EXHIBIT 10.1

 


RESIGNATION AGREEMENT


This Resignation Agreement
(this “Agreement”) is made as of October 3, 2017 by and between Scott A.
Estes (“Executive”) and Welltower Inc., a Delaware corporation (the “Company”).
 


                WHEREAS,
Executive and the Company entered into the Third Amended and Restated
Employment Agreement, dated June 16, 2017 (the “Employment Agreement”)
and Executive is currently serving as the Company’s Executive Vice President –
Chief Financial Officer; 


 


                WHEREAS,
Executive has determined that it is in his best interests to resign his
positions with the Company and the Company has agreed with that determination;


 


                WHEREAS, in
consideration for Executive’s execution and non-revocation of this Agreement,
the Company shall pay to Executive the payments described in Section 5(a) of
the Employment Agreement.


 


NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties agree with each other as follows: 


 


1.      
TERMINATION
DATE. 
 


a.            
Executive’s
last day of employment with the Company is October 3, 2017 (the “Termination
Date”).  Effective as of the Termination Date, Executive also hereby
resigns all other positions Executive holds (i) with the Company, (ii) with any
of the Company’s direct and indirect subsidiaries and/or affiliates, or (iii)
with any other organization as to any position held at the request of, as a
representative of, or for the benefit of the Company.  Executive agrees to take
any additional necessary steps and sign any additional documentation that may
be reasonably requested by the Company in order to give full effect or
confirmation of such resignations.  


b.            
The
Employment Agreement is terminated as of the Termination Date, except (i) as
provided in Section 17 of the Employment Agreement. 


c.             
As
of the Termination Date, Executive will have no authority or power to bind the
Company or to represent the Company in relation to third parties or to
represent to third parties that Executive has authority or power to bind the
Company or represent the Company.


2.       PAYMENTS UPON
TERMINATION.
   Within sixty (60) days following the Termination Date, or such earlier
time as required by law or indicated below in this Section 2, the Company shall
provide for the following to Executive:


a.            
Base
Compensation (as defined in the Employment Agreement) accrued, but unpaid,
through the Termination Date;


b.            
any
accrued but unpaid PTO through the Termination Date;


c.             
any
nonforfeitable benefits payable to Executive under the terms of any deferred
compensation, incentive or other benefit plans maintained by the Company,
payable in accordance with the terms of the applicable plan; and


d.            
any
expenses owed to Executive under Section 4(d) of the Employment Agreement.


3.       PAYMENTS FOLLOWING
RESIGNATION.  The
following payments (to which Executive would not otherwise be entitled) are
being offered in consideration for Executive’s execution and delivery of this
Agreement, including the release attached hereto as Exhibit A (the “Release”),
and it becoming effective on or before November 2, 2017, and are subject to
Executive’s compliance with the covenants and other obligations set forth in
Sections 5(a), 5(b), 5(c), 5(d) and 5(e) of this Agreement and Sections 9 and
10 of the Employment Agreement, all of which must be satisfied in full in order
for the payments set forth below in this Section 3 to be earned. 
Notwithstanding the foregoing, any benefits payable under the 2017-2019
Long-Term Incentive Program shall be governed by the terms of such Program and
the separate form of Waiver and Release of Claims required thereunder, which is
attached hereto as Exhibit B. 






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a.            
a
series of semi-monthly severance payments for the period commencing immediately
following the Termination Date and concluding on January 31, 2019 (the “Severance
Period”), each semi-monthly payment in an amount equal to one-twenty fourth
(1/24th) of $1,355,382 (i.e., the sum of (i) Executive’s Base Compensation, as
in effect on the Termination Date, which is $510,000, and (ii) the greater of
(A) the annual bonus paid to Executive for the last fiscal year preceding the
Termination Date, or (B) a minimum bonus equal to thirty-five percent (35%) of
Executive’s Base Compensation, which greater amount is $845,382).
Notwithstanding the foregoing, for the period between the Termination Date and
October 15, 2017, this amount will be prorated by multiplying such amount by
0.80;


b.            
a
pro-rated portion of the annual bonus that Executive would have earned for 2017
if Executive had remained employed for the entire year, based on the number of
days in 2017 that have elapsed as of the Termination Date, payable at the time
that the Company pays bonuses to its executive officers for 2017 (for the
avoidance of doubt, the individual performance component of this annual bonus
will be scored at the mid-point between Executive’s threshold and target
amount);  


c.             
all
of Executive’s outstanding stock options, restricted stock or other equity
awards with time-based vesting shall become fully vested and, in the case of
stock options, exercisable in full, and Executive shall have the right to
exercise such stock options during a period of ninety (90) days following the
Termination Date (the “90 Day Period”) as provided in the agreements
documenting the terms of Executive’s outstanding stock options.  With respect
to such outstanding stock options, in the event that the Company determines, in
accordance with the terms of the Company’s Insider Trading Policy (the “Policy”)
that the trading window shall be closed to Executive during the entire 90 Day
Period such that Executive is prohibited under the Policy from selling any
Option Shares (as defined below) during the entire 90 Day Period, the Company
shall extend the 90 Day Period for an additional five (5) trading days,
beginning on the first day that the Executive could sell any Option Shares
without violating the Policy (the “Extended Period”).  The term “Option
Shares” shall mean shares of the Company’s common stock acquired upon the
exercise by Executive of an outstanding stock option on or after the
Termination Date and during the 90 Day Period.  For the avoidance of doubt, (i)
there shall be no Extended Period except under the circumstances described
above in this Section 3(c), and (ii) the Company shall have no obligation to
Executive other than to notify him while he remains subject to the Policy when
the trading window for trading the Company’s common stock in accordance with
the Policy opens or closes.


d.            
the
treatment of all of Executive’s outstanding stock options, restricted stock,
restricted stock units or other equity awards with performance-based vesting
shall be determined in accordance with the long-term incentive plan, and any
other plans, pursuant to which such awards were granted and the applicable
award agreement; and


e.             
continued
coverage under any group health plan maintained by the Company in which
Executive participated as of the Termination Date through January 31, 2019, or
until, if earlier, the date Executive obtains comparable coverage under benefit
plans maintained by a new employer, at an after-tax cost to Executive
comparable to the cost that Executive would have incurred for the same coverage
had he remained employed during such period; provided, however, that the
benefit set forth in this Section 3(e) (i) will be treated as taxable income to
Executive and (ii) is contingent on Executive’s timely election of continuation
coverage as provided under the Consolidated Omnibus Budget Reconciliation Act
of 1986, as set forth in Sections 601-609 of the Employee Retirement Income
Security Act of 1974, as amended.  


Executive represents that Exhibit C
is a correct and complete list of all of Executive’s outstanding stock options,
restricted stock, restricted stock units or other equity based awards with
time-based vesting or performance-based vesting.


