EXHIBIT 10.1


 




	

     

    


    
	 



EMPLOYMENT AGREEMENT


 


 


                                THIS
EMPLOYMENT AGREEMENT, effective
the 4th day of October, 2016 (the
“Agreement”), is entered into by and between WELLTOWER INC., a Delaware
corporation (the “Corporation”), and MERCEDES T. KERR (the “Executive”).


 


                                WHEREAS,
the Corporation wishes to assure itself of the services
of the Executive for the period provided in this Agreement and the Executive is
willing to serve in the employ of the Corporation for such period upon the
terms and conditions set forth in this Agreement.


 


                                NOW
THEREFORE, in consideration of the mutual covenants herein
contained, the parties, intending to be legally bound, hereby agree as follows:


 


                1.             EMPLOYMENT 


 


                                The
Corporation hereby agrees to employ the Executive as Executive Vice President –
Business Development upon the terms and conditions herein contained, and the
Executive hereby agrees to accept such employment and to serve in such
position.  As Executive Vice President – Business Development, the Executive
will (i) be
responsible for the origination of new investment relationships and the
development of existing investment relationships in the United States across
the full health care continuum and (ii) undertake such other
responsibilities as may be assigned to the Executive by the Corporation’s Chief
Executive Officer (the “CEO”) from time to time.  In such capacity, the Executive shall report to the
Corporation’s CEO and Board of Directors and shall have such powers and
responsibilities consistent with her position as may be assigned.


 


                                Throughout
the term of this Agreement, the Executive shall devote her best efforts and all
of her business time and services to the business and affairs of the Corporation.


 


                2.             TERM OF AGREEMENT


 


                                The
current term of employment under this Agreement shall expire on January 31,
2018.  Upon the expiration of such term, the term of employment hereunder shall
automatically be extended without further action by the parties for successive
two (2) year renewal terms, unless either party shall give at least six (6)
months advance written notice to the other of her or its intention that this
Agreement shall terminate upon the expiration of the current term or the then
current renewal term, as the case may be. Notwithstanding the foregoing, if a
Change in Corporate Control (as defined in Section 6 hereof) occurs during the
term of this Agreement, the term of employment hereunder shall automatically be
extended for twenty-four (24) months following the occurrence of the Change in
Corporate Control. 


 


                                The
Corporation shall be entitled to terminate this Agreement immediately for any
reason, subject to the continuing obligations of the Corporation under this
Agreement.


 


                3.             SALARY AND BONUS


 


                                The
Executive shall receive a base salary during the term of this Agreement at a
rate of $484,500 per annum for 2016, and at a rate of not less than that amount
per annum for subsequent years, payable in substantially equal semi-monthly
installments.  The Compensation Committee of the Board of Directors shall
consult with the CEO and review the Executive’s base salary at annual
intervals, and may adjust the Executive’s annual base salary from time to time
as the Committee deems to be appropriate. 


 


                                The
Executive shall also be eligible to receive an annual bonus from the
Corporation each year during the term of this Agreement, with the actual amount
of such bonus to be determined by the Compensation Committee of the
Corporation’s Board of Directors, using such performance measures as the
Committee deems to be appropriate.  Such bonus, if any, shall be paid to the
Executive no later than sixty (60) days after the end of the year to which the
bonus relates.


 


                4.             ADDITIONAL COMPENSATION AND BENEFITS


 


                                The
Executive shall receive the following additional compensation and welfare and
fringe benefits during the term of the Agreement:


 






 








                                (a)           Stock Options and
Other Long-Term Incentives.  During the term of the Agreement, any stock
options, restricted stock or other awards granted under the 2016 Long-Term
Incentive Plan shall be at the discretion of the Compensation Committee of the
Corporation’s Board of Directors.


 


                                (b)           Health
Insurance.  The Corporation shall provide the Executive and her dependents
with health insurance, life insurance and disability coverage on terms no less
favorable than that from time to time made available to other key employees.


 


                                (c)           Paid
Time Off.  The Executive shall be entitled to paid time off (“PTO”) (based
on number of years of service) in accordance with the Corporation’s PTO policy
during the term of this Agreement and any extensions thereof.


 


                                (d)           Business
Expenses.  The Corporation shall reimburse the Executive for all reasonable
expenses she incurs in promoting the Corporation’s business, including expenses
for travel and similar items, upon presentation by the Executive from time to
time of an itemized account of such expenditures.


