Exhibit 10.1





Form Agreement







 





INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT (this “Agreement”)
is made and entered into as of the [●] day of [●], 20__ (the “Effective Date”), by
and between American Realty Capital Properties, Inc., a Maryland corporation (the “Company”), and [●]
(“Indemnitee”) (together referred to as the “Parties”).


 


WHEREAS, Indemnitee commenced employment
with the Company as of [●] (the “Start Date”);


 


WHEREAS, by reason of Indemnitee’s
status as [a director/an officer] of the Company, Indemnitee may be subjected to claims, suits or proceedings arising as a result
of Indemnitee’s service; and


 


WHEREAS, as an inducement to Indemnitee
to serve or continue to serve as [a director/an officer] of the Company, the Company has agreed to indemnify and to advance expenses
and costs incurred by Indemnitee in connection with any such claims, suits or proceedings, to the maximum extent permitted by law
and subject to the terms set forth herein; and


 


WHEREAS, the parties to this Agreement desire
to set forth their agreement regarding indemnification and advancement of expenses.


 


NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:


 


Section
1.Definitions. For purposes of this Agreement:


 


(a)“Bylaws”
means the Bylaws of the Company, as amended, supplemented or otherwise modified from time to time. 


 


(b)“Charter”
means the charter of the Company, as amended, supplemented or otherwise modified from time to time.


 


(c)“Change
in Control” means a change in control of the Company occurring after the Effective Date of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change
in Control shall be deemed to have occurred if, after the Effective Date (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company representing 15% or more of the combined voting power of
all of the Company’s then-outstanding securities entitled to vote generally in the election of directors without the prior
approval of at least two-thirds of the members of the Board of Directors of the Company (the “Board of Directors”)
in office immediately prior to such person’s attaining such percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of
the Board of Directors then in office, as a consequence of which members of the Board of Directors in office immediately prior
to such transaction or event constitute less than a majority of the Board of Directors thereafter; or (iii) at any time, a majority
of the members of the Board of Directors are not individuals (A) who were directors as of the Effective Date or (B) whose election
by the Board of Directors or nomination for election by the Company’s stockholders was approved by the affirmative vote of
at least two-thirds of the members of the Board of Directors then in office who were directors as of the Effective Date or whose
election or nomination for election was previously so approved.



    	 



    	 



    




 


(d)“Corporate
Status” means the status of a person as a present or former director, officer, employee or agent of the Company or
as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that such
person is or was serving in such capacity at the request of the Company. Indemnitee’s Corporate Status shall be deemed to
have commenced on the Start Date. As a clarification and without limiting the circumstances in which Indemnitee may be serving
at the request of the Company, service by Indemnitee shall be deemed to be at the request of the Company if Indemnitee serves or
served as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise (i) of which a majority of the voting
power or equity interest is owned directly or indirectly by the Company or (ii) the management of which is controlled directly
or indirectly by the Company. 


 


(e)“Disinterested
Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification
and/or advancement of Expenses is sought by Indemnitee.


 


(f)“Effective
Date” means the date set forth in the first paragraph of this Agreement.


 


(g)“Expenses”
means any and all reasonable and out-of-pocket attorneys’ fees, expenses and costs, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, computer research
charges, postage, delivery service fees, paralegal and secretarial services, federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Employee Retirement Income Security
Act of 1974, as amended, excise taxes and penalties and any other disbursements or expenses incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in or otherwise participating in
a Proceeding. Expenses shall also include Expenses incurred in connection with any appeal resulting from any Proceeding including,
without limitation, the premium, security for and other costs relating to any cost bond, supersedeas bond or other appeal bond
or its equivalent. 


 


(h)“Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under similar
indemnification agreements), or (ii) any other party to or participant or witness in the Proceeding giving rise to a claim for
indemnification or advancement of Expenses hereunder. Notwithstanding the foregoing, the term “Independent Counsel”
shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict
of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.


 


(i)“Proceeding”
means any threatened, pending or completed claim, action, suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other proceeding, whether brought by or in the right of the Company, its shareholders or
otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative
(formal or informal) nature, including any appeal therefrom, including any pending on or before the Effective Date. If Indemnitee
reasonably believes that a given situation may lead to or culminate in the institution of a Proceeding, such situation shall also
be considered a Proceeding.


