EXHIBIT
10.4


 


TRANSITION
AGREEMENT 






This Transition Agreement
(this “Agreement”) is made as of June 30, 2016 by and between Erin C. Ibele
(“Executive”) and Welltower Inc., a Delaware corporation (the “Company”). 


 


                WHEREAS, Executive and the Company entered into
the Third Amended and Restated Employment Agreement, dated as of December 29,
2008 (the “Employment Agreement”) and Executive currently serves as the
Company’s Executive Vice President, Head of Human Capital and Corporate
Secretary; 


 


                WHEREAS, Executive and the Company have agreed
that Executive will resign from her current position with the Company on June
30, 2016 (the “Transition Date”) but remain employed by the Company in the
capacity of President of the Welltower Foundation; and


 


 WHEREAS, the Company and Executive desire to set forth the terms
and conditions of Executive’s proposed transition of employment to provide for
an orderly transition of Executive’s duties, loyalty and responsibilities.


 


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


 


1.       TRANSITION DATE.   


a.            
Effective
as of the Transition Date, Executive hereby resigns her positions as Executive
Vice President, Head of Human Capital and Corporate Secretary and relinquishes
all of Executive’s authority and responsibilities with respect to those
positions.  Effective as of the Transition Date, Executive also hereby resigns
all other positions Executive holds (i) with the Company other than as a
non-executive employee of the Company, (ii) with any of the Company’s direct
and indirect subsidiaries and/or affiliates, other than with respect to the
Welltower Foundation, or (iii) with any other organization as to any position
held at the request of or for the benefit of the Company.  Executive agrees to
take any additional necessary steps and sign any additional documentation that
may be reasonably requested by the Company in order to give full effect or
confirmation of such resignations.  


b.            
The
Employment Agreement will terminate as of the Transition Date. 


c.             
Executive
acknowledges and agrees that no action taken by the Company pursuant to, or
otherwise consistent with, this Agreement (including, without limitation, the
changes to compensation and Executive’s role with the Company on the Transition
Date) will constitute “Good Reason” as defined in the Employment Agreement.


d.            
As
of the Transition Date, Executive will have no authority or power to bind the
Company or to represent the Company in relation to third parties or to
represent to third parties that Executive has authority or power to bind the
Company or represent the Company, except as required for her duties as
President of the Welltower Foundation.  


2.       PAYMENTS UPON
TRANSITION.
   The following payments and benefits (to which Executive would not
otherwise be entitled) are being offered in consideration for Executive’s
execution and delivery of this Agreement, including the release set forth in
Section 7, and it becoming effective and irrevocable in accordance with its
terms and Section 3 and Section 8 of this Agreement, and are subject to
Executive’s compliance with the covenants and other obligations set forth in
Section 6 of this Agreement, all of which must be satisfied in full in order
for the payments and other benefits set forth below in this Section 2 to be
earned.  


a.            
A
lump-sum payment equal to $826,168.  Such amount, adjusted as needed to reflect
the interest rate on 90-day Treasury bills, as reported in The Wall Street Journal
(or similar publication) on the Transition Date in accordance with Section 5(a)
of the Employment Agreement, will be paid in a lump sum on the next regularly
scheduled payroll date following fifteen (15) days after the release set forth
in Section 7 has become effective and irrevocable, subject to any delay as
required by law as outlined in Section 10 of this Agreement.  


b.            
An
amount equal to $357,000, representing Executive’s target annual bonus for
2016, shall be paid to Executive in a lump sum, less applicable deductions, on
the date on which other executives of the Company are paid annual bonuses for
2016, but no later than March 15, 2017.






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c.             
All
stock options, restricted stock or other awards with time-based vesting granted
to Executive under any deferred compensation, incentive or other benefit plan
maintained by the Company shall become fully vested and earned and payable on
the Transition Date, and in the case of stock options, exercisable in full for
a period not to exceed the shorter of (i) one year following the Transition
Date or (ii) the maximum term of the applicable option, and all other awards
with performance-based vesting granted to the Executive under any deferred
compensation, incentive or other benefit plan maintained by the Company shall
become vested as provided in this Section 2(c).  Attached hereto as Attachment
A is a list of all of Executive’s outstanding stock options, restricted stock
or other awards with time-based or performance based-vesting under any deferred
compensation, incentive or other benefit plan maintained by the Company (the “Existing
Equity Awards”).  Executive represents that Attachment A is a correct and
complete list of her Existing Equity Awards on the date of this Agreement.  The
Existing Equity Awards with performance-based vesting conditions shall be
treated as follows: 


i.                    
For
purposes of Executive’s Performance Restricted Stock Unit Award granted under
the Company’s 2015-2017 Long-Term Incentive Program (the “2015-2017 
LTIP”), Executive shall be deemed to have had a termination of employment by
reason of a Qualified Termination on Executive’s Transition Date.  Accordingly,
Executive shall be entitled to receive a lump sum payment in shares of the
Company’s common stock as if the performance period had ended on June 30, 2016,
determined and prorated in accordance with the terms of the 2015-2017 LTIP. 
Executive shall also receive a cash payment equal to the value of accrued
dividend equivalents on such shares for the same period.  The Company will
permit Executive to elect on or prior to the Transition Date to have the
required minimum tax withholding obligation to be satisfied by withholding a
number of shares to be issued to Executive with an aggregate fair market value
sufficient to satisfy the withholding amount due.  


ii.                   
For
purposes of Executive’s Performance Restricted Stock Unit Award under the
Company’s 2016-2018 Long-Term Incentive Program (the “2016-2018 LTIP”),
Executive shall be deemed to have had a termination of employment by reason of
a Qualified Termination on Executive’s Transition Date.  Accordingly, Executive
shall be entitled to receive a lump sum payment in shares of the Company’s
common stock as if the performance period had ended on June 30, 2016,
determined and prorated in accordance with the terms of the 2016-2018 LTIP. 
Executive shall also receive a cash payment equal to the value of accrued
dividend equivalents on such shares for the same period.  The Company will
permit Executive to elect prior to December 31, 2018 to have the required minimum
tax withholding obligation to be satisfied by withholding a number of shares to
be issued to Executive with an aggregate fair market value sufficient to
satisfy the withholding amount due.  


d.            
An
amount equal to Executive’s accrued, unused PTO through the Transition Date,
less applicable withholdings.  Such amount will be paid in a lump sum on the
next regularly scheduled payroll date following fifteen (15) days after the
release set forth in Section 7 has become effective and irrevocable. 


