EXHIBIT
10.1


 


RETIREMENT
AND CONSULTING AGREEMENT 






This
Retirement and Consulting Agreement (this “Agreement”) is made as of April 13,
2014 by and between George L. Chapman (“Executive”) and Health Care REIT, Inc.,
a Delaware corporation (the “Company”). 


 


                WHEREAS, Executive and the Company entered into
the Sixth Amended and Restated Employment Agreement, dated as of July 16, 2013
(the “Employment Agreement”) and Executive currently serves as the Company’s
Chairman, Chief Executive Officer and President;


 


                WHEREAS, Executive and the Company have agreed
that the Executive will retire from employment with the Company on June 30,
2014 (the “Retirement Date”);


 


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


 


WHEREAS, the Company has
determined that it is in its best interests for the Executive to provide his
continued services and expertise to the Company in a consulting capacity
following his retirement.


 


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 April 13, 2014 (the “Transition Date”), Executive hereby resigns his
positions as Chief Executive Officer and President and relinquishes all of
Executive’s authority and responsibilities with respect to those positions. 
Effective as of the Transition Date, Executive also hereby resigns his
positions on the Company’s Board of Directors (the “Board”), including his role
as Chairman of the Board, and from 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, 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.            
To
the extent expressly provided herein, the terms of the Employment Agreement
will remain in effect, but shall be interpreted in order not to conflict with
any provision of this Agreement.  For avoidance of doubt, for the period
between the Transition Date and the Retirement Date, Executive shall continue
to receive his current base salary and shall continue to participate in the
various compensation, incentive and benefits plans sponsored by the Company
(“Company Plan”) in which he is participating on 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 in 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.  


2.       COMPLETION OF
EXECUTIVE’S EMPLOYMENT.   


a.            
Executive
will remain employed through the earlier of (i) the Retirement Date and (ii)
such earlier date if and when Executive voluntarily resigns employment or is
terminated for “Cause” as defined in the Employment Agreement.  Effective as of
the Retirement Date, Executive’s employment with the Company shall end.  If
Executive’s employment is terminated for “Cause” or if Executive voluntarily
resigns employment prior to the Retirement Date, Executive will become
ineligible to receive any future payments and benefits set forth herein, other
than those set forth in this Section 2, and his obligations will be established
by this Agreement, his Employment Agreement and the Company’s policies,
procedures and codes of conduct applicable to Executive.









 










 








  




 








b.            
As
of Executive’s last day of employment, Executive will be paid (i) any earned
but unpaid base salary and any accrued, unused vacation through his last day of
employment, less applicable deductions and withholdings, and (ii) other unpaid
vested amounts or accrued benefits under the Company Plans in which Executive
participates in accordance with their terms.  The Company shall also reimburse
Executive for any unpaid business expenses incurred prior to his last day of
employment in accordance with Company policies. 


c.             
On
Executive’s last day of employment, Executive’s participation in any Company
Plan (including without limitation any matching contributions under the
Company’s 401(k) plan, life insurance and disability programs and other medical
programs or other personal benefits and perquisites) shall cease, except as
otherwise expressly provided in this Agreement or the applicable Company Plan. 
Executive shall not be eligible for severance benefits under any Company Plan. 


d.            
Nothing
herein shall amend the Health Care REIT, Inc. Supplemental Executive Retirement
Plan, and any amounts thereunder shall be paid to Executive at the time and on
the terms set forth in such plan. 


e.             
As
consideration for execution of this Agreement, Executive will receive the
following: 


i.                    
Company
will provide the Executive with suitable furnished office space in Toledo, Ohio
and secretarial support following the Transition Date and until the later of
the end of Executive’s employment or the expiration of the Consulting Period. 
The location of the office space will be determined by the Company and will not
be located on the Company’s campus or in any of the Company’s facilities or
properties.


ii.                   
Charitable
Giving. 


(A)    From the
Transition Date and until the later of the end of Executive’s employment or the
expiration of the Consulting Period, Executive will have the authority to
direct up to $150,000 of the Company’s annual charitable gifts to qualified
charities in the greater Toledo area on behalf of the Chapman Fund, in
accordance with the policies established thereunder.  