 


                                In
addition to the benefits provided pursuant to the preceding paragraphs of this Section
4, the Executive shall be eligible to participate in such other executive
compensation and retirement plans of the Corporation as are applicable
generally to other officers, and in such welfare benefit plans, programs,
practices and policies of the Corporation as are generally applicable to other
key employees, unless such participation would duplicate, directly or
indirectly, benefits already accorded to the Executive.


 


                5.             PAYMENTS UPON TERMINATION


 


                                (a)           Involuntary
Termination or Termination by Executive for Good Reason (as defined below). 
If the Executive’s employment is involuntarily terminated by the Corporation or
terminated by the Executive for Good Reason during the term of this Agreement,
the Executive shall be entitled to the following:  


 


(i)                  
base salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan; 


(v)                
all stock options, restricted stock or other awards with
time-based vesting granted to the Executive under any deferred compensation,
incentive or other benefit plan maintained by the Corporation shall become
fully vested and earned and payable and, in the case of stock options,
exercisable in full and all stock options, restricted stock or other awards
with performance-based vesting granted to the Executive under any deferred
compensation, incentive or other benefit plan maintained by the Corporation
shall become vested to the extent provided in the applicable award agreements;


(vi)              
continued coverage at the Corporation’s expense under
any life, health and disability insurance programs maintained by the
Corporation in which the Executive participated at the time of her termination
for the remaining term of the Agreement (but not less than six (6) months and
not more than the period during which the Executive would be entitled to
continuation coverage under Section 4980B of the Internal Revenue Code, as
amended (the “Code”), if the Executive elected such coverage and paid the
applicable premiums), or until, if earlier, the date the Executive obtains
comparable coverage under benefit plans maintained by a new employer; and 


(vii)             
subject to the Executive signing a general release of
claims in favor of the Corporation and related persons and entities in a form
and manner satisfactorily to the Corporation (the “Release”), and the Release
becoming irrevocable within thirty (30) days after the date of termination, a
series of monthly severance payments for each month during the remaining term of this
Agreement, but not less than twelve (12) months (the “Severance Period”), each
in an amount equal to one-twelfth (1/12th) of the sum of (A) the Executive’s
base salary, as in effect on the date of termination, and (B) the average of
the annual bonuses paid to the Executive for the prior three fiscal years
preceding the termination date, which shall be paid to the Executive beginning
with the first payroll date that begins thirty (30) days following the date of
termination in accordance with the Corporation’s normal payroll practices,
except to the extent delayed payments are required by Section 16 below.  The
Executive shall be under no duty to mitigate the amounts owed to her under this
paragraph by seeking such a replacement position but all payments of severance
payments shall cease if the Executive violates the provisions of Section 10
hereof. 


 





                                                All cash payments
required to be paid pursuant to this Section (other than severance payments)
shall be made to the Executive within sixty (60) days following the date of
such termination.


 


                                For
purposes of this Agreement, “Good Reason” shall mean, without the Executive’s
prior consent:  (1) the assignment of Executive to a position other than the
Executive Vice President – Business Development of the Corporation (other than
for Cause or by reason of permanent disability) or the assignment of duties
materially inconsistent with such position if either such change in assignment
constitutes a material diminution in the Executive’s authority, duties or
responsibilities, or (2) the direction of Executive to report to anyone other
than the
Corporation’s CEO or Board of Directors if
such change in reporting duties constitutes a material diminution in the
authority, duties or responsibilities of the supervisor to whom the Executive
is required to report; provided, however, with respect to clauses (1) or (2) above, the Executive
must have notified the Corporation within the first ninety (90) days following
the initial date of such change in assignment or reporting duties that she
regarded such change in assignment or reporting duties as grounds justifying
resignation for Good Reason under this paragraph and the Corporation must have
failed to cure such change in assignment or reporting duties within ninety (90)
days following its receipt of such notice from the Executive; and provided
further, the Executive must have resigned under this paragraph within one (1)
year following the initial existence of a change in assignment or reporting
duties described herein.  


 


                                (b)           Disability. 
The Corporation shall be entitled to terminate the Executive’s employment if
the Board of Directors determines that the Executive has been unable to attend
to her duties for at least ninety (90) days because of a medically diagnosable
physical or mental condition, and has received a written opinion from a
physician acceptable to the Board of Directors that such condition prevents the
Executive from resuming full performance of her duties and is likely to
continue for an indefinite period.  Upon such termination, the Executive shall
be entitled to the following:  


(i)                  
base salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan; and


(v)                
all stock options, restricted stock or other awards with
time-based vesting granted to the Executive under any deferred compensation,
incentive or other benefit plan maintained by the Corporation shall become
fully vested and earned and payable and, in the case of stock options,
exercisable in full and all stock options, restricted stock or other awards
with performance-based vesting granted to the Executive under any deferred
compensation, incentive or other benefit plan maintained by the Corporation
shall become vested to the extent provided in the applicable award agreements.