3.       CONDITIONS OF PAYMENTS.


a.            
If
this Agreement does not become effective and irrevocable by its terms no later
than Friday, July 29, 2016, the Company will have no obligation to make the
payments or provide the benefits set forth in Section 2, Section 4 or Section 5
of this Agreement and Executive will not be entitled to receive any payments or
benefits under this Agreement.


b.            
Clawback.  If it is
decided by a court of law or an arbitrator that Executive has breached any of
her obligations, covenants or representations under Section 6 of this
Agreement, (i) the Company shall have the right to terminate Executive’s
employment for Cause (as defined below) and the  obligations to provide the
payments and benefits under Section 2, Section 4 and Section 5 of this
Agreement will immediately cease, (ii) the Company will be entitled to recover
the full amount paid under Section 2 and Section 5 of this Agreement and to
obtain all other remedies provided by law or in equity, and (iii) Executive
shall promptly reimburse the Company the full, pre-tax amount of any payments
made under Section 2 and Section 5 of this Agreement.


4.       EMPLOYMENT
FOLLOWING TRANSITION DATE.   


a.            
Transition
Period. 
Subject to Section 3 of this Agreement, commencing as of the Transition Date,
Executive shall continue employment with the Company and shall provide services
solely as President of the Welltower Foundation through the earliest of (i)
December 31, 2017, (ii) Executive’s resignation of employment for any reason,
(iii) the Company’s termination of Executive’s employment for Cause (as defined
below), (iv) the Company’s termination of Executive’s employment without Cause,
or (v) Executive’s death or permanent disability (as defined in the Company’s
long-term disability policy) (the “Transition Period”).  If Executive
continues to serve as President of the Welltower Foundation through December
31, 2017, the Company and Executive may 




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agree that
Executive may continue to provide services to the Company as shall be mutually
agreed between the parties, but there will be no automatic successive
employment periods following December 31, 2017. 


For
purposes of this Agreement, the term “Cause” shall be limited to (i) action by
Executive involving willful disloyalty to the Company, such as embezzlement,
fraud, misappropriation of corporate assets or a breach of the covenants set
forth in Section 6 below; or (ii) Executive being convicted of a felony; or
(iii) Executive being convicted of any lesser crime or offense committed in
connection with the performance of her duties hereunder or involving moral
turpitude; or (iv) the intentional and willful failure by Executive to
substantially perform her duties hereunder as directed by the Company (other
than any such failure resulting from Executive’s incapacity due to physical or
mental disability) after a demand for substantial performance is made on the
Executive by the Company’s CEO. 


b.            
Scope
of Services. 
During the Transition Period, Executive shall devote such percentage of her
business time and effort to the performance of her services as President of the
Welltower Foundation as may be mutually agreed upon by the Company and
Executive, not exceeding 20 hours per month.  Except as otherwise provided in
Section 6 of this Agreement, Executive's obligations hereunder will not
preclude Executive from performing services for an unaffiliated third party so
long as the performance of such services does not interfere with Executive’s
performance of services hereunder.  Neither party expects that Executive will
provide services to the Company in the future at a level that exceeds the level
set forth in this Section 4(b) and it is the parties' intent that Executive
will have experienced a "separation from service" as defined in
Section 409A of the Code no later than the Transition Date.  During the Transition
Period, Executive shall be afforded office space and administrative support as
the Company may reasonably determine is necessary or desirable for Executive’s
performance of her services.  The Company shall reasonably accommodate
Executive’s schedule and whenever possible provide at least two (2) weeks
advance notice for any travel required by the Company in connection with the
performance of her services hereunder. 


c.             
Compensation.  Executive shall
receive a base salary during the Transition Period of a rate not less than
$140,000 per annum, payable in substantially equal semi-monthly installments in
accordance with the Company’s standard payroll practices.  Executive will not
be eligible to receive an annual bonus from the Company during the Transition
Period.


d.            
Benefits.  During the
Transition Period, Executive will continue to participate in the group medical,
dental and vision plans (as in effect from time to time) sponsored by the
Company (each, a “Company Plan”) for which she is eligible. Notwithstanding the
foregoing, Executive’s portion of the premiums for participation in the
Company’s group health plans for which Executive is eligible will be on a
post-tax basis and the Company’s portion of any premiums will be treated as
taxable income to Executive if necessary to avoid adverse tax consequences to
Executive resulting from the application of Section 105(h) of the Internal
Revenue Code of 1986, as amended (the “Code”).  Executive shall also be
eligible to continue participation in any other employee benefit plan sponsored
by the Company in which she is eligible to participate by the terms of such
plan. Executive shall not be eligible to accrue PTO during the Transition
Period.  The Company shall also reimburse Executive for the cost of the premium
payment due in early 2017 for renewal of Executive’s supplemental life
insurance policy with North American Company for Life and Health Insurance to
be pro-rated through the end of the Transition Period.  The Company shall also
pay for the cost of the Executive's annual physical exam conducted on or before
January 31, 2017 in accordance with the terms of the Company’s policy on
executive annual physicals.


e.             
  Except
as otherwise expressly provided in this Agreement, all other personal benefits,
fringe benefits and perquisites shall cease as of the Transition Date.  Except
as set forth in Section 5 of this Agreement, Executive shall not be eligible
for severance benefits at such time her employment terminates.


