EXHIBIT 10.17(a)


welltower
INC.


2018-2020 LONG-TERM INCENTIVE PROGRAM


1.                  
Purpose.  This 2018-2020 Long-Term Incentive Program (the “Program”)
is adopted pursuant to the Welltower Inc. 2016 Long-Term Incentive Plan (the “Equity
Plan”) and any successor equity plan and is intended to provide an
incentive for superior work and to motivate executives and employees of
Welltower Inc. (the “Company”) toward even higher achievement and
business resualts, to tie their goals and interests to those of the Company and
its stockholders and to enable the Company to attract and retain highly
qualified executives and employees.  The Program is for the benefit of
Participants (as defined below).  


2.                  
Definitions.  Capitalized terms used herein without definitions
shall have the meanings given to those terms in the Equity Plan.  In addition,
as used herein:


“All REIT
Index” means the MSCI US REIT Index


“Annualized TSR Percentage” means (1 +
TSR)^(1/3) - 1.


“Award”
means a grant to a Participant hereunder.  The Company intends that while
Awards may be granted under the Program in any form of grant permitted under
the Equity Plan not in conflict with the terms of the Program, the two types of
Awards that are intended to be granted are (1) Performance Awards and (2)
Time-Based Awards in the form of restricted stock units with vesting based on
the completion of specified periods of continuous service with the Company and
its subsidiaries.


“Award Notice”
means the restricted stock unit award agreement with a Participant that sets
forth the terms, conditions and limitations of the Participant’s participation
in this Program, including, without limitation and as may be applicable, the
Participant’s Target Award, the Participant’s threshold, target, and high
payout multiples and the Time Restriction.


“Cause”
for termination of the Participant’s employment for purposes of Section 7 means
(a) if the Participant is a party to an employment agreement with the Company
immediately prior to such termination, and “Cause” is defined therein, then “Cause”
shall have the meaning set forth in such employment agreement, or (b) if the
Participant is not party to an employment agreement with the Company
immediately prior to such termination or the Participant’s employment agreement
does not define “Cause,” then “Cause” shall mean: (i) negligence or willful
misconduct by the Participant in connection with the performance of his or her
material duties as an employee of the Company or any Subsidiary; (ii) a breach
by the Participant of any of his or her material duties as an employee of the
Company or any Subsidiary, including but not limited to the provisions of
Section 4 herein; (iii) conduct by the Participant against the material best
interests of the Company or any Subsidiary, including but not limited to
embezzlement or misappropriation of corporate assets, or a material act of
statutory or common law fraud against the Company, any Subsidiary or the
employees of either the Company or any Subsidiary; (iv) conviction for or plea
of nolo contendere to any crime that is a felony, involves moral turpitude, or
was committed in connection with the performance of Participant’s job
responsibilities for the Company; (v) indictment of the Participant of a felony
or a misdemeanor involving moral turpitude and such indictment has a material
adverse effect on the interests or reputation of the Company or any Subsidiary;
(vi) the intentional and willful failure by Participant to substantially
perform his or her job responsibilities to the Company (other than any such failure
resulting from Participant’s incapacity due to physical or mental disability)
after a demand for substantial performance is made by the Company; (vii) the
failure by Participant to satisfactorily perform his or her job
responsibilities to the Company (other than any such failure resulting from
Participant’s incapacity due to physical or mental disability); or (viii) a
breach by Participant of any of the Company’s policies and procedures,
including but not limited to the Company’s Code of Business Conduct &
Ethics.  


“Change in
Corporate Control” shall have the same meaning as set forth in Section
10.1(a) of the Equity Plan and Section 10.1(c) of the Equity Plan.  In
addition, in order to qualify as a “Change in Corporate Control”, an event must
also meet the requirements for a “change in the ownership or effective control
of a corporation, or a change in the ownership of a substantial portion of the
assets of a corporation” with the meaning of Treas. Reg. §1.409A-3(i)(5).


“Code” means the Internal Revenue Code of 1986, as amended.


“Common Stock”
means the Company’s common stock, par value $1.00 per share, either currently
existing or authorized hereafter.






 












  





“Common Stock Price” means, as of a particular date, the average
of the Fair Market Value of one share of Common Stock over the 20 consecutive
trading days ending on, and including such date (or if such date is not a
trading day, the most recent trading day immediately preceding such date);
provided that, if such date is the date upon which a Change in Corporate
Control occurs, the Common Stock Price as of such date shall be equal to the
fair value, as determined by the Compensation Committee, of the total
consideration paid or payable in the transaction resulting in the Change in
Corporate Control for one share of Common Stock.


“Debt +
Preferred” means the sum of the Company’s secured debt, unsecured debt and
the total amount of preferred stock for the designated period.


