessary authority and
resources to discharge the Executive’s responsibilities
under the Federal securities laws, state securities laws, the rules of the NASD, related
authorities and industry standards of conduct (together, the “Industry Rules”), including,
but not limited to, the authority to implement policies and procedures reasonably designed to
achieve compliance with Industry Rules.



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          (d) Other Activities. Except with the prior written approval of the Board (which the
Board may grant or withhold in its sole and absolute discretion), and, except as may be set forth
in Section 11 of this Agreement, the Executive, during the Employment Period, shall not (i) accept
any other employment, or (ii) engage, directly or indirectly, in any other business activity
(whether or not pursued for pecuniary advantage) that is or may be competitive with, or that might
place the Executive in a competing position to, that of the Company or any of its affiliates.
Notwithstanding the foregoing, the Company agrees that the Executive (or affiliates of the
Executive) shall be permitted to undertake the activities set forth in Section 11, and to make any
other passive personal investment that is not in a business activity competitive with the Company.



     4. Compensation and Related Matters.



          (a) Base Salary. During the Employment Period, the Company shall pay the Executive a
base salary at an annual rate of three hundred fifty thousand dollars ($350,000). The Executive’s
annual rate of base salary may be increased from time to time during the Employment Period by an
amount determined by the Board, or the Compensation Committee of the Board (the “Compensation
Committee”). During the Employment Period, the Executive’s annual rate of base salary shall
not be decreased without the Executive’s express written consent. The Executive’s base salary
shall be paid according to the standard payroll practices of the Company, and in accordance with
applicable laws (e.g., timing of payments, standard employee deductions, tax withholdings, social
security deductions, and etc.) as in effect from time to time.



          (b) Business Expenses. During the Employment Period, the Company shall reimburse the
Executive for personal expenditures incurred in connection with the conduct of the Company’s
business in accordance with the Company’s business expense reimbursement policies as in effect from
time to time.



          (c) Benefit Plan Eligibility.



               (i) During the Employment Period, the Executive shall be entitled to participate in any
benefit plans that are made generally available to executive officers of the Company from time to
time, including, without limitation, any deferred compensation, health, dental, life insurance,
long-term disability insurance, retirement, pension or 401(k) savings plan.



               (ii) The Company shall pay 100% of the premium cost of the Company’s health insurance coverage
provided to the Executive (and the Executive’s dependents, if applicable) by the Company from time
to time.



               (iii) Except for the payment of the premium cost as provided in paragraph (ii), nothing in
this Section 4(c) is intended or shall be construed to require the Company to institute or to
continue any, or any particular, plan or benefit.



          (d) Performance Bonus; Special Bonus.



               (i) Bonus Program. The Board, or the Compensation Committee, may, in its sole and
absolute discretion, establish and maintain a performance bonus program for the Executive to
provide for payment of a cash and/or non-cash bonus to the Executive. The



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Board, or the
Compensation Committee, shall determine, in its sole and absolute discretion, the terms and
conditions of any such bonus program, subject to paragraph (ii).



               (ii) Target Bonus. For each fiscal year of the Company commencing during the
Employment Period, the Executive’s target bonus (the “Target Bonus”) shall equal 100% of
the Executive’s annual rate of base salary, as in effect as of the first day of such fiscal year.
The Executive’s Target Bonus may be increased from time to time by the Board, or the Compensation
Committee, in its sole and absolute discretion. During the Employment Period, the Executive’s
Target Bonus shall not be decreased without the Executive’s express written consent.



               (iii) Special Bonus. Subject to Sections 7 and 8, for each fiscal year of the Company
commencing on or after January 1, 2007 and ending during the Employment Period, if (A) during such
fiscal year, the Executive is the procuring cause of at least twenty-five million dollars
($25,000,000) of equity from new sources which were not related to the Company or any of its
subsidiaries prior to the commencement of Executive’s employment pursuant to the Prior Agreement,
which equity is actually received by the Company or any of its subsidiaries during such fiscal
year, for real estate investments sourced by the Company or any of its subsidiaries, and (B) the
Executive is employed by the Company on the last day of such fiscal year, the Executive shall
become entitled to receive a special bonus with respect to such fiscal year in the amount of two
hundred fifty thousand dollars ($250,000) (the “Special Bonus”). The Special Bonus with
respect to such fiscal year shall be paid by the Company to the Executive in a lump sum cash
payment not later than two and one-half months following the end of such fiscal year.



          (e) Equity Awards. The Company shall grant the following equity awards to the
Executive, as of the Effective Date.



               (i) Stock Option Award. The Company shall grant to the Executive a non-qualified
stock option (the “Option”) representing the right to purchase twenty-five thousand
(25,000) shares of common stock, par value $0.01 per share, of the Company (“Company Common
Stock”). The Option shall be exercisable at a per share exercise price equal to the fair
market value of a share of Company Common Stock as of the Effective Date, as determined by the
Board or the Compensation Committee. The Option shall vest and become exercisable, on a cumulative
basis, at the rate of one-third (1/3) of the number of shares of Company Common Stock subject to
the Option on each of the Effective Date and the first and second anniversaries of the Effective
Date, subject to the continued employment of the Executive by the Company. The Option shall expire
ten (10) years after the grant of the Option and shall terminate earlier in
the event of the termination of the Executive’s employment with the Company. The Option shall
be transferable by the Executive to certain of the Executive’s family members, or a trust for such
family members, subject to the terms and conditions of the Company’s stock incentive plan. The
Option shall be subject to the terms and conditions of the Company’s stock incentive plan, the
applicable option agreement and this Agreement.



               (ii) Restricted Stock Award. The Company shall grant to the Executive a restricted
stock award (the “Restricted Stock Award”) representing the right to receive fifty thousand
(50,000) shares of Company Common Stock. The shares of the Company



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Common Stock subject to the
Restricted Stock Award shall be issued without purchase price and in consideration of past service
by the Executive to the Company and its subsidiaries (the value of which has been determined by the
Board, or the Compensation Committee, to be in excess of the par value of such shares of Company
Common Stock) and shall be subject to forfeiture in the event of the termination of the Executive’s
employment with the Company and shall be subject to transfer and other restrictions. The shares of
Company Common Stock subject to the Restricted Stock Award shall vest and cease to be subject to
forfeiture at the rate of one third (1/3) of the number of shares of Company Common Stock subject
to the Restricted Stock Award on each of January 1, 2007, January 1, 2008, and January 1, 2009,
subject to the continued employment of the Executive by the Company. Such shares of Company Common
Stock shall be subject to the restrictions, vesting and forfeiture provisions and the other terms
and conditions of the Company’s stock incentive plan, the applicable restricted stock agreement and
this Agreement.  