5.       PAYMENTS UPON
TERMINATION OF TRANSITION PERIOD


a.            
The
following payments (to which Executive would not otherwise be entitled) are
being offered in consideration for Executive’s execution and delivery of this
Agreement and for Executive’s (or the Executive’s estate’s) execution and
delivery of a Release of Claims attached hereto as Attachment B (the “Transition
Period Termination Release”), and it becoming effective by the
twenty-eighth (28th) day following the end of the Transition Period
(or such later period as may be required by law in order to make the Transition
Period Termination Release fully effective), and is subject to Executive’s
compliance with the covenants and other obligations set forth in Section 3 and
Section 6 of this Agreement, all of which must be satisfied in full in order
for the payments and other benefits set forth below in this Section 5(a) to be
earned.  The following payments shall not be payable in the event Executive’s
employment is terminated during the Transition Period for “Cause” (as defined
above). 






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i.                    
A
lump sum payment in shares of the Company’s common
stock equal to the difference between (A) the number of shares that the
Executive would have been eligible to receive under the 2015-2017 LTIP based on
actual performance had Executive continued employment with the Company through
December 31, 2017 and (B) the number of shares paid to Executive pursuant to
Section 2(c)(i) of this Agreement.  Executive shall also receive a cash payment
equal to the value of accrued dividend equivalents on such shares for the
performance period.  Such amount shall be payable within 30 days after the date
the Compensation Committee of the Board certifies the performance goals under
the 2015-2017 LTIP, but in all events no later than March 15, 2018.


ii.                   
A
lump sum payment in shares of the Company’s common
stock equal to the difference between (A) the number of shares that the
Executive would have been eligible to receive under the 2016-2018 LTIP based on
actual performance had Executive continued employment with the Company through
December 31, 2018 and (B) the number of shares paid to Executive pursuant to
Section 2(c)(ii) of this Agreement.  Executive shall also receive a cash
payment equal to the value of accrued dividend equivalents on such shares for
the performance period.  Such amount shall be payable within 30 days after the
date the Compensation Committee of the Board certifies the performance goals
under the 2016-2018 LTIP, but in all events no later than March 15, 2019.


iii.                 
In
lieu of outplacement benefits, a lump sum payment in the amount of $15,000, payable
on the next regularly scheduled payroll date following fifteen (15) days after
the Transition Period Termination Release has become effective and irrevocable,
subject to any delay as required by law as outlined in Section 10 of this
Agreement.


iv.                 
If
Executive’s employment is terminated by the Company without Cause during the
Transition Period, then Executive will also be entitled to receive the
following payments and benefits:


(A)    a lump sum
severance payment equal to an amount equal to $11,666.67 for each month
remaining in the Transition Period; and


(B)    continued
coverage at the Company’s expense under any group health plan maintained by the
Company in which Executive participated at the time of her termination for the
remaining term of the Transition Period, or until, if earlier, the date
Executive obtains comparable coverage under benefit plans maintained by a new
employer.  With respect to continued health insurance coverage, the Company
shall pay applicable premiums under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”) for Executive and those of her
dependents covered immediately prior to the date her employment terminates
under the Company’s group healthcare plan, assuming Executive timely elects
COBRA continuation coverage.  Executive agrees that the Company may impute
income to Executive for the cost of Company-paid health coverage premiums if
necessary to avoid adverse income tax consequences to Executive resulting from
the application of Section 105(h) of Code to the Company’s payment of such
premiums.


b.            
If the Transition Period Termination Release is not executed and
effective by the twenty-eighth (28th) day following the end of the
Transition Period (or such later period as may be required by law in order to
make the Transition Period Termination Release fully effective) or if Executive
fails to fulfill Executive’s representations, agreements, and commitments as
set forth or referenced in this Agreement, the Company will have no obligation
to make, and Executive will not be entitled to receive, the additional payments
set forth in this Section 5.


6.       COVENANTS BY
EXECUTIVE.
 


a.            
Non-Competition.  As the Company’s Executive
Vice President, Head of Human Capital and Corporate Secretary, as well as
through other positions Executive may have held  with the
Company and its affiliates, Executive 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). Executive
acknowledges and agrees that it would be impossible for Executive to work as an
employee, consultant or advisor in any business which competes with the Company
in the business of (i) ownership and operation of Health Care Facilities
(defined below); (ii) investment in or lending to health care related
enterprises (including, without limitation, owners or developers of Heath Care
Facilities); (iii) management of Health Care Facilities; or (iv) provision of
any planning or development services for Health Care Facilities (individually,
and in the aggregate, the “Company Business”), without inevitably disclosing
confidential and proprietary information belonging to the Company. Accordingly,
from the Transition Date until the later of (x) one year following the
Transition Date and (y) the expiration or termination of the Transition Period,
Executive will not, directly or indirectly, provide services, whether as an
employee, consultant, independent contractor, agent, sole proprietor, partner,
joint 




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venturer, corporate officer or director, on
behalf of any corporation, limited liability company, partnership, or other
entity or person or successor thereto that is engaged in the Company Business,
anywhere in the world (a "Competitive Business"), provided
that nothing in this provision shall restrict Executive from Executive’s
passive ownership of up to 2% of a publicly traded stock in one or more companies
engaged in a Competitive Business.  For purposes of this
Agreement, “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.  Executive hereby represents and warrants that she has not
breached any of her obligations under Section 10 of her Employment Agreement.  