The pro-rated bonus payable pursuant to
subsection (b) shall be paid after the Compensation Committee has approved
bonuses payable for the 2017 calendar year.  All payments to be made, vesting
restrictions to be lifted, or settlements to occur pursuant to subsections (c) and
(d) (excluding stock options) shall be made to Executive on the first business
day following the date that is sixty (60) days following the Termination Date
(except as otherwise expressly provided in the applicable award agreement). 
The payments set forth in subsection (a) shall commence on the 60th day
following the Termination Date and conclude no later than January 31, 2019,
with the first payment including all amounts accrued to date. 


4.       CONDITIONS OF
PAYMENTS.


a.            
If
this Agreement does not become effective and irrevocable by its terms on or
before November 2, 2017, the Company will have no obligation to make the
payments set forth in Section 3 of this Agreement.  


b.            
If
Executive violates any of his obligations, covenants or representations under
Section 5(a), 5(b), 5(c), 5(d) or 5(e) of this Agreement, then (i) the
Company’s obligations to provide the payments under Section 3 of this Agreement
will immediately 




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cease, (ii) Executive shall be
obligated to return to the Company any compensation paid or provided to
Executive pursuant to Section 3 of this Agreement, and (iii) the Company will
be entitled to obtain all other remedies provided by law or in equity. 


5.       COVENANTS BY
EXECUTIVE.
 


a.            
Protection of Confidential Information.  Executive hereby
agrees that he 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 (defined below).  Executive
further agrees that, upon the Termination Date, all Confidential Information in
his possession that is in written or other tangible form shall be returned to
the Company and shall not be retained by Executive or furnished to any third
party, in any form except as provided herein.  Notwithstanding the foregoing,
this Section 5(a) shall not apply to Confidential Information that (i) was
publicly known at the time of disclosure to Executive, (ii) becomes publicly
known or available thereafter other than by any means in violation of this
Agreement or any other duty owed to the Company by Executive, (iii) is lawfully
disclosed to Executive 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 Executive to disclose or make
accessible any information.  As used in this Agreement, “Confidential
Information” means, without limitation, any non-public confidential or
proprietary information disclosed to Executive or known by Executive as a
consequence of or through Executive’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 Executive may have relating to Confidential Information
under any other agreement or promise to the Company.


Executive specifically acknowledges that
all such Confidential Information, whether reduced to writing, maintained on
any form of electronic media, or maintained in the mind or memory of Executive
and whether compiled by the Company, and/or Executive, derives independent
economic value from not being readily known to or ascertainable by proper means
by others who can obtain economic value from its disclosure or use, that
reasonable efforts have been made by the Company to maintain the secrecy of
such information, that such information is the sole property of the Company and
that any retention and use of such information by Executive during his
employment with the Company (except in the course of performing his duties and
obligations to the Company) or after the Termination Date shall constitute a
misappropriation of the Company’s trade secrets.


Executive
agrees that Confidential Information gained by Executive during Executive’s
association with the Company, has been developed by the Company through
substantial expenditures of time, effort and money and constitutes valuable and
unique property of the Company.  Executive recognizes that because his work for
the Company brought him into contact with confidential and proprietary
information of the Company, the restrictions of this Section 5(a) are required
for the reasonable protection of the Company and its investments.  Executive
further understands and agrees that the foregoing makes it necessary for the
protection of the Company’s business that Executive not compete with the
Company for a reasonable period after the Termination Date, as further provided
in Section 5(b).


Executive
understands that nothing contained in this Agreement limits Executive’s ability
to file a charge or complaint with the Equal Employment Opportunity Commission,
the National Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission or any other federal,
state or local governmental agency or commission (each a “Government Agency”). 
Executive further understands that this Agreement does not limit Executive’s
ability to communicate with any Government Agency or otherwise participate in
any investigation or proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice to the
Company.  However, to the maximum extent permitted by law, Executive agrees
that if such a charge or complaint is made, Executive shall not be entitled to
recover any individual monetary relief or other individual remedies.  This
Agreement does not limit or prohibit Executive’s right to receive an award for
information provided to any Government Agency to the extent that such
limitation or prohibition is a violation of law.


Executive
affirms that Executive has not divulged any proprietary or confidential
information of the Company and will continue to maintain the confidentiality of
such information consistent with the Company’s policies and Executive’s
agreement(s) with the Company and/or common law.  Executive further affirms
that Executive is not aware of and has not reported any allegations of
wrongdoing by the Company or its officers or directors, including any
allegations of corporate fraud, to a Government Agency or other person, and
therefore has not been retaliated against for reporting any allegations of wrongdoing
by the Company or its officers or directors, including any allegations of
corporate fraud.


b.            
Non-Competition.  Executive hereby
agrees that he will not at all during the Severance Period (the “Restricted
Period”), engage in the (i) ownership or operation of Health Care
Facilities (defined below); (ii) investment in or lending to Health Care
Facilities; (iii) management of Health Care Facilities; or (iv) provision of
any planning, development or executive services for Health Care Facilities.  “Health
Care Facilities” means any senior housing facilities, facilities used or
intended for the delivery of health care 




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services,
active adult communities, independent living facilities, assisted living
facilities, skilled nursing facilities, inpatient rehabilitation facilities,
ambulatory surgery centers, medical office buildings and/or hospitals. 
Executive will be deemed to be engaged in such competitive business activities
if he 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 Company engaged in a competitive business shall not be deemed
to be engaging in competitive business activities.  For the avoidance of doubt,
the payment of cash severance set forth in Section 3(a), as well as the
provision of continued coverage under any group health plan set forth in
Section 3(e), to the extent not terminated sooner as set forth in Section 3(e),
shall run through the Restricted Period. Nonetheless, all severance benefits
set forth in Section 3 are subject to the Conditions of Payment set
forth in Section 4. 


c.             
Non-Solicit
of Employees.
During the Restricted Period, Executive will be prohibited, to the fullest
extent allowed by applicable law, from directly or indirectly, individually or
on behalf of any person or entity, encouraging, inducing, attempting to induce,
recruiting, attempting to recruit, soliciting or attempting to solicit or participating
in the recruitment for employment, contractor or consulting opportunities
anyone who is employed at that time by the Company or any subsidiary or
affiliate.


d.            
Non-Disparagement. Executive will
not make or authorize anyone else to make on Executive’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.  Executive
will not make any direct or indirect written or oral statements to the press,
television, radio or 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.


e.             
Return
of Company Materials.
 


i.                    
Definition
of Electronic Media Equipment and Electronic Media Systems.  For purposes of
this Agreement, “Electronic Media Equipment” includes, but is not limited to,
computers, external storage devices, thumb drives, handheld electronic devices,
telephone equipment, and other electronic media devices. Additionally,
“Electronic Media Systems” includes, but is not limited to, computer servers, messaging
and email systems or accounts, and web-based services (including cloud-based
information storage accounts), whether provided for Executive’s use directly by
the Company or by third-party providers on behalf of the Company.