          (f) Membership Interests in Management Entities.



               (i) The Executive has received a grant of a full membership share of the NNN Healthcare/Office
Management, LLC (“NNN Healthcare/Office Management”), in the amount of fifteen percent
(15%) of the total membership shares of NNN Healthcare/Office Management, determined as of the
grant date, as set forth in the Operating Agreement of NNN Healthcare/Office Management pursuant to
the terms thereof.



               (ii) The Executive will receive a grant of a full membership share of NNN Institutional
Advisors, LLC, the advisor for the NNN Institutional Real Estate Fund, LP, determined as of the
grant date, as set forth in the Operating Agreement of NNN Institutional Advisors, LLC pursuant to
the terms thereof. The membership share will be equal to the membership share granted to the other
principals in NNN Institutional Advisors, LLC.



          (g) Fringe Benefits. During the Employment Period, the Executive shall be entitled to
such fringe benefits as may be determined or granted by the Board, or the Compensation Committee,
in its sole and absolute discretion.



          (h) Vacation and Holidays. During the Employment Period, the Executive shall be
entitled to four (4) weeks ((20) business days) of paid vacation time in each calendar year on a
pro-rated basis, and shall be entitled to all paid Company holidays, subject to the Company’s
vacation and holiday policies, as in effect from time to time.



          (i) Directors and Officers Insurance and Indemnification. The Company shall maintain
insurance to insure the Executive against claims arising out of an alleged wrongful act by the
Executive while acting as a director or officer of the Company or one of its subsidiaries. The
Company shall further indemnify and exculpate the Executive from money damages incurred as a result
of claims arising out of an alleged wrongful act by the Executive while acting as an officer,
director or employee of the Company, or one of its subsidiaries, to the fullest extent permitted
under applicable law.



          (j) Performance Reviews. At the end of each fiscal year of the Company, the Board, or
the Compensation Committee, shall review the Executive’s job performance and shall



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provide the
Executive a written review of the Executive’s job performance during such fiscal year.



     5. Termination. The Executive’s employment hereunder shall be, or may be, as the case
may be, terminated under the following circumstances:



          (a) Death. The Executive’s employment under this Agreement shall terminate upon the
Executive’s death.



          (b) Disability. The Executive’s employment under this Agreement shall terminate upon
the Executive’s physical or mental disability which, in the opinion of a competent physician
selected by the Board, renders the Executive unable to perform the Executive’s duties under this
Agreement for more than one hundred and eighty (180) days during any three hundred and sixty-five
(365) day period. Notwithstanding anything expressed or implied above to the contrary, the Company
agrees to fully comply with its obligations under the Americans with Disabilities Act as well as
any other applicable federal, state, or local law, regulation, or ordinance governing the
protection of individuals with such disabilities, including the Company’s obligation to provide
reasonable accommodation thereunder.



          (c) Employment-At-Will; Discharge by the Company. The Executive’s employment
hereunder is “at will” and may be terminated by the Company at any time with or without Cause (as
defined in Section 7(d)(iii) below), by the Board upon written Notice of Termination (as defined
below) to the Executive.



          (d) Voluntary Resignation by the Executive. The Executive may voluntarily resign the
Executive’s position and terminate the Executive’s employment with the Company at any time by
delivery of a written notice of resignation to the Company (the “Notice of Resignation”).
The Notice of Resignation shall set forth the date such resignation shall become effective (the
“Date of Resignation”), which date shall be at least ten (10) days and no more than thirty
(30) days after the date the Notice of Resignation is delivered to the Company. The Notice of
Resignation shall be sufficient notice under Section 2 above to prevent the automatic extension of
this Agreement, if timely given according to the terms of Section 2.



          (e) Notice. Any termination of the Executive’s employment by the Company shall be
communicated by written Notice of Termination to the Executive. For purposes of this Agreement, a
“Notice of Termination” or a “Notice of Resignation” shall mean a notice that
indicates the specific termination provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated. The Notice of Termination shall be
sufficient notice under Section 2 above to prevent the automatic extension of this Agreement, if
timely given according to the terms of Section 2.



          (f) Date of Termination. “Date of Termination” shall mean: (i) the
expiration of the Employment Terms, (ii) if the Executive’s employment is terminated by the
Executive’s death, the date of the Executive’s death; (iii) if the Executive’s employment is
terminated by reason of the Executive’s disability, the date of the opinion of the physician
referred to in Section 5(b), above; (iv) if the Executive’s employment is terminated by the



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Company
for Cause or without Cause by the Company pursuant to Section 5(c) above, the date specified in the
Notice of Termination; and (v) if the Executive voluntarily resigns pursuant to Section 5(d) above,
the Date of Resignation set forth in the Notice of Resignation.



     6. Obligations upon Termination.



          (a) Return of Property. The Executive hereby acknowledges and agrees that all
personal property (including, without limitation, any documents, files and electronic information)
and equipment furnished to or prepared by the Executive in the course of or incident to the
Executive’s employment belongs to the Company and shall be promptly returned to the Company on or
before the Date of Termination.



          (b) Complete Resignation. Upon the expiration of the Employment Terms or any
termination of employment under Section 5 above, the Executive shall resign, effective upon the
Date of Termination, from all offices and directorships then held with the Company or any of its
subsidiaries and affiliates.



          (c) Survival of Representations, Warranties, Covenants and Other Provisions. The
representations and warranties contained in this Agreement and the parties’ obligations under this
Section 6 and Sections 7 through 24, inclusively, shall survive termination of the Employment
Period and the expiration of this Agreement.



     7. Compensation upon Termination. Subject to Section 8, the Executive shall be
entitled to the following payments in the event of the termination of the Executive’s employment
with the Company:



          (a) Expiration of Employment Terms.



               (i) Payments upon Expiration. If the Executive’s employment is terminated upon the
expiration of the Employment Terms, the Company shall pay to the Executive (A) any accrued, unpaid
base salary payable under Section 4(a) as in effect on the Date of Termination, (B) any
unreimbursed business expenses under Section 4(b), and (C) the Prorated Performance Bonus.



        
       (ii) Prorated Performance Bonus. For purposes of Section 7(a)(i) and Sections 7(b) and 7(c), the “Prorated Performance Bonus” shall
be determined as follows: (A) the performance bonus (if any) that otherwise would have been payable
to the Executive in respect of the fiscal year of the Company in which the Date of Termination
occurs, as determined under the Company’s performance bonus program for the Executive, had the
Executive continued in employment with the Company through the last day of such fiscal year,
multiplied by (B) a fraction, the numerator of which is the number of full calendar months in such
fiscal year during which the Executive was employed by the Company, and the denominator of which is
the number of full calendar months in such fiscal year; provided that, for purposes of Sections
7(b) and 7(c), the performance bonus shall be the maximum target performance bonus (if any) that
otherwise would have been payable to the Executive in respect of the fiscal year of the Company in
which the Date of Termination occurs.