 


                                                All
cash payments required to be paid pursuant to this Section shall be made to the
Executive within sixty (60) days following the date of such termination.  


 


                                (c)           Termination
for Cause.  If the Executive’s employment is terminated by the Corporation
for Cause, the Executive shall be entitled to the following:  


 


(i)                  
base salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; and


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan.  


 


                                                All
cash payments required to be paid pursuant to this Section shall be made to the
Executive within sixty (60) days following the date of such termination.  


 


                                For
purposes of this Agreement, “Cause” shall mean:  (1) action by the Executive
involving willful disloyalty to the Corporation, such as embezzlement, fraud,
misappropriation of corporate assets or a breach of the covenants set forth in
Sections 9 and 10 herein; (2) the Executive being convicted of a felony; (3)
the Executive being convicted of any crime or offense that is not a felony but
was (x) committed in connection with the performance of her duties hereunder or
(y) involved moral turpitude; or (4) the intentional and willful failure by the
Executive to substantially perform her duties hereunder as directed by the
Corporation’s CEO (other than any such failure 



resulting
from the Executive’s incapacity due to physical or mental disability) after a
demand for substantial performance is made on the Executive by the Board of
Directors.  


 


(d)           Voluntary Termination or Resignation by the Executive. 
If the Executive voluntarily terminates (but not by reason of expiration of the
term) or resigns her employment, the Executive shall be entitled to the
following:  


                (i)            base
salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; and 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan.  


 


                                                All
cash payments required to be paid pursuant to this Section shall be made to the
Executive within sixty (60) days following the date of such termination.


 


                                (e)           Termination
upon Expiration of the Term.  If the
Executive’s employment terminates as a result of the expiration of the term of
this Agreement, the Executive shall be entitled to the following:  


(i)                  
base salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan; and


(v)                
in the event the expiration of the term of this
Agreement is as a result of non-renewal of the Agreement by the Corporation,
all stock options, restricted stock or other awards with time-based vesting
granted to the Executive under any deferred compensation, incentive or other
benefit plan maintained by the Corporation shall become fully vested and earned
and payable and, in the case of stock options, exercisable in full and all
stock options, restricted stock or other awards with performance-based vesting
granted to the Executive under any deferred compensation, incentive or other
benefit plan maintained by the Corporation shall become vested to the extent
provided in the applicable award agreements.


 


                                                All
cash payments required to be paid pursuant to this Section shall be made to the
Executive within sixty (60) days following the date of such termination.  


 


                6.             CHANGE IN CORPORATE CONTROL


 


                                (a)           In the
event of a Change in Corporate Control (as defined below), all stock options,
restricted stock or other awards with time-based vesting granted to the
Executive under any deferred compensation, incentive or other benefit plan
maintained by the Corporation shall become fully vested and earned and payable and,
in the case of stock options, exercisable in full and all stock options,
restricted stock or other awards with performance-based vesting granted to the
Executive under any deferred compensation, incentive or other benefit plan
maintained by the Corporation shall become vested to the extent provided in the
applicable award agreements.


 


                                (b)          
at any time during the period of twenty-four (24) consecutive months following
the occurrence of a Change in Corporate Control (as defined below), and during
the term of this Agreement, the Executive is involuntarily terminated (other
than for Cause), or resigns her employment for Good Reason, the Executive shall
be entitled to the following:  


(i)                  
base salary accrued through the date of termination; 


(ii)                
any accrued but unpaid vacation pay through the date of
termination; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the termination date; 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan; 





(v)                
continued coverage at the Corporation’s expense under
any life, health and disability insurance programs maintained by the
Corporation in which the Executive participated at the time of her termination
for the remaining term of the Agreement (but not less than six (6) months and
not more than the period during which the Executive would be entitled to
continuation coverage under Section 4980B of the Code  if the Executive elected such coverage and paid the applicable
premiums), or until, if earlier, the date the Executive obtains comparable
coverage under benefit plans maintained by a new employer; and 


(vi)              
a
lump sum severance payment equal to the present value of a series of monthly
severance payments for twenty-four (24) months, each in an amount equal to
one-twelfth (1/12th) of the sum of (A) the Executive’s base salary, as in
effect at the time of the Change in Corporate Control, and (B) the average of the annual bonuses paid to the
Executive for the prior three fiscal years of the Corporation ending
prior to the Change in Corporate Control.  Such present value shall be
calculated using a discount rate equal to the interest rate on 90-day Treasury
bills, as reported in the Wall Street Journal (or similar publication)
on the date of the Change in Corporate Control.  