ii.                   
Return
of Company Property.
Executive understands and agrees that anything that he created or worked on for
the Company while working for the Company belongs solely to the Company and
that Executive cannot remove, retain, or use such information without the
Company’s express written permission. Accordingly, on or before the Termination
Date, Executive will immediately deliver to the Company, and will not keep in
his possession, recreate, or deliver to anyone else, any and all Company
property, including, but not limited to, Confidential Information, all Company
equipment including all Company Electronic Media Equipment, all tangible
embodiments of Confidential Information, all electronically stored information
and passwords to access such property, Company credit cards, records, data,
notes, notebooks, lists, books, client contact information, reports, files,
proposals, lists, correspondence, specifications, software, any other documents
and property, and reproductions of any of the foregoing items, including,
without limitation, those records maintained on a cloud storage network.


iii.                 
Return
of Company Information on Company Electronic Media Equipment.  Executive
agrees that he has not and will not copy, delete, or alter any information,
including personal information voluntarily created or stored, contained upon
his Company Electronic Media Equipment prior to returning any information to
the Company.


iv.                 
Return
of Company Information on Personal Electronic Media Equipment.  In addition, if
Executive has used any personal Electronic Media Equipment or personal
Electronic Media Systems to create, receive, store, review, prepare or transmit
any Company information, including but not limited to, Confidential
Information, Executive agrees, on or before the Termination Date, to make a
prompt and reasonable search for such information in good faith, including
reviewing any personal Electronic Media Equipment or personal Electronic Media
Systems to locate such information and if he locates such information, he
agrees to notify the Company of that fact and then provide the Company with a
computer-useable copy of all such Company information from those equipment and
systems or a reasonable opportunity to create such a copy; and he agrees to
cooperate reasonably with the Company to verify that the necessary copying is
completed (including upon request providing a sworn declaration confirming the
return of property and deletion of information), and, upon confirmation of
compliance by the Company, he agrees to delete and expunge all Company
information.


v.                  
Breach
of Section 5(e). 
To the extent the Company reasonably believes there is a breach of Section 5(e)
and to the extent such breach of Section 5(e) is curable, the Company will give
Executive written notice of such breach and a period 




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of
not less than five (5) business days to substantially cure the same. 
Additionally, to the extent Executive determines he is in breach of Section
5(e), he shall notify the Company and substantially cure such breach within
five (5) business days of determining such breach.  If Executive substantially
cures the breach discussed in this Section 5(e)(v) within such cure period, he
will be deemed to be in compliance with Section 5(e).  


f.             
While
employed by the Company and during the Restricted Period, Executive will
communicate the contents of this Section 5 to any person, firm, association,
partnership, corporation or other entity that Executive intends to be employed
by, associated with, or represent.


g.             
For
the avoidance of doubt, any breach of Section 5(a) through 5(e) of this
Agreement, inclusive, shall constitute a material breach of this Agreement.  Notwithstanding Section 6 of this Agreement, the parties
agree that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of the covenants set forth in
Sections 5(a) through 5(e) of this Agreement and accordingly agree that the
Company shall be entitled to temporary and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions,
or to obtain specific performance, without the need to post any bond, 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 Company’s right to claim
and recover damages.


6.      
ARBITRATION.  Subject to Section 5(g) hereof, all
claims, disputes, questions, or controversies arising out of or relating to
this Agreement or Executive’s employment with the Company, including without
limitation the construction or application of any of the terms, provisions, or
conditions of this Agreement and any claims for any alleged discrimination,
harassment, or retaliation in violation of any federal, state or local law,
will be resolved exclusively in final and binding arbitration held under the
auspices of the American Arbitration Association (“AAA”) and shall be
conducted in accordance with the National Rules for the Resolution of
Employment Disputes, or successor rules then in effect. The arbitration will be
held in New York, New York, and will be conducted and administered by AAA or,
in the event AAA does not then conduct arbitration proceedings, a similarly
reputable arbitration administrator. Executive and the Company will select a
mutually acceptable, neutral arbitrator from among the AAA panel of
arbitrators.  Except as provided by this Agreement, 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. Executive 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. The existence and
subject matter of all arbitration proceedings, including, any settlements or
awards there under, shall remain confidential. In entering into this Agreement,
both parties are waiving the right to a trial by judge or jury.


7.      
SECTION
409A.


a.            
This
Agreement is intended to comply with Section 409A of the Code and will be
administered and interpreted in a manner intended to comply with Code Section
409A.  Any provision that would cause this Agreement or any payment hereof 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 Agreement, references to a “retirement,” “termination,” “termination of
employment” or like terms shall mean Separation from Service.  


b.            
Any
payment scheduled to be made under this Agreement 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 the
Termination Date 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 Executive under this Agreement could cause the application of
an accelerated or 




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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.  To the extent any reimbursements or in-kind benefits due to
Executive under this Agreement constitute “deferred compensation” under Code
Section 409A (after taking into account all exclusions applicable to such
payments or benefits under Section 409A), any such reimbursements or in-kind
benefits shall be paid to Executive in a manner consistent with Treas. Reg.
Section 1.409A-3(i)(1)(iv).   


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


d.            
The
Company shall consult with Executive in good faith regarding the implementation
of the provisions of this Section 7; provided that the Company shall not have
any liability to Executive with respect thereto absent a breach by the Company
of this Section 7 and the Company’s employees or representatives shall not have
any liability to Executive with respect thereto.  


8.       COOPERATION.  To the extent
reasonably requested by the CEO of the Company or the Board of Directors of the
Company, Executive shall cooperate with the Company in connection with matters
arising out of Executive’s service to the Company; provided that, the Company
shall make reasonable efforts to minimize disruption of Executive’s other
activities.  The Company shall reimburse Executive for reasonable expenses
incurred in connection with such cooperation.


9.       NO ADMISSION OF
LIABILITY.  Nothing
in this Agreement will constitute or be construed in any way as an admission of
any liability or wrongdoing whatsoever by the Company or Executive. 


10.   
PAYMENT
OF SALARY AND RECEIPT OF ALL BENEFITS.  Executive acknowledges and represents
that, other than the consideration set forth or otherwise referenced in this
Agreement, the Company has paid or provided all salary, wages, bonuses, accrued
vacation, PTO, premiums, leaves, housing allowances, relocation costs,
interest, severance, outplacement costs, fees, reimbursable expenses,
commissions, stock, stock options, vesting, and any and all other benefits and
compensation due to Executive. 