“Disability”
for termination of the Participant’s employment for purposes of Section 7 means
(a) if the Participant is a party to an employment agreement with the Company
immediately prior to such termination, and “Disability” is defined therein,
then “Disability” shall have the meaning set forth in such employment
agreement, or (b) if the Participant is not party to an employment agreement
with the Company that defines “Disability,” then “Disability” shall have the
same meaning as defined in the Equity Plan.


“Dividend
Value” means the aggregate amount of dividends and other distributions paid
on one Share for which the record date occurred on or after the first day of
the Restrictive Determination Period and prior to the final settlement date at
which shares of Common Stock are issued to a Participant (excluding dividends
and distributions paid in the form of additional Shares).


“Earned Award” means, with respect to a Participant and such
individual’s Performance Award, the actual number of shares of Common Stock
that were earned by such Participant pursuant to this Program at the end of the
Performance Period based on the achievement of the performance goals set forth
in Section 5.


“EBITDA”
means the Company’s earnings before interest, taxes, depreciation and
amortization, as determined in accordance with Generally Accepted Accounting
Principles, for the designated period.


“Equity Plan” means the Welltower Inc. 2016
Long-Term Incentive Plan, as amended from time to time.


“Fair Market
Value” means, as of any given date, the fair market value of a security
which shall be the closing sale price reported for such security on the
principal stock exchange or, if applicable, any other national exchange on
which the security is traded or admitted to trading on such date on which a
sale was reported.  If there are no market quotations for such date, the
determination shall be made by reference to the last date preceding such date
for which there are market quotations.


“Good Reason”
for termination of the Participant’s employment for purposes of Section 7
means (a) if the Participant is a party to an employment agreement with the
Company immediately prior to such termination, and “good reason” is defined
therein, then “Good Reason” shall have the meaning set forth in such employment
agreement, or (b) if the Participant is not party to an employment agreement
with the Company immediately prior to such termination and/or the Participant’s
employment agreement does not define “Good Reason”:  (i) a substantial adverse
change, not consented to by the Participant, in the nature or scope of the
Participant’s responsibilities, authorities, powers, functions, or duties; or
(ii) a breach by the Company of any of its material obligations hereunder. 
Unless otherwise provided in an employment agreement to which the Participant
is a party immediately prior to such termination, to constitute “good reason
termination,” the Participant must:  (1) provide written notice to the Company
within 90 days of the initial existence of the event constituting “Good
Reason;” (2) may not terminate his or her employment unless the Company fails
to substantially remedy the event constituting “Good Reason” within 30 days
after such notice has been given; and (3) the Participant must terminate
employment with the Company no later than 30 days after the end of the 30-day
period in which the Company fails to substantially remedy the event
constituting “Good Reason.”


“Health Care
Facilities” means any senior housing facilities or facilities used or
intended primarily for the delivery of health care services, including, without
limitation, any active adult communities, independent living facilities,
assisted living facilities, skilled nursing facilities, inpatient
rehabilitation facilities, ambulatory surgery centers, outpatient medical
treatment facilities, medical office buildings, hospitals not excluded below,
or any similar types of facilities or enterprises, but in any event excluding
acute care hospitals or integrated health care delivery systems that include
acute care hospitals.


“Health Care
REIT Index” means the FTSE NAREIT Health Care REIT Index (or a successor
index including a comparable universe of publicly traded U.S. real estate
investment trusts), in each case adjusted and reweighted to exclude the Company
from the index.   As of the beginning of the Performance Period, the FTSE NAREIT
Health Care REIT Index was comprised of Ventas, Inc, HCP, Inc., Omega
Healthcare Investors, Senior Housing Properties Trust, Healthcare Trust of
America, Inc., Healthcare Realty Trust, National Health Investors, Medical
Properties Trust, Community Healthcare Trust, Inc., Sabra Health Care REIT, LTC
Properties, New Senior Investment Group, Physicians Realty Trust, Universal
Health Realty Income, Care Trust REIT, Quality Care Properties, 




 












  





Inc., MedEquities Realty Trust, Inc., and Global Medical
REIT.  Any health care REIT organization that is not in existence for the
entire Performance Period shall be omitted from this index.


“Index Return”
means, with respect to the Performance Period, the return of either the Health
Care REIT Index, or the All REIT Index, as applicable, over the Performance
Period expressed as a percentage.  For the avoidance of doubt, the intent of
the Compensation Committee is that Index Return over the Performance Period be
calculated in a manner designed to produce a fair comparison between the
Company’s TSR and the Index Return for the purpose of determining Relative
Performance.  In the case of the Health Care REIT Index, the Index Return shall
be computed as the sum of each component company’s weighted TSR with each
component company’s weight as the average of its relative market capitalization
at the beginning of the Performance Period. 


“Participant”
means an executive or employee of the Company or any Subsidiary selected by the
Compensation Committee to participate in the Program.


“Performance Award” means an award, expressed as a number of
restricted stock units, that vests upon the achievement of performance goals at
the end of a Performance Period.