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               (iii) Payment Date. The Prorated Performance Bonus under Section 7(a)(i) or Section
7(b) or 7(c), as applicable, shall be paid not later than sixty (60) days after the Date of
Termination occurs (subject to Section 9), provided that the Executive (or, in the event of
the Executive’s death, the Executive’s legal representative) executes and delivers to the Company,
and any applicable revocation period required by law has lapsed and the Executive (or the
Executive’s legal representative) has not revoked, a general release of claims in a form acceptable
to the Company in its sole and absolute discretion, and the Executive is not in material breach of
any of the provisions of this Agreement. The Company shall provide Executive (or the Executive’s
legal representative) with a general release of claims in a form acceptable to the Company not
later than one week following the Date of Termination.



          (b) Death. If the Executive’s employment is terminated by reason of death pursuant to
Section 5(a), the Company shall pay to the Executive’s estate (i) any accrued, unpaid base salary
payable under Section 4(a) as in effect on the Date of Termination, (ii) any unreimbursed business
expenses under Section 4(b), and (iii) the Prorated Performance Bonus.



          (c) Disability. If the Executive’s employment is terminated by reason of disability
pursuant to Section 5(b), the Company shall pay to the Executive (i) any accrued, unpaid base
salary payable under Section 4(a) as in effect on the Date of Termination, (ii) any unreimbursed
business expenses under Section 4(b), and (iii) the Prorated Performance Bonus.



          (d) Termination by the Company.



               (i) For Cause. If the Executive’s employment is terminated by the Company pursuant to
Section 5(c) for Cause (as defined below), the Company shall pay to the Executive: (A) any
accrued, unpaid base salary payable under Section 4(a) as in effect on the Date of Termination, and
(B) any unreimbursed expenses under Section 4(b).



               (ii) Without Cause. If the Executive’s employment is terminated by the Company
pursuant to Section 5(c) without Cause, the Company shall pay to the Executive: (A) any accrued,
unpaid base salary payable under Section 4(a) as in effect on the Date of Termination, (B) any
unreimbursed business expenses under Section 4(b), (C) a severance benefit, in a lump sum cash
payment, in the amount of: (I) the Executive’s annual rate of base salary, as in effect as of the
Date of Termination, plus the Executive’s Target Bonus for the fiscal year of the Company in which
the Date of Termination occurs, multiplied by (II) the Severance
Benefit Factor determined under paragraph (iv), and (D) an additional severance benefit, in a
lump sum cash payment, equal to the lesser of: (I) one percent (1%) of the amount of equity from
new sources from which the Executive is the procuring cause in the fiscal year of the Company in
which the Date of Termination occurs, which were not related to the Company or any of its
subsidiaries prior to the commencement of Executive’s employment pursuant to the Prior Agreement,
which equity is actually received by the Company or any of its subsidiaries during such fiscal
year, for real estate investments sourced by the Company or any of its subsidiaries, or (II) two
hundred fifty thousand dollars ($250,000). The severance benefit under subparagraph (D) shall be
in lieu of the Special Bonus under Section 4(d)(iii) with respect to the fiscal year of the Company
in which the Date of Termination occurs and the Special Bonus under Section 4(d)(iii) with respect
to such fiscal year shall not be paid to the Executive. The severance benefits under subparagraph
(C) and subparagraph (D) shall be paid not later than



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sixty (60) days after the Date of Termination
(subject to Section 9), provided that the Executive executes and delivers to the Company, and any
applicable revocation period required by law has lapsed and the Executive has not revoked, a
general release of claims in a form acceptable to the Company in its sole and absolute discretion,
and the Executive is not in material breach of any of the provisions of this Agreement. The
Company shall provide Executive with a general release of claims in a form acceptable to the
Company not later than one week following the Date of Termination.



               (iii) “Cause” means a finding by the Board that: (A) the Executive materially
breached any of the material terms of this Agreement or any confidentiality or proprietary
information and inventions agreement with the Company; (B) the Executive acted with gross
negligence, willful misconduct or fraudulently in the performance of the Executive’s duties
hereunder; or (C) the Executive has been convicted of, or has entered a plea of guilty or nolo
contendere to, a felony. In the case of an event described in clause (A), such event shall not
constitute “Cause” if such event is substantially corrected within thirty (30) days following
written notification by the Company to the Executive that the Company intends to terminate the
Executive’s employment under this Agreement because of such event. Notwithstanding the foregoing,
“Cause” shall not include situations where Executive, in exercise of the Executive’s professional
judgment regarding the Industry Rules, and in consultation with outside counsel competent in the
Industry Rules, such counsel to be mutually agreed upon by the Executive and the Company, refuses
the instruction of or is in disagreement with the Board about matters of the Company’s compliance
with Industry Rules.



               (iv) For purposes of Sections 7(d)(ii) and 7(e)(i), the “Severance Benefit Factor”
shall be determined as follows: (A) in the event the Date of Termination occurs during the
Original Term, the “Severance Benefit Factor” shall equal the greater of: (I) one, and (II) the
number of full calendar months from the Date of Termination to the last day of the Original Term,
divided by twelve (12), and (B) in the event the Date of Termination occurs during a Renewal Term,
the “Severance Benefit Factor” shall equal one.



          (e) Voluntary Resignation.



               (i) For Good Reason. If the Executive terminates the Executive’s employment with the
Company pursuant to Section 5(d) for Good Reason (as defined below), the Company shall pay to the
Executive: (A) any accrued, unpaid base salary payable under
Section 4(a) as in effect on the Date of Termination, (B) any unreimbursed business expenses
under Section 4(b), (C) a severance benefit, in a lump sum cash payment, in the amount of: (I) the
Executive’s annual rate of base salary, as in effect as of the Date of Termination, plus the
Executive’s Target Bonus for the fiscal year of the Company in which the Date of Termination
occurs, multiplied by (II) the Severance Benefit Factor determined under Section 7(d)(iv), and (D)
an additional severance benefit, in a lump sum cash payment, equal to the lesser of: (I) one
percent (1%) of the amount of equity from new sources from which the Executive is the procuring
cause in the fiscal year of the Company in which the Date of Termination occurs, which were not
related to the Company or any of its subsidiaries prior to the commencement of Executive’s
employment pursuant to the Prior Agreement, which equity is actually received by the Company or any
of its subsidiaries during such fiscal year, for real estate investments sourced by the Company or
any of its subsidiaries, or (II) two hundred fifty thousand dollars



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($250,000). The severance
benefit under subparagraph (D) shall be in lieu of the Special Bonus under Section 4(d)(iii) with
respect to the fiscal year of the Company in which the Date of Termination occurs and the Special
Bonus under Section 4(d)(iii) with respect to such fiscal year shall not be paid to the Executive.
The severance benefits under subparagraph (C) and subparagraph (D) shall be paid not later than
sixty (60) days after the Date of Termination (subject to Section 9), provided that the Executive
executes and delivers to the Company, and any applicable revocation period required by law has run
and Executive has not revoked, a general release of claims in a form acceptable to the Company in
its sole and absolute discretion, and Executive is not in material breach of any of the provisions
of this Agreement. The Company shall provide Executive with a general release of claims in a form
acceptable to the Company not later than one week following the Date of Termination.