11.    INTEGRATED
AGREEMENT.  This
Agreement, including the Release attached as Exhibit A, is intended by
the parties to be a complete and final expression of their rights and duties
respecting the subject matter of this Agreement and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto, and any prior agreement of the parties hereto in respect
of the subject matter contained herein, including but not limited to the
Employment Agreement, except as expressly set forth herein (e.g., treatment of
certain equity awards pursuant to the applicable plans, awards and other
operative documents per Section 3(d) hereof or survival of the Employment
Agreement per Section 1(b) hereof). Except as expressly provided herein,
nothing in this Agreement is intended to negate Executive’s agreement to abide
by the Company’s policies while serving as an employee of the Company (or
thereafter to the extent provided by such policies), including but not limited
to the Company’s Code of Business Conduct and Ethics and its Employee Handbook,
or any other agreement governing the disclosure and/or use of proprietary
information, which Executive signed while working with the Company or its
predecessors; nor to waive any of Executive’s obligations under state and
federal trade secret laws. 


12.    TAXES AND OTHER
WITHHOLDINGS.  Notwithstanding
any other provision of this Agreement, the Company may withhold from amounts
payable hereunder all federal, state, local and foreign taxes and other amounts
that are required to be withheld by applicable laws or regulations, and the
withholding of any amount shall be treated as payment thereof for purposes of
determining whether Executive has been paid amounts to which he is entitled. 
Executive acknowledges that (i) the Company has made no representation to
Executive as to the tax treatment of any compensation or benefits to be paid to
Executive under this Agreement and (ii) the Company has no obligation to
“gross-up” any amount payable to Executive under this Agreement for taxes
payable by Executive thereon.


13.    SURVIVAL.  Except as
mutually agreed in writing in accordance with Section 15 below, the covenants,
agreements, representations and warranties contained in or made in Section 4,
5, 6, 8, 9, 10, 11, 15 and this Section 13 of this Agreement shall survive any
termination of this Agreement.


14.    WAIVER.  Neither party
shall, by mere lapse of time, without giving notice or taking other action
hereunder, be deemed to have waived any breach by the other party of any of the
provisions of this Agreement. Further, the waiver by either party of a
particular breach of this Agreement by the other shall neither be construed as,
nor constitute, a continuing waiver of such breach or of other breaches of the same
or any other provision of this Agreement. 







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15.    MODIFICATION.  This Agreement may
not be modified or terminated unless such modification or termination is
embodied in writing, signed by the party against whom the modification is to be
enforced.


16.   
NOTICE.  Except as
otherwise expressly provided in this Agreement, any notice to either party
hereunder shall be in writing and 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 the Executive, 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. 


 


17.    ASSIGNMENT AND
SUCCESSORS.   The
Company shall
have the right to assign its rights and obligations under this Agreement to an
entity that, directly or indirectly, acquires all or substantially all of the
assets or the business of the Company.  The rights and obligations of the
Company under this Agreement shall inure to the benefit and shall be binding
upon the successors and assigns of the Company. Executive shall not have any
right to assign his obligations under this Agreement and shall only be entitled
to assign his rights under this Agreement upon his death (in which case any
payments or benefits provided hereunder will be provided to his designated
beneficiary or, if no such beneficiary has been designated, to his estate),
solely to the extent permitted by this Agreement, or as otherwise agreed to by
the Company.


18.   
SEVERABILITY. 
Each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement. Moreover, if any of the provisions contained in
this Agreement is determined by an arbitrator or court of competent
jurisdiction to be unenforceable because it is excessively broad in scope,
whether as to duration, activity, geographic application, subject or otherwise,
it shall be construed, by limiting or reducing it to the extent legally
permitted, so as to be enforceable to the extent compatible with then
applicable law in order to achieve the intent of the parties.


19.   
GOVERNING
LAW.  This
Agreement will be construed, interpreted, governed and enforced in accordance
with the laws of the State of Ohio, without regard to its conflict of laws
principles. 


20.    COUNTERPARTS.   This Agreement
may be executed in counterparts and delivered by means of facsimile or portable
document format (PDF), each of which when so executed and delivered shall be an
original, but all such counterparts together shall constitute one and the same
instrument.  


[Signature
Page Follows] 










7












  


 





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


 


WELLTOWER
INC.                                                        EXECUTIVE


                                  


                                                      
 


By: /s/
Matthew McQueen                                                                /s/ Scott
A. Estes                                                  


Name:   
Matthew McQueen                                            Scott A. Estes


Title: 
Senior
Vice President,


General Counsel
and Corporate Secretary


 


Date:
October 3, 2017                                                        Date:
October 3, 2017                                        






 


	
    

  	
   

   

  
	
  

    

  	
  

  

   

    

  






 














8












  


 





Exhibit
A


 


WAIVER AND RELEASE OF CLAIMS


This WAIVER AND RELEASE OF CLAIMS (this “Agreement”)
is made by and between Welltower Inc. (the “Company”) and Scott A. Estes
on behalf of himself and his agents, heirs, executors, administrators,
successors and assigns (collectively referred to herein as “Executive”). 