(B)    The Company also
agrees to consider making a charitable contribution to TOMA in 2014 of $25,000
and to become a major contributor to the Toledo Museum of Art’s Capital
Campaign.  Executive may also submit a written memo semi-annually during the
Consulting Period to the Company’s Senior Vice President – Administration and
Corporate Secretary outlining Executive’s suggestions for the Company to
consider for future charitable gifts.  The Company agrees to consider
reasonable requests from tax-exempt  public charities to utilize the Company’s
Toledo campus for charitable events in accordance with the Company’s policies
established from time to time.  In the event that Executive breaches any of his
obligations under Section 8 of this Agreement or Sections 9 or 10 of the
Employment Agreement, any amounts contributed under this paragraph (B) shall be
counted towards the amount that Executive may direct under paragraph (A) above.



3.       PAYMENTS UPON
RETIREMENT.
   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 the Release of Claims Agreement attached hereto as
Attachment A (the “Separation Release”), and it becoming effective and
irrevocable in accordance with its terms and Section 4 of this Agreement, and
are subject to Executive’s compliance with the covenants and other obligations
set forth in Section 8 of this Agreement and Sections 9 and 10 of the
Employment Agreement, all of which must be satisfied in full in order for the
payments and other benefits set forth below in this Section 3 to be earned. 


a.            
A
lump-sum retirement payment equal to the present value of a series of monthly
payments for twenty-four (24) months following the Retirement Date, each in an
amount equal to one-twelfth (1/12th) of the sum of (A) Executive’s
base salary as in effect on the Retirement Date, and (B) the average of annual
bonuses paid to the Executive for the last three (3) fiscal years of the Company
preceding the Retirement Date.  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 Retirement
Date.  Such amount will be paid in a lump sum on the sixtieth (60th) day
following the Retirement Date, subject to any delay as required by Section 12
of this Agreement.  If Executive obtains a replacement position with any new
employer (including a position as an officer, employee, consultant, or agent,
or self-employment as a partner or sole proprietor) prior to June 30, 2015,
Executive shall be obligated to repay to the Company an amount equal to all
amounts the Executive receives as compensation for services performed prior to
June 30, 2015, excluding any amounts Executive receives pursuant to this
Agreement or as a non-employee director or member of one or more companies’
governing board that is not a Competitive Business (with such director income
not to exceed $500,000); provided however, that the aggregate repayment
obligation shall not exceed the amount of the lump sum payment under this
Section 3(a).  Executive shall be under no duty to mitigate the amounts owed to
Executive under this section by seeking such a replacement position.









 










 








  




 








b.            
Any
pro-rated portion of the annual cash bonus that Executive would have earned for
the year 2014 (if Executive had remained employed for the entire year), based
on the number of days in the year that have elapsed as of the Retirement Date. 
Such amount, if payable, shall be paid after the Compensation Committee has
approved bonuses payable for 2014.


c.             
Continued
coverage at the Company’s expense under any life, health and disability
programs maintained by the Company in which Executive participated on the
Retirement Date as identified on Attachment B for the period during which
Executive would be entitled to continuation coverage under Section 4980B of the
Internal Revenue Code of 1986, as amended (the “Code”), if Executive had
elected such coverage and paid the applicable premiums, or until, if earlier,
the date Executive obtains comparable coverage under benefit plans maintained
by a new employer. 


d.            
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, and
in the case of stock options, exercisable in full and all stock options,
restricted stock or other awards with performance-based vesting granted to the
Executive under any deferred compensation, incentive or other benefit plan
maintained by the Company shall become vested to the extent provided in the
applicable award agreement or as otherwise provided in this Section 3(d). 
Attached hereto as Attachment C is a list of all of Executive’s outstanding
stock options, restricted stock or other award 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 C is a correct and complete list of his Existing Equity Awards
on the date of this Agreement.  The following changes shall be made to the
terms of the Existing  Equity Awards: 


i.                    
The
exercise period of each stock option shall be extended to the earlier of (i)
five years from the Retirement Date or (ii) the expiration date of each such
stock option as specified on Attachment C, subject to compliance with the
obligations and covenants set forth in Section 8 of this Agreement or Section 9
and 10 of the Employment Agreement.


