EXHIBIT 10.3




	
    
     

    

    
	 



EMPLOYMENT AGREEMENT


 


                THIS EMPLOYMENT AGREEMENT, effective the 11th day of March, 2013 (the “Agreement”), is entered into
by and between HEALTH CARE REIT, INC., a Delaware corporation, (the
“Corporation”), and SCOTT M. BRINKER (the “Executive”).


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


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


                1.             EMPLOYMENT 


                The Corporation hereby agrees to
employ the Executive as Executive Vice President-Investments upon the terms and
conditions herein contained, and the Executive hereby agrees to accept such
employment and to serve in such position.  As Executive Vice
President-Investments, the Executive will (i) [list of
responsibilities to be determined] and (ii) undertake such other
responsibilities as may be assigned to the Executive by the Corporation’s Chief
Executive Officer (the “CEO”) or President from time to time.  In such capacity, the Executive shall
report to the Corporation’s CEO, President and Board of Directors and shall
have such powers and responsibilities consistent with his position as may be
assigned.


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


 


                2.             TERM
OF AGREEMENT


 


                The current term of employment
under this Agreement shall expire on January 31, 2015.  Upon the expiration of
such term, the term of employment hereunder shall automatically be extended without
further action by the parties for successive two (2) year renewal terms, unless
either party shall give at least six (6) months advance written notice to the
other of his or its intention that this Agreement shall terminate upon the
expiration of the current term or the then current renewal term, as the case
may be. Notwithstanding the foregoing, if a Change in Corporate Control (as
defined in Section 6 hereof) occurs during the term of this Agreement, the term
of employment hereunder shall automatically be extended for twenty-four (24)
months following the occurrence of the Change in Corporate Control. 


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


 


                3.             SALARY
AND BONUS


                The Executive shall receive a
base salary during the term of this Agreement at a rate of $444,960 per annum
for 2013, and at a rate of not less than that amount per annum for subsequent
years, payable in substantially equal semi-monthly installments.  The
Compensation Committee of the Board shall consult with the CEO and review the
Executive’s base salary at annual intervals, and may adjust the Executive’s
annual base salary from time to time as the Committee deems to be appropriate. 


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


                4.             ADDITIONAL
COMPENSATION AND BENEFITS


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


                                (a)           Stock
Options and Other Long-Term Incentives.  During the term of the Agreement,
any stock options, restricted stock or other awards granted under the 2005
Long-Term Incentive Plan shall be at the discretion of the Compensation
Committee of the Corporation’s Board.









 










 








 








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


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


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


 


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


                5.             PAYMENTS
UPON TERMINATION


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


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


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


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


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


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


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


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


 


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


                For purposes of this Agreement,
“Good Reason” shall mean, without the Executive’s prior consent:  (1) the
assignment of Executive to a position other than the Executive Vice
President-Investments of the Corporation (other than for Cause or by reason of
permanent disability) or the assignment of duties materially inconsistent with
such position if either such change in assignment constitutes a material
diminution in the Executive’s authority, duties or responsibilities, or (2) the
direction of Executive to report to anyone other than the Corporation’s
CEO, President or Board of Directors if
such change in reporting duties constitutes a material diminution in the
authority, duties or responsibilities of the supervisor to whom the Executive
is required to report; provided, however, with respect to  







 










 








 








clauses (1) or (2)
above, the Executive must have notified the Corporation within the first
ninety (90) days following the initial date of such change in assignment or
reporting duties that he regarded such change in assignment or reporting duties
as grounds justifying resignation for Good Reason under this paragraph and the
Corporation must have failed to cure such change in assignment or reporting
duties within ninety (90) days following its receipt of such notice from the
Executive; and provided further, the Executive must have resigned under this
paragraph within one (1) year following the initial existence of a change in
assignment or reporting duties described herein.  