               (ii) Without Good Reason. If the Executive terminates the Executive’s employment with
the Company pursuant to Section 5(d) without Good Reason, the Company shall pay to the Executive:
(A) any accrued, unpaid base salary payable under Section 4(a) as in effect on the Date of
Termination, and (B) any unreimbursed business expenses under Section 4(b).



               (iii) “Good Reason” means the occurrence, without the express written consent of the
Executive, of any of the following events, unless such event is substantially corrected within
thirty (30) days following written notification by the Executive to the Company that the Executive
intends to terminate the Executive’s employment under this Agreement because of such event:




               (A) any material reduction or diminution in the compensation, benefits or
responsibilities of the Executive;




               (B) any material breach or material default by the Company under any material provision
of this Agreement;




               (C) any material diminution in the Executive’s position or responsibilities for the
Company;




               (D) any relocation of the Company’s principal place of business to a location that is
more than 35 miles from such principal place of business; or




               (E) when the Executive, in the exercise of the Executive’s professional judgment
regarding the Industry Rules, believes that the Board or other control persons have failed
to adequately respond to issues raised by the Executive regarding compliance with the
Industry Rules or similar standards applicable to the Company and its subsidiaries.



          (f) Accelerated Vesting of Options and Restricted Stock. In the event the Executive
is entitled to the severance benefits pursuant to Section 7(d)(ii)(C) or 7(e)(i)(C), the Option and
each other stock option exercisable for shares of Company Common Stock granted under the Company’s
stock incentive plan that is held by the Executive, if then outstanding, shall become immediately
vested and exercisable with respect to all of the shares of Company Common Stock subject thereto on
the Date of Termination and shall be exercisable in



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accordance with the provisions of the Company’s
stock incentive plan and option agreement pursuant to which such option was granted. In addition,
in the event the Executive is entitled to severance benefits pursuant to Section 7(d)(ii)(C) or
7(e)(i)(C), the Restricted Stock Award and each other restricted share of the Company Common Stock
granted under the Company’s stock incentive plan that is held by the Executive that is subject to a
forfeiture, reacquisition or repurchase option held by the Company shall become fully vested,
nonforfeitable and no longer subject to reacquisition or repurchase by the Company or other
restrictions on the Date of Termination.



          (g) Compliance with Obligations. The continuing obligation of the Company to make any
Prorated Performance Bonus payment under Section 7(a)(i), or Section 7(b) or 7(c), or severance
payments under Section 7(d)(ii)(C), 7(d)(ii)(D), 7(e)(i)(C) or 7(e)(i)(D), to the Executive is
expressly conditioned upon the Executive complying and continuing to comply with the Executive’s
obligations and covenants under Sections 3(d), 6, 10 and 11 of this Agreement following the
termination of the Executive’s employment with the Company.



     8. Compensation upon Termination in connection with a Change in Control.



          (a) Payments upon Termination. If Executive’s employment with the Company is
terminated by the Company (other than upon the expiration of the Employment Terms, for Cause, or by
reason of Disability, or upon Executive’s death) at any time within ninety (90) days before, or
within twelve (12) months after, a Change in Control (as defined below), or if the Executive’s
employment with the Company is terminated by the Executive for Good Reason within twelve (12)
months after a Change in Control, or if the Executive’s employment with the Company is terminated
by the Executive without Good Reason during the period commencing six (6) months after a Change in
Control and ending twelve (12) months after a Change in Control, then the Company shall pay to the
Executive: (i) any accrued, unpaid base salary payable under Section 4(a) as in effect on the Date
of Termination, (ii) any unreimbursed business expenses under Section 4(b), (iii) a severance
benefit, in a lump sum cash payment, in an amount equal to: (A) the Executive’s annual rate of base
salary, as in effect as of the Date of Termination, plus the Executive’s Target Bonus for the
fiscal year of the Company in which the Date of Termination occurs, multiplied by (B) three, and
(iv) an additional severance benefit, in a lump sum cash payment, equal to the lesser of: (A) one
percent (1%) of the amount of equity from new sources from which the Executive is the procuring
cause in the fiscal year of the Company in which the Date of Termination occurs, which were not
related to the Company
or any of its subsidiaries prior to the commencement of Executive’s employment pursuant to the
Prior Agreement, which equity is actually received by the Company or any of its subsidiaries during
such fiscal year, for real estate investments sourced by the Company or any of its subsidiaries, or
(B) two hundred fifty thousand dollars ($250,000). The severance benefit under paragraph (iv)
shall be in lieu of the Special Bonus under Section 4(d)(iii) with respect to the fiscal year of
the Company in which the Date of Termination occurs and the Special Bonus under Section 4(d)(iii)
with respect to such fiscal year shall not be paid to the Executive. The severance benefits under
paragraph (iii) and paragraph (iv) shall be paid not later than sixty (60) days after the Date of
Termination (subject to Section 9), provided that the Executive executes and delivers to the
Company, and any revocation period required by law has lapsed and the Executive has not revoked, a
general release of claims in a form acceptable to the Company in its sole and absolute discretion,
and the Executive is not in material breach of any of the provisions



11









 







of this Agreement. The
Company shall provide Executive with a general release of claims in a form acceptable to the
Company not later than one week following the Date of Termination.



          (b) Health Insurance Coverage. In the event the Executive is entitled to the
severance benefit pursuant to Section 8(a)(iii), then in addition to such severance benefit, the
Executive shall receive 100% Company-paid health insurance coverage as provided to the Executive
(and the Executive’s dependents, if applicable) immediately prior to the Executive’s termination of
employment (the “Company-Paid Coverage”). Company-Paid Coverage shall continue for two (2)
years following termination of employment or until the Executive becomes covered under another
employer’s group health insurance plan, whichever occurs first.