ii.                  
Executive’s
retirement from the Company on the Retirement Date shall be deemed a
“Retirement” for purposes of Executive’s award under the Company’s 2013-2015
Long-Term Incentive Program (the “LTI Program”).  As partial consideration for
the Executive’s obligations hereunder, the Company waives the 90-day advance
notice requirement under the LTI Program and permits Executive to elect 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.  


4.       CONDITIONS OF
PAYMENTS.


a.            
If
Executive fails to sign the Separation Release attached hereto as Attachment A
or it does not become effective and irrevocable by its terms no later than July
28, 2014, the Company will have no obligation to make the payments or provide
the benefits set forth in Section 3, Section 5 or Section 7 of this Agreement
and Executive will not be entitled to receive any payments or benefits under
this Agreement other than the benefits set forth in Section 2(e) of this
Agreement. 


b.            
Clawback.  In the event
Executive breaches any of his obligations or covenants under Section 8 of this
Agreement or Section 9 and 10 of the Employment Agreement, (i) the Company’s
obligations to provide the payments and benefits under Section 5 and Section 7
of this Agreement will immediately cease, (ii) the Company will be entitled to
recover the full amount paid under Section 5 and Section 7 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 5 or Section 7 of this Agreement.


5.       CONSULTING
PERIOD AND COMPENSATION.    


a.            
Subject
to Section 4 of this Agreement, from the Retirement Date through the earliest
of (i) June 30, 2017, (ii) the Company’s termination of the Consulting Period
as provided in Section 5(c), (iii) the Executive’s termination of the
Consulting Period as provided in Section 5(d), or (iv) Executive’s death (the
“Consulting Period”), Executive shall provide consulting and advisory services
to the Company described in Section 6.    


b.            
The
following payments (to which Executive would not otherwise be entitled) to be
paid during and after the Consulting Period are being offered as additional
consideration for Executive’s execution and delivery of the Separation Release,
and it becoming effective and irrevocable in accordance with its terms and
Section 4 of this Agreement, and are subject to Executive’s compliance with the
covenants and other obligations set forth in Section 8 of this Agreement and
Sections 9 and 10 of the Employment Agreement, all of which must be satisfied
in full in order for the payments set forth below in this Section 5 to be
earned. 


i.                    
For
the period commencing July 1, 2014 and ending June 30, 2015, the Company shall
pay Executive an amount of $1,250,000, payable in equal monthly installments in
accordance with the Company’s normal payroll 







 










 








  




 








practices
commencing on the first payment date that is six months after the Retirement
Date.  Notwithstanding the foregoing, for the first
payment that is made under this Section 5(b)(i), the Company shall pay
Executive for all installments that were accrued but not paid during the first
six months of the Consulting Period.


ii.                  
  During the period commencing July 1, 2015 and ending June
30, 2016, Company shall pay Executive an amount of $750,000, payable in
equal monthly installments in accordance with the Company’s normal payroll
practices. 


iii.                
  During the period commencing July 1, 2016 and ending June
30, 2017, Company shall pay Executive an amount of $500,000, payable in
equal monthly installments in accordance with the Company’s normal payroll
practices. 