 


                                                All
cash payments required to be paid pursuant to this Section (other than
severance) shall be made to the Executive within sixty (60) days following the
date of such termination.  The lump sum severance payment described in the
preceding subsection (viii) shall also be paid within sixty (60) days, except
to the extent a delayed payment is required by Section 16 below. 
Notwithstanding the foregoing,  the severance payment under this Section shall
be payable on a monthly basis instead of a lump sum if the “Change in Corporate
Control” does not constitute a “change in control event” within the meaning of
Treasury Regulation Section 1.409A-3(i)(g).


 


                (c)           For purposes of this Agreement, a “Change
in Corporate Control” shall mean:


                (i)            the
acquisition in one or more transactions of more than twenty percent (20%) of
the Corporation’s outstanding common stock (or the equivalent in voting power
of any class or classes of securities of the Corporation entitled to vote in
elections of directors) by any corporation, or other person or group (within
the meaning of Section 14(d)(3) of the Securities Exchange Act of 1934, as amended),
except for acquisitions of the Corporation’s outstanding common stock by (A)
the Corporation or an affiliate or subsidiary of the Corporation, (B) an
employee benefit plan (or
any trust forming a part thereof) of the Corporation,
or (C) an underwriter temporarily holding securities of the Corporation
pursuant to an offering of such securities;


                (ii)           stockholder
approval of a plan for the liquidation or sale of substantially all of the
assets of the Corporation;


                (iii)          the
consummation of any merger or consolidation involving the Corporation, unless
(A) the
stockholders of the Corporation,
immediately before such merger or consolidation, own, directly or indirectly,
immediately following such merger or consolidation, more than fifty percent
(50%) of the then outstanding shares of common stock (or the equivalent in voting power of any class or classes of
securities of the corporation entitled to vote in elections of directors) of
the corporation resulting from such merger or consolidation (the “Surviving
Company”) in substantially the same proportion as their ownership of the Corporation’s outstanding common stock (or the
equivalent in voting power of any class or classes of securities of the
Corporation entitled to vote in elections of directors) immediately
before such merger or consolidation, and (B) the persons who were Continuing
Directors (as defined below) immediately prior to the execution of the
agreement providing for such merger or consolidation constitute more than fifty
percent (50%) of the members of the Board of Directors of the Surviving
Company; or


                (iv)          during
any twenty-four (24) month period, individuals who, as of the beginning of such
period, constitute the Board of Directors (the “Continuing Directors”) cease
for any reason to constitute at least a majority of the Board of Directors. 
For this purpose, any person who is nominated for election as a member of the
Board of Directors after May 5, 2016 shall also be considered a “Continuing
Director” if, and only if, her or her nomination for election to the Board of
Directors is approved or recommended by a majority of the members of the Board
of Directors (or of the relevant Nominating Committee) and at least five (5)
members of the Board of Directors are themselves Continuing Directors at the
time of such nomination.  


 


                                (d)           Notwithstanding
anything else in this Agreement, if any payment, accelerated vesting or other
benefit provided by the Corporation to the Executive in connection with a
Change in Corporate Control, whether paid or payable pursuant to the terms of
this Agreement or otherwise (a “Parachute Payment”) is determined to be a
parachute payment subject to the excise tax imposed by Section 4999 of the Code
or any other tax having the same effect (such excise tax or other tax, together
with any interest and penalties incurred by the Executive with respect to such
taxes, are collectively referred to herein as the “Excise Tax”), and if
reducing the amount of the payments would result in greater benefits to the
Executive (after taking into consideration the payment by the Executive of all
income and excise taxes that would be owing as a result of the Parachute
Payment), the payments will be reduced by the amount necessary to maximize the
benefits received by the Executive, determined on an after-tax basis.  