 



    	2



    	 



    




Section
2.Services by Indemnitee. Indemnitee serves as [a director/an officer] of the Company.
However, this Agreement shall not impose any independent obligation on Indemnitee or the Company to continue Indemnitee’s
service to the Company. This Agreement shall not be deemed an employment contract between the Company (or any other entity) and
Indemnitee. 


 


Section
3.General. Subject in all respects to Section 4 and Section 5, the Company shall
indemnify and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to the maximum extent permitted
by Maryland law in effect on the Effective Date and as amended from time to time; provided, however, that no change in Maryland
law shall have the effect of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on the
Effective Date. Subject in all respects to Section 4 and Section 5, the rights of Indemnitee provided in this Section 3 shall include,
without limitation, the rights set forth in the other sections of this Agreement, including any additional indemnification permitted
by Section 2-418(g) of the Maryland General Corporation Law (the “MGCL”).


 


Section
4.Standard for Indemnification. If, by reason of Indemnitee’s Corporate Status,
Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall indemnify, defend and hold harmless Indemnitee
against all judgments, penalties, fines and settlements and advance all Expenses actually incurred by Indemnitee or on Indemnitee’s
behalf in connection with any such Proceeding, subject to the limitations and requirements set forth herein, including the Certain
Limits on Indemnification as set forth in Section 5 of this Agreement.


 


Section
5.Certain Limits on Indemnification. Notwithstanding any other provision of this
Agreement (other than Section 6), Indemnitee shall not be entitled to:


 


(a)indemnification
or advancement of Expenses hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged to
be liable to the Company as described in Section 2-418(b)(2)(ii) of the MGCL;


 


(b)indemnification
or advancement of Expenses hereunder if it is finally determined (in that all rights of appeal have been exhausted or lapsed) in
a Proceeding that (i) the act or omission of Indemnitee was material to the matter giving rise to the Proceeding and (x) was committed
in bad faith or (y) was the result of Indemnitee’s active and deliberate dishonesty; (ii) Indemnitee actually received and
is adjudged to be liable for an improper personal benefit in money, property or services, as a result of an act or omission by
Indemnitee; or (iii) in the case of any criminal proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s
act or omission was unlawful; or


 


(c)indemnification
or advancement of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce
any of Indemnitee’s rights under this Agreement, and then only to the extent in accordance with and as authorized by Section
12 of this Agreement, or (ii) the Charter or Bylaws, a resolution of the stockholders entitled to vote generally in the election
of directors or of the Board of Directors or an agreement approved by the Board of Directors to which the Company is a party, expressly
provide otherwise.


 


Section
6.Court-Ordered Indemnification. Notwithstanding any other provision of this Agreement,
a court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court shall require, may order indemnification
of Indemnitee by the Company in the following circumstances:


 



    	3



    	 



    




(a)if
such court determines that Indemnitee is entitled to reimbursement under Section 2-418(d)(1) of the MGCL, the court shall order
indemnification, in which case Indemnitee shall be entitled to recover the Expenses of securing such reimbursement; or


 


(b)if
such court determines that Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances,
whether or not Indemnitee (i) has met the standards of conduct set forth in Section 2-418(b) of the MGCL or (ii) has been adjudged
liable for receipt of an improper personal benefit under Section 2-418(c) of the MGCL, the court may order such indemnification
as the court shall deem proper. However, indemnification with respect to any Proceeding by or in the right of the Company or in
which liability shall have been adjudged in the circumstances described in Section 2-418(c) of the MGCL shall be limited to Expenses.


 


Section
7.Indemnification for Expenses of an Indemnitee Who Is Wholly or Partially Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to the extent that Indemnitee was
or is, by reason of Indemnitee’s Corporate Status, made a party to (or otherwise becomes a participant in) any Proceeding
and is successful, on the merits or otherwise, in the defense of such Proceeding, Indemnitee shall be indemnified for all Expenses
actually incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful
in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters
in such Proceeding, the Company shall indemnify Indemnitee under this Section 7 for all Expenses actually incurred by Indemnitee
or on Indemnitee’s behalf in connection with each such claims, issues or matters, allocated on a reasonable and proportionate
basis. For purposes of this Section 7 and without limitation, the termination of any claim, issue or matter in such a Proceeding
by settlement or dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
As clarification, notwithstanding whether Indemnitee is successful in any Proceeding, Indemnitee shall be entitled to indemnification
of Expenses if the standard for indemnification under Section 4, subject to Section 5, of this Agreement is met. 