b.            
Non-Solicitation. From the Transition Date
until the later of (i) one year following the Transition Date and (ii) the
expiration of the Transition Period, Executive will be prohibited, to the
fullest extent allowed by applicable law, from directly or indirectly,
individually or on behalf of persons or entities not now parties to this
Agreement, encouraging, inducing, attempting to induce, recruiting, attempting
to recruit, soliciting or attempting to solicit or participating in any way in
hiring or retaining for employment, contractor or consulting opportunities
anyone who is employed at that time by the Company or any subsidiary or
affiliate.


c.             
Protection
of Confidential Information. Executive hereby agrees that, during her employment
with the Company 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
(as defined below).  Executive further agrees that, upon the Transition Date,
all Confidential Information in her possession that is in written or other
tangible form shall be returned to the Company and shall not be retained by
Executive or furnished to any third party, in any form except as provided
herein.  Notwithstanding the foregoing, this Section 6(c) shall not apply to
Confidential Information that (i) was publicly known at the time of disclosure
to Executive, (ii) becomes publicly known or available thereafter other than by
any means in violation of this Agreement or any other duty owed to the Company
by Executive, (iii) is lawfully disclosed to Executive by a third party, or
(iv) is required to be disclosed by law or by any court, arbitrator or
administrative or legislative body with actual or apparent jurisdiction to
order Executive to disclose or make accessible any information or is voluntarily
disclosed by Executive to law enforcement or other governmental authorities. 
Furthermore, in accordance with the Defend Trade Secrets Act of 2016, Executive
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 Agreement, Confidential Information means, without
limitation, any non-public confidential or proprietary information disclosed to
Executive or known by Executive as a consequence of or through Executive’s
relationship with the Company, in any form, including electronic media. 
Confidential Information also includes, but is not limited to the Company’s
business plans and financial information, marketing plans, and business
opportunities. Nothing herein shall limit in any way any obligation Executive
may have relating to Confidential Information under any other agreement or
promise to the Company.  Executive hereby represents
and warrants that she has not breached any of her obligations under Section 9
of her Employment Agreement.  


d.            
Non-Disparagement.  Executive will not make or
direct anyone else to make on Executive’s behalf any disparaging or untruthful
remarks or statements, whether oral or written, about the Company, its
operations or its products, services, affiliates, officers, directors,
employees, or agents, or issue any communication that reflects adversely on or
encourages any adverse action against the Company.  Executive will not make any
direct or indirect written or oral statements to the press, television, radio
or other media or other external persons or entities concerning any matters
pertaining to the business and affairs of the Company, its affiliates or any of
its officers or directors. The Company agrees not to cause, and shall direct
its officers or senior executives not to make on its behalf any disparaging or
untruthful remarks or statements about Executive’s employment with the Company
following the Transition Date.  The restrictions described in this section
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.             
Return of Company Property.  On or before the Transition
Date, and
as a condition to Executive’s receipt of consideration payable under Section 2
of this Agreement, Executive shall have returned to
the Company all hard and soft copies of records, lists, books, documents,
materials, software, and files in her possession or control, whether recorded,
written or computer readable, which contain or relate to Confidential
Information or sensitive information obtained by Executive in conjunction with
her employment with the Company.  Executive agrees that she will not
keep any copies or excerpts of any of the above items. Notwithstanding
the foregoing, Executive may retain her list of personal contacts and any other
property that the Company determines is necessary in order for her to perform
her duties during the Transition Period, including, but not limited to, keys,
phones, mobile devices, laptops and parking permits.






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f.             
Cooperation.  Executive will fully
cooperate with the Company in all matters relating to her employment, including
the winding up of work performed in Executive’s prior positions and the orderly
transition of such work to other Company employees.  Executive shall assist the Company, in connection with any
litigation, investigation or other matter involving Executive’s tenure as an
employee, officer or director of the Company, including, but not limited to,
attending meetings with Company representatives and counsel and giving truthful
testimony in any legal proceeding involving the Company.  The Company will
reimburse Executive for reasonable out-of-pocket expenses incurred in rendering
such assistance to the Company (including attorney’s fees that may be incurred
in accordance with the applicable provisions of the Company’s Bylaws and
Certificate of Incorporation), and will provide such reimbursement no later
than ninety (90) days following the Company’s receipt of supporting
documentation of incurrence of these expenses.   


g.             
  Restrictions
on Sale of Company Shares.  Executive agrees that from the Transition Date
until the end of the Transition Period, Executive will be subject to the same
provisions of the Company’s Insider Trading Policy as any person who is then a
non-executive employee.  Furthermore, from the Transition Date until the end of
the Transition Period, Executive will not sell any shares of the Company’s
common stock except during “open trading window” periods in compliance with
such policy.


h.            
For
the avoidance of doubt, any breach of Section 6(a) through 6(g) of this
Agreement shall constitute a material breach of this Agreement.  Notwithstanding Section 9 of this Agreement, the parties
agree that damages would be an inadequate remedy for the  Company in the event of a breach or threatened breach by
Executive of Section 6(a), 6(b), 6(c) and 6(e), or for the Company or Executive
in the event of a breach or threatened breach of Section 6(d).  In the event of
any such breach or threatened breach, the non-breaching party 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 the other party from violating this Agreement and
requiring the other party to comply with the terms of this Agreement.  Executive acknowledges that the
Company may present this Agreement to any third party with which the Executive
has accepted employment, or otherwise entered into a business relationship,
that the Company contends violates this Section 6, if the Company has reason to
believe Executive has or may have breached this Agreement.  