iv.                
Following
the period during which Executive would be entitled to continuation coverage
under Section 4980B of the Code, Executive will be solely responsible for
obtaining medical and prescription coverage for Executive and Executive’s
qualified beneficiaries.  The Company will reimburse Executive for the amount
of premiums Executive pays to obtain coverage under one or more group health
plans for Executive for the remainder of Executive’s life.  The Company will
reimburse Executive, Executive’s spouse or Executive’s estate for the amount of
premiums Executive, Executive’s spouse or Executive’s estate pays to obtain
coverage under one or more group health plans for Executive’s spouse until the
date any of the following occur: (1) death of Executive’s spouse or (2) the
date the Executive’s spouse becomes eligible for Medicare.  The Company will
reimburse Executive, Executive’s spouse or Executive’s estate for the amount of
premiums Executive, Executive’s spouse or the Executive’s estate pays to obtain
coverage under one or more group health plans for Executive’s child until the
date any of the following occur: (1) death of Executive’s child or (2) the date
the Executive’s child reaches age 26.  Reimbursements shall be made no later
than 30 days following the date on which submission of proof of payment is
received by the Company, but in no event later than the last day of the
calendar year following the year in which the expense was incurred.  Such
reimbursements shall also comply with Section 409A of the Code as required in
order to allow Executive to avoid the imposition of additional income taxes
under Section 409A to be imposed on any such reimbursements.  Notwithstanding
the foregoing, the maximum amount of all premium reimbursements that the
Company will provide under this Section 5(b)(iv) is $400,000.   


c.             
In
the event of Executive’s material breach of this Agreement, the Company may
terminate the Consulting Period, and upon termination, the Company shall have
no further obligations hereunder.  In the event Executive dies during the
Consulting Period, the Company shall continue to pay any amounts due under
Section 5(b) to Executive’s estate. 


d.            
The
Executive may terminate the Consulting Period on or after June 30, 2015.  Upon
such termination, the Company’s obligations under Section 5(b)(ii) and
5(b)(iii) of the Agreement shall immediately cease.


6.      
CONSULTING SERVICES. 


a.            
During
the Consulting Period, Executive shall render consulting and advisory services
as requested by the Company’s Board of Directors or the Chief Executive Officer
on an as-needed basis at mutually convenient times.  Executive’s time rendering
those services shall not exceed twenty (20) hours per month.  Except as
otherwise provided in Section 8 of this Agreement, Executive's obligations
hereunder will not preclude Executive from performing services for an
unaffiliated third party as described in Section 3(a), above, 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 6 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 Retirement Date.  


b.            
During
the Consulting Period, it is understood and agreed that that the Company has no
right to direct or control the manner in which Executive performs Executive’s
consulting services hereunder and that Executive shall be serving as an
independent contractor for all purposes.  It is further understood and agreed
that nothing herein shall be deemed to create a partnership, joint venture,
employment or agency relationship between Executive and the Company or any of
its subsidiaries or affiliates at any time following the Retirement Date.


c.             
During
the Consulting Period, Executive shall not be an employee of the Company and
shall not be entitled to receive any fringes, perquisites or retirement or
welfare benefits from the Company except as expressly provided otherwise in
this Agreement. 


d.            
During
the Consulting Period, the Company will provide Executive with access to any
market reports on the Company to the extent the Company is not restricted from
providing any such report to Executive.  









 










 








  




 








e.             
Executive
acknowledges that no income or other taxes shall be withheld from the payments
set forth in Section 5(b) except to the extent required by applicable law.


f.             
While
performing consulting services under this Agreement, 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 to represent the Company. 


7.       PAYMENTS UPON
TERMINATION OF CONSULTING PERIOD


a.            
Provided
Executive does not terminate the Consulting Period prior to the date that the
Compensation Committee of the Board certifies the performance goals under the
Company’s 2013-2015 Long-Term Incentive Program, the following payment (to
which Executive would not otherwise be entitled) is being offered in
consideration for Executive’s execution and delivery of a Release of Claims
attached hereto as Attachment D (the “Consulting Termination Release”), and it
becoming effective by the twenty-eighth (28th) day following the end
of the Consulting Period (or such later period as may be required by law in
order to make the Consulting Termination Release fully effective), and is
subject to Executive’s compliance with the covenants and other obligations set
forth in Section 4 and Section 8 of this Agreement and Sections 9 and 10 of the
Employment Agreement, all of which must be satisfied in full in order for the
payments and other benefits set forth below in this Section 7(a) to be earned. 


