EXHIBIT 10.2

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the
“Agreement”), is being entered into this June 16, 2017 (the “Effective Date”),
by and between WELLTOWER INC., a Delaware corporation, (the “Corporation”), and
MERCEDES T. KERR (the “Executive”).


WHEREAS, Executive and the Corporation previously entered
into an Employment Agreement, dated October 4, 2016 (the “Prior Employment
Agreement”); and 


WHEREAS, the Parties desire to amend and restate the Prior
Employment Agreement so that the Executive continues to act as the
Corporation’s Executive Vice President – Business & Relationship Management
based on the terms and conditions set forth herein.


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


Throughout the Term (defined
below) of this Agreement, the Executive shall devote her best efforts and all
of her business time and services to the business and affairs of the Corporation;
provided, that the Executive will be permitted to, with the prior written
approval of the CEO, act or serve as a director, trustee or committee member of
a commercial business, civic or charitable organization.


2.                  
TERM OF AGREEMENT


The term of employment under
this Agreement shall expire on January 31, 2019, unless earlier terminated
under one of the circumstances set forth in Sections 5, 6  or 7. 
As used herein, “Term” refers to the length of the Executive’s employment
under this Agreement, but the Term shall end upon any termination of
Executive’s employment with the Corporation as provided herein. 
Notwithstanding the foregoing, if a Change in Corporate Control (as defined in
Section 6(b)) occurs during the Term, the Term shall be extended until twenty-four
(24) months after the Change in Corporate Control.


The Corporation shall be
entitled to terminate this Agreement and the Executive’s employment immediately
for any reason or no reason, subject to the continuing obligations of the
Corporation under this Agreement.  Upon termination of the Executive’s
employment hereunder, unless otherwise expressly provided by the Corporation’s
Board of Directors (the “Board”), the Executive shall be deemed to have
resigned from all positions that the Executive holds as an officer of the
Corporation or any of its affiliates.


3.                  
BASE COMPENSATION AND BONUS


(a)                
The Executive shall receive annual
base compensation during the Term of this Agreement of not less than $484,500
in cash (“Base Compensation”).  Such amounts shall be payable in substantially
equal semi-monthly installments in accordance with the Corporation’s customary
payroll practices.  Subject to the terms of this Agreement, during the Term,
the Compensation Committee of the Board (the “Compensation Committee”) shall
consult with the CEO and review the Executive’s Base Compensation at annual
intervals, and may adjust the Executive’s annual Base Compensation from time to
time.


(b)               
The Executive shall also be
eligible to receive an annual incentive cash bonus for each calendar year
ending during the Term of this Agreement, with the actual amount of such bonus
to be determined by the Compensation Committee, using such performance measures
as the Compensation Committee deems to be appropriate.  Such bonus, if any,
shall be paid to the Executive no 




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later than sixty (60)
days after the end of the year to which the bonus relates.  Except as otherwise
provided in Sections 5 or 6, (i) the annual bonus will be
subject to the terms of any Corporation bonus plan under which it is granted
and (ii) in order to be eligible to receive an annual bonus, the Executive must
be employed by the Corporation on the last day of the applicable calendar year.


4.                  
ADDITIONAL COMPENSATION AND
BENEFITS


The Executive shall receive the
following additional compensation and welfare and fringe benefits during the
Term:


(a)                
Long-Term Incentives.  During the Term of the Agreement, any stock
options, restricted stock or other awards granted under the 2016 Long-Term
Incentive Plan shall be at the discretion of the Compensation Committee.


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


(c)                
Paid Time Off.  During the Term of this Agreement, the Executive
shall be entitled to paid time off (“PTO”) (based on the number of years of
service) in accordance with the Corporation’s PTO policy, as it may be amended
from time to time.


(d)               
Business Expenses.  During the Term of this Agreement, the Corporation
shall reimburse the Executive for all reasonable expenses she incurs in
promoting the Corporation’s business, including expenses for travel and similar
items, upon presentation by the Executive from time to time of an itemized
account of such expenditures in accordance with the Corporation’s established
policies and applicable law.  Following Executive’s termination of employment,
any expense reimbursement requests must be submitted no later than sixty (60)
days following such termination.