 


Section
8.Procedure for Advancement of Expenses to Indemnitee. If, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall, without requiring a
preliminary determination of Indemnitee’s ultimate entitlement to indemnification hereunder, advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with such Proceeding within ten days after the receipt by the Company of a
statement or statements requesting such advance or advances from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by a written affirmation by Indemnitee of Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Company as authorized by law and by this Agreement has been met and a written undertaking
by or on behalf of Indemnitee, in substantially the form attached hereto as Exhibit A or in such form as may be required
under applicable law as in effect at the time of the execution thereof. To the extent that Expenses advanced to Indemnitee do not
relate to a specific claim, issue or matter in the Proceeding, such Expenses shall be allocated on a reasonable and proportionate
basis. The undertaking required by this Section 8 shall be an unlimited general obligation by or on behalf of Indemnitee and shall
be accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement
to post security therefor.


 


Section
9.Indemnification and Advancement of Expenses as a Witness or Other Participant.
Notwithstanding any other provision of this Agreement (other than Section 5), to the extent that Indemnitee is or may be, by reason
of Indemnitee’s Corporate Status, made a witness or otherwise asked to participate in any Proceeding, including through any
deposition, interview, interrogatory or document or similar request, whether instituted by the Company or any other party, and
to which Indemnitee is not a party, Indemnitee shall be advanced all reasonable Expenses and indemnified against all Expenses actually
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith within ten days after the receipt by the Company
of a statement or statements requesting any such advance or indemnification from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee.


 



    	4



    	 



    




Section
10.Procedure for Determination of Entitlement to Indemnification.


 


(a)To
obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and
to what extent Indemnitee is entitled to indemnification. Indemnitee may submit one or more such requests from time to time and
at such time(s) as Indemnitee deems appropriate in Indemnitee’s sole discretion. The officer of the Company receiving any
such request from Indemnitee shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors
in writing that Indemnitee has requested indemnification.


 


(b)Upon
written request by Indemnitee for indemnification pursuant to Section 10(a) above, a determination, if required by applicable law,
with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case: (i) if a Change in Control
shall have occurred, by Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved by the Board of Directors in accordance
with Section 2-418(e)(2)(ii) of the MGCL, which approval shall not be unreasonably withheld; or (ii) if a Change in Control shall
not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors or, if such
a quorum cannot be obtained, then by a majority vote of a duly authorized committee of the Board of Directors consisting solely
of one or more Disinterested Directors, (B) if Independent Counsel has been selected by the Board of Directors in accordance with
Section 2-418(e)(2)(ii) of the MGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld, by Independent
Counsel, in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (C) by the stockholders
of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within
ten days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with
respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination in the discretion of the Board of Directors or Independent
Counsel if retained pursuant to clause (ii)(B) of this Section 10(b). Any Expenses incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmless therefrom.


 


(c)The
Company shall pay the reasonable fees and expenses of Independent Counsel, if one is appointed.


 


Section
11.Presumptions and Effect of Certain Proceedings.


 


(a)In
making any determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request
for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall have the burden of proof to overcome
that presumption in connection with the making of any determination contrary to that presumption.


 



    	5



    	 



    




(b)The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement does not create a presumption
that Indemnitee did not meet the requisite standard of conduct described herein for indemnification. The termination of any Proceeding
or of any claim, issue or matter therein, by conviction, or a plea of nolo contendere or its equivalent, or an entry of
an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee did not meet the requisite standard
of conduct described herein for indemnification.


 


(c)The
knowledge and/or actions, or failure to act, of any other director, officer, employee or agent of the Company or any other director,
trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise shall not be imputed to
Indemnitee for purposes of determining any right to indemnification under this Agreement.


 


Section
12.Remedies of Indemnitee.


