EXHIBIT
10.2

 


welltower
INC.


2017-2019 LONG-TERM INCENTIVE PROGRAM – BRIDGE 1


1.                  
Purpose.  This 2017-2019 Long-Term Incentive Program (the “Program”)
adopted pursuant to the Welltower Inc. 2016 Long-Term Incentive Plan (the “Equity
Plan”) and any successor equity plan and is intended to provide an
incentive for superior work and to motivate executives and employees of
Welltower Inc. (the “Company”) toward even higher achievement and
business results, to tie their goals and interests to those of the Company and
its stockholders and to enable the Company to attract and retain highly
qualified executives and employees.  The Program is for the benefit of
Participants (as defined below).  


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


“All REIT Index” means the MSCI US REIT Index


“Annualized TSR Percentage” means (1*(1 +
Cumulative TSR))^(1/2) - 1.


“Award” means a grant
to a Participant hereunder.


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


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


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


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


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


“Common Stock Price” means, as of a particular
date, the average of the Fair Market Value of one share of Common Stock over
the 20 consecutive trading days ending on, and including such date (or if such
date is not a trading day, the most recent trading day 




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immediately
preceding such date); provided that, if such date is the date upon which a
Change in Corporate Control occurs, the Common Stock Price as of such date
shall be equal to the fair value, as determined by the Committee, of the total
consideration paid or payable in the transaction resulting in the Change in
Corporate Control for one share of Common Stock.


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


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


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


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


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


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


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


“Health Care REIT Index” means the NAREIT
Health Care REIT Index (or a successor index including a comparable universe of
publicly traded U.S. real estate investment trusts), in each case adjusted and
reweighted to exclude the Company from the index.   As of the beginning of the
Performance Period, the NAREIT Health Care REIT Index was comprised of Ventas,
Inc, HCP, Inc., Omega Healthcare Investors, Senior Housing Properties Trust,
Healthcare Trust of America, Inc., Healthcare Realty Trust, National Health
Investors, Medical Properties Trust, Community Healthcare Trust, Inc., Care
Capital Properties, Sabra Health Care REIT, LTC Properties, New Senior
Investment Group, Physicians Realty Trust, Universal Health Realty Income, Care
Trust REIT, Quality Care Properties, Inc., MedEquities Realty Trust, Inc., and
Global Medical REIT.  Any health care REIT organization that is not in
existence for the entire Performance Period shall be omitted from this index.


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


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







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“Performance Period”
means the period commencing on January 1, 2017 and concluding on the
earlier of (i) December 31, 2018, or (ii) a Change in Corporate Control.


“Program” means this Welltower Inc. 2017-2019
Long-Term Incentive Program, as amended from time to time.


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


“Relative Performance” means the Annualized TSR
Percentage relative to the applicable Index Return.


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


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


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


3.                  
   Administration 


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


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


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


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


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


 




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


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


4.                  
Conditions of Participation


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


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


(b)           Non-Competition.               In the course of
the performance of Participant’s job responsibilities for the Company, Participant
has obtained extensive and valuable knowledge and information concerning the
Company’s business (including confidential information relating to the Company
and its operations, intellectual property, assets, contracts, customers,
personnel, plans, marketing plans, research and development plans and
prospects).  Accordingly, during employment with the Company and for [one year][1]
following Participant’s termination of employment, Participant will not engage
in any business activities on behalf of any enterprise which competes with the
Company or any of its affiliates in the business of (i) ownership or operation
of Health Care Facilities (defined below); (ii) investment in or lending to
health care related enterprises (including, without limitation, owners or
developers of Health Care Facilities); (iii) management of Health Care
Facilities; or (iv) provision of any planning or development services for
Health Care Facilities. “Health Care Facilities” means any senior
housing facilities or facilities used or intended primarily for the delivery of
health care services, including, without limitation, any active adult
communities, independent living facilities, assisted living facilities, skilled
nursing facilities, inpatient rehabilitation facilities, ambulatory surgery
centers, medical office buildings, hospitals of any kind, or any similar types
of facilities or projects.  Participant will be deemed to be engaged in such
competitive business activities if Participant participates in such a business
enterprise as an employee, officer, director, consultant, agent, partner,
proprietor, or other participant; 





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










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provided that the
ownership of no more than two percent (2%) of the stock of a publicly traded
corporation engaged in a competitive business shall not be deemed to be
engaging in competitive business activities.


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


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


(e)           Remedies.             For the avoidance of doubt,
any breach of any of the provisions in this Section 4 shall constitute a
material breach by Participant.  Notwithstanding any other provision of this
Program, by becoming entitled to receive any payments or other benefits under
this Program, Participant is deemed to have agreed that damages would be an
inadequate remedy for the Company in the event of a breach or threatened breach
by Participant of any of Sections 4(a) through 4(d), inclusive.  In the event
of any such breach or threatened breach, and without relinquishing any other
rights or remedies that the Company may have, including but not limited to the
forfeiture or repayment by Participant of any payments or benefits otherwise
payable or paid to Participant under this Program, the Company may, either with
or without pursuing any potential damage remedies and without being required to
post a bond, obtain from a court of competent jurisdiction, and enforce, an
injunction prohibiting Participant from violating this Section 4 and requiring
Participant to comply with its provisions.  The Company may present this
Section 4 to any third party with which Participant may have accepted
employment, or otherwise entered into a business relationship, that the Company
contends violates this Section 4, if the Company has reason to believe
Participant has or may have breached a provision of this Section 4.