(e)                
Other Benefits.  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 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)                
Termination without Cause or
Termination by Executive for Good Reason (as defined below).  If the Executive’s employment is terminated by the
Corporation without Cause (but not including due to death or Disability) or
terminated by the Executive for Good Reason during the Term of this Agreement,
the Executive shall be entitled to the following:


(i)                 
Base Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d); 


(vi)              
any pro-rated portion of the
annual bonus that the Executive would have earned for the year in which the
termination occurs (if she had remained employed for the entire year), based on
the number of days in such year that had elapsed as of the termination date,
payable at the time that the Corporation pays bonuses to its executive officers
for such year;


(vii)            
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 the Executive shall have the right to exercise such stock options
during a period of ninety (90) days following the termination of employment;


 




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(viii)          
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;


(ix)              
continued coverage under any group
health plan maintained by the Corporation in which the Executive participated
at the time of her termination for the remainder of the 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, at an after-tax cost to the
Executive comparable to the cost that the Executive would have incurred for the
same coverage had she remained employed during such period; and


(x)               
a series of semi-monthly severance
payments for each complete calendar month during the remaining Term of this
Agreement, but not less than twelve (12) months (the “Severance Period”), each
semi-monthly payment in an amount equal to one-twenty fourth (1/24th) of the
sum of (A) the Executive’s Base Compensation, as in effect on the date of
termination, and (B) the average of annual cash bonuses paid to the Executive
for the last three (3) fiscal years of the Corporation ending prior to the date
of termination, to be paid in accordance with the Corporation’s normal payroll
practices.


Notwithstanding anything in the
long-term incentive plan, and any other plans, pursuant to which any equity
awards are granted, or any applicable equity award agreements to the contrary,
the payments set forth in subsections (vi), (vii), (viii), (ix) and (x) are
subject to (a) a waiver and general release of claims in favor of the
Corporation, in a form and manner satisfactory to the Corporation, that is
executed by the Executive and which becomes irrevocable within sixty (60) days
following the date of such termination, and (b) the Executive’s compliance with
the restrictive covenants set forth in Sections 9 and 10  below
during the Severance Period (the “Severance Requirement”).  Notwithstanding
anything in the 2016 Long-Term Incentive Plan, any other plans pursuant to
which any equity awards are granted, or any applicable equity award agreements
to the contrary, upon any violation of the Severance Requirement during the
Severance Period, all post-employment compensation set forth in subsections
(vi), (vii), (viii), (ix) and (x) above shall immediately stop and the
Executive shall be obligated to return to the Corporation any post-employment
compensation previously paid or otherwise provided to the Executive.  The
pro-rated bonus payable pursuant to subsection (vi) shall be paid in accordance
with the provisions of Section 3(b) after the Compensation Committee has
approved bonuses payable for the year.  All payments to be made or settlements
to occur pursuant to subsection (vii) and (viii) (excluding stock options)
shall be made to the Executive on the first business day following the date
that is sixty (60) days following the date of such termination (except as
otherwise expressly provided in the applicable award agreement).  The payments
set forth in subsection (x) shall commence on the 60th day following
the date of such termination.


All payments required to be made
pursuant to subsections (i), (ii), (iii), and (v) shall be made to the Executive
within sixty (60) days following the date of such termination and within any
shorter time period required by law.


For purposes of this Agreement,
“Cause” shall mean:  (1) any 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 Section 9 or 10 
herein; (2) the Executive being convicted of a felony; (3) the Executive being
convicted of any crime or offense that is not a felony but was (x) committed in
connection with the performance of her duties hereunder or (y) involved
moral turpitude; or (4) the intentional and willful failure by the Executive to
substantially perform her duties hereunder as directed by the CEO (other than
any such failure resulting from the Executive’s incapacity due to physical or
mental disability) after a demand for substantial performance is made by the
Board.