 


(a)If
(i) a determination is made pursuant to Section 10(b) of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to Sections 8 or 9 of this Agreement, (iii) no determination
of entitlement to indemnification shall have been made pursuant to Section 10(b) of this Agreement within 45 days after receipt
by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 7 or 9 of this
Agreement within ten days after receipt by the Company of a written request therefor, or (v) payment of indemnification pursuant
to any other section of this Agreement or the Charter or Bylaws is not made within ten days after a determination has been made
that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court located
in the State of Maryland, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification
or advancement of Expenses. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted
by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence
a proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause
shall not apply to a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 7 or 8 of this Agreement.
Except as set forth herein, the provisions of Maryland law (without regard to its conflicts of laws rules) shall apply to any such
arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.


 


(b)In
any judicial proceeding or arbitration commenced pursuant to this Section 12, Indemnitee shall be presumed to be entitled to indemnification
or advancement of Expenses, as the case may be, under this Agreement and the Company shall have the burden of proving that Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case may be. If Indemnitee commences a judicial proceeding
or arbitration pursuant to this Section 12, Indemnitee shall not be required to reimburse the Company for any advances pursuant
to Section 8 of this Agreement until a final determination is made with respect to Indemnitee’s entitlement to indemnification
(as to which all rights of appeal have been exhausted or lapsed). The Company shall, to the fullest extent not prohibited by law,
be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this Agreement.


 


 


 



    	6



    	 



    




 


(c)If
a determination shall have been made pursuant to Section 10(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12,
absent a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification.


 


(d)In
the event that Indemnitee is successful in any such judicial adjudication or arbitration, Indemnitee shall be entitled to recover
from the Company, and shall be indemnified by the Company for, any and all Expenses actually incurred by Indemnitee in seeking,
pursuant to this Section 12, a judicial adjudication of or an award in arbitration to enforce Indemnitee’s rights under,
or to recover damages for breach of, this Agreement. If it shall be determined in such judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration shall be allocated on a reasonable and proportionate
basis.


 


(e)Interest
shall be paid by the Company to Indemnitee at the maximum rate allowed to be charged for judgments under the Courts and Judicial
Proceedings Article of the Annotated Code of Maryland for amounts which the Company pays or is obligated to pay for the period
(i) commencing with either the tenth day after the date on which the Company was requested to advance Expenses in accordance
with Sections 8 or 9 of this Agreement or the 45th day after the date on which the Company was requested to make the
determination of entitlement to indemnification under Section 10(b) of this Agreement, as applicable, and (ii) ending on the date
such payment is made to Indemnitee by the Company.


 


Section
13.Defense of the Underlying Proceeding.


 


(a)Indemnitee
shall notify the Company promptly in writing upon being served with any summons, citation, subpoena, complaint, indictment, request
or other document relating to any Proceeding which is reasonably likely to result in the right to indemnification or the advancement
of Expenses hereunder and shall include with such notice a description of the nature of the Proceeding and a summary of the facts
underlying the Proceeding. The failure to give any such notice shall not disqualify Indemnitee from the right, or otherwise affect
in any manner any right of Indemnitee, to indemnification or the advancement of Expenses under this Agreement unless the Company’s
ability to defend in such Proceeding or to obtain proceeds under any insurance policy is materially and adversely prejudiced thereby,
and then only to the extent the Company is thereby actually so prejudiced.


 


(b)Subject
to the provisions of the last sentence of this Section 13(b) and of Section 13(c) below, the Company shall have the right to defend
Indemnitee in any Proceeding which may give rise to indemnification hereunder; provided, however, that the Company shall notify
Indemnitee of any such decision to defend within 15 calendar days following receipt of notice of any such Proceeding under Section
13(a) above. The Company shall not, without the prior written consent of Indemnitee, which shall not be unreasonably withheld or
delayed, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes
an admission of fault of Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from
all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee
or (iii) would impose any Expense, judgment, fine, penalty or limitation on Indemnitee. This Section 13(b) shall not apply to a
Proceeding brought by Indemnitee under Section 12 of this Agreement.


