EXHIBIT 10.4


 


welltower INC.


2017-2019
LONG-TERM INCENTIVE PROGRAM


1.                  
Purpose.  This 2017-2019
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 results, 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*(1 + Cumulative TSR))^(1/3) - 1.


“Award”
means a grant to a Participant hereunder.


“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, the Participant’s
Target Award and the Participant’s threshold, target, and high payout
multiples.


“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 Committee, of the total consideration paid or
payable in the transaction resulting in the Change in Corporate Control for one
share of Common Stock.


“Cumulative
TSR” means ((1*(1 + TSR Year 1)*(1 + TSR Year 2)*(1 + TSR
Year 3)) ‐ 1.


“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 Performance 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, 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 REIT Index” means the 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 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., Care Capital Properties, 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 compounded
annualized 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 Committee is that Index Return over the
Performance Period be calculated in a manner designed to produce a fair
comparison between the Company’s Annualized TSR Percentage 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 on dates
that correspond to the beginning of each year 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 Period” means the
period commencing on January 1, 2017 and concluding on the earlier of (i)
December 31, 2019, or (ii) a Change in Corporate Control.


“Program” means this Welltower Inc.
2017-2019 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 Annualized TSR Percentage relative to the applicable
Index Return.


“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.


“Total
Shareholder Return” or “TSR” means the compounded annual growth
rate, expressed as a percentage (rounded to the nearest tenth of a percent
(0.1%)) in the value per share of Common Stock during the Performance Period
due to the appreciation in the price per share of Common Stock and dividends
paid during the Performance Period, assuming dividends are reinvested.  Total
Shareholder Return or TSR for any 12-month period shall be calculated as
follows:  (i) the Common Stock Price at the end of the period plus dividends
paid during the 12-month period divided by (ii) the Fair Market Value of the
Common Stock at the beginning of the period, minus (iii) 1.  As set forth
in, and pursuant to, Section 9 of this Agreement, appropriate adjustments to
the Total Shareholder Return shall be made to take into account all stock
dividends, stock splits, reverse stock splits and the other events set forth in
Section 9 that occur during the Performance Period.


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)             
to
determine the Target Award and any formula or criteria for the determination of
the Target Award for each Participant and to determine the Earned Award;


 


(iii)            
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;






 












  


 





 


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


 


(v)             
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 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 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 [one year][1]
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 (defined below); (ii) investment in or lending to
health care related enterprises (including, without limitation, owners or
developers of Health Care Facilities); (iii) management of Health Care
Facilities; or (iv) provision of any planning or development services for
Health Care Facilities. “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, 





                [1]               One
year will be the duration of the non-competition period for SVPs and above. 
For employees holding the title of Director, Assistant Vice President and Vice
President, the duration will be six months.  For all other employees (i.e.,
Managers and below), the duration will be three months.










 












  


 





assisted
living facilities, skilled nursing facilities, inpatient rehabilitation
facilities, ambulatory surgery centers, medical office buildings, hospitals of
any kind, or any similar types of facilities or projects.  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.


(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 such Participant’s Target Award and
threshold, target, and high payout multiples. 


 


(b)                
The
percentage of a Participant’s Target Award that may be earned for the
Performance Period shall be determined as follows:  25 percent of the Target
Award shall be earned based on the Company’s Relative Performance to the Health
Care REIT Index; 15 percent of the Target Award shall be earned based on the
Company’s Relative Performance to the All REIT Index; 10 percent of the Target
Award shall be earned based on the Company’s Annualized TSR Percentage; 20
percent of the Target Award shall be earned based on the Company’s (Debt +
Preferred) / EBITDA ratio; 15% shall be earned based on the establishment of
Academic Medical Centers and Super-Regional Health Systems Relationships; and
15 percent of the Target Award shall be earned based on the Effectiveness of 
Management and Progression on Corporate Initiatives; all as further set forth
on Exhibit A.


 


(c)                
Depending
on the score for each of the performance goals 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.


Except as otherwise provided
herein, the Earned Award shall be settled in shares of Common Stock upon
satisfaction of the vesting requirements as set forth in Section 8. 






 












  


 





6.                  
Change
in Corporate Control.  In the event that prior to December 31, 2019, a Change in
Corporate Control occurs, then each 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. 


 


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 Performance Period, then 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 days in which the
Participant an employee of the Company during the Performance Period and the
denominator of which shall be the total number of days in the Performance
Period.  The pro-rated Earned Award shall be paid out in shares of Common Stock
that are fully vested.


 


(c)                
In
the event of termination of a Participant’s employment by reason of a Qualified
Termination after the end of the Performance Period, any portion of the
Participant’s Earned 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 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 Performance Period, except
as otherwise set forth in the Participant’s Award Notice, the Award held by the
Participant for the Performance Period 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 Performance Period, any portion of
the Earned 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 Performance Period , the
Compensation Committee shall determine the size of each Participant’s Earned
Award, if any, with respect to the Performance Period (with the date of such
determination being referred to as the “Issuance Date”).  In no event
shall the Issuance Date with respect to the Performance Period be later than 74
days after the end of the Performance Period; provided that (i) in the case of
the Performance Period 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 be no later than 74 days
after the date of the Participant’s Qualified Termination. 


 


(b)                
Except
as otherwise provided in Sections 6 and 7, on each vesting date described
below, the Company shall issue to each Participant (or such Participant’s
estate or beneficiary, if applicable) 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,
one-third of the shares subject to a Participant’s Earned Award shall be vested
as of the Issuance Date, one-third of such shares shall become fully vested on
December 31, 2020, and one-third of such shares shall become fully vested on
December 31, 2021.  In addition, on each such vesting date, as applicable (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.


 


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. 
Each Participant shall, not later than the date as of which vesting or payment
in respect of an Award becomes a taxable event for Federal income tax purposes,
pay to the Company or make arrangements satisfactory to the Company for payment
of any Federal, state and local taxes required by law to be withheld on account
of such taxable event.  The Company shall have the authority to cause the
required minimum tax withholding obligation 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.


 


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) 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