For purposes of this Agreement,
“Good Reason” shall mean:  (1) the assignment of Executive to a position other
than Executive Vice President – Business & Relationship Management of the
Corporation (other than for Cause or by reason of disability), (2) the
assignment of duties materially inconsistent with such position if such change
in assignment constitutes (x) a material diminution in the Executive’s
authority, duties or responsibilities, or (y) a change in the reporting
structure such that the Executive is directed to report to anyone other than
the Corporation’s CEO, or (3) a material breach by the Corporation of this
Agreement; provided, however, Executive must not have consented to any such act
or omission that could give rise to a claim for “Good Reason”, the Executive
must have notified the Corporation in writing within the first thirty (30) days
following the occurrence of any of the foregoing events and the Corporation
must have failed to substantially cure such breach within thirty (30) days
following its receipt of such notice from the Executive; and provided further,
the Executive must have resigned under this paragraph within ninety (90) days
following the occurrence of the event.  Notwithstanding the foregoing, any
transfer of responsibilities in connection with succession planning and
leadership transition shall in no event constitute Good Reason for purposes of
this Agreement.


(b)               
Disability.  The Corporation shall be entitled to terminate the
Executive’s employment if the Board determines that the Executive has been
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental 




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impairment that can be
expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months, and the permanence and degree
of which shall be supported by medical evidence satisfactory to the Committee
(“Disability”).  Upon such termination, the Executive shall be entitled to the
following:


(i)                 
Base Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d); 


(vi)              
any pro-rated portion of the
annual bonus that the Executive would have earned for the year in which the
termination occurs (if she had remained employed for the entire year), based on
the number of days in such year that had elapsed as of the termination date,
payable at the time that the Corporation pays bonuses to its executive officers
for such year; and 


(vii)            
the treatment of all of
Executive’s outstanding stock options, restricted stock, restricted stock units
or other equity awards (whether subject to time-based vesting or
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.


All payments required to be made
pursuant to subsections (i), (ii), (iii) and (v) shall be made to the Executive
within sixty (60) days following the date of such termination and within any
shorter time period required by law.  The pro-rated bonus payable pursuant to
subsection (vi) shall be paid in accordance with the provisions of Section
3(b) after the Compensation Committee has approved bonuses payable for the
year.


(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 Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d). 


All payments required to be made
pursuant to subsections (i), (ii), (iii) and (v) shall be made to the Executive
within sixty (60) days following the date of such termination and within any
shorter time period required by law.


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


(i)                 
Base Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


 




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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d). 


All payments required to be made
pursuant to subsections (i), (ii), (iii) and (v) shall be made to the Executive
within sixty (60) days following the date of such termination and within any
shorter time period required by law.


(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 Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d). 


All payments required to be made
pursuant to subsections (i), (ii), (iii) and (v) shall be made to the Executive
within sixty (60) days following the date of such termination and within any
shorter time period required by law.


(f)                 
Cooperation.  The parties agree that certain matters in which the
Executive will be involved during the Term of this Agreement may necessitate
the Executive’s cooperation in the future.  Accordingly, following the
termination of the Executive’s employment for any reason, to the extent
reasonably requested by the CEO or the Board, the Executive shall cooperate
with the Corporation in connection with matters arising out of the Executive’s
service to the Corporation; provided that, the Corporation shall make
reasonable efforts to minimize disruption of the Executive’s other activities. 
The Corporation shall reimburse the Executive for reasonable expenses incurred
in connection with such cooperation.


6.                  
CHANGE IN CORPORATE CONTROL


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


(i)                 
Base Compensation accrued through
the date of termination, based on the number of days in such year that had
elapsed as of the termination date;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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)               
any expenses owed to the Executive
under Section 4(d); 


 




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(vi)              
the pro-rated portion of the
target annual bonus that the Executive would have earned for the year in which
the termination occurs (if she had remained employed for the entire year),
based on the number of days in such year that had elapsed as of the termination
date;


(vii)            
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 the Executive shall have the right to exercise such stock options
during a period of ninety (90) days following the termination of employment,
unless otherwise expressly provided in the applicable award agreement;


(viii)          
all of Executive’s outstanding
stock options, restricted stock, restricted stock units or other equity awards
with performance-based vesting shall become vested based upon a determination
of actual level of achievement of performance goals by the Compensation
Committee of the Board as of immediately prior to the occurrence of the Change
of Corporate Control or as otherwise expressly provided in the applicable award
agreements;