“Performance
Period” means the period commencing on January 1, 2018 and concluding on
the earlier of (i) December 31, 2020, or (ii) a Change in Corporate Control.


“Program” means this Welltower Inc. 2018-2020 Long-Term
Incentive Program, as amended from time to time.


“Qualified Termination” means termination of a Participant’s
employment for Good Reason, by reason of the Participant’s death, Disability,
by the Company without Cause, Retirement and in the case of a Participant who
is party to an employment agreement with the Company, a non‐renewal by
the Company of the term of such agreement.


“Relative
Performance” means the Company’s TSR relative to the applicable Index
Return, as expressed as an Annualized TSR Percentage.


“Restricted
Period” means a period of one year for a Participant holding the title of
Senior Vice President or above at the time of termination of employment and a
period of six (6) months for a Participant holding the title of Vice President
at the time of termination of employment.  For any Participant holding a title
below the level of Vice President (including but not limited to Assistant Vice
President, Director or Manager), there shall be no post-employment Restrictive
Determination Period.


“Restrictive
Determination Period” means (a) the Performance Period in the case of a
Performance Award and (b) the period of time during which the applicable Time
Restriction has not lapsed in the case of a Time-Based Award.


“Retirement”
means the voluntary termination of employment by a Participant after attaining
age 55 and completing ten consecutive full years of service; provided, however,
that the sum of the Participant’s age and consecutive full years of service to
the Company shall be equal to 70 or more; and provided further that the
Participant (a) delivers to the Company, so that the Company receives or is
deemed to have received in accordance with Section 12(i) at least six months
prior to the date of his or her retirement, written notice specifying such
retirement date, (b) remains in the continuous service of the Company from the
date the written notice is received until his or her retirement date, and (c)
enters into a retirement agreement with the Company  in such form as shall be
determined by the Company from time to time that includes both (i) a customary
release of claims covering the Company and its affiliates, and (ii) an
affirmation of continued compliance with the non-competition, non-solicitation,
non-disparagement and non-disclosure covenants in favor of the Company and
related persons as set forth in Section 4.


“Target Award”
means a Participant’s target award, expressed as a number of restricted stock
units, for the Performance Period, as set forth in the Participant’s Award
Notice.


“Time-Based
Award” means an award, expressed as a number of restricted stock units,
that vests upon the lapse of the Time Restriction.  (A Time-Based Award is a
type of “Other Stock Unit Award” as classified under the Equity Plan.)


“Time
Restriction” means the period of time set forth in the Award Notice during
which a Time-Based Award (or portion thereof) is unvested and forfeitable based
on the completion of periods of continued employment with the Company or as
otherwise expressly set forth in this Program. 


“Total
Shareholder Return” or “TSR” means for the common stock of the
applicable company, the total shareholder return (share price
appreciation/depreciation during the applicable Performance Period plus the
value attributable to reinvested dividends 




 












  





paid on the
shares during the applicable Performance Period). The TSR shall be expressed as
a percentage. The calculation of TSR will be based on the average closing price
of the shares for the twenty trading days immediately preceding the first day
of the Performance Period and the average closing price of the shares for the
twenty trading days immediately preceding the last day of the applicable
Performance Period. The TSR will be calculated assuming that cash dividends
(including extraordinary cash dividends) paid on the shares are reinvested in
additional shares on the ex-dividend date and that any securities distributed
to shareholders in a spinoff transaction are sold and the proceeds reinvested
in additional shares on the ex-dividend date.


“Vested Unit
Award” means a Time-Based Award (or portion thereof) that is fully vested
and nonforfeitable due to the lapse of the applicable Time Restriction. 


3.                  
Administration 


(a)                
The Program shall be administered
by the Compensation Committee in accordance with the Equity Plan.  The
Compensation Committee shall have the discretionary authority to make all
determinations (including, without limitation, the interpretation and
construction of the Program and the determination of relevant facts) regarding
the entitlement to any Award hereunder and the amount of any Award to be paid
under the Program (including the number of shares of Common Stock issuable to
any Participant), provided such determinations are not made in bad faith and
are not inconsistent with the terms, purpose and intent of the Program.  The
Compensation Committee may delegate to one or more officers or employees of the
Company some or all of its authority to administer the Program as described in
this Section 3, and in the event of such delegation, references to the
Compensation Committee in this Section 3 shall apply in the same manner to such
delegate or delegates to the extent of such delegated authority.  In
particular, but without limitation and subject to the foregoing, the
Compensation Committee shall have the authority:


(i)                 
to select Participants under the
Program in its sole discretion;


(ii)               
with respect to Performance
Awards, to determine the Target Award and any formula or criteria for the
determination of the Target Award for each Participant and such individual’s
Performance Award and to determine the Earned Award;


(iii)             
with respect to Time-Based Awards,
to determine the applicable Time Restriction;


(iv)              
to determine the terms and
conditions, consistent with the terms of this Program, which shall govern Award
Notices and all other written instruments evidencing an Award hereunder,
including the waiver or modification of any such conditions;


(v)               
to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Program as it
shall from time to time deem advisable; and


(vi)              
to interpret the terms and
provisions of the Program and any Award granted under the Program (and any
Award Notices or other agreements relating thereto) and to otherwise supervise
the administration of the Program.