1.       General Release of
Claims. 


1.1.    
General
Release of All Claims. 
In exchange for the payments and benefits provided by the Company under the
Resignation Agreement between the Company and Executive, dated October 3, 2017
(the “Resignation Agreement”), which Executive acknowledges and agrees
provides adequate consideration to which Executive would not otherwise be
entitled, Executive unconditionally, knowingly and voluntarily releases,
remises, and forever discharges the Company and any of its past or present
subsidiaries, divisions, joint ventures, affiliates, related entities,
predecessors, merged entities and parent entities, benefit plans, and all of
their respective past and present officers, directors, stockholders, employees,
partners, members, managers, owners, consultants and advisors, benefit plan
administrators and trustees, agents, attorneys, insurers, representatives,
affiliates and all of their respective successors and assigns (collectively,
the “Company Released Parties”), from any and all claims, actions,
causes of action, demands, obligations, grievances, suits, losses, debts and
expenses (including attorney’s fees and costs), damages and claims in law or in
equity of any nature whatsoever, known or unknown, suspected or unsuspected,
Executive ever had, now has, or may ever have against any Company Released
Party  up to and including the day on which Executive signs this Agreement. 
Without limiting the generality of the foregoing, subject to Section 1.2 below,
the claims Executive is waiving include, but are not limited to, (a) any
claims, demands, and causes of action alleging violations of public policy, or
of any federal, state, or local law, statute, regulation, executive order, or
ordinance, or of any duties or other obligations of any kind or description
arising in law or equity under foreign, federal, state, or local law,
regulation, ordinance, or public policy having any bearing whatsoever on the
terms or conditions of Executive’s employment with or by the Company or the
termination or resignation of Executive’s employment with the Company or any
association or transaction with or by the Company; (b) all claims of
discrimination or harassment on the basis of age, sex, race, national origin,
religion, sexual orientation, disability, veteran status or any other legally
protected category; (c) all claims under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, the Fair Labor Standards Act,
the Genetic Information Nondiscrimination Act, 42 U.S.C. § 1981, and all other
federal, state and local fair employment and anti-discrimination laws, all as
amended, including without limitation the Ohio Civil Rights Act, O.R.C. §
4112.01 et seq., the Ohio Age Discrimination in Employment Act, O.R.C. §
4112.14, the Ohio Uniformed Services Employment and Reemployment Act, O.R.C. §§
5903.01, 5903.02; (d) all claims under the Worker Adjustment and Retraining
Notification Act and similar state and local statutes, all as amended; (e) all
claims under the National Labor Relations Act, as amended; (f) all claims under
the Family and Medical Leave Act and other federal, state and local leave laws,
all as amended; (g) all claims under the Employment Retirement Income Security
Act, as amended (except with respect to accrued vested benefits under any
retirement or 401(k) plan in accordance with the terms of such plan and
applicable law); (h) all claims under the False Claims Act, the Securities
Exchange Act of 1934, the Commodity Exchange Act, the Consumer Financial
Protection Act, the American Recovery and Reinvestment Act, the Foreign Corrupt
Practices Act, and the EU Competition Law, all as amended; (i) all claims of
whistleblowing and retaliation under federal, state and local laws, including
without limitation the Ohio Whistleblower Protection Act, O.R.C. § 4113.51 et.
seq., Ohio statutory provisions regarding retaliation/discrimination for
pursuing a workers compensation claim; (j) all claims under the Ohio Minimum
Fair Wages Act, O.R.C. §  4111.01 et seq.; (k) all claims under the Ohio Wage
Payment Act, O.R.C. §  4113.15; (l) all claims under any principle of common
law or sounding in tort or contract; (m) all claims concerning any right to
reinstatement; (n) all claims under the Immigration Reform and Control Act; (o)
all claims under the Fair Credit Reporting Act; (p) all claims under The Equal
Pay Act; (q) all claims for attorneys’ fees, costs, damages or other relief
(monetary, equitable or otherwise), whether under foreign, federal, state or
local law, whether statutory, regulatory or common law, to the fullest extent
permitted by law; and (r) all claims under any policy, agreement, contract,
understanding or promise, written or oral, formal or informal, between any of
the Company Released Parties and Executive.  Further, each of the persons and
entities released herein is intended to and shall be a third-party beneficiary
of this Agreement.   


1.2.    
Claims
Not Released. 
This release of claims does not affect or waive: (a) benefits and/or the right
to seek benefits under applicable workers’ compensation and/or unemployment
compensation statutes; (b) any claims Executive may have for his own vested
accrued employee benefits under the terms of the Company’s health, welfare, or
retirement benefit plans as of Executive’s last day of employment with the
Company; (c) any right to pursue claims which by law cannot be waived by
signing this Agreement; (d) Executive’s rights to indemnification under any
indemnification agreement he has with the 




9












  


 





Company or
any other Company Released Party and/or under the Company’s or any Company
Released Party’s charter or bylaws, or to whatever coverage Executive may have
under the Company’s or any Company Released Party’s directors’ and officers’
insurance policy for acts and omissions when Executive was an officer or
director of the Company or of any Company Released Party; or (e) Executive’s
right to enforce this Agreement and the Resignation Agreement (including, for
the avoidance of doubt, his rights with respect to the equity awards described
in Exhibit C of the Resignation Agreement). 


1.3.    
Government
Agencies. 
Notwithstanding any other provision in this Agreement to the contrary, nothing
contained in this Agreement limits Executive’s ability to file a charge or
complaint with the Equal Employment Opportunity Commission, the National Labor
Relations Board, the Occupational Safety and Health Administration, the
Securities and Exchange Commission or any other federal, state or local
governmental agency or commission (each a “Government Agency”).
Executive further understands that this Agreement does not limit Executive’s
ability to communicate with any Government Agency or otherwise participate in
any investigation or proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice to the
Company. However, to the maximum extent permitted by law, Executive agrees that
if such a charge or complaint is made, Executive shall not be entitled to
recover any individual monetary relief or other individual remedies.  This
Agreement does not limit or prohibit Executive’s right to receive an award for
information provided to any Government Agency to the extent that such
limitation or prohibition is a violation of law.


1.4.    
Collective/Class
Action Waiver. 
If any claim is not subject to release, to the extent permitted by law,
Executive waives any right or ability to be a class or collective action
representative or to otherwise participate in any putative or certified class,
collective or multi-party action or proceeding based on such a claim in which
the Company or any other Company Released Party is a party.


1.5.    
Release
of Unknown Claims.  
Executive intends that this release of claims cover all claims described
above, whether or not known to Executive.  Executive further recognizes the
risk that, subsequent to the execution of this Agreement, Executive may incur
loss, damage or injury which Executive attributes to the claims encompassed by
this release.  Executive also expressly waives and relinquishes, to the fullest
extent permitted by law, any and all rights he may have under California Civil
Code Section 1542, or the comparable provisions of the laws of any other
jurisdiction, which provides as follows:


“A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


2.      
Acknowledgments
and Affirmations. 
 


2.1.    
Executive
affirms that Executive has not filed, caused to be filed, or presently is a
party to any claim against any Company Released Party.  Executive also
represents and warrants that there has been no assignment or other transfer of
any interest in any claim by Executive that is covered by the release set forth
in Section 1.  


2.2.    
Executive
affirms that (a) except for the benefits referred to in Section 1.2(b) above,
Executive has been paid and/or has received all compensation, wages, bonuses,
commissions, and/or benefits which are considered earned and therefore due and
payable as of the date Executive signs this Agreement; (b) Executive has been
granted any leave to which Executive was entitled under the Family and Medical
Leave Act or related state or local leave or disability accommodation laws; (c)
Executive has no known workplace injuries or occupational diseases; (d)
Executive has not been retaliated against for reporting any allegations of
wrongdoing by the Company or its officers; (e) Executive has not been prohibited,
restricted or otherwise interfered with by any Company Released Party from
communicating with any Governmental Agency as described in Section 1.3 above;
and (f) all of the Company’s decisions regarding Executive’s pay and benefits
through the date of Executive’s execution of this Agreement were, to
Executive’s knowledge,  not discriminatory based on age, sex, race, national
origin, religion, sexual orientation, disability, veteran status or any other
classification protected by law.


2.3.    
  Executive
hereby represents and warrants that he has not breached any of his obligations
under Sections 9 and 10 of the Third Amended and Restated Employment Agreement
between Executive and the Company, dated June 16, 2017, as well as the
obligations under Section 5 of the Resignation Agreement and hereby ratifies
and affirms such obligations, which shall continue in full force and effect in
accordance with their terms.   