(ix)              
continued coverage pursuant to
Section 601, et seq. of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”) under any group health plan maintained by the Corporation in
which the Executive participated at the time of her termination at an after-tax
cost to the Executive comparable to the cost that the Executive would have
incurred for the same coverage had she remained employed during such period for
the remainder of the Term of the Agreement or until, if earlier, the date the
Executive obtains comparable coverage under benefit plans maintained by a new
employer or otherwise becomes ineligible to such continued coverage under
ERISA; and


(x)               
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 Compensation, as in effect at the time of the Change in
Corporate Control, and (B) the average of annual bonuses paid to the Executive
for the last three (3) 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.  For purposes of this subsection (x), the amount
of any annual bonus paid for a portion of a fiscal year shall be annualized.


Notwithstanding anything in the
long-term incentive plan, and any other plans, pursuant to which any equity
awards are granted, or any applicable equity award agreements to the contrary,
the payments set forth in subsections (vi), (vii), (viii), (ix) and (x) are
subject to a waiver and general release of claims in favor of the Corporation,
in a form and manner satisfactory to the Corporation, that is executed by the
Executive and which becomes irrevocable within sixty (60) days following the
date of such termination.  All payments to be made or settlements to occur
pursuant to subsections (vii) and (viii) (excluding stock options) shall be
made to the Executive on the first business day following the date that is
sixty (60) days following the date of such termination (except as otherwise
expressly provided in the applicable award agreement).  All payments required
to be made pursuant to subsections (i), (ii), (iii), (v) and (vi) shall be made
within sixty (60) days following the date of such termination and within any
shorter time period required by law.  All payments required to be made pursuant
to subsection (x) shall be made to the Executive on the first business day
following the date that is sixty (60) days following the date of such
termination.  Notwithstanding the foregoing, the severance payment under this
Section shall be payable on a semi-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)(5) and shall
in any event comply with the provisions of Section 8.


(b)               
For purposes of this Agreement, a
“Change in Corporate Control” shall have the meaning set forth in the
Corporation’s 2016 Long-Term Incentive Plan.


(c)                
Notwithstanding anything else in
this Agreement to the contrary, in the event that it shall be determined that
any payments or distributions by the Corporation to or for the benefit of the
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (together, the “Payments”) would
constitute “parachute payments” within the meaning of Section 280G of the Code,
then the Payments shall be payable either in (i) full or (ii) as to such
lesser amount which would result in no portion of such Payments being subject
to the excise tax imposed under Section 4999 of the Code, such that the Executive
shall receive the greater, on an after-tax basis, of either (i) or (ii) above,
as determined by an independent accountant or tax advisor (“Independent Tax
Advisor”) selected by the Corporation.  In the event that the Payments are to
be reduced pursuant to this Section 6(c), such Payments shall be reduced as
determined by the Independent Tax Advisor such that the reduction of
compensation to be provided to or for the benefit of the Executive as a result
of this Section 6(c) is minimized and to effectuate that, Payments shall
be reduced (i) by first reducing or eliminating the portion of such Payments
which is not payable in cash (other than that portion of such payments that is
subject to clause (iii) below), (ii) then by reducing or eliminating cash
Payments (other than that portion of such Payments subject to clause (iii)
below) and (iii) then by reducing or eliminating the portion of such Payments
(whether or not payable 




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in cash) to which Treas. Reg.
§1.280G-1 Q/A 24(c) (or any successor provision thereto) applies, in each case
in reverse order beginning with Payments which are to be paid the farthest in
time from the date of the transaction constituting a change in ownership of the
Corporation within the meaning of Section 280G of the Code.  Any reductions made
pursuant to this Section 6(c) shall be made in a manner consistent with
the requirements of Section 409A and where two economically equivalent amounts
are subject to reduction but payable at different times, such amounts shall be
reduced on a pro rata basis but not below zero.