i.                    
A
lump sum payment in shares of the Company’s common
stock equal to the difference between (A) the amount that the Executive
would have been eligible to receive under the LTI Program based on actual
performance had Executive continued employment with the Company through
December 31, 2017 and (B) the amount paid to Executive pursuant to Section
3(d)(ii) of this Agreement.  Such amount shall be payable on the thirtieth (30th)
day following the end of the Consulting Period, but in all events no later than
March 15, 2017.


b.            
If the Consulting Termination Release is not executed and
effective by the twenty-eighth (28th) day following the end of the
Consulting Period (or such later period as may be required by law in order to
make the Consulting 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 payment set forth
in this Section 7.


8.       COVENANTS BY
EXECUTIVE.
 


a.            
Non-Competition.  As Chairman, Chief
Executive Officer and President, 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 Retirement Date until the later of (x) one year
following the Retirement Date and (y) the expiration or termination of the
Consulting Period, Executive will not, directly or indirectly, provide
services, whether as an employee, consultant, independent contractor, agent,
sole proprietor, partner, joint 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. 



b.            
Non-Solicitation. From the Retirement Date
until the later of (i) one year following the Retirement Date and (ii) the
expiration of the Consulting 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 his
employment with the Company and thereafter, he shall not, directly or
indirectly, disclose or make available to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever, any
Confidential Information (as defined below).  Executive further agrees that,
upon the Retirement Date, all Confidential Information in his possession that
is in written or other tangible form shall be returned to the Company and shall
not be retained by Executive or furnished to any third party, in any form
except as provided herein.  Notwithstanding the foregoing, this Section 8(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.  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. 


d.            
Non-Disparagement. From the date of this
Agreement until five years following the Retirement Date (“Non-Disparagement
Period”), 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 to make on its behalf any disparaging or untruthful remarks or
statements about Executive’s employment with the Company following the
Retirement Date during the Non-Disparagement Period.  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.  As soon as reasonably
practicable following the Transition Date, and as a condition to Executive’s
receipt of consideration payable under Section 3 and Section 5 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 his 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 his
employment with the Company, as well as all other Company-owned property,
including, but not limited to, keys, computers, corporate credit cards, phones,
mobile devices, laptops and parking permits.  Executive agrees that he
will not keep any copies or excerpts of any of the above items. Notwithstanding the foregoing, Executive may retain his
list of personal contacts.


f.             
Cooperation.  Executive will fully
cooperate with the Company in all matters relating to his 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 June 30, 2016, 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 June 30, 2016, Executive
will not sell any shares of the Company’s common stock except during “open
trading window” periods in compliance with such policy and the provisions of
this Section 8(g).  For the period commencing on the Transition Date and ending
on June 30, 2015, Executive may not sell more that number of shares of the
Company’s common stock equal to one-third of the shares of the Company’s common
stock beneficially owned by Executive on the Transition Date.  For the period
commencing July 1, 2015 and ending on June 30, 2016, Executive may not sell
more that number of shares of the Company’s common stock equal to one-third of
the shares of the Company’s common stock beneficially owned by Executive on the
Transition Date.   For the avoidance of doubt, the restrictions in this Section
8(g) shall not apply to shares withheld by the Company to cover applicable
taxes due upon the vesting of Executive’s equity awards (or the exercise of
stock options held by Executive).   









 










 








  




 








h.            
For
the avoidance of doubt, any breach of Section 8(a) through 8(g) of this
Agreement shall constitute a material breach of this Agreement.  Notwithstanding Section 11 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 8(a), 8(b), 8(c) and 8(e), or for the Company or Executive
in the event of a breach or threatened breach of Section 8(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 8, if the Company has reason to
believe Executive has or may have breached this Agreement.