          (c) Accelerated Vesting of Options and Restricted Stock. In the event the Executive
is entitled to the severance benefits pursuant to Section 8(a)(iii), the Option and each other
stock option exercisable for shares of Company Common Stock granted under the Company’s stock
incentive plan that is held by the Executive, if then outstanding, shall become immediately vested
and exercisable with respect to all of the shares of Company Common Stock subject thereto on the
Date of Termination and shall be exercisable in accordance with the provisions of the Company’s
stock incentive plan and option agreement pursuant to which such option was granted. In addition,
in the event the Executive is entitled to severance benefits pursuant to Section 8(a)(iii), the
Restricted Stock Award and each other restricted share of the Company Common Stock granted under
the Company’s stock incentive plan that is held by the Executive that is subject to a forfeiture,
reacquisition or repurchase option held by the Company shall become fully vested, nonforfeitable
and no longer subject to reacquisition or repurchase by the Company or other restrictions on the
Date of Termination.



          (d) No Duplication of Payments. Any payment and benefits under this Section 8 shall
be in lieu of any payments and benefits under Section 7, and the Executive shall have no further
right to compensation and benefits under Section 7 of this Agreement.



          (e) “Change in Control” means the occurrence of any of the following events occurring
after the Effective Date:




          (i) the liquidation or dissolution of the Company;




          (ii) following the initial public offering of the Company Common Stock, a Person (as
defined below) directly or indirectly becomes the “beneficial owner” (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934) of more than
thirty-five percent (35%) of the total voting power of the total outstanding voting
securities of the Company on a fully diluted basis;




          (iii) a Person directly or indirectly acquires all or substantially all of the assets
and business of the Company;




          (iv) for any reason during any period of two (2) consecutive years (not including any
period prior to the Effective Date) a majority of the Board is constituted by individuals
other than (1) individuals who were directors immediately prior to the beginning of such
period, and (2) new directors whose election or appointment by the Board or nomination for
election by the Company’s stockholders was approved by a vote



12









 







of at least two-thirds (2/3)
of the directors then still in office who either were directors immediately prior to the
beginning of the period or whose election or nomination for election was previously so
approved; or




          (v) the consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (x) a merger,
consolidation, reorganization, or business combination or (y) the acquisition of assets or
stock of another entity, in each case, other than a transaction which results in the
Company’s voting securities outstanding immediately before the transaction continuing to
represent (either by remaining outstanding or by being converted into voting securities of
the entity or the person that, as a result of the transaction, controls, directly or
indirectly, the Company or owns, directly or indirectly, all or substantially all of the
Company’s assets or otherwise succeeds to the business of the Company (the Company or such
person, the “Successor Entity”)) directly or indirectly, at least fifty percent
(50%) of the combined voting power of the Successor Entity’s outstanding voting securities
immediately after the transaction.


For purposes of this Section 8(e), neither the Financing nor the Company’s initial public offering
of the Company Common Stock registered under the Securities Act shall be a “Change in Control,” and
“Person” means any natural person, corporation, or any other entity; provided,
however, that the term “Person” shall not include any stockholder or employee of
the Company on the date immediately prior to the initial public offering of the Company Common
Stock or any estate or member of the immediate family of such a stockholder or employee.




          (f) The continuing obligation of the Company to make any severance payment under Section
8(a)(iii) or Section 8(a)(iv) to the Executive is expressly conditioned upon the Executive
complying and continuing to comply with the Executive’s obligations and
covenants under Sections 3(d), 6, 10 and 11 of this Agreement following the termination of the
Executive’s employment with the Company.



          (g) Parachute Payment Excise Tax Gross-Up.



               (i) In the event that it shall be determined under this paragraph 8(g) that any payment or
benefit to the Executive or for the Executive’s benefit or on the Executive’s behalf (whether paid
or payable or distributed or distributable) pursuant to the terms of this Agreement or any other
agreement, arrangement or plan with the Company or any Affiliate (as defined below) (individually,
a “Payment” and collectively, the “Payments”) would be subject to the excise tax
(the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), then Executive shall be entitled to receive from the Company one or more
additional payments (individually, a “Gross-Up Payment” and collectively, the “Gross-Up
Payments”) in an aggregate amount such that the net amount of the Payments and the Gross-Up
Payments retained by Executive after the payment of all Excise Taxes (and any interest or penalties
imposed with respect to such Excise Taxes) on the Payments and all federal, state and local income
tax, employment tax and Excise Taxes (including any interest or penalties imposed with respect to
such taxes) on the Gross-Up Payments provided for in this Section 8(g), and taking into account any
lost or reduced tax deductions on account of the Gross-Up Payments, shall be equal to the Payments.
For purposes of this paragraph 8(g), an “Affiliate” shall mean



13









 







any successor to all or
substantially all of the business and/or assets of the Company or the Parent, any person acquiring
ownership or effective control of the Company or the Parent or ownership of a substantial portion
of the assets of the Company or the Parent, or any person whose relationship to the Company, the
Parent or such person is such as to require attribution under Section 318(a) of the Code.



               (ii) All determinations required to be made under this Section 8(g), including whether and
when any Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions
to be utilized in arriving at such determinations shall be made by the Accountants (as defined
below) which shall provide Executive and the Company with detailed supporting calculations with
respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from
Executive or the Company that Executive has received or will receive a Payment. For the purposes
of this paragraph 8(g), the “Accountants” shall mean the Company’s independent certified public
accountants serving immediately prior to the “change in the ownership or effective control of a
corporation” or “change in the ownership of a substantial portion of the assets of a corporation”,
as defined in Section 280G of the Code, with respect to which the determination is being made. In
the event that the Accountants are also serving as the accountants or auditors for the individual,
entity or group effecting the “change in the ownership or effective control of a corporation” or
“change in the ownership of a substantial portion of the assets of a corporation”, as defined in
Section 280G of the Code, with respect to which the determination is being made, Executive shall
appoint another nationally recognized public accounting firm, reasonably acceptable to the Company,
to make the determinations required hereunder (which accounting firm shall then be referred to as
the Accountants hereunder). All fees and expenses of the Accountants shall be borne solely by the
Company.



               (iii) For the purposes of determining whether any of the Payments will be subject to the
Excise Tax and the amount of such Excise Tax, such Payments shall be treated
as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute
payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be
treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the
Accountants, such Payments (in whole or in part) either do not constitute “parachute payments” or
represent reasonable compensation for services actually rendered (within the meaning of Section
280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise
not subject to such Excise Tax.