(d)               
If any dispute arises between the
Corporation (or any successor) and the Executive regarding Executive’s right to
payments under this Section, the Executive shall be entitled to recover her
attorneys’ fees and costs incurred in connection with such dispute if the
Executive is determined to be the prevailing party.  The following additional
terms and conditions shall apply to the reimbursement of any attorneys fees and
costs: (i) the attorneys fees and costs must be incurred by the Executive
within five years following the date of the Executive’s termination or
resignation; (ii) the attorneys fees and costs shall be paid by the Corporation
by the end of the taxable year following the year in which the attorneys fees
and costs were incurred; (iii) the amount of any attorneys fees and costs paid
by the Corporation in one taxable year shall not affect the amount of any
attorneys fees and costs to be paid by the Corporation in any other taxable
year; and (iv) the Executive’s right to receive attorneys fees and costs may
not be liquidated or exchanged for any other benefit.


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 Compensation accrued through
the date of death, based on the number of days in such year that had elapsed as
of the date of death;


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


(iii)             
any bonuses earned but unpaid with
respect to fiscal years or other completed bonus 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;


(v)               
any expenses owed to the Executive
under Sections 4(d); 


(vi)              
any pro-rated portion of the
annual bonus that the Executive would have earned for the year in which the
death occurs (if she had remained employed for the entire year), based on the
number of days in such year that had elapsed as of the date of death), payable
at the time that the Corporation pays bonuses to its executive officers for
such year; and 


(vii)            
the treatment of all of
Executive’s outstanding stock options, restricted stock, restricted stock units
or other equity awards (whether subject to time-based vesting or
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.


All payments required to be made
pursuant to subsections (i), (ii), (iii) and (v) shall be made to the estate
within sixty (60) days following the date of death and within any shorter time
period required by law.  All payments to be made pursuant to subsection (vii)
(excluding stock options) shall be made to the Executive on the first business
day following the date that is sixty (60) days following the date of such
termination (except as otherwise expressly provided in the applicable award
agreement).  The pro-rated bonus shall be paid in accordance with the
provisions of Section 3(b) after the Compensation Committee has approved
bonuses payable for the year.


8.                  
WITHHOLDING AND SECTION 409A
COMPLIANCE


(a)                
The Corporation shall, to the
fullest extent not prohibited 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.


(b)               
This Agreement is intended to
comply with the requirements of Section 409A of the Code or an exemption
thereunder, and shall be interpreted and construed consistently with such
intent.  The payments to the Executive pursuant to this Agreement are intended
to be exempt from Section 409A of the Code to the maximum extent possible, under
the separation pay exemption, as short-term deferrals, or otherwise.  For
purposes of Section 409A of the Code, each installment payment provided under
this Agreement shall 




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be treated as a separate payment. 
In the event the terms of this Agreement would subject the Executive to
additional income taxes, interest 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 Section 409A of the Code). 
Notwithstanding any other provision in this Agreement, including but not
limited to Sections 5 and 6, if the Executive is a “specified
employee” (as defined in Section 409A(a)(2)(b)(i)), 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, 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.


9.                  
PROTECTION OF CONFIDENTIAL
INFORMATION


The Executive hereby agrees
that, during her employment with the Corporation and thereafter, she 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).  The Executive further agrees
that, upon the date of the Executive’s termination, all Confidential
Information in her possession that is in written or other tangible form shall
be returned to the Corporation and shall not be retained by the Executive or
furnished to any third party, in any form except as provided herein. 
Notwithstanding the foregoing, this Section 9 shall not apply to
Confidential Information that (i) was publicly known at the time of disclosure
to the 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
Corporation by the Executive, (iii) is lawfully disclosed to the 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 the 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 the Executive as a consequence of or through
the Executive’s relationship with the Corporation, in any form, including
electronic media.  Confidential Information also includes, but is not limited
to, the Corporation’s business plans and financial information, marketing
plans, and business opportunities.  Nothing herein shall limit in any way any
obligation the Executive may have relating to Confidential Information under
any other agreement or promise to the Corporation.


The 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 the Executive and whether compiled by the Corporation, and/or the
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
Corporation to maintain the secrecy of such information, that such information
is the sole property of the Corporation and that any retention and use of such
information by the Executive during her employment with the Corporation (except
in the course of performing her duties and obligations to the Corporation) or
after the termination of her employment shall constitute a misappropriation of
the Corporation’s trade secrets.