7.       RELEASE
OF CLAIMS.    


a.            
In
exchange for the commitments of the Company as set forth in this Agreement,
which Executive acknowledges and agrees provide consideration to which
Executive would not otherwise be entitled, Executive agrees to release and
discharge unconditionally the Company and any of its past or present
subsidiaries, affiliates, related entities, predecessors, merged entities and
parent entities, benefit plans, and all of their
respective past and present officers, directors,
stockholders, employees, benefit plan administrators and trustees, agents,
attorneys, insurers, representatives, affiliates, and all of their respective successors and assigns
(collectively, the “Company Released Parties”), from any and all claims, actions,
causes of action, demands, obligations, grievances, suits, losses, debts and
expenses (including attorney’s fees and costs), damages and claims in law or in
equity of any nature whatsoever, known or unknown, suspected or unsuspected,
Executive ever had, now has, or may ever have against any Company Released
Party  up to and including the day on which Executive signs this Agreement. 
Without limiting the generality of the foregoing, the claims Executive is
waiving include, but are not limited to, (a) any claims, demands, and causes of
action alleging violations of public policy, or of any federal, state, or local
law, statute, regulation, executive order, or ordinance, or of any duties or
other obligations of any kind or description arising in law or equity under
federal, state, or local law, regulation, ordinance, or public policy having
any bearing whatsoever on the terms or conditions of Executive’s employment
with or by the Company or the termination or resignation of Executive’s
employment with the Company or any association or transaction with or by the
Company; (b) all claims of discrimination or harassment on the basis of sex,
race, national origin, religion, sexual orientation, disability, veteran status
or any other legally protected category, and of retaliation; (c) all claims
under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the Fair Labor Standards Act, the Genetic Information
Nondiscrimination Act, 42 U.S.C. § 1981, as amended, and all other federal,
state and local fair employment and anti-discrimination laws, all as amended;
(d) all claims under the Worker Adjustment and Retraining Notification Act and
similar state and local statutes, all as amended; (e) all claims under the
National Labor Relations Act, as amended; (f) all claims under the Family and
Medical Leave Act and other federal, state and local leave laws, all as
amended; (g) all claims under the Employee Retirement Income Security Act
(except with respect to accrued vested benefits under any retirement or 401(k)
plan in accordance with the terms of such plan and applicable law); (h) all
claims under the Sarbanes-Oxley Act of 2002, the False Claims Act, the Dodd-Frank
Wall Street Reform and Consumer Protection Act, the Securities Exchange Act of
1934, the Commodity Exchange Act, the Consumer Financial Protection Act, the
American Recovery and Reinvestment Act, the Foreign Corrupt Practices Act, and
the EU Competition Law; (i) all claims of whistleblowing and retaliation under
federal, state and local laws; (j) all claims under any principle of common law
or sounding in tort or contract; (k) all claims concerning any right to
reinstatement; and (l) all claims for attorneys’ fees, costs, damages or other
relief (monetary, equitable or otherwise), whether under 




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federal,
state or local law, whether statutory, regulatory or common law, to the fullest
extent permitted by law.  Further, each of the persons and entities released
herein is intended to and shall be a third-party beneficiary of this
Agreement.  This release of claims does not affect or waive any claim for
workers’ compensation benefits, unemployment benefits or other legally
non-waivable rights or claims; claims that arise after Executive signs this
Agreement; Executive’s rights to indemnification or advancement of expenses
under the bylaws of the Company or under any applicable directors and officers
liability insurance policy with respect to Executive’s liability as an
employee, director or officer of the Company; Executive’s right to exercise any
and all Company stock options held by Executive that are exercisable as of the
Transition Date during the applicable period of exercise and in accordance with
all other terms of those options and the stock options plans, agreements, and
notices under which such options were granted; or Executive’s right to enforce
the terms of this Agreement.  Additionally, nothing in this Agreement waives or
limits Executive’s right to file a charge with, provide information to or
cooperate in any investigation of or proceeding brought by a government agency
(though Executive acknowledges Executive is not entitled to recover money or
other relief with respect to the claims waived in this Agreement).  


b.            
Executive
represents and warrants that she has not filed any claim, charge or complaint
against the Company or any of the released parties based upon any of the
matters released in (a) above. 


c.             
Executive
acknowledges that:  (i) the commitments of the Company under this Agreement,
including the benefits provided in Sections 2 and 5 of this Agreement,
constitute adequate consideration for the release of claims set forth in this
Section 7(a), and (ii) the commitments of the Company under this Agreement,
including the payments provided in Section 5 of this Agreement constitute
adequate consideration for the release of claims set forth in the Transition
Period Termination Release.


d.            
Executive
intends that this release of claims cover all claims described in Section 7(a)
above whether or not known to Executive.  Executive further recognizes the risk
that, subsequent to the execution of this Agreement, Executive may incur loss,
damage or injury which Executive attributes to the claims encompassed by this
release.  Executive also expressly waives and relinquishes, to the fullest
extent permitted by law, any and all rights she may have under California Civil
Code Section 1542, or the comparable provisions of the laws of any other
jurisdiction, which provides as follows:


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


e.             
Executive
represents and warrants that there has been no assignment or other transfer of
any interest in any claim by Executive that is covered by the release set forth
in Section 7(a).


f.             
  The Company, with the intention of
binding itself and its predecessors and successors, does hereby waive and
release Executive from any and all claims, causes of action, demands,
obligations, grievances, suits, losses, debts and expenses (including attorney’s
fees and costs), damages and claims in law or in equity related to or arising
out of Executive’s employment and Employment Agreement with the Company and the
end of that employment, whether known and unknown, asserted or unasserted,
which the Company has or may have against Executive as of the date of execution
of this Agreement. This release shall not include the following: (1) any act or
omission by Executive that is a material violation of any statute, regulation,
ordinance or other law, (2) any willful or deliberate misconduct by Executive,
and (3) any proceeding as to which a release of claims is not permitted under
applicable law.