10












  


 





3.       No Admission of
Wrongdoing. 
Executive
and the Company agree that neither this Agreement nor the furnishing of the
consideration for this Agreement shall be deemed or construed at any time for
any purpose as an admission by any Company Released Party of wrongdoing or
evidence of any liability or unlawful conduct of any kind. 


4.      
Consultation
with Attorney; Voluntary Agreement.  The Company hereby advises Executive to
consult with an attorney of his choosing prior to signing this Agreement. 
Executive understands and agrees that Executive has the right and has been
given the opportunity to review this Agreement with an attorney.  Executive
acknowledges and agrees that the payments and benefits provided by the Company
under the terms of the Resignation Agreement are sufficient consideration to
require him to comply with his obligations under this Agreement.  Executive
represents that he has read this Agreement and understands its terms and that
he enters into this Agreement freely, voluntarily, and without coercion. Except
as otherwise provided in Section 1.2, EXECUTIVE, FREELY AND KNOWINGLY, AND
AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE
AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST EACH AND EVERY
COMPANY RELEASED PARTY AS OF THE DATE OF EXECUTION OF THIS AGREEMENT.


5.      
Effective
Date; Revocation. 
Executive acknowledges and agrees that: (a) Executive has been given at least
twenty-one (21) days during which to review and consider the provisions of this
Agreement, although he may at his discretion, knowingly and voluntarily, sign
and return the Agreement at any earlier time, but Executive may not sign and
return the Agreement until on or after his last day of employment with the
Company; (b) modification of this Agreement does not restart this twenty-one
(21)-day consideration period; (c) Executive is waiving rights or claims which
may be waived by law in exchange for consideration that is not otherwise due to
Executive, including claims and rights under the Age Discrimination in
Employment Act of 1967, as amended (the “ADEA”), and as otherwise
described in this Agreement; (d) rights or claims that may arise after the date
this Agreement is executed, including those arising under the ADEA, are not
waived by this Agreement; (e) at any time within seven (7) days after signing
this Agreement, Executive may revoke this Agreement; and (f) this Agreement is
not enforceable until the revocation period has passed without a revocation.


To
revoke this Agreement, Executive must send a written statement of revocation
delivered by certified mail to Welltower Inc., Attn:  Chief Executive Officer,
4500 Dorr Street, Toledo, OH  43615.  This revocation must be received no later
than the seventh (7th) day following Executive’s execution of this Agreement.
If no such revocation occurs, this Agreement shall become effective on the eighth
(8th) day following execution of this Agreement.


In
the event that Executive revokes this Agreement, it shall have no force or
effect, and Executive shall have no right to receive or retain any payments and
benefits provided by the Company under the terms of the Resignation Agreement.


6.      
Severability.  In the event
that any one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remainder of the Agreement shall not in any way be affected or impaired
thereby.


7.      
Waiver.  No waiver by
either party of any breach by the other party of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
any other provision or condition at the time or at any prior or subsequent
time.  This Agreement and the provisions contained in it shall not be construed
or interpreted for or against either party because that party drafted or caused
that party’s legal representative to draft any of its provisions.


8.      
Governing
Law. 
This Agreement shall be construed in accordance with and governed by the laws
of the State of Ohio, without regard to principles of conflict of laws of such
state.


9.      
Headings.  All descriptive
headings in this Agreement are inserted for convenience only and shall be
disregarded in construing or applying any provision of this Agreement.


10.   
Counterparts.  This Agreement
may be executed in counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.


[signature
page follows]














11












  


 





IN WITNESS
WHEREOF, this Agreement has been duly executed as of the dates written below.


 


	
  Dated:  October 3, 2017

  	
  EXECUTIVE

   

   

   

  /s/ Scott A. Estes                               

   

  Name: Scott A. Estes

   

   

   

  
	
   

  Dated: 
  October 3, 2017

  	
   

  WELLTOWER INC.

   

  

  

   

  By: /s/ Matthew McQueen                                        
  

   

  Name: Matthew McQueen

   

  Title:   Senior Vice President – General Counsel and
  Corporate Secretary

   

  
	
   

  	
   

  






 













12












  


 





Exhibit B


 


WAIVER AND RELEASE OF CLAIMS


UNDER THE 2017-2019 LONG-TERM INCENTIVE
PROGRAM


This
WAIVER AND RELEASE OF CLAIMS (this “Agreement”) is made by and between
Welltower Inc. (the “Company”) and Scott A. Estes on behalf of himself
or herself and his or her agents, heirs, executors, administrators, successors
and assigns (collectively referred to herein as “Employee”). 


1.      
General
Release of Claims. 


1.1.    
General
Release of All Claims. 
In exchange for the payments and benefits provided by the Company under the
terms of the Welltower Inc. 2017-2019 Long-Term Incentive Program (the “Program”),
which Employee acknowledges and agrees provide adequate consideration to which
Employee would not otherwise be entitled, Employee unconditionally, knowingly
and voluntarily releases, remises, and forever discharges the Company and any
of its past or present subsidiaries, divisions, joint ventures, affiliates,
related entities, predecessors, merged entities and parent entities, benefit
plans, and all of their respective past and present officers, directors,
stockholders, employees, partners, members, managers, owners, consultants and
advisors, benefit plan administrators and trustees, agents, attorneys,
insurers, representatives, affiliates and all of their respective successors
and assigns (collectively, the “Company Released Parties”), from any and
all claims, actions, causes of action, demands, obligations, grievances, suits,
losses, debts and expenses (including attorney’s fees and costs), damages and
claims in law or in equity of any nature whatsoever, known or unknown,
suspected or unsuspected, Employee ever had, now has, or may ever have against
any Company Released Party  up to and including the day on which Employee signs
this Agreement.  Without limiting the generality of the foregoing, subject to
Section 1.2 below, the claims Employee is waiving include, but are not limited
to, (a) any claims, demands, and causes of action alleging violations of public
policy, or of any federal, state, or local law, statute, regulation, executive
order, or ordinance, or of any duties or other obligations of any kind or
description arising in law or equity under foreign, federal, state, or local
law, regulation, ordinance, or public policy having any bearing whatsoever on
the terms or conditions of Employee’s employment with or by the Company or the
termination or resignation of Employee’s employment with the Company or any
association or transaction with or by the Company; (b) all claims of
discrimination or harassment on the basis of age, sex, race, national origin,
religion, sexual orientation, disability, veteran status or any other legally
protected category; (c) all claims under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, the Fair Labor Standards Act,
the Genetic Information Nondiscrimination Act, 42 U.S.C. § 1981, and all other
federal, state and local fair employment and anti-discrimination laws, all as
amended, including without limitation the Ohio Civil Rights Act, O.R.C. §
4112.01 et seq., the Ohio Age Discrimination in Employment Act, O.R.C. §
4112.14, the Ohio Uniformed Services Employment and Reemployment Act, O.R.C. §§
5903.01, 5903.02; (d) all claims under the Worker Adjustment and Retraining
Notification Act and similar state and local statutes, all as amended; (e) all
claims under the National Labor Relations Act, as amended; (f) all claims under
the Family and Medical Leave Act and other federal, state and local leave laws,
all as amended; (g) all claims under the Employee Retirement Income Security
Act, as amended (except with respect to accrued vested benefits under any
retirement or 401(k) plan in accordance with the terms of such plan and
applicable law); (h) all claims under the Sarbanes-Oxley Act of 2002, the False
Claims Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the
Securities Exchange Act of 1934, the Commodity Exchange Act, the Consumer
Financial Protection Act, the American Recovery and Reinvestment Act, the
Foreign Corrupt Practices Act, and the EU Competition Law, all as amended; (i)
all claims of whistleblowing and retaliation under federal, state and local
laws, including without limitation the Ohio Whistleblower Protection Act,
O.R.C. § 4113.51 et. seq., Ohio statutory provisions regarding
retaliation/discrimination for pursuing a workers compensation claim; (j) all
claims under the Ohio Minimum Fair Wages Act, O.R.C. §  4111.01 et seq.; (k)
all claims under the Ohio Wage Payment Act, O.R.C. §  4113.15; (l) all claims
under any principle of common law or sounding in tort or contract; (m) all
claims concerning any right to reinstatement; (n) all claims under the
Immigration Reform and Control Act; (o) all claims under the Fair Credit
Reporting Act; (p) all claims under The Equal Pay Act; (q) all claims for
attorneys’ fees, costs, damages or other relief (monetary, equitable or
otherwise), whether under foreign, federal, state or local law, whether
statutory, regulatory or common law, to the fullest extent permitted by law;
and (r) all claims under any policy, agreement, contract, understanding or
promise, written or oral, formal or informal, between any of the Company
Released Parties and Employee.  Further, each of the persons and entities
released herein is intended to and shall be a third-party beneficiary of this
Agreement.   