The Executive agrees that
Confidential Information gained by the Executive during the Executive’s
association with the Corporation, has been developed by the Corporation through
substantial expenditures of time, effort and money and constitute valuable and
unique property of the Corporation.  The Executive recognizes that because her
work for the Corporation will bring her into contact with confidential and
proprietary information of the Corporation, the restrictions of this Section
9 are required for the reasonable protection of the Corporation and its
investments and for the Corporation’s reliance on and confidence in the
Executive.  The Executive further understands and agrees that the foregoing
makes it necessary for the protection of the Corporation’s business that the
Executive not compete with the Corporation during her employment with the
Corporation and not compete with the Corporation for a reasonable period
thereafter, as further provided in the following Section.


The 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 




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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, the
Executive agrees that if such a charge or complaint is made, the 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.


The Executive affirms that the
Executive has not divulged any proprietary or confidential information of the
Corporation and will continue to maintain the confidentiality of such
information consistent with the Corporation’s policies and the Executive’s
agreement(s) with the Corporation and/or common law.  The Executive further
affirms that the Executive is not aware of and has not reported any allegations
of wrongdoing by the Corporation 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 Corporation or its officers or directors, including any
allegations of corporate fraud.


10.               
COVENANT NOT TO COMPETE


The Executive hereby agrees that
she will not, either during the Term or at all times until one year from the
time her employment ceases, or, if later, during any period in which she is
receiving any severance or change in control payments under Sections 5(a)
or 6  (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 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.  The Executive will be
deemed to be engaged in such competitive business activities if she
participates in such a business enterprise as an employee, officer, director,
consultant, agent, partner, proprietor, or other participant; provided that the
ownership of no more than two percent (2%) of the stock of a publicly traded
corporation engaged in a competitive business shall not be deemed to be
engaging in competitive business activities.


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 Corporation or any subsidiary or affiliate.


During her employment with the
Corporation and thereafter, 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 Corporation, 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 Corporation.  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 Corporation, its affiliates or any of its officers
or directors.


While employed by the
Corporation and during the Restricted Period, the Executive will communicate
the contents of this Section 10 to any person, firm, association,
partnership, corporation or other entity that the Executive intends to be
employed by, associated with, or represent.


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, 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 Corporation’s right to claim and
recover damages.


12.               
NOTICES 


All notices or communications
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):






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If to the Corporation:


Welltower Inc.

4500 Dorr Street

Toledo, OH 43615

Attention:  General Counsel


If to the Executive, at the
address on file with the Corporation’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.


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.


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.


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 or obligations 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 (including the Prior Employment Agreement).  The Agreement may be
amended at any time by mutual written agreement of the parties hereto.


16.               
GOVERNING LAW AND ARBITRATION


This Agreement shall be
construed, interpreted, and governed in accordance with the laws of the State
of Ohio, without regard to principles of conflicts of laws.


Any dispute, controversy or
claim arising out of or related to this Agreement or any breach of this
Agreement shall be submitted to and decided by binding arbitration. 
Arbitration shall be administered exclusively by the American Arbitration
Association and shall be conducted in accordance with the National Rules for the
Resolution of Employment Disputes.  Any arbitral award determination shall be
final and binding upon the parties.  Judgment may be entered in any court
having jurisdiction.  Notwithstanding the foregoing, the Corporation shall be
entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of Sections 9 or 10
hereof.


17.               
SURVIVAL 


Subject to any limits on
applicability contained therein, Sections 9 through 11 and Section 16 hereof
shall survive and continue in full force in accordance with their terms
notwithstanding any termination of the Term or this Agreement.


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Intentionally Left Blank





 






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


 


WELLTOWER INC.


 


By:           /s/ Matthew McQueen                                                  


Name:      Matthew McQueen


Title:         Senior Vice President, General Counsel
and Secretary


 


 


MERCEDES T. KERR, Executive


 


By:           /s/ Mercedes T. Kerr                                                      


 


 


 








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