(b)               
Subject to the terms hereof, all
decisions made by the Compensation Committee (or any officer or employee of the
Company to whom it has delegated some or all of its authority to administer the
Program) in good faith pursuant to the Program shall be final, conclusive and
binding on all persons, including the Company and the Participants.  No member
of the Compensation Committee, and no officer or employee of the Company acting
on behalf of the Compensation Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith with
respect to this Program, and all members of the Compensation Committee and each
and any officer or employee of the Company acting on their behalf shall, to the
fullest extent not prohibited by law, be fully indemnified and protected by the
Company in respect of any such action, determination or interpretation.


4.                  
Conditions of Participation


As a
condition of entitlement to participate in the Program, whether or not the
Participant receives any payment or other benefit under the Program, each
Participant shall comply with the following restrictive covenants.


(a)           Protection
of Confidential Information.         Participant, both during employment
with the Company and thereafter, shall not, 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 defined
below) except as may be required for Participant to perform in good faith his
or her job responsibilities to the Company while employed by the Company.  Upon
Participant’s termination of employment, 




 












  





Participant
shall return to the Company all Confidential Information and shall not retain
any Confidential Information in Participant’s possession that is in written or
other tangible form and shall not furnish any such Confidential Information to
any third party, except as provided herein.  Notwithstanding the foregoing,
this Section 4(a) shall not apply to Confidential Information that (i) was
publicly known at the time of disclosure to Participant, (ii) becomes publicly
known or available thereafter other than by any means in violation of this
Section 4 or any other duty owed to the Company by Participant, (iii) is
lawfully disclosed to Participant by a third party, or (iv) is required to be
disclosed by law or by any court, arbitrator or administrative or legislative
body with actual or apparent jurisdiction to order Participant to disclose or
make accessible any information or is voluntarily disclosed by Participant to
law enforcement or other governmental authorities.  Furthermore, in accordance
with the Defend Trade Secrets Act of 2016, Participant will not be held
criminally or civilly liable under any federal or state trade secret law for
the disclosure of a trade secret that (x) is made (i) in confidence to a
federal, state or local government official, either directly or indirectly, or
to an attorney; and (ii) solely for the purpose of reporting or investigating a
suspected violation of law; or (y) is made in a complaint or other document
filed in a lawsuit or other proceeding, if such filing is made under seal. As
used in this Program, Confidential Information means, without limitation, any
non-public confidential or proprietary information disclosed to Participant or
known by Participant as a consequence of or through Participant’s relationship
with the Company, in any form, including electronic media.  Confidential
Information also includes, but is not limited to the Company’s business plans
and financial information, marketing plans, and business opportunities. Nothing
herein shall limit in any way any obligation Participant may have relating to
Confidential Information under any other agreement, promise or duty to the
Company.


(b)           Non-Competition.               In
the course of the performance of Participant’s job responsibilities for the
Company, Participant has obtained and will continue to obtain extensive and
valuable knowledge and information concerning the Company’s business (including
confidential information relating to the Company and its operations,
intellectual property, assets, contracts, customers, personnel, plans, marketing
plans, research and development plans and prospects).  Accordingly, during
employment with the Company and for the applicable Restricted Period following
Participant’s termination of employment, Participant will not engage in any
business activities on behalf of any enterprise which competes with the Company
or any of its affiliates in the business of (i) ownership or operation of
Health Care Facilities; (ii) investment in or lending to Health Care Facilities
(including to an owner or developer of Health Care Facilities); (iii)
management of Health Care Facilities; or (iv) provision of any consulting,
advisory, research or planning or development services to Health Care
Facilities.


Participant
will be deemed to be engaged in such competitive business activities if
Participant participates in such a business enterprise as an employee, officer,
director, consultant, agent, partner, proprietor, or other participant;
provided that the ownership of no more than two percent (2%) of the stock of a
publicly traded corporation engaged in a competitive business shall not be
deemed to be engaging in competitive business activities.  If Participant
provides services to an enterprise that has some activities that compete with
the Company or any of its affiliates in any area described above and other
activities that do not compete with the Company or any of its affiliates in any
of the areas described above, then so long as Participant provides services
exclusively to the portion of such enterprise that does not compete with the
Company and its affiliates, Participant will not be deemed to be engaged in a
competitive business activity as described in this Section 4(b).