 





                7.             DEATH 


 


                                If
the Executive dies during the term of this Agreement, the Corporation shall pay
to the Executive’s estate the following:


(i)                  
base salary accrued through the date of death; 


(ii)                
any accrued but unpaid vacation pay through the date of
death; 


(iii)               
any bonuses earned but unpaid with respect to fiscal
years or other completed periods preceding the date of death; 


(iv)              
any nonforfeitable benefits payable to the Executive
under the terms of any deferred compensation, incentive or other benefit plans
maintained by the Corporation, payable in accordance with the terms of the
applicable plan; and


(v)                
all stock options, restricted stock or other awards with
time-based vesting granted to the Executive under any deferred compensation,
incentive or other benefit plan maintained by the Corporation shall become
fully vested and earned and payable and, in the case of stock options,
exercisable in full and all stock options, restricted stock or other awards with
performance-based vesting granted to the Executive under any deferred
compensation, incentive or other benefit plan maintained by the Corporation
shall become vested to the extent provided in the applicable award agreements.


 


                                                All
cash payments required to be paid pursuant to this Section shall be made to the
estate within sixty (60) days following the date of death.  


 


                8.             WITHHOLDING 


 


                                The
Corporation shall, to the extent permitted by law, have the right to withhold
and deduct from any payment hereunder any federal, state or local taxes of any
kind required by law to be withheld with respect to any such payment.


 


                9.             PROTECTION OF CONFIDENTIAL
INFORMATION


 


                                The
Executive agrees that she will keep all confidential and proprietary
information of the Corporation or relating to its business confidential, and
that she will not (except with the Corporation’s prior written consent), while
in the employ of the Corporation or thereafter, disclose any such confidential
information to any person, firm, corporation, association or other entity,
other than in furtherance of her duties hereunder, and then only to those with
a “need to know.”  The Executive shall not make use of any such confidential
information for her own purposes or for the benefit of any person, firm,
corporation, association or other entity (except the Corporation) under any
circumstances during or after the term of her employment.  The foregoing shall
not apply to any information which is already in the public domain, or is
generally disclosed by the Corporation or is otherwise in the public domain at
the time of disclosure. 


 


                                The
Executive recognizes that because her work for the Corporation may bring her
into contact with confidential and proprietary information of the Corporation,
the restrictions of this Section 9 are required for the reasonable protection
of the Corporation and its investments and for the Corporation’s reliance on
and confidence in the Executive.


 


                10.          COVENANT NOT TO COMPETE


 


                                The
Executive hereby agrees that she will not, either during the employment term or
during the period of one (1) year from the time the Executive’s employment
under this Agreement ceases (for whatever reason other than after the
expiration of the term of this Agreement as a result of the Corporation
electing not to renew the term thereof), engage in any business activities on
behalf of any enterprise which competes with the Corporation 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, 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.  The Executive
will be deemed to be engaged in such competitive business activities if she
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.


 


                                The
Executive agrees that she shall not, for a period of one year from the time her
employment under this Agreement ceases (for whatever reason other than after
the expiration of the term of this Agreement as a result of the Corporation
electing not to renew 



the term thereof), or, if later,
during any period in which she is receiving monthly severance payments under
Section 5 of this Agreement, solicit any employee or full-time consultant of
the Corporation for the purposes of hiring or retaining such employee or
consultant.  


 


                11.          INJUNCTIVE RELIEF


 


                                The
Executive acknowledges and agrees that it would be difficult to fully compensate
the Corporation for damages resulting from the breach or threatened breach of
the covenants set forth in Sections 9 and 10 of this Agreement and accordingly
agrees that the Corporation shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions in any action or proceeding
instituted in the United States District Court for the Northern District of
Ohio or in any court in the State of Ohio having subject matter jurisdiction. 
This provision with respect to injunctive relief shall not, however, diminish
the Corporation’s right to claim and recover damages.


 


                                It
is expressly understood and agreed that although the parties consider the
restrictions contained in this Agreement to be reasonable, if a court
determines that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction on the activities of the
Executive, no such provision of this Agreement shall be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such
extent as such court may judicially determine or indicate to be reasonable.


 


                12.          NOTICES 


 


                                All
notices or communications hereunder shall be in writing and sent certified 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 Corporation:


 


                Welltower Inc.


                4500 Dorr Street


                Toledo, OH 43615


                                          Attention: 
Matthew McQueen, Senior Vice President – General Counsel and Corporate
Secretary


 


                If to the Executive:


 


                Mercedes T. Kerr


                4500 Dorr Street


                Toledo, OH 43615


 


The actual date of
receipt, as shown by the receipt therefor, shall determine the time at which
notice was given.


 


                13.          SEPARABILITY 


 


                                If
any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect.