8.       REVIEW AND
REVOCATION OF AGREEMENT.  Executive acknowledges and agrees:  (i) that she has
been advised to consult an attorney regarding this Agreement and the releases
set forth herein or attached hereto as Attachment B before executing this
Agreement or the Transition Period Termination Release; (ii) that she was given
21 days to review and consider signing this Agreement, although she may, at her
discretion, knowingly and voluntarily, sign and return the Agreement at any
earlier time, but Executive may not sign and return the Agreement until on or
after the Transition Date; (iii) that modification of this Agreement does not
restart this 21 day consideration period; (iv) that she is waiving rights or
claims which may be waived by law in exchange for consideration which is not
otherwise due to Executive, including claims and rights under the Age
Discrimination in Employment Act of 1967, as amended (the “ADEA”), and as
otherwise described in this Agreement; (v) that rights or claims that may arise
after the date this Agreement is executed, including those arising under the
ADEA, are not waived by this Agreement; (vi) that at any time within 7 days
after signing this Agreement, she may revoke the Agreement; and (vii) that this
Agreement is not enforceable until the revocation period has passed without a
revocation.  






7












  


 





To revoke this Agreement, Executive must
send a written statement of revocation delivered by certified mail to Welltower
Inc., Attn:  Chief Executive Officer, 5400 Dorr Street, Toledo, OH  43615. 
This revocation must be received no later than the seventh (7th) day
following Executive’s execution of this Agreement.      


9.      
ARBITRATION.  Subject to Section 6(h) hereof, all
claims, disputes, questions, or controversies arising out of or relating to
this Agreement and Executive’s employment hereunder, including without
limitation the construction or application of any of the terms, provisions, or
conditions of this Agreement and any claims for any alleged discrimination,
harassment, or retaliation in violation of any federal, state or local law,
will be resolved exclusively in final and binding arbitration held under the
auspices of the American Arbitration Association (“AAA”)  in accordance with
AAA’s then current Employment Arbitration Rules, or successor rules then in
effect.  The arbitration will be held in Toledo, Ohio and will be conducted and
administered by AAA or, in the event AAA does not then conduct arbitration
proceedings, a similarly reputable arbitration administrator. Executive and the
Company will select a mutually acceptable, neutral arbitrator from among the
AAA panel of arbitrators. Except as provided by this Agreement, the Federal
Arbitration Act will govern the administration of the arbitration proceedings.
The arbitrator will apply the substantive law (and the law of remedies, if
applicable) of the State of Ohio, or federal law, if Ohio law is preempted, and
the arbitrator is without jurisdiction to apply any different substantive law.
Executive and the Company will each be allowed to engage in adequate discovery,
the scope of which will be determined by the arbitrator consistent with the
nature of the claim[s] in dispute. The arbitrator will have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and will apply the standards governing such motions under the Federal Rules of
Civil Procedure. The arbitrator will render a written award and supporting
opinion that will set forth the arbitrator’s findings of fact and conclusions
of law. Judgment upon the award may be entered in any court of competent jurisdiction.
The Company will pay the arbitrator’s fees, as well as all administrative fees,
associated with the arbitration. Each party will be responsible for paying its
own attorneys’ fees and costs (including expert witness fees and costs, if
any), provided, however, that the arbitrator may award attorney’s fees and
costs to the prevailing party, except as prohibited by law.  The existence and
subject matter of all arbitration proceedings, including, any settlements or
awards there under, shall remain confidential.  In entering into this
Agreement, both parties are waiving the right to a trial by judge or jury.


10.    SECTION 409A.


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


b.            
Any
payment scheduled to be made under this Agreement that may be considered
“deferred compensation” under Code Section 409A (after taking into account all
exclusions applicable to such payments or benefits under Code Section 409A),
that are otherwise due on or within the six-month period following the
Transition Date will accrue during such six-month period and will instead
become payable in a lump sum payment on the first business day period following
such six month period.  Furthermore, if any other payments of money or other
benefits due to Executive under this Agreement could cause the application of
an accelerated or additional tax under Code Section 409A, such payments or
other benefits shall be deferred if deferral will make such payment or other
benefits compliant under Code Section 409A, or otherwise such payment or other
benefits shall be restructured, to the extent possible, in a manner, determined
by the Company, that does not cause such an accelerated or additional tax.  To
the extent any reimbursements or in-kind benefits due to Executive under this
Agreement constitute “deferred compensation” under Code Section 409A (after
taking into account all exclusions applicable to such payments or benefits
under Section 409A), any such reimbursements or in-kind benefits shall be paid
to Executive in a manner consistent with Treas. Reg. Section
1.409A-3(i)(1)(iv).   


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


d.            
The
Company shall consult with Executive in good faith regarding the implementation
of the provisions of this section; provided that neither the Company nor any of
its employees or representatives shall have any liability to Executive with
respect thereto.






8












  


 





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


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


13.    LEGAL FEES.  The Company
shall reimburse Executive up to $5,000, in the aggregate, for Executive’s
reasonable attorney’s fees and expenses incurred in connection with negotiating
and documenting this Agreement.  The Company will provide such reimbursements
no later than ninety (90) days following the Company’s receipt of supporting
documentation of incurrence of these expenses, but in any event no later than
the end of the calendar year following the calendar year in which those
expenses were incurred and otherwise in compliance with Section 409A of the
Code.    


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


15.    SURVIVAL.  The covenants,
agreements, representations and warranties contained in or made in Section 3,
6, 7, 8, 9 or 12 of this Agreement shall survive any termination of Executive’s
services hereunder or any termination of this Agreement.  


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


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


18.    NOTICE.  Except as
otherwise expressly provided in this Agreement, any notice to either party
hereunder shall be in writing  and sent by overnight courier, certified mail,
or registered mail (return receipt requested), postage prepaid, addressed as
follows (or to such other address as such party may designate in writing from
time to time): 


If to the Company:


Welltower Inc. 