(c)           Non-Solicitation.  During
employment with the Company and for one year following the end of Participant’s
employment with the Company, Participant, to the fullest extent not prohibited
by applicable law, directly or indirectly, individually or on behalf of any
other person or entity, including Participant, will not encourage, induce,
attempt to induce, recruit, attempt to recruit, solicit or attempt to solicit
or participate in any way in hiring or retaining for employment, contractor or
consulting opportunities anyone who is employed or providing full-time services
as a consultant at that time by the Company or any subsidiary or affiliate of
the Company.


(d)           Non-Disparagement.           At
all times during and following Participant’s employment with the Company,
Participant will not make or direct anyone else to make on Participant’s behalf
any disparaging or untruthful remarks or statements, whether oral or written,
about the Company, its operations or its products, services, affiliates,
officers, directors, employees, or agents, or issue any communication that
reflects adversely on or encourages any adverse action against the Company. 
Participant will not make any direct or indirect written or oral statements to
the press, television, radio, on social media or to, on or through other media
or other external persons or entities concerning any matters pertaining to the
business and affairs of the Company, its affiliates or any of its officers or
directors.  The restrictions described in this paragraph shall not apply to any
truthful statements made in response to a subpoena or other compulsory legal
process or to law enforcement or other governmental authorities.


(e)           Remedies.             For
the avoidance of doubt, any breach of any of the provisions in this Section 4
shall constitute a material breach by Participant.  Notwithstanding any other
provision of this Program, by becoming entitled to receive any payments or
other benefits under this Program, Participant is deemed to have agreed that
damages would be an inadequate remedy for the Company in the event of a breach
or threatened breach by Participant of any of Sections 4(a) through 4(d),
inclusive.  In the event of any such breach or threatened breach, and without
relinquishing any other rights or remedies that the Company may have, including
but not limited to the forfeiture or repayment by Participant of any payments or
benefits otherwise payable or paid to Participant under 




 












  





this
Program, the Company may, either with or without pursuing any potential damage
remedies and without being required to post a bond, obtain from a court of
competent jurisdiction, and enforce, an injunction prohibiting Participant from
violating this Section 4 and requiring Participant to comply with its
provisions.  The Company may present this Section 4 to any third party with
which Participant may have accepted employment, or otherwise entered into a
business relationship, that the Company contends violates this Section 4, if
the Company has reason to believe Participant has or may have breached a
provision of this Section 4.


5.                  
Determination of Awards


(a)                
Each Participant’s Award Notice
shall specify, as applicable, such Participant’s Target Award and threshold,
target, and high payout multiples or Time Restriction. 


(b)               
With regard to a Performance
Award, the percentage of a Participant’s Target Award that may be earned for
the Performance Period shall be determined as follows:  50 percent of the
Target Award shall be earned based on the Company’s Relative Performance to the
Health Care REIT Index; 25 percent of the Target Award shall be earned based on
the Company’s Relative Performance to the All REIT Index; and  25 percent of
the Target Award shall be earned based on the Company’s (Debt + Preferred) /
EBITDA ratio; all as further set forth on Exhibit A.


(c)                
Depending on the score for each of
the performance goals of a Performance Award as determined pursuant to Exhibit
A, the Earned Award for the Performance Period shall be determined based on the
Participant’s individual threshold, target and high payout multiples described
in the Participant’s Award Notice.  For performance between two different
tiers, the percentage payable shall be calculated using interpolation between
tiers. The level of achievement for each listed performance goal shall be
determined independently.


(d)               
With regard to a Time-Based Award,
the Time Restriction included in the Award Notice shall generally not be less
than three years from the Date of Grant; provided, that such an Award Notice
may permit pro rata vesting over such time.


(e)                
Except as otherwise provided
herein, the Earned Award and Vested Unit Award shall be settled in shares of
Common Stock upon satisfaction of the requirements as set forth in Section 8. 


6.                  
Change in Corporate Control.  In the event that prior to December 31, 2020, a Change in
Corporate Control occurs, then the following provisions shall apply: 


(a)                
In the case of a Performance
Award, each such outstanding Award will be deemed earned as of the date of such
Change in Corporate Control in accordance with the computation described in
Section 5(b) as if the Performance Period ended on the day prior to the
consummation of the Change in Corporate Control, except that corporate metrics
not tied to TSR shall be calculated based on the results through the most
recent completed fiscal quarter, but each Award shall further be multiplied by
a fraction, the numerator of which shall be the number of full and partial
months from the beginning of the Performance Period through the Change in
Corporate Control and the denominator of which shall be 36.  Notwithstanding
Sections 4 and 8(b), any shares of Common Stock issued to satisfy such outstanding
Earned Awards shall be fully vested and nonforfeitable. 


(b)               
In the case of a Time-Based Award,
the Time Restriction applicable to such Time-Based Award shall lapse in its
entirety and such award shall become a Vested Unit Award if either (i) the
successor company (or a subsidiary thereof) does not assume, convert, continue
or otherwise replace such other awards on proportionate and equitable terms or
(ii) the Participant is terminated without Cause within 12 months following the
Change in Corporate Control.