1.2.    
Claims
Not Released. 
This release of claims does not affect or waive: (a) benefits and/or the right
to seek benefits under applicable workers’ compensation and/or unemployment
compensation statutes; (b) any claims Employee may have for his or her own
vested accrued employee benefits under the terms of the Company’s health,
welfare, or retirement benefit plans as of 




13












  


 





Employee’s
last day of employment with the Company; (c) any right to pursue claims which
by law cannot be waived by signing this Agreement; (d) Employee’s rights to
indemnification under any indemnification agreement he or she has with the
Company or any other Company Released Party and/or under the Company’s or any
Company Released Party’s charter or bylaws, or to whatever coverage Employee
may have under the Company’s or any Company Released Party’s directors’ and
officers’ insurance policy for acts and omissions when Employee was an officer
or director of the Company or of any Company Released Party; or (e) Employee’s
right to enforce this Agreement and the Resignation Agreement between the
Company and Employee, dated October 3, 2017 (the “Resignation Agreement”)
(including, for the avoidance of doubt, his rights with respect to the equity
awards described in Exhibit C of the Resignation Agreement).  


1.3.    
Government
Agencies. 
Notwithstanding any other provision in this Agreement to the contrary, nothing
contained in this Agreement limits Employee’s ability to file a charge or
complaint with the Equal Employment Opportunity Commission, the National Labor
Relations Board, the Occupational Safety and Health Administration, the
Securities and Exchange Commission or any other federal, state or local
governmental agency or commission (each a “Government Agency”). Employee
further understands that this Agreement does not limit Employee’s ability to
communicate with any Government Agency or otherwise participate in any
investigation or proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice to the
Company. However, to the maximum extent permitted by law, Employee agrees that
if such a charge or complaint is made, Employee shall not be entitled to
recover any individual monetary relief or other individual remedies.  This
Agreement does not limit or prohibit Employee’s right to receive an award for
information provided to any Government Agency to the extent that such
limitation or prohibition is a violation of law.


1.4.    
Collective/Class
Action Waiver. 
If any claim is not subject to release, to the extent permitted by law,
Employee waives any right or ability to be a class or collective action
representative or to otherwise participate in any putative or certified class,
collective or multi-party action or proceeding based on such a claim in which
the Company or any other Company Released Party is a party.


1.5.    
Release
of Unknown Claims.  
Employee intends that this release of claims cover all claims described
above, whether or not known to Employee.  Employee further recognizes the risk
that, subsequent to the execution of this Agreement, Employee may incur loss,
damage or injury which Employee attributes to the claims encompassed by this
release.  Employee also expressly waives and relinquishes, to the fullest
extent permitted by law, any and all rights he or she may have under California
Civil Code Section 1542, or the comparable provisions of the laws of any other
jurisdiction, which provides as follows:


“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.”


2.      
Acknowledgments
and Affirmations. 
 


2.1.    
Employee
affirms that Employee has not filed, caused to be filed, or presently is a
party to any claim against any Company Released Party.  Employee also
represents and warrants that there has been no assignment or other transfer of
any interest in any claim by Employee that is covered by the release set forth
in Section 1.  


2.2.    
Employee
affirms that (a) except for the benefits referred to in Section 1.2(b) above,
Employee has been paid and/or has received all compensation, wages, bonuses,
commissions, and/or benefits which are considered earned and therefore due and
payable as of the date Employee signs this Agreement; (b) Employee has been
granted any leave to which Employee was entitled under the Family and Medical
Leave Act or related state or local leave or disability accommodation laws; (c)
Employee has no known workplace injuries or occupational diseases; (d) Employee
has not been retaliated against for reporting any allegations of wrongdoing by
the Company or its officers; (e) Employee has not been prohibited, restricted
or otherwise interfered with by any Company Released Party from communicating
with any Governmental Agency as described in Section 1.3 above; and (f) all of
the Company’s decisions regarding Employee’s pay and benefits through the date
of Employee’s execution of this Agreement were, to Employee’s knowledge, not
discriminatory based on age, sex, race, national origin, religion, sexual
orientation, disability, veteran status or any other classification protected
by law.


2.3.    
Employee
affirms and agrees that Employee has not divulged any proprietary or
confidential information of the Company and will continue to maintain
the confidentiality of such information consistent with the Company’s policies
and Employee’s agreement(s) with the Company and/or common law. Employee hereby
represents and warrants that he or she has not breached 




14












  


 





any
of his or her obligations under Section 4 of the Program and hereby ratifies
and affirms such obligations, which shall continue in full force and effect in
accordance with their terms.  Employee understands and agrees that upon any
violation of the provisions of Section 4 of the Program, any and all payment or
benefits under the Program shall immediately stop and Employee shall be
obligated to return to the Company any amounts previously paid to Employee
under the Program.