               (iv) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed
to pay federal income taxes at the highest applicable marginal rate of federal income taxation for
the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and
local income taxes at the highest applicable marginal rate of taxation for the calendar year in
which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes
which could be obtained from the deduction of such state or local taxes if paid in such year
(determined without regard to limitations on deductions based upon the amount of Executive’s
adjusted gross income); and to have otherwise allowable deductions for federal, state and local
income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up
Payment in Executive’s adjusted gross income. To the extent practicable, any Gross-Up Payment with
respect to any Payment shall be paid by the Company at the time Executive is entitled to receive
the Payment and in no event will any Gross-



14









 







Up Payment be paid later than five days after the
receipt by Executive of the Accountant’s determination.



               (v) Any determination by the Accountants shall be binding upon the Company and Executive. As
a result of uncertainty in the application of Section 4999 of the Code at the time of the initial
determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have
been an amount less than the Company should have paid pursuant to this Section 8(g) (the
“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section
8(g) and Executive is required to make a payment of any Excise Tax, the Underpayment shall be
promptly paid by the Company to or for Executive’s benefit; and



               (vi) Executive shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable after Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes, interest and/or penalties with respect
to such claim is due). If the Company notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive shall: (A) give the Company any
information reasonably requested by the Company relating to such claim; (B) take such action in
connection with contesting such claim as the Company shall reasonably request in writing from time
to time, including, without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Company; (C) cooperate with the Company in good faith in
order to effectively contest such claim; and (D) permit the Company to participate in any
proceedings relating to such claims; provided, however, that the
Company shall bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify Executive for and hold
Executive harmless from, on an after-tax basis, any Excise Tax or income or other taxes (including
interest and penalties with respect thereto) imposed as a result of such representation and payment
of all related costs and expenses.



               (vii) Without limiting the foregoing provisions of this Section 8(g), the Company shall
control all proceedings taken in connection with such contest and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct Executive to pay the
tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs Executive to pay such claim and sue for a refund,
the Company shall indemnify Executive for and hold Executive harmless from, on an after-tax basis,
any Excise Tax or income or other taxes (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with respect to such
advance (including as a result of any forgiveness by the Company of such advance); provided,
further, that any extension of the statute of limitations relating to the payment of taxes for the
taxable year of Executive with respect to



15









 







which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.



               (viii) In any situation where under applicable law the Company has the power to indemnify (or
advance expenses to) Executive in respect of any judgments, fines, settlements, loss, cost or
expense (including attorneys’ fees) of any nature related to or arising out of Executive’s
activities as an agent, employee, officer or director of the Company or in any other capacity on
behalf of or at the request of the Company, the Company shall promptly on written request,
indemnify (and advance expenses to) Executive to the fullest extent permitted by applicable law,
including but not limited to making such findings and determinations and taking any and all such
actions as the Company may, under applicable law, be permitted to have the discretion to take so as
to effectuate such indemnification or advancement. Such agreement by the Company shall not be
deemed to impair any other obligation of the Company respecting Executive’s indemnification
otherwise arising out of this or any other agreement or promise of the Company or under any
statute.



               (ix) The payments provided for in Section 8(g) shall be made promptly following the
termination of Executive’s employment with the Company. The payments provided for in Section 8(g)
shall be made not later than the tenth day following the date of which the General Release by
Executive becomes irrevocable (or, if later, the tenth day following the date on which the Change
in Control occurs); provided, however, that if the amounts of such payments cannot be finally
determined on or before such day, the Company shall pay to Executive on such day an estimate, as
determined in good faith by the Company, of the minimum amount of such payments and shall pay the
remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the thirtieth day after the Date of
Termination. In the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan by the Company to
Executive, payable on the fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code).



               (x) Executive shall not be required to mitigate the amount of any payment provided for in this
Section 8(g) by seeking other employment or otherwise nor, except as provided in Section 8(g),
shall the amount of any payment or benefit provided for in this Section 8 be reduced by any
compensation or benefits earned by Executive as the result of employment by another employer or
self-employment, by retirement benefits, by offset against any amount claimed to be owed by
Executive to the Company, or otherwise.



     9. Compliance with Section 409A of the Internal Revenue Code. 



          (a) Short-Term Deferral Exemption. This Agreement is not intended to provide for any
deferral of compensation subject to Section 409A of the Code and, accordingly, the benefits
provided pursuant to this Agreement are intended to be paid not later than the later of: (i) the
fifteenth day of the third month following the Executive’s first taxable year in which



16









 







such benefit
is no longer subject to a substantial risk of forfeiture, and (ii) the fifteenth day of the third
month following the first taxable year of the Company in which
such benefit is no longer subject to
a substantial risk of forfeiture, as determined in accordance with Section 409A of the Code and any
Treasury Regulations and other guidance issued thereunder. The date determined under this
subsection is referred to as the “Short-Term Deferral Date.”



          (b) Compliance with Code Section 409A. Notwithstanding anything to the contrary
herein, in the event that any benefits provided pursuant to this Agreement are not actually or
constructively received by the Executive on or before the Short-Term Deferral Date, to the extent
such benefit constitutes a deferral of compensation subject to Code Section 409A, then: (i)
subject to clause (ii), such benefit shall be paid upon Executive’s separation from service, with
respect to the Company and its affiliates within the meaning of Section 409A of the Code, and (ii)
if Executive is a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, with
respect to the Company and its affiliates, such benefit shall be paid upon the date which is six
months after the date of Executive’s “separation from service” (or, if earlier, the date of
Executive’s death). In the event that any benefit provided for in this Agreement is subject to
this subsection, such benefit shall be paid on the sixtieth day following the payment date
determined under this subsection.



          (c) Reformation to Comply with Code Section 409A. To the extent that this Agreement
or any payment under this Agreement is subject to Section 409A of the Code, the parties intend that
the provisions of this Agreement meet the applicable requirements of Sections 409A(a)(2), (3) and
(4) of the Code and the transitional relief under Section 409A of the Code (including, without
limitation, the requirements of the transitional relief under A-19(c) of Internal Revenue Service
Notice 2005-1 and the Proposed Regulations under Section 409A of the Code) and agree that, to the
extent such applicable requirements are not met, this Agreement shall be reformed, with the written
consent of the parties, to comply with such requirements.



     10. Covenant of Confidentiality; Non-Disparagement.



          (a) In addition to the agreements set forth in Sections 3(d), 6 and 11, the Executive hereby
agrees that the Executive will not, during the Employment Period or for three (3) years thereafter
directly or indirectly disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information. As used in this
Agreement, “Confidential Information” means: non-public information disclosed to the
Executive or known by the Executive as a consequence of or through the Executive’s relationship
with the Company, about the Company’s subsidiaries, affiliates and partners thereof, owners,
customers, employees, business methods, public relations methods, organization, procedures or
finances, including, without limitation, information of or relating to properties that the Company
or any of its affiliates, subsidiaries or partners thereof owns or may be considering acquiring an
interest in; provided, however, that the Executive shall not be obligated to treat
as confidential, or return to the Company copies of, any Confidential Information that (i) was
publicly known at the time of disclosure to the Executive, (ii) becomes publicly known or available
thereafter other than by any means in violation of this Agreement or any other duty owed to the
Company by any person or entity, or (iii) the Executive is required by law to disclose to a third
party.