7.                  
Termination of Participant’s
Employment. 


(a)                
If a Participant’s employment with
the Company terminates, the provisions of this Section 7 shall govern the
treatment of the Participant’s Award exclusively, regardless of the provisions
of any employment, change in control or other agreement or arrangement to which
the Participant is a party, or any termination or severance policies of the
Company then in effect, which shall be superseded by this Program.


(b)               
In the event of termination of a
Participant’s employment by reason of a Qualified Termination prior to the end
of the applicable Restrictive Determination Period, then the following
provisions shall apply:


(i)                 
In the case of a Performance
Award, the Compensation Committee shall determine the Participant’s Earned Award
in accordance with the computation described in Section 5(b) as if the
Performance Period ended on the calendar quarter end immediately preceding the
date of the Participant’s Qualified Termination; provided, however, that the
Earned 




 












  





Award of such terminated Participant for the
Performance Period shall be multiplied by a fraction, the numerator of which
shall be the number of complete months during which the Participant was an
employee of the Company during the Performance Period and the denominator of which
shall be the total number of months in the Performance Period.  The pro-rated
Earned Award shall be paid out in shares of Common Stock that are fully vested.


(ii)               
In the case of a Time-Based Award,
the Participant shall retain the portion of the Time-Based Award that is a
Vested Unit Award.  Unless otherwise determined by the Compensation Committee,
the unvested portion of the Time-Based Award shall, without payment of any
consideration by the Company, automatically and without notice terminate, be
forfeited and be and become null and void and neither the Participant nor any
of his or her successors, heirs, assigns, or personal representatives will
thereafter have any further rights or interests in such unvested portion of the
Time-Based Award.


(c)                
In the event of termination of a
Participant’s employment by reason of a Qualified Termination after the end of
the applicable Restrictive Determination Period, any portion of the
Participant’s Earned Award or Time-Based Award that has not yet been settled
shall become fully vested and shall be paid out in shares of Common Stock.


(d)               
As a condition of receiving any
payments or benefits under this Program on account of Participant’s Qualified
Termination, the Company may, in its sole discretion, require Participant to
deliver an irrevocable, effective release of claims in the form determined by
the Company and/or an affirmation of continued compliance with the
non-competition, non-solicitation, non-disparagement and non-disclosure
covenants in favor of the Company and related persons as set forth in Section
4.


(e)                
In the event of a termination of a
Participant’s employment for any reason other than a Qualified Termination
prior to the end of the applicable Restrictive Determination Period, except as
otherwise set forth in the Participant’s Award Notice, the Award held by the
Participant during the Performance Period or portion of the Award for which the
Time Restriction has not lapsed shall, without payment of any consideration by
the Company, automatically and without notice terminate, be forfeited and be
and become null and void, and neither the Participant nor any of his or her
successors, heirs, assigns, or personal representatives will thereafter have
any further rights or interests in such Award.  In the event of a termination
of a Participant’s employment for any reason other than a Qualified Termination
after the end of the applicable Restrictive Determination Period, any portion
of the Earned Award or Time-Based Award that has not yet been settled in shares
of Common Stock shall be forfeited.


8.                  
Payment of Awards. 


(a)                
As soon as practicable following
the end of the applicable Restrictive Determination Period: 


(i)                 
The portion of a Time-Based Award
for which the Time Restriction has lapsed shall be settled in shares of Common
Stock; and


(ii)               
In the case of a Performance
Award, the Compensation Committee shall determine the amount of each
Participant’s Earned Award, if any, with respect to the Performance Period.


The date on which
such settlement of the Awards occurs shall be referred to herein as the “Issuance
Date”.  In no event shall the Issuance Date with respect to the end of the
Restrictive Determination Period for a Time-Based Award be later than 74 days
after the end of the applicable Restrictive Determination Period or on such
later date as provided by the Compensation Committee; provided that (i) in the
case of the Performance Period (in the case of a Performance Award) or Time
Restriction (in the case of a Time-Based Award) that ends upon a Change in
Corporate Control, the Issuance Date shall be no later than immediately prior
to the consummation of the Change in Corporate Control, and (ii) in the case of
a determination required by Section 7(b), the Issuance Date shall generally be
no later than 74 days after the date of the Participant’s Qualified Termination
or on such later date as provided by the Compensation Committee. 