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


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


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


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


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


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


 


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


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


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


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


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


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


 


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


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


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


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


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


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









 










 








 








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


 


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


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


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


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


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


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


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


 


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


                6.             CHANGE
IN CORPORATE CONTROL


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


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


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


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


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


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


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


 


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


 









 










 








 








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


 


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


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


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


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


                (iv)          During any twenty-four (24) month period,
individuals who, as of the beginning of such period, constitute the Board of
Directors (the “Continuing Directors”) cease for any reason to constitute at
least a majority of the Board.  For this purpose, any person who is nominated
for election as a member of the Board after May 3, 2012 shall also be
considered a “Continuing Director” if, and only if, his or her nomination for
election to the Board of Directors is approved or recommended by a majority of
the members of the Board (or of the relevant Nominating Committee) and at least
five (5) members of the Board are themselves Continuing Directors at the time
of such nomination.  


 


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


 


                7.             DEATH 


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


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


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


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


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









 










 








 








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


 


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


                8.             WITHHOLDING 


 


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


 


                9.             PROTECTION
OF CONFIDENTIAL INFORMATION


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


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


 


                10.          COVENANT
NOT TO COMPETE


 


                                The Executive
hereby agrees that he will not, either during the employment term or during the
period of one (1) year from the time the Executive’s employment under this
Agreement ceases (for whatever reason other than after the expiration of the
term of this Agreement as a result of the Corporation electing not to renew the
term thereof), engage in any business activities on behalf of any enterprise
which competes with the Corporation in the business of (i) ownership or
operation of Health Care Facilities (defined below); ( ii) investment in or
lending to health care related enterprises (including, without limitation,
owners or developers of Health Care Facilities); (iii) management of Health
Care Facilities; or (iv) provision of any planning or development services for
Health Care Facilities. “Health Care Facilities” means any senior housing
facilities or facilities used or intended primarily for the delivery of health
care services, including, without limitation, any active adult communities,
independent living facilities, assisted living facilities, skilled nursing
facilities, inpatient rehabilitation facilities, ambulatory surgery centers,
medical office buildings, hospitals of any kind, or any similar types of
facilities or projects.  The Executive will
be deemed to be engaged in such competitive business activities if 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
corporation engaged in a competitive business shall not be deemed to be
engaging in competitive business activities.


 


                The Executive agrees that he
shall not, for a period of one year from the time his employment under this
Agreement ceases (for whatever reason other than after the expiration of the
term of this Agreement as a result of the Corporation electing not to renew the
term thereof), or, if later, during any period in which he is receiving monthly
severance payments under Section 5 of this Agreement, solicit any employee or
full-time consultant of the Corporation for the purposes of hiring or retaining
such employee or consultant.  


 









 










 








 








                11.          INJUNCTIVE
RELIEF


 


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


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


 


                12.          NOTICES 


 


                                All notices or
communications hereunder shall be in writing and sent certified or registered
mail, return receipt requested, postage prepaid, addressed as follows (or to
such other address as such party may designate in writing from time to time):


 


                If to the
Corporation:


 


                Health Care REIT,
Inc.


                4500 Dorr Street


                Toledo, OH 43615


                Attention:  Senior Vice
President-Administration and Corporate Secretary


 


                If to the
Executive:


 


                Scott M. Brinker


                2563 Underhill Road


                Toledo, OH 43615


 


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


 


                13.          SEPARABILITY 


 


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


 









 










 








 








                14.          ASSIGNMENT 


 


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


 


                15.          ENTIRE
AGREEMENT


 


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


 


                16.          SECTION
409A COMPLIANCE


 


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


 


                17.          GOVERNING
LAW


 


                This Agreement shall be
construed, interpreted, and governed in accordance with the laws of the State
of Ohio, other than the conflict of laws provisions of such laws.


 


 












 










 








 








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


 


                                                                                                                HEALTH
CARE REIT, INC.


 


 


                                                                                                                By:
/s/ Erin C. Ibele                                                             


Name:
Erin C. Ibele


Title:
Senior Vice President – Administration and Corporate Secretary


                                                                                                                         


 


 


                                                                                                                EXECUTIVE:


 


 


                                                                                                                /s/
Scott M. Brinker                                                             


                                                                                                                Scott
M. Brinker