5.                  
Determination of Awards


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


(b)                
The percentage of a Participant’s
Target Award that may be earned for the Performance Period shall be determined
as follows:  50 percent of the Target Award shall be earned based on the
Company’s Relative Performance to the Health Care REIT Index; 30 percent of the
Target Award shall be earned based on the Company’s Relative Performance to the
All REIT Index; 20 percent of the Target Award shall be earned based on the
Company’s Annualized TSR Percentage; all as further set forth on Exhibit A.


(c)                
Depending on the score for each of
the performance goals as determined pursuant to Exhibit A, the Earned Award for
the Performance Period shall be determined based on the Participant’s
individual threshold, target and high payout multiples described in the
Participant’s Award Notice.  


For performance between two different tiers, the
percentage payable shall be calculated using interpolation between tiers. The
level of achievement for each listed performance goal shall be determined
independently.


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


6.                  
Change in Corporate Control.  In the event that prior to December 31, 2018, a Change in
Corporate Control occurs, then each outstanding Award will be deemed earned as
of the date of such Change in Corporate Control in accordance with the
computation described in Section 5(b) as if the Performance Period ended on the
day prior to the consummation of the Change in Corporate Control, but each
Award shall further be multiplied by a fraction, the numerator of which shall
be the number of full and partial months from the beginning of the Performance
Period through the Change in Corporate Control and the denominator of which 




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shall be 24.  Notwithstanding Sections 4 and 8(b), any
shares of Common Stock issued to satisfy such outstanding Earned Awards shall
be fully vested and nonforfeitable. 


7.                  
Termination of Participant’s
Employment. 


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


(b)                
In the event of termination of a
Participant’s employment by reason of a Qualified Termination prior to the end
of the Performance Period, then the Compensation Committee shall determine the
Participant’s Earned Award in accordance with the computation described in
Section 5(b) as if the Performance Period ended on the calendar quarter end
immediately preceding the date of the Participant’s Qualified Termination;
provided, however, that the Earned Award of such terminated Participant for the
Performance Period shall be multiplied by a fraction, the numerator of which
shall be the number of days in which the Participant an employee of the Company
during the Performance Period and the denominator of which shall be the total
number of days in the Performance Period.  The pro-rated Earned Award shall be
paid out in shares of Common Stock that are fully vested.


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


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


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


8.                  
Payment of Awards. 


(a)                
As soon as practicable following
the end of the Performance Period, the Compensation Committee shall determine
the size of each Participant’s Earned Award, if any, with respect to the
Performance Period (with the date of such determination being referred to as
the “Issuance Date”).  In no event shall the Issuance Date with respect
to the Performance Period be later than 74 days after the end of the
Performance Period; provided that (i) in the case of the Performance Period
that ends upon a Change in Corporate Control, the Issuance Date shall be no
later than immediately prior to the consummation of the Change in Corporate
Control, and (ii) in the case of a determination required by Section 7(b), the
Issuance Date shall be no later than 74 days after the date of the
Participant’s Qualified Termination. 


(b)                
Except as otherwise provided in
Sections 6 and 7, on each vesting date described below, the Company shall issue
to each Participant (or such Participant’s estate or beneficiary, if
applicable) a number of shares of Common Stock equal to the vested portion of
the Earned Award.  Subject to a Participant’s continued employment with the
Company or a subsidiary and continued compliance with the restrictive covenants
set forth in Section 4 through such date, one-half of the shares subject to a
Participant’s Earned Award shall be vested as of the Issuance Date, and
one-half of such shares shall become fully vested on December 31, 2019.  In
addition, on each such vesting date, as applicable (or on the Issuance Date
with regard to an Earned Award settled in accordance with Section 6 or 7), the
Company shall pay in cash to each Participant (or such Participant’s estate or
beneficiary, if applicable) an amount equal to the Dividend Value multiplied by
the number of shares issued pursuant to Section 6, Section 7 or this Section
8(b) on such date.


9.                  
Adjustments.  Without duplication with the provisions of Sections
3 and 11 of the Equity Plan, if (i) the Company shall at any time be involved
in a merger, consolidation, dissolution, liquidation, reorganization, exchange
of Shares, sale of all or substantially all of the assets or Shares of the
Company or a transaction similar thereto, (ii) any stock dividend, stock split,
reverse stock split, stock combination, reclassification, recapitalization, or
other similar change in the capital structure of the Company, or any 




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distribution to holders of Shares other than ordinary cash
dividends, shall occur or (iii) any other event shall occur which in the
judgment of the Compensation Committee necessitates action by way of adjusting
the terms of the Program, then and in that event, the Compensation Committee
shall take such action as shall be necessary to maintain the Participants’
rights hereunder so that they are substantially the same rights existing under
this Program prior to such event.


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


11.               
Withholding of Tax.  Each Participant shall, not later than the date as
of which vesting or payment in respect of an Award becomes a taxable event for
Federal income tax purposes, pay to the Company or make arrangements
satisfactory to the Company for payment of any Federal, state and local taxes
required by law to be withheld on account of such taxable event.  The Company
shall have the authority to cause the required minimum tax withholding
obligation to be satisfied by withholding a number of Shares to be issued to a
Participant with an aggregate Fair Market Value that would satisfy the
withholding amount due.  The Company’s obligation to deliver stock certificates
(or evidence of book entry) to any Participant is subject to and conditioned on
tax withholding obligations being satisfied by such Participant or through the
Company’s exercise of its authority.


12.               
Miscellaneous. 


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


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


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


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


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


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


 




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


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


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


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


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


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


                (j)            Section
409A.        


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


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


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


 


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