5400 Dorr Street


Toledo, OH  43615


Attention:  Legal
Department


 


                If
to the Executive, at the address on file with the Company’s Human Resources               


                Department.



 


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


 






9












  


 





19.    ASSIGNMENT AND
SUCCESSORS.   The
Company shall
have the right to assign its rights and obligations under this Agreement to an
entity that, directly or indirectly, acquires all or substantially all of the
assets or the business of the Company.  The rights and obligations of the
Company under this Agreement shall inure to the benefit and shall be binding
upon the successors and assigns of the Company. Executive shall not have any
right to assign her obligations under this Agreement and shall only be entitled
to assign her rights under this Agreement upon her death, solely to the extent
permitted by this Agreement, or as otherwise agreed to by the Company.


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





 







10












  


 





21.   
GOVERNING
LAW.  This
Agreement will be construed, interpreted, governed and enforced in accordance
with the laws of the State of Ohio, without regard to its conflict of laws
principles. 


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


 


WELLTOWER INC.                                                        EXECUTIVE


                                  


                                                        


By: /s/ JEFFREY H. MILLER                                      /s/
ERIN C. IBELE                                                          


Name:    Jeffrey H. Miller                                                   Erin
C. Ibele


Title: Executive Vice President and


                Chief Operating Officer


 


Date: June 30, 2016                                                            Date:
June 30, 2016                                             


	
    

  	
   

   

  
	
  

    

  	
  

  

   

    

  






 














11












  


 





ATTACHMENT
A


EXISTING
EQUITYAWARDS


 


EXISTING EQUITY
AWARDS WITH TIME-BASED VESTING


1)  Restricted
Stock


	
  Date of Agreement

  	
  Initial Award

  	
  Unvested Shares
  as of Date of Agreement to be fully vested

  
	
  2/26/16

  	
  14,073

  	
  9,382

  
	
  2/12/16

  	
  4,830

  	
  3,622

  
	
  2/5/15

  	
  3,774

  	
  1,886

  
	
  2/6/14

  	
  2,949

  	
  737

  
	
  2/7/13

  	
  7,298

  	
  2,918

  
	
  1/26/12

  	
  4,449

  	
  889

  
	
  TOTAL

  	
  19,434

  






2)  Deferred Stock Units


	
  Date of Agreement

  	
  Initial Award

  	
  Unvested Shares
  as of Date of Agreement to be fully vested

  
	
  1/26/12

  	
  4,361

  	
  1,090

  






 3)  Stock Options


	
  Date of Agreement

  	
  Initial Grant

  	
  Exercise Price

  	
  Maximum Expiration Date

  	
  Options Outstanding as of June 10, 2016

  	
  Unvested Options as of Date of Agreement to be fully
  vested

  
	
  1/27/11

  	
  6,575

  	
  $49.17

  	
  1/27/21

  	
  1,315

  	
  Fully vested

  
	
  1/26/12

  	
  7,652

  	
  $57.33

  	
  1/26/22

  	
  7,652

  	
  1,530

  
	
  TOTAL

  	
  8,967

  	
  1,530

  






 


EXISTING EQUITY
AWARDS WITH PERFORMANCE-BASED VESTING


Performance
Restricted Stock Unit Award granted under the Health Care REIT, Inc. 2015-2017
Long-Term Incentive Program, granted August 6, 2015.


Performance
Restricted Stock Unit Award granted under the Welltower Inc. 2016-2018
Long-Term Incentive Program, granted May 6, 2016.





12












  


 





ATTACHMENT B


RELEASE
OF CLAIMS AGREEMENT 


UPON
TERMINATION OF TRANSITION PERIOD


 


I
entered into a Transition Agreement with Welltower Inc. (together with its
subsidiaries, merged entities and affiliates, and its and their respective
predecessor and successor entities, “the Company”) dated June 30, 2016 (the
“Transition Agreement”).  


 


I
hereby acknowledge that:


 


1.             A
blank copy of this Release of Claims Agreement (“Release Agreement”) was 


attached
as Attachment B to the Transition Agreement when it was given to me for
review.  I have had more time to consider signing this Release Agreement than
the ample time I was given to consider signing the Transition Agreement, and in
any event more than 21 days have elapsed from the date that I received this
Release Agreement.  I may revoke this Release Agreement within seven (7) days
after I sign it in the manner set forth in paragraph 9 below.  I understand
that I am giving up claims and rights under the Age Discrimination in
Employment Act of 1967 as amended, and as described in the Transition
Agreement.  Additionally, I understand that this Release Agreement is not
enforceable until the revocation period has passed without revocation.  If this
7-day period expires without revocation, I understand that this Release
Agreement will become final and effective on the eighth day following the date
I sign this Release Agreement, which day will be the “Effective Date” of this
Release Agreement.  I was advised to discuss the Transition Agreement and this
Release Agreement with an attorney before executing any of those documents. 


 


2.             I
am not permitted to sign this Release Agreement until after my last day of
employment with the Company.


 


                3.
            The benefits payable under Section 5 of the Transition Agreement
are only payable to me if I sign this Release Agreement and it becomes
effective and irrevocable prior to the twenty-eighth (28th) day
following the end of my employment or such later period as may be required by
law in order to make this Release Agreement fully effective.


 


                4.             My
employment actually terminated before I signed this Release Agreement and, in
exchange for receiving benefits payable under Section 5 of the Transition
Agreement, I hereby agree that this Release Agreement will be a part of my
Transition Agreement and that my Transition Agreement, including without
limitation, the release of claims set forth in Section 7 of the Transition
Agreement, will be construed and applied as if I signed it on the day I signed
this Release Agreement.  This extends my commitments, covenants and other
obligations under the Transition Agreement, and the release of claims in the
Transition Agreement that arose following my Transition Date (as defined in the
Transition Agreement) through the end of my employment. 