(b)               
Except as otherwise provided in
Sections 6 and 7, on the vesting date described below, the Company shall issue
to each Participant (or such Participant’s estate or beneficiary, if
applicable) with regard to a Performance Award a number of shares of Common
Stock equal to the vested portion of the Earned Award.  Subject to a
Participant’s continued employment with the Company or a subsidiary and
continued compliance with the restrictive covenants set forth in Section 4
through such date, the shares subject to a Participant’s Earned Award shall be
vested as of the date that the Compensation Committee shall determine the
amount of each Participant’s Earned Award, if any, with respect to the
Performance Period.  In addition, on the vesting date (or on the Issuance Date
with regard to an Earned Award settled in accordance with Section 6 or 7), the
Company shall pay in cash to each Participant (or such Participant’s estate or
beneficiary, if applicable) an amount equal to the Dividend Value multiplied by
the number of shares issued pursuant to Section 6, Section 7 or this Section
8(b) on such date.


 




 












  





(c)                
Except as otherwise provided in
Sections 6 and 7, the Company shall issue to each Participant (or such
Participant’s estate or beneficiary, if applicable) with regard to a Time-Based
Award a number of shares of Common Stock equal to the vested portion of the
Time-Based Award on the Issuance Date.  In addition, on the Issuance Date, the
Company shall pay in cash to each Participant (or such Participant’s estate or
beneficiary, if applicable) an amount equal to the Dividend Value multiplied by
the number of shares issued pursuant to Section 6, Section 7 or this Section
8(c) on such date. 


9.                  
Adjustments.  Without duplication with the provisions of Sections
3 and 11 of the Equity Plan, if (i) the Company shall at any time be involved
in a merger, consolidation, dissolution, liquidation, reorganization, exchange
of Shares, sale of all or substantially all of the assets or Shares of the
Company or a transaction similar thereto, (ii) any stock dividend, stock split,
reverse stock split, stock combination, reclassification, recapitalization, or
other similar change in the capital structure of the Company, or any
distribution to holders of Shares other than ordinary cash dividends, shall
occur or (iii) any other event shall occur which in the judgment of the
Compensation Committee necessitates action by way of adjusting the terms of the
Program, then and in that event, the Compensation Committee shall take such
action as shall be necessary to maintain the Participants’ rights hereunder so
that they are substantially the same rights existing under this Program prior
to such event.


10.               
Restrictions and Conditions.  Subject to the provisions of the Equity Plan and
this Program, except as may otherwise be permitted by the Compensation
Committee, a Participant shall not be permitted voluntarily or involuntarily to
sell, assign, transfer, or otherwise encumber or dispose of the restricted
stock units or an Award; provided that the foregoing restriction shall not
apply to Shares actually issued to a Participant.


11.               
Withholding of Tax.  Unless otherwise agreed to between the Company and
a Participant, the Company will cause the required minimum tax withholding
obligation (or such other rate that will not cause an adverse accounting
consequence or cost) to be satisfied by withholding a number of Shares to be
issued to a Participant with an aggregate Fair Market Value that would satisfy
the withholding amount due.  The Company’s obligation to deliver stock
certificates (or evidence of book entry) to any Participant is subject to and
conditioned on tax withholding obligations being satisfied by such Participant
or through the Company’s exercise of its authority.  The
Compensation Committee expressly provides that the required minimum tax
withholding obligation of an Award granted to a Participant who is an officer
within the meaning of Rule 16a-1(f) promulgated under the Securities Exchange
Act of 1934, as amended, shall be satisfied by withholding a number of Shares
to be issued to the Participant with an aggregate Fair Market Value that
satisfies the withholding amount due.


12.               
Miscellaneous. 


(a)                
Amendment and Termination.  The Company reserves the right to amend or
terminate the Program at any time in its discretion without the consent of any
Participant, but no such amendment shall adversely affect the rights of the
Participants with regard to outstanding Awards in any material respect.


(b)               
No Contract for Continuing
Services.  This Program shall not be
construed as creating any contract for continued services between the Company
or any of its Subsidiaries and any Participant, and nothing herein contained
shall give any Participant the right to be retained as an employee or
consultant of the Company or any of its Subsidiaries.


(c)                
Governing Law.  The Program and each Award Notice awarded under the
Program shall be construed in accordance with and governed the laws of the
State of Ohio, without regard to principles of conflict of laws of such state.


(d)               
Arbitration.           Subject to Section 4(e) hereof, all
claims, disputes, questions, or controversies arising out of or relating to
this Program, will be resolved exclusively in final and binding arbitration
held under the auspices of Judicial Arbitration & Mediation Services, Inc.
(“JAMS”) in accordance with JAMS then current Employment Arbitration
Rules and Procedures, or successor rules then in effect. The arbitration will
be held in New York, New York, and will be conducted and administered by JAMS
or, in the event JAMS does not then conduct arbitration proceedings, a
similarly reputable arbitration administrator. Participant and the Company will
select a mutually acceptable, neutral arbitrator from among the JAMS panel of
arbitrators.  Except as provided by this Program, the Federal Arbitration Act
will govern the administration of the arbitration proceedings. The arbitrator
will apply the substantive law (and the law of remedies, if applicable) of the
State of Ohio, or federal law, if Ohio law is preempted, and the arbitrator is
without jurisdiction to apply any different substantive law. Participant and
the Company will each be allowed to engage in adequate discovery, the scope of
which will be determined by the arbitrator consistent with the nature of the
claim(s) in dispute. The arbitrator will have the authority to entertain a
motion to dismiss and/or a motion for summary judgment by any party and will
apply the standards governing such motions under the Federal Rules of Civil
Procedure. The arbitrator will render a written award and supporting opinion
that will set forth the arbitrator’s findings of fact and conclusions of law.
Judgment upon the award may be entered in any court of competent jurisdiction.
The Company will pay the arbitrator’s fees, as well as all administrative fees,
associated with the arbitration. Each party will be responsible for paying its
own attorneys’ fees and costs (including expert witness fees and costs, if
any), provided, however, that the arbitrator may award attorney’s fees and
costs to the 