3.      
No
Admission of Wrongdoing.  Employee and the Company agree that
neither this Agreement nor the furnishing of the consideration for this
Agreement shall be deemed or construed at any time for any purpose as an
admission by any Company Released Party of wrongdoing or evidence of any
liability or unlawful conduct of any kind. 


4.      
Consultation
with Attorney; Voluntary Agreement.  The Company hereby advises Employee to
consult with an attorney of his or her choosing prior to signing this
Agreement.  Employee understands and agrees that Employee has the right and has
been given the opportunity to review this Agreement with an attorney.  Employee
acknowledges and agrees that the payments and benefits provided by the Company
under the terms of the Welltower Inc. 2017-2019 Long-Term Incentive Program are
sufficient consideration to require him or her to comply with his or her
obligations under this Agreement.  Employee represents that he or she has read
this Agreement and understands its terms and that he or she enters into this
Agreement freely, voluntarily, and without coercion. Except as otherwise
provided in Section 1.2, EMPLOYEE, FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST EACH AND EVERY COMPANY
RELEASED PARTY AS OF THE DATE OF EXECUTION OF THIS AGREEMENT.


5.      
Effective
Date; Revocation. 
Employee acknowledges and agrees that: (a) Employee has been given at least
twenty-one (21) days during which to review and consider the provisions of this
Agreement, although he or she may at his or her discretion, knowingly and
voluntarily, sign and return the Agreement at any earlier time, but Employee
may not sign and return the Agreement until on or after his or her last day of
employment with the Company; (b) modification of this Agreement does not
restart this twenty-one (21)-day consideration period; (c) Employee is waiving
rights or claims which may be waived by law in exchange for consideration that
is not otherwise due to Employee, including claims and rights under the Age
Discrimination in Employment Act of 1967, as amended (the “ADEA”), and
as otherwise described in this Agreement; (d) rights or claims that may arise
after the date this Agreement is executed, including those arising under the
ADEA, are not waived by this Agreement; (e) at any time within seven (7) days
after signing this Agreement, Employee may revoke this Agreement; and (f) this
Agreement is not enforceable until the revocation period has passed without a
revocation.


To
revoke this Agreement, Employee must send a written statement of revocation
delivered by certified mail to Welltower Inc., Attn:  Chief Executive Officer,
4500 Dorr Street, Toledo, OH  43615.  This revocation must be received no later
than the seventh (7th) day following Employee’s execution of this Agreement. If
no such revocation occurs, this Agreement shall become effective on the eighth
(8th) day following execution of this Agreement.


In
the event that Employee revokes this Agreement, it shall have no force or
effect, and Employee shall have no right to receive or retain any payments and
benefits provided by the Company under the terms of the Welltower Inc.
2017-2019 Long-Term Incentive Program.


6.      
Severability.  In the event
that any one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remainder of the Agreement shall not in any way be affected or impaired
thereby.


7.      
Waiver.  No waiver by
either party of any breach by the other party of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
any other provision or condition at the time or at any prior or subsequent
time.  This Agreement and the provisions contained in it shall not be construed
or interpreted for or against either party because that party drafted or caused
that party’s legal representative to draft any of its provisions.


8.      
Governing
Law. 
This Agreement shall be construed in accordance with and governed by the laws
of the State of Ohio, without regard to principles of conflict of laws of such
state.


9.      
Headings.  All descriptive
headings in this Agreement are inserted for convenience only and shall be
disregarded in construing or applying any provision of this Agreement.


10.   
Counterparts.  This Agreement
may be executed in counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument. 






15












  


 





[signature page
follows]





 






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IN WITNESS WHEREOF, this Agreement has
been duly executed as of the dates written below.


 


	
  Dated:  October 3, 2017

  	
  EMPLOYEE

   

   

   

  /s/ Scott A. Estes                                                  

   

  Name: Scott A. Estes

   

   

   

  
	
   

  Dated: 
  October 3, 2017

  	
   

  WELLTOWER INC.

   

  

  

   

  By: /s/ Matthew McQueen                             

   

  Name: Matthew McQueen

   

  Title:   Senior Vice President – General Counsel and
  Corporate Secretary

  
	
   

  	
   

  






 





 






17












  


 





Exhibit C


 


EXISTING EQUITY AWARDS


 


EXISTING EQUITY AWARDS WITH TIME-BASED VESTING


1)            Restricted
Stock


	
  Date of Agreement

  	
  Initial Award

  	
  Unvested Shares
  as of Date of Agreement to be fully vested

  
	
  February 7, 2013

  	
  24,028

  	
  4,805

  
	
  February 5, 2015

  	
  11,380

  	
  2,845

  
	
  February 12, 2016

  	
  14,982

  	
  7,490

  
	
  February 26, 2016

  	
  43,068

  	
  14,356

  
	
  TOTAL

  	
  29,496

  






2)            Stock Options


	
  Date of Agreement

  	
  Initial Grant

  	
  Type of Grant

  	
  Exercise Price

  	
  Maximum Expiration Date

  	
  Options Outstanding*

  
	
  January 27, 2011

  	
  2,033

  	
  ISO

  	
  $49.17

  	
  January 27, 2021

  	
  2,033

  
	
  January 27, 2011

  	
  17,449

  	
  NSO

  	
  $49.17

  	
  January 27, 2021

  	
  17,449

  
	
  January 26, 2012

  	
  1,744

  	
  ISO

  	
  $57.33

  	
  January 26, 2022

  	
  1,744

  
	
  January 26, 2012

  	
  22,561

  	
  NSO

  	
  $57.33

  	
  January 26, 2022

  	
  22,561

  
	
   

  	
  TOTAL

  	
  43,787

  
	 	 	 	 	 	 	 






*All options are
fully vested. 


EXISTING EQUITY
AWARDS WITH PERFORMANCE-BASED VESTING


1) 3-Year LTIP
Shares


Pro rata payment in shares for any
award earned under the 2015-2017 Long-Term Incentive Program, the 2016-2018
Long-Term Incentive Program, and the 2017-2019 Long-Term Incentive Program
based on Company performance as of September 30, 2017, determined and prorated
in accordance with the terms of the respective program.  


For the avoidance
of doubt, for purposes of the 2015-2017 Long-Term Incentive Program, the
2016-2018 Long-Term Incentive Program, and the 2017-2019 Long-Term Incentive
Program, Executive shall be deemed to have had a termination of employment by
reason of a “Qualified Termination” on the Termination Date.


2) 3-Year LTIP –
Dividend Accrual


The
value of accrued dividend equivalents on shares to be issued under the
2015-2017 Long-Term Incentive Program and the 2016-2018 Long-Term Incentive
Program from the beginning of each of the performance periods through October
3, 2017, and the 2017-2019 Long-Term Incentive Program from the beginning of
the performance period through the date the Issuance Date (as defined in the
2017-2019 Long-Term Incentive Program), in accordance with the terms of the
respective program.


 


 


 








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