 





(c)Notwithstanding
the provisions of Section 13(b), if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate Status,
(i) Indemnitee reasonably concludes, based upon the opinion of counsel, that Indemnitee may have one or more separate defenses
or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon the opinion of counsel, that an actual or apparent conflict of interest or potential
conflict of interest exists between Indemnitee and the Company, or (iii) if the Company fails to assume the defense of such Proceeding
in a timely manner, Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject
in the case of this subsection (iii) to the prior approval of the Company, which approval shall not be unreasonably withheld, at
the expense of the Company. In addition, if the Company fails to comply with any of its obligations under this Agreement or in
the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes
any Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall
have the right to retain counsel of Indemnitee’s choice at the expense of the Company (subject to Section 12(d) of this Agreement),
to represent Indemnitee in connection with any such matter.


 



    	7



    	 



    




Section
14.Non-Exclusivity; Survival of Rights; Subrogation.


 


(a)The
rights to indemnification and advancement of expenses provided by the Charter and the Bylaws shall vest immediately upon election
of Indemnitee as [a director/an officer] of the Company. The rights of indemnification and advancement of Expenses as provided
by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable
law, the Charter or Bylaws, any agreement or a resolution of the stockholders entitled to vote generally in the election of directors
or of the Board of Directors, or otherwise. Unless consented to in writing by Indemnitee, no amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal,
regardless of whether a claim with respect to such action or inaction is raised prior or subsequent to such amendment, alteration
or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right
or remedy shall be cumulative and in addition to every other right or remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prohibit the concurrent assertion
or employment of any other right or remedy. 


 


(b)All
rights of Indemnitee under this Agreement shall survive termination of Indemnitee’s employment with the Company.


 


(c)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 Indemnitee, who shall execute all papers 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.


  


Section
15.Insurance. The Company will use its reasonable best efforts to acquire directors
and officers liability insurance, on terms and conditions deemed appropriate by the Board of Directors, with the advice of counsel,
covering Indemnitee for any claim made against or any expense, liability or loss incurred by Indemnitee by reason of Indemnitee’s
Corporate Status and covering the Company for any indemnification or advancement of Expenses made by the Company to Indemnitee
for any claims made against Indemnitee by reason of Indemnitee’s Corporate Status, whether or not the Company would have
the power to indemnify such person against such liability under the MGCL. Additionally, after any termination of employment of
Indemnitee, for a period through the sixth anniversary of the termination of employment, the Company shall use reasonable best
efforts to maintain such directors and officers insurance covering Indemnitee. Without in any way limiting any other obligation
under this Agreement, the Company shall indemnify Indemnitee for any payment by Indemnitee arising out of the amount of any deductible
or retention and the amount of any excess of the aggregate of all judgments, penalties, fines, settlements and Expenses incurred
by Indemnitee in connection with a Proceeding over the coverage of any insurance referred to in the previous sentence. The purchase,
establishment and maintenance of any such insurance shall not in any way limit or affect the rights or obligations of the Company
or Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the
Company and the Indemnitee shall not in any way limit or affect the rights or obligations of the Company under any such insurance
policies. If, at the time the Company receives notice from any source of a Proceeding to which Indemnitee is a party or a participant
(as a witness or otherwise) the Company has director and officer liability insurance in effect, the Company shall give prompt notice
of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. 


 



    	8



    	 



    




Section
16.Coordination of Payments. The Company shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable or payable or reimbursable as Expenses hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.


 


Section
17.Reports to Stockholders. To the extent required by the MGCL, the Company shall
report in writing to its stockholders the payment of any amounts for indemnification of, or advancement of Expenses to, Indemnitee
under this Agreement arising out of a Proceeding by or in the right of the Company with the notice of the meeting of stockholders
of the Company next following the date of the payment of any such indemnification or advancement of Expenses or prior to such meeting.


 


Section
18.Duration of Agreement; Binding Effect.


 


(a)This
Agreement shall continue until and terminate on the later of (i) the date that Indemnitee shall have ceased to serve as a director,
officer, employee or agent of the Company or as a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, real estate investment trust, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise that such person is or was serving in such capacity at the request of
the Company and (ii) the date that Indemnitee is no longer subject to any actual or possible Proceeding (including any rights of
appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement).