9.       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”),
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 the Company 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 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) from the Company, 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 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
Retirement 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). The release
of claims set forth in this Section 9(a) does not affect or waive any claim
under the Age Discrimination in Employment Act or the Older Workers Benefit
Protection Act.  Executive understands and agrees that the releases provided
under this Section 9(a) will become effective immediately upon execution of
this Agreement by Executive and the Company. 


b.            
Executive
represents and warrants that he 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 Section 2(e) of this Agreement, constitute
adequate consideration for the release of claims set forth in this Section
9(a), (ii) the payments provided in Section 3 and Section 5 constitute adequate
consideration for the release of claims set forth in the Separation Release,
and (iii) the payments set forth in Section 7 constitute adequate consideration
for the release of claims set forth in the Consulting Termination Release. 


d.            
Executive
intends that this release of claims cover all claims described in Section 9(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 he may have under California Civil
Code Section 1542, or the comparable provisions of the laws of any other
jurisdiction, which provides as follows:


“A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS 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 9(a). 


10.   
REVIEW
OF AGREEMENT.  Executive
acknowledges and agrees:  (i) that he has been advised to consult an attorney
regarding this Agreement and the releases set forth herein or attached hereto
as Attachment A or Attachment D before executing this Agreement, the Separation
Release or the Consulting Termination Release; (ii) that Executive is waiving
rights or claims which may be waived by law in exchange for consideration which
is not otherwise due to Executive; and (iii) that rights or claims that may
arise after the date this Agreement is executed are not waived by this
Agreement.   


11.    ARBITRATION. 
Subject to Section 8(g) 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 Judicial Arbitration
& Mediation Services, Inc. (“JAMS”) in accordance with JAMS then current
Employment Arbitration Rules and Procedures, or successor rules then in
effect.  The arbitration will be held in New York, New York, and will be
conducted and administered by JAMS or, in the event JAMS does not then conduct
arbitration proceedings, a similarly reputable arbitration administrator.
Executive and the Company will select a mutually acceptable, neutral arbitrator
from among the JAMS 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.


12.    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
Retirement 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.


13.    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. 


14.    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. 


15.    FULL
SATISFACTION OF COMPENSATION OBLIGATIONS.  Executive agrees that the
payments and benefits provided herein satisfy in full all obligations of the
Company to Executive arising out of or in connection with Executive’s
employment through the Retirement Date, including, without limitation, all
compensation, salary, bonuses, reimbursement of expenses, severance and
benefits.


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


17.    LEGAL FEES.  The Company
shall reimburse Executive up to $30,000, in the aggregate, for (i) Executive’
reasonable attorney’s fees incurred in connection with negotiating and
documenting this Agreement and (ii) Executive’s other professional fees
associated with planning relating to 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.    


18.    SURVIVAL.  The
covenants, agreements, representations and warranties contained in or made in
Section 4, 8, 9, 10, 11 or 14 of this Agreement shall survive any termination
of Executive’s services hereunder or any termination of this Agreement.  









 










 








  




 








19.    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. 


20.    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. 
 


21.    NOTICE.  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:


Health Care
REIT, Inc. 


4500 Dorr Street


Toledo, OH 
43615


Attention:  General
Counsel


 


                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. 


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


23.    SEVERABILITY.  In the event
that any part of this Agreement is found to be void or unenforceable, all other
provisions of the Agreement will remain in full force and effect. 


24.    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 his hand, as of the day and year first written
above.


 


HEALTH CARE REIT, INC.                                          EXECUTIVE


                                  


                                                      
 


By: /s/ Jeffrey H. Miller                                                      /s/
George L. Chapman


Name:    Jeffrey H. Miller                                                   George
L. Chapman


Title:       Executive Vice President – Operations and


General Counsel


Date: April 13, 2014                                                           Date:
April 13, 2014






 


  

















 










 








  




 








ATTACHMENT
A


 


RELEASE OF
CLAIMS AGREEMENT


UPON RETIREMENT DATE


 


I
entered into a Retirement and Consulting Agreement with Health Care REIT, Inc.
(together with its subsidiaries, merged entities and affiliates, and its and
their respective predecessor and successor entities, “the Company”) dated April
13, 2014 (the “Retirement Agreement”).  