17









 





          (b) The Executive agrees to not disparage the Company, any of its subsidiaries, any of its
practices, or any of its directors, officers, agents, representatives, or employees, either orally
or in writing, at any time. The Company (including without limitation its directors) agrees to not
disparage the Executive, either orally or in writing, at any time. Notwithstanding the foregoing,
nothing in this Section 10(b) shall limit the ability of the Company or the Executive, as
applicable, to provide truthful testimony as required by law or any judicial or administrative
process.



     11. Covenant Not to Compete.



          (a) The Executive agrees that during the Employment Period the Executive will devote
substantially the Executive’s full working time to the business of the Company and will not engage
in any competitive business. Subject to such full-time requirement and the other restrictions set
forth in this Section 11 and Section 3(d) above, the Executive shall be permitted to continue the
Executive’s existing business investments and activities and may pursue additional business
investments. Without limiting the foregoing, the Executive specifically covenants that during the
Employment Period and for one (1) year thereafter, the Executive shall not:




          (i) compete directly with the Company in a business similar to that of the Company,
including, without limitation, engage in, control, advise, manage, serve as a director,
officer, member, partner or employee of, act as a consultant to, receive any economic
benefit from or exert any influence upon, any business engaged in creating, sponsoring or
advising tenant in common programs or other real estate investment
programs that offer investors the ability to defer gains under Section 1031 of the Code
or non-traded real estate investment trusts;




          (ii) compete directly or indirectly with the Company, its subsidiaries and/or partners
thereof with respect to any acquisition or development of any real estate project undertaken
or being considered by the Company, its subsidiaries and/or partners thereof at the end of
Executive’s Employment Period;




          (iii) lend or allow the Executive’s name or reputation to be used by or in connection
with any business competitive with the Company, its subsidiaries and/or partners thereof; or




          (iv) solicit for employment, or encourage to resign from employment, any employee of
the Company or any of its subsidiaries, or intentionally interfere with, disrupt or attempt
to disrupt the relationship, contractual or otherwise, between the Company, its subsidiaries
and/or partners thereof, and any lessee, tenant, supplier, contractor, lender, employee or
governmental agency or authority.



          (b) The provisions of this Section 11 shall survive for one year and no longer following the
termination of the Employment Period, regardless of whether such termination is by reason of
discharge for Cause or without Cause, or by reason of resignation for Good Reason or not for Good
Reason, or otherwise; provided, however, that, if the Executive resigns for Good
Reason, or is discharged without Cause, during the twelve months following a Change in Control



18









 







(as
defined in Section 8), then the provisions of this Section 11 shall not survive the Executive’s
resignation or discharge from employment.



     12. Injunctive Relief and Enforcement. In the event of breach or threatened breach by
the Executive of the terms of Section 3(d), 6, 10 or 11, the Company shall be entitled to institute
legal proceedings to enforce the specific performance of this Agreement by the Executive and to
enjoin the Executive from any further violation of Section 3(d), 6, 10 or 11 and to exercise such
remedies cumulatively or in conjunction with all other rights and remedies provided by law and not
otherwise limited by this Agreement. The Executive acknowledges, however, that the remedies at law
for any breach by the Executive of the provisions of Section 3(d), 6, 10 or 11 may be inadequate.
In addition, in the event the agreements set forth in Section 3(d), 6, 10 or 11 shall be determined
by any court of competent jurisdiction to be unenforceable by reason of extending for too great a
period of time or over too great a geographical area or by reason of being too extensive in any
other respect, each such agreement shall be interpreted to extend over the maximum period of time
for which it may be enforceable and to the maximum extent in all other respects as to which it may
be enforceable, and enforced as so interpreted, all as determined by such court in such action.



     13. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when personally delivered, when transmitted by telecopy with receipt
confirmed, or one day after delivery to an overnight air courier guaranteeing next day
delivery, addressed as follows:




	If to the Executive: 	 	The address set forth below

under the Executive’s signature
	 
	If to the Company: 	 	NNN Realty Advisors, Inc.

1551 North Tustin Blvd.

Suite 200

Santa Ana, California 92705

telecopy:                     
	 
	With a copy to: 	 	Latham & Watkins LLP

650 Town Center Drive

Suite 2000

Costa Mesa, California 92626

Attention: William Cernius, Esq.

telecopy: (714) 755-8290




or to such other address as any such party may furnish to the others from time to time in writing
in accordance herewith, except that notices of change of address shall be effective only upon
receipt.




     14. Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect; provided, however, that if
any one or



19









 







more of the terms contained in Section 3(d), 6, 10 or 11 hereto shall for any reason be
held to be excessively broad with regard to time, duration, geographic scope or activity, that term
shall not be deleted but shall be reformed and constructed in a manner to enable it to be enforced
to the extent compatible with applicable law.



     15. Assignment. This Agreement may not be assigned by the Executive, but may be
assigned by the Company to any successor to its business and will inure to the benefit and be
binding upon any such successor.



     16. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.



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



     18. Choice of Law. This Agreement shall be construed, interpreted and the rights of
the parties determined in accordance with the laws of the State of California (without reference to
the choice of law provisions of the State of California), except with respect to matters of law
concerning the internal corporate affairs of any corporate entity which is a party to or the
subject of this Agreement, and as to those matters the law of the jurisdiction under which the
respective entity derives its powers shall govern.



20









 





     19. Arbitration Agreement.



          (a) Claims Subject to Arbitration. Any controversy, dispute or claim between the
Executive and the Company, or its parents, subsidiaries, affiliates and any of their officers,
directors, agents or other employees, shall be resolved by binding arbitration, at the request of
either party. The arbitrability of any controversy, dispute or claim under this Agreement shall be
determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C.
sections 1 and 2) and by application of the procedural provisions of California law, except as
provided herein. Arbitration shall be the exclusive method for resolving any dispute and all
remedies available from a court of competent jurisdiction shall be available; provided, however,
that either party may request provisional relief from a court of competent jurisdiction, if such
relief is not available in a timely fashion through arbitration. The claims which are to be
arbitrated include, but are not limited to any claim arising out of or relating to this Agreement
or the employment relationship between the Executive and the Company, claims for wages and other
compensation, claims for breach of contract (express or implied), claims for violation of public
policy, wrongful termination, tort claims, claims for unlawful discrimination and/or harassment
(including, but not limited to, race, religious creed, color, national origin, ancestry, physical
disability, mental disability, gender identity or expression, medical condition, marital status,
age, pregnancy, sex or sexual orientation) to the extent allowed by law, and claims for violation
of any federal, state, or other government law, statute, regulation, or ordinance, except for
claims for workers’ compensation and unemployment insurance benefits. This Agreement shall not be
interpreted to provide for arbitration of any dispute that does not constitute a claim recognized
under applicable law.