 


(b)The
indemnification and advancement of Expenses provided by, or granted pursuant to, this Agreement shall be binding upon and be enforceable
by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee
who has ceased to be a director, officer, employee or agent of the Company or a director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise that such person is or was serving in such capacity at the request of
the Company, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.


 





(c)The
Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken place.


 



    	9



    	 



    




(d)The
Company and Indemnitee agree that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable
and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the Parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific performance hereof, without any necessity
of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall
not be precluded from seeking or obtaining any other relief to which Indemnitee may be entitled. Indemnitee shall further be entitled
to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertakings in connection therewith. The Company acknowledges that,
in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby waives any such
requirement of such a bond or undertaking.


 


Section
19.Severability. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect
to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the
intent manifested thereby.


 


Section
20.Identical Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.
One such counterpart signed by the party against whom enforceability is sought shall be sufficient to evidence the existence of
this Agreement.


 


Section
21.Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.


 


Section
22.Modification and Waiver. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the Parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.


 


Section
23.Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by hand or facsimile and receipted for by the Party
to whom said notice or other communication shall have been directed, on the day of such delivery, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date on which it is so mailed:


 


(a)If
to Indemnitee, to the address set forth on the signature page hereto.


 


(b)If
to the Company, to:


 


American Realty Capital Properties, Inc.

405 Park Avenue

New York, New York 10022

Attention: Richard A. Silfen, General Counsel

Facsimile: (215) 887-2585


 






    	10



    	 



    




 


with a copy to:


 


Proskauer Rose LLP

Eleven Times Square

New York, New York 10036

Attention: Peter M. Fass, Esq.

                  Steven L. Lichtenfeld, Esq.

Facsimile: (212) 969-2900


 


or to such other address as may have been furnished in writing
to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.


 


Section
24.Governing Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Maryland, without regard to its conflicts of laws rules.


 


[SIGNATURE PAGE FOLLOWS]


 






    	11



    	 



    

 


IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year first above written.


 





	 	COMPANY:
	 	 	 	 
	 	AMERICAN REALTY CAPITAL PROPERTIES, INC.
	 	 	 	 
	 	By:
	 	 	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	INDEMNITEE
	 	 	 	 
	 	 	Name:  	 
	 	 	Address: 	 







 






    	12



    	 



    

 


EXHIBIT
A



AFFIRMATION AND UNDERTAKING TO REPAY EXPENSES ADVANCED


 


To: The Board of Directors of American Realty Capital Properties,
Inc.


 


Re: Affirmation and Undertaking


 


Ladies and Gentlemen:


 


This Affirmation and Undertaking is being
provided pursuant to that certain Indemnification Agreement dated the____day of ________ 20__, by and between
American Realty Capital Properties, Inc., a Maryland corporation (the “Company”), 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. I hereby affirm my good faith belief
that at all times, insofar as I was involved as [a director] [an officer] of the Company, in any of the facts or events
giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate dishonesty, (2) did not receive any improper
personal benefit in money, property or services, as a result of an act or omission by me, (3) in the case the Proceeding is criminal
in nature, had no reasonable cause to believe that any act or omission by me was unlawful and (4) in the case the Proceeding is
by or in the right of the Company, am not liable to the Company.


 


In consideration of the advancement of Expenses
by the Company for reasonable attorneys’ fees and related Expenses incurred by me in connection with the Proceeding (the
“Advanced Expenses”), I hereby agree that if, in connection with the Proceeding, it is finally determined (in
that all rights of appeal have been exhausted or lapsed) that (1) the act or omission by me was material to the matter giving rise
to the Proceeding and was committed in bad faith or was the result of my active and deliberate dishonesty, (2) I actually received
and am adjudged to be liable for an improper personal benefit in money, property or services, as a result of an act or omission
by me, (3) in the case the Proceeding is criminal in nature, I had reasonable cause to believe that my conduct was unlawful, or
(4) in the case the Proceeding is by or in the right of the Company, I am adjudged to be liable to the Company, then I shall promptly
reimburse the Company for the portion of the Advanced Expenses relating to the claims, issues or matters in the Proceeding as to
which the foregoing findings have been established.


 


IN WITNESS WHEREOF, I have executed this
Affirmation and Undertaking on this __ day of _________________, 20__.


 


 





	 	Name:  	 








 


 



    	13