 


I
hereby acknowledge that:


 


1.             A
blank copy of this Release of Claims Agreement (“Release Agreement”) was attached
as Attachment A to the Retirement 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 Retirement 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 10 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 Retirement
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 Retirement Agreement,
including this Release Agreement, with an attorney before executing either
document. 


 


2.             I
am not permitted to sign this Release Agreement until after my Retirement Date.


 


                3.
            The benefits payable under Sections 3 and 5 of the Retirement
Agreement are only payable to me if I sign this Release Agreement and do not
revoke it within seven (7) days after I sign it and it becomes effective and
irrevocable no later than July 28, 2014.   


 


                4.             My
employment actually terminated before I signed this Release Agreement and, in
exchange for receiving benefits payable under Sections 3 and 5 of the
Retirement Agreement, I hereby agree that this Release Agreement will be a part
of my Retirement Agreement and that my Retirement Agreement, including without
limitation, the release of claims set forth in Section 9 of the Retirement
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 Retirement Agreement and the release of claims under the
Retirement Agreement to any claims that arose during the remainder of my
employment through my Retirement Date.


 


                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, 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 the
Company 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
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) from the
Company, 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 my Retirement 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 my right to enforce the terms of the
Retirement Agreement.  Additionally, nothing in this 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
hereby resign any and all positions that I hold with the Company, including
without limitation, as an officer and/or director of the Company and from each
of its direct and indirect subsidiaries and/or affiliates to the extent that
such relationship remains in effect on this date.


 


8.             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. 


 


9.             I
agree that except with respect to any payments and benefits that I remain
entitled to receive under my Retirement 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.


 


10.          I
understand that I may revoke this Release Agreement by sending a written
statement of revocation delivered by certified mail to Health Care REIT, Inc.,
Attn:  General Counsel, 4500 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 Retirement Agreement 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 both the Retirement Agreement and 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:
__________________________.     


 


 


GEORGE
L. CHAPMAN


 


 


 


________________________________


Sign
Name












 










 








  




 








 ATTACHMENT B


 


LIFE, HEALTH AND DISABILITY PROGRAMS


 




	
  Benefit –
  Insurance carrier as of date of Agreement

  	
  Level of
  Coverage

  	
  Coverage after
  Retirement Date

  
	
  Medical – Anthem Group Benefits

  	
  Health 2 buy-up 

  Family coverage 

  	
  Participant will continue to participant in the
  Company’s plan.

  
	
   Dental – Metlife

  	
  Family coverage

  	
  Participant will continue to participant in the
  Company’s plan.

  
	
  Vision – VSP Group Benefits

  	
  Family coverage

  	
  Participant will continue to participate in the
  Company’s plan.

  
	
  Short-term disability – Metlife

  	
  66 2/3% of weekly income to maximum of $2,000 for
  26 weeks.

  	
  Level of coverage will continue.

  
	
  Long-term disability –Metlife

  	
  60% of monthly income to maximum of $15,000

  	
  Level of coverage will continue.

  
	
  High limit disability – Petersen International
  Underwriters

  	
   $98,500 per month

  	
  Level of coverage will continue.

  
	
  Supplemental disability – UNUM

  	
   Base Amount: 50% of monthly income to maximum of
  $6,953 for a 24 month benefit period after age 65.

  Disability Plus Rider:  50% of montly income to
  maximum of $8,000 per month for a 24 month benefit period after age 65 if
  loss of 2 or more activities of daily living or suffers deterioration or loss
  of intellectual capacity.

  	
  Company to reimburse Executive for premiums.

  
	
  Life and AD&D – Anthem

  	
  $15,000 for each of Life and AD&D

  	
  Level of coverage will continue.

  
	
  Supplemental AD&D – Metlife

  	
  $600,000

  	
  Level of coverage will continue.

  
	
  Supplemental Life – Lincoln

  	
  $6,000,000

  	
  Level of coverage will continue.

  
	
  Supplemental Life – Prudential

  	
  $500,000.  Universal life – no lapse to age 120

  	
  Company to reimburse Executive for premiums.