          (b) Selection of Arbitrator. The Executive and the Company will select a single
neutral arbitrator by mutual agreement. If the Executive and the Company are unable to agree on a
neutral arbitrator within thirty days of a demand for arbitration, either party may elect to obtain
a list of arbitrators from the Judicial Arbitration and Mediation Service (“JAMS”), and the
arbitrator shall be selected by alternate striking of names from the list until a single arbitrator
remains. The party initiating the arbitration shall be the first to strike a name.



          (c) Demand for Arbitration. The demand for arbitration must be in writing and must be
made by the aggrieved party within the statute of limitations period provided under applicable
State and/or Federal law for the particular claim(s). Failure to make a written demand within the
applicable statutory period constitutes a waiver of the right to assert that claim in any forum.



          (d) Location of Arbitration. Arbitration proceedings will be held in Santa Ana,
California.



          (e) Choice of Law. The arbitrator shall apply applicable State and/or Federal
substantive law to determine issues of liability and damages regarding all claims to be arbitrated,
and shall apply the Federal Rules of Evidence to the proceeding.



          (f) Discovery. The parties shall be entitled to conduct reasonable discovery and the
arbitrator shall have the authority to determine what constitutes reasonable discovery.



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The
arbitrator shall hear motions for summary judgment/adjudication as provided in the Federal Rules of
Civil Procedure.



          (g) Written Opinion and Award. Within thirty (30) days following the hearing and the
submission of the matter to the arbitrator, the arbitrator shall issue a written opinion and award
which shall be signed and dated. The arbitrator’s award shall decide all issues submitted by the
parties, and the arbitrator may not decide any issue not submitted. The opinion and award shall
include factual findings and the reasons upon which the decision is based. The arbitrator shall be
permitted to award only those remedies in law or equity which are requested by the parties and
allowed by law.



          (h) Costs of Arbitration. The cost of the arbitrator and other incidental costs of
arbitration that would not be incurred in a court proceeding shall be borne by the Company. The
parties shall each bear their own costs and attorneys’ fees in any arbitration proceeding,
provided, however, that the arbitrator shall have the authority to require either party to pay the
costs and attorneys’ fees of the other party to the extent permitted under applicable federal or
state law, as a part of any remedy that may be ordered.



          (i) Waiver of Right to Jury. Both the Company and the Executive understands that by
using arbitration to resolve disputes they are giving up any right that they may have to a judge or
jury trial with regard to all issues concerning employment or otherwise covered by this Section 19.



     20. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY IS AWARDED ANY
DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS AGREEMENT, A BREACH OF ANY
COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS OR IMPLIED BY EITHER LAW OR FACT), OR ANY
OTHER CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT,
SUCH DAMAGES SHALL BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER INDIRECT OR SPECULATIVE
DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE
AMOUNT EQUAL TO ALL AMOUNTS OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS AGREEMENT
THROUGH ITS NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS INTEREST ON ANY DELAYED
PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER THE DATE(S)
THAT SUCH PAYMENTS WERE DUE.



     21. WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT.



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     22. Withholding. The Company shall withhold from the compensation and benefits
payable under this Agreement any amounts required to be withheld under applicable law.



     23. Entire Agreement; Waiver of Breach.



          (a) This Agreement contains the entire agreement and understanding between the Company and the
Executive with respect to the employment of the Executive by the Company as contemplated hereby and
no representations, promises, agreements, or understandings, written or oral, not herein contained
shall be of any force or effect.



          (b) Effective as of the Effective Date, this Agreement shall supersede the Prior Agreement.
The Prior Agreement, and any and all rights, obligations and liabilities of the parties thereunder
and the Executive’s employment with Triple Net Properties, LLC, shall terminate and will be null
and void effective as of the Effective Date. The Prior Agreement shall remain in full force and
effect, unless and until superseded by this Agreement. Effective as of the Effective Date, this
Agreement shall supersede any and all prior agreements between the Executive and Triple Net
Properties, LLC, Triple Net Properties Realty, Inc. or NNN Capital Corp. and any and all of the
rights, obligations and liabilities of the parties to such prior agreements shall thereupon
terminate and will be null and void, except that this Agreement shall have no effect on, and shall
not supersede, the Stock Grant and Transfer Agreement entered into by and among the Executive,
Anthony W. Thompson and Louis J. Rogers, dated as of October      , 2006 or the Indemnification and
Escrow Agreement, entered into by and among the Executive, Anthony W. Thompson, Louis J. Rogers,
the Company and an escrow agent to be determined dated as of October      , 2006.



          (c) This Agreement shall not be changed unless in writing and signed by both the Executive and
the Board.



          (d) A waiver by either party of any breach of the provisions of this Agreement by the other
party, or, in any particular instance or series of instances, of any term or condition of this
Agreement, shall not constitute or be deemed a waiver of such breach or of any such term or
condition in any other instance, nor shall any waiver constitute a continuing waiver hereunder. No
waiver shall be binding unless executed in writing by the party making the waiver.



     24. Executive’s Acknowledgement. The Executive acknowledges (a) that the Executive
has had the opportunity to consult with independent counsel of the Executive’s own choice
concerning this Agreement, and (b) that the Executive has read and understands the Agreement, is
fully aware of its legal effect, and has entered into it freely based on the Executive’s own
judgment.



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          IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date and
year first written above.




	 	 	 	 	 
	 	“COMPANY”



NNN REALTY ADVISORS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Scott D. Peters
 	 
	 	 	Name:  	Scott D. Peters 	 
	 	 	Title:  	CEO 	 
	 
	 	“Executive”

 	 
	 	/s/ Jeffrey T. Hanson
 	 
	 	Jeffrey T. Hanson 	 
	 	Residing at:

2201 Marselina


Tustin, California  92782 	 
	 



          Agreement of Triple Net Properties, LLC. Pursuant to Section 17 of the Prior
Agreement, Triple Net Properties LLC hereby agrees to Section 23(b) of this Agreement.




	 	 	 	 	 
	 	TRIPLE NET PROPERTIES, LLC,

a Virginia limited liability company

 	 
	 	By:  	/s/ Anthony W. Thompson
 	 
	 	 	Name:  	Anthony W. Thompson 	 
	 	 	Title:  	CEO 	 
	 




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