 


                5.             I
agree to release and discharge unconditionally the Company and any of its past
or present subsidiaries, affiliates, related entities, predecessors, merged
entities and parent entities, benefit plans, and all of their respective past
and present officers, directors, stockholders, employees, benefit plan
administrators and trustees, agents, attorneys, insurers, representatives,
affiliates, and all of their respective successors and assigns (collectively,
the “Company Released Parties”), from any and all claims, actions, causes of
action, demands, obligations, grievances, suits, losses, debts and expenses
(including attorney’s fees and costs), damages and claims in law or in equity
of any nature whatsoever, known or unknown, suspected or unsuspected, I ever
had, now have, or may ever have against any Company Released Party up to and
including the day on which I sign this Release Agreement.  Without limiting the
generality of the foregoing, the claims I am waiving include, but are not
limited to, (a) any claims, demands, and causes of action alleging violations
of public policy, or of any federal, state, or local law, statute, regulation,
executive order, or ordinance, or of any duties or other obligations of any kind
or description arising in law or equity under federal, state, or local law,
regulation, ordinance, or public policy having any bearing whatsoever on the
terms or conditions of my employment with or by the Company or the termination
or resignation of my employment with the Company or any association or
transaction with or by the Company; (b) all claims of discrimination or
harassment on the basis of sex, race, age, national origin, religion, sexual
orientation, disability, veteran status or any other legally protected
category, and of retaliation; (c) all claims under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, the Genetic Information Nondiscrimination Act, 42 U.S.C. § 1981,
as amended, and all other federal, state and local fair employment and
anti-discrimination laws, all as amended; (d) all claims under the Worker
Adjustment and Retraining Notification Act and similar state and local
statutes, all as amended; (e) all claims under the National Labor Relations
Act, as amended; (f) all claims under the Family and Medical Leave Act and
other federal, state and local leave laws, all as amended; (g) all claims under
the Employee Retirement Income Security Act (except with respect to accrued
vested benefits under any retirement or 401(k) plan in accordance with the
terms of such plan and applicable law); (h) all claims under the Sarbanes-Oxley
Act of 2002, the False Claims Act, the Dodd-Frank Wall Street Reform and
Consumer Protection Act, the Securities Exchange Act of 1934, the 




13












  


 





Commodity Exchange Act, the Consumer Financial Protection
Act, the American Recovery and Reinvestment Act, the Foreign Corrupt Practices
Act, and the EU Competition Law; (i) all claims of whistleblowing and
retaliation under federal, state and local laws; (j) all claims under any
principle of common law or sounding in tort or contract; (k) all claims
concerning any right to reinstatement; and (l) all claims for attorneys’ fees,
costs, damages or other relief (monetary, equitable or otherwise), whether
under federal, state or local law, whether statutory, regulatory or common law,
to the fullest extent permitted by law.  Further, each of the persons and
entities released herein is intended to and shall be a third-party beneficiary
of this Agreement.  This release of claims does not affect or waive any claim
for workers’ compensation benefits, unemployment benefits or other legally
non-waivable rights or claims; claims that arise after I sign this Release
Agreement; claims for indemnification or advancement of expenses under the
bylaws of the Company or under any applicable directors and officers liability
insurance policy with respect to my liability as an employee, director or
officer of the Company; my right to exercise any and all Company stock options
held by me that are exercisable as of the end of the Transition Period during
the applicable period of exercise and in accordance with all other terms of
those options and the stock options plans, agreements, and notices under which
such options were granted; or my right to enforce the terms of the Transition
Agreement.  Additionally, nothing in this Release Agreement waives or limits my
right to file a charge with, provide information to or cooperate in any
investigation of or proceeding brought by a government agency (though I
acknowledge I am not entitled to recover money or other relief with respect to
the claims waived in this Release Agreement). 


 


6.             I
have returned to the Company all hard and soft copies of records, lists, books,
documents, materials, software, and files in my possession or control, whether
recorded, written or computer readable, which contain or relate to Confidential
Information or sensitive information that I  obtained in conjunction with my
employment with the Company, as well as all other Company-owned property.  I
took all reasonable steps to protect the confidentiality of such Company
information during my employment and have not kept any copies or excerpts of
any of the above items.   


 


7.             I
represent and warrant that there has been no assignment or other transfer of
any interest in any claim by me that is covered by this Release Agreement. 


 


8.             I
agree that except with respect to any payments and benefits that I remain
entitled to receive under Section 5 of my Transition Agreement with the
Company, I have received all other compensation, benefits, bonuses, severance,
leave and notice that I am otherwise entitled to receive from the Company.


 


9.             I
understand that I may revoke this Release Agreement by sending a written
statement of revocation delivered by certified mail to Welltower Inc., Attn: 
Chief Executive Officer, 5400 Dorr Street, Toledo, OH  43615.  I understand that
the revocation must be received no later than the seventh (7th) day
following my execution of this Release Agreement.      


 


By
signing this Release Agreement, I acknowledge that:  I have had the opportunity
to review the Transition Agreement, including the release set forth in Section
7 therein, and this Release Agreement carefully with legal or other personal
advisors of my own choice; I understand that by signing this Release Agreement
I am releasing the Company of all claims against it; I have read the Transition
Agreement and this Release Agreement and understand their terms; I have been
given a reasonable period of time to consider the terms and effect and to ask
any questions I may have; I voluntarily agree to the terms of this Release
Agreement.


 


AGREED
AND ACCEPTED:


 


Dated: 
                                                                    


 


 


ERIN
C. IBELE


 


 


 


___________________________________


Sign
Name


 


 








14