 












  





prevailing party, except as prohibited by
law.  If the Company is the prevailing party, the arbitration may award some or
all of the costs for the arbitrator’s fees and/or other administrative fees to
the fullest extent not prohibited by law.  The existence and subject matter of
all arbitration proceedings, including, any settlements or awards thereunder,
shall remain confidential.


(e)                
Construction.  Wherever appropriate, the use of the masculine
gender shall be extended to include the feminine and/or neuter or vice versa;
and the singular form of words shall be extended to include the plural; and the
plural shall be restricted to mean the singular.


(f)                 
Headings.  The Section headings and Section numbers are
included solely for ease of reference.  If there is any conflict between such
headings or numbers and the text of this Program, the text shall control.


(g)               
Effect on Other Plans.  Nothing in this Program shall be construed to limit
the rights of Participants under the Company’s or its Subsidiaries’ benefit
plans, programs or policies.


(h)               
Clawback Policy.  All Awards granted under this Program shall be
subject to forfeiture (as determined by the Compensation Committee) in
accordance with the terms of the Company’s clawback or recoupment policy (as in
effect from time to time).  Furthermore, prior to the occurrence of a Change in
Corporate Control, an Award (including an Earned Award and Vested Unit Award)
granted under this Program and shares of Common Stock issued under this Program
to a Participant shall be subject to forfeiture (as determined by the
Compensation Committee) in the event that a Participant breaches any provision
of Section 4 herein.


(i)                 
Notices.  Any notice provided for under this Program shall be
in writing and may be delivered in person or sent by overnight courier,
certified mail, or registered mail (return receipt requested), postage prepaid,
addressed as follows (or to such other address as such party may designate in
writing from time to time): 


If
to the Company:  Welltower Inc., 4500 Dorr Street, Toledo, OH  43615
Attention:  Legal Department


If
to a Participant, at the address on file with the Company’s Human Resources
Department.


The actual date of
mailing, as shown by a mailing receipt therefor, shall determine the time at
which notice was given.  Any Participant may change the address at which notice
shall be given by notifying the Company in the manner set forth in this Section
12(i).  The Company may change the address at which notice shall be given by
notifying each Participant in the manner set forth in this Section 12(i).


                (j)            Section
409A.        


(1)           This Program is intended to
comply with Section 409A of the Code (“Code Section 409A”) and will be
interpreted in a manner intended to comply with Code Section 409A.  Any
provision that would cause this Program or any payment hereunder to fail to
satisfy Code Section 409A of the Code shall have no force or effect until
amended to the minimum extent required to comply with Code Section 409A, which
amendment may be retroactive to the extent permitted by Code Section 409A.  A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of amounts or
benefits that may be considered “deferred compensation” under Code Section 409A
(after taking into account all exclusions applicable to such payments or
benefits under Code Section 409A) upon or following a termination of employment
unless such termination is also a “separation from service” within the meaning
of Code Section 409A and, for purposes of any such provision of this Program,
references to a “retirement,” “termination,” “termination of employment” or
like terms shall mean separation from service.  


(2)           Any payment scheduled to be
made under this Program that may be considered “deferred compensation” under
Code Section 409A (after taking into account all exclusions applicable to such
payments or benefits under Code Section 409A), that are otherwise due on or within
the six-month period following termination of employment will accrue during
such six-month period and will instead become payable in a lump sum payment on
the first business day period following such six-month period.  Furthermore, if
any other payments of money or other benefits due to a Participant under this
Agreement could cause the application of an accelerated or additional tax under
Code Section 409A, such payments or other benefits shall be deferred if
deferral will make such payment or other benefits compliant under Code Section
409A, or otherwise such payment or other benefits shall be restructured, to the
extent possible, in a manner, determined by the Company, that does not cause
such an accelerated or additional tax.   


(3)            Notwithstanding any contrary
provision herein, a Participant’s right to any payment (including each
installment payment) under this Program shall be treated as a “separate
payment” within the meaning of Code Section 409A.


 




 












  





 


 


END OF PROGRAM DOCUMENT