 


                14.          ASSIGNMENT 


 


                                This
Agreement shall be binding upon and inure to the benefit of the heirs and
representatives of the Executive and the assigns and successors of the
Corporation, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Executive.


 


                15.          ENTIRE
AGREEMENT


 


                                This
Agreement represents the entire agreement of the parties and shall supersede
any and all previous contracts, arrangements or understandings between the
Corporation and the Executive.  The Agreement may be amended at any time by
mutual written agreement of the parties hereto.


 


                16.          SECTION
409A COMPLIANCE


 


                                This Agreement is
intended to comply with the requirements of Section 409A of the Code, and shall
be interpreted and construed consistently with such intent.  The payments to
the Executive pursuant to this Agreement are also intended to be exempt 



from Section 409A of the Code to the maximum extent
possible, under either the separation pay exemption pursuant to Treasury
Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to
Treasury Regulation Section 1.409A-1(b)(4).  Each payment and benefit hereunder
shall constitute a “separately identified” amount within the meaning of
Treasury Regulation Section 1.409A-2(b)(2).  In the event the terms of this
Agreement would subject the Executive to taxes or penalties under Section 409A
of the Code (“409A Penalties”), the Corporation and the Executive shall
cooperate diligently to amend the terms of the Agreement to avoid such 409A
Penalties, to the extent possible.  To the extent any amounts under this
Agreement are payable by reference to Executive’s “termination,” “termination
of employment,” or similar phrases, such term shall be deemed to refer to the
Executive’s “separation from service” (as defined in Treasury Regulation
Section 1.409A-1(h) (without regard to any permissible alternative definition
thereunder) with the Corporation and all entities treated as a single employer
with the Corporation under Sections 414(b) and (c) of the Code but substituting
a 50% ownership level for the 80% ownership level set forth therein). 
Notwithstanding any other provision in this Agreement, if the Executive is a
“Specified Employee” (as defined Treasury Regulation Section 1.409A-1(i) on
December 31st of the prior calendar year), as of the date of the
Executive’s separation from service, then to the extent any amount payable
under this Agreement (i) constitutes the payment of nonqualified deferred
compensation, within the meaning of Section 409A of the Code, (ii) is payable
upon the Executive’s separation from service and (iii) under the terms of this
Agreement would be payable prior to the six-month anniversary of the
Executive’s separation from service, such payment shall be delayed and paid to
the Executive, together with interest at an annual rate equal to the interest
rate specified by KeyBank for a six-month certificate of deposit, on the first
day of the first calendar month beginning at least six months following the
date of termination, or, if earlier, within ninety (90) days following the
Executive’s death to the Executive’s surviving spouse (or such other beneficiary
as the Executive may designate in writing).  Any reimbursement or advancement
payable to the Executive pursuant to this Agreement shall be conditioned on the
submission by the Executive of all expense reports reasonably required by the
Corporation under any applicable expense reimbursement policy, and shall be
paid to the Executive within thirty (30) days following receipt of such expense
reports, but in no event later than the last day of the calendar year following
the calendar year in which the Executive incurred the reimbursable expense. 
Any amount of expenses eligible for reimbursement, or in-kind benefit provided,
during a calendar year shall not affect the amount of expenses eligible for
reimbursement, or in-kind benefit to be provided, during any other calendar
year.  The right to any reimbursement or in-kind benefit pursuant to this
Agreement shall not be subject to liquidation or exchange for any other
benefit.


 


                17.          GOVERNING LAW AND FORUM SELECTION


 


                                This
Agreement shall be construed, interpreted, and governed in accordance with the
laws of the State of Ohio, other than the conflict of laws provisions of such
laws.  Both the Corporation and the Executive submit to the exclusive
jurisdiction of the state courts located in Lucas County, Ohio and to the
United States District Court for the Northern District of Ohio as to all
actions and proceedings relating in any way to this Agreement and/or to the
Executive's relationship with the Corporation.  


 


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                                IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed, and the Executive has hereunto set her hand, as of the day and
year first above written.


 


 


                                                                                                                WELLTOWER
INC.


 


                                                                                                                By: 
/s/ Matthew McQueen______________ 


                                                                                                                Name:        Matthew
McQueen


Title:           Senior Vice President – General    Counsel
and Corporate Secretary   


 


 


 


                                                                                                                EXECUTIVE:


 


                                                                                                                /s/
Mercedes T. Kerr___________________


                                                                                                                Mercedes
T. Kerr