  

















 










 








  




 








ATTACHMENT C


 


EXISTING
EQUITY


 


OUTSTANDING
AWARDS WITH TIME-BASED VESTING


 


1) 
Restricted Stock   


 


	
  Date of Agreement

  	
  Initial Award

  	
  Unvested
  Shares as of Date of Agreement to be fully vested

  
	
  January 28, 2010

  	
  51,729

  	
  10,345

  
	
  January 27, 2011

  	
  46,712

  	
  18,684

  
	
  January 26, 2012

  	
  50,735

  	
  30,441

  
	
  February 7, 2013

  	
  91,291

  	
  73,032

  
	
  February 6, 2014

  	
  31,290

  	
  23,467

  
	
  TOTAL

  	
  155,969

  





 


2) 
Deferred Stock Units


 


	
  Date of Agreement

  	
  Initial Award

  	
  Unvested
  Shares as of Date of Agreement to be fully vested

  
	
  January 26, 2012

  	
  53,329

  	
  39,246

  





 


 3) 
Stock Options


 


	
  Date of Agreement

  	
  Initial Grant

  	
  Exercise Price

  	
  Maximum Expiration Date

  	
  Unvested Options as of Date of Agreement to be
  fully vested

  
	
  January 29, 2009

  	
  84,820

  	
  $37.00

  	
  01/29/19

  	
  0

  
	
  January 28, 2010

  	
  95,453

  	
  $43.29

  	
  01/28/20

  	
  19,090

  
	
  January 27, 2011

  	
  79,751

  	
  $49.17

  	
  01/27/21

  	
  31,900

  
	
  January 26, 2012

  	
  87,268

  	
  $57.53

  	
  01/26/22

  	
  52,360

  
	
  TOTAL

  	
  103,350

  





 


OUTSTANDING
AWARDS WITH PERFORMANCE-BASED VESTING


 


Award
granted under the Health Care REIT, Inc. 2013-2015 Long-Term Incentive Program,
granted February 7, 2013












 










 








  




 








ATTACHMENT D


 


RELEASE OF CLAIMS AGREEMENT 


UPON TERMINATION OF CONSULTING PERIOD


 


I
entered into a Retirement and Consulting Agreement with Health Care REIT, Inc.
(together with its subsidiaries, merged entities and affiliates, and its and
their respective predecessor and successor entities, “the Company”) dated April
13, 2014 (the “Retirement Agreement”).  


 


I
hereby acknowledge that:


 


1.             A
blank copy of this Release of Claims Agreement (“Release Agreement”) was attached
as Attachment D to the Retirement 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 Retirement Agreement and the
Release of Claims Agreement attached as Attachment A thereto (the “Separation
Release”), 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 Separation
Release.  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 Retirement Agreement, the
Separation Release 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 the end of the
Consulting Period (as defined in the Retirement Agreement).


 


                3.
            The benefits payable under Section 7 of the Retirement 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 the Consulting Period (as defined in the Retirement
Agreement) or such later period as may be required by law in order to make this
Release Agreement fully effective.


 


                4.             My
employment and consulting services actually terminated before I signed this
Release Agreement and, in exchange for receiving benefits payable under Section
7 of the Retirement Agreement, I hereby agree that this Release Agreement will
be a part of my Retirement Agreement and that my Retirement Agreement,
including without limitation, the release of claims set forth in Section 9 of
the Retirement Agreement and in the Separation Release, will be construed and
applied as if I signed each on the day I signed this Release Agreement.  This
extends my commitments, covenants and other obligations under the Retirement
Agreement, the release of claims under the Retirement Agreement, and the
release of claims in the Separation Release that arose following the end of my
employment through the end of the Consulting Period.


 


                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, 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 the Company 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 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) from the Company, 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 Consulting 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 Retirement 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 7 of my Retirement 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 Health Care REIT, Inc.,
Attn:  General Counsel, 4500 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 Retirement Agreement, the Separation Release, 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 each of the Retirement Agreement, the
Separation 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: 
_________________________.      


 


 


GEORGE
L. CHAPMAN


 


 


 


________________________________


Sign
Name