8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 2, 2017

Welltower Inc.

(Exact name of registrant as specified in its charter)

Delaware	1-8923	34-1096634
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)
4500 Dorr Street, Toledo, Ohio		43615
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (419) 247-2800

Not Applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Item 8.01  Other Events.

On June 2, 2017, Welltower Inc., a Delaware corporation (the “Company”), filed with the Securities and Exchange Commission a prospectus supplement (the “Prospectus Supplement”) to the prospectus dated May 1, 2015, which was included in the Company’s automatic shelf registration statement on Form S-3 (No. 333-203802). The Prospectus Supplement relates to the registration and possible issuance of up to 566,657 shares of the Company’s common stock, par value $1.00 per share (the “Shares”), that may be issued from time to time if, and to the extent that, certain holders of Class A units of HCN G&L DownREIT II, LLC, a Delaware limited liability company (the “DownREIT”), tender such Class A units for redemption by the DownREIT, and HCN DownREIT Member, LLC, a majority-owned indirect subsidiary of the Company (including its permitted successors and assigns, the “Managing Member”), or a designated affiliate of the Managing Member, elects to assume the redemption obligations of the DownREIT and to satisfy all or a portion of the redemption consideration by issuing Shares to the holders instead of or in addition to paying a cash amount.

Registration of the Shares as provided in the Prospectus Supplement does not necessarily mean that any of the holders of Class A units of the DownREIT will exercise their redemption rights with respect to the Class A units or that the Managing Member will elect to assume the redemption obligations of the DownREIT and to satisfy all or a portion of the redemption consideration by issuing Shares to the holders instead of or in addition to paying a cash amount.

Item 9.01  Financial Statements and Exhibits.

(d) Exhibits.

5	Opinion of Shumaker, Loop & Kendrick, LLP
8	Tax Opinion of Arnold & Porter Kaye Scholer LLP
23.1	Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an exhibit to this Form 8-K is included in their opinion filed herewith as Exhibit 5
23.2	Consent of Arnold & Porter Kaye Scholer LLP to the use of their opinion as an exhibit to this Form 8-K is included in their opinion filed herewith as Exhibit 8

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: June 2, 2017	WELLTOWER INC.
	By:	/s/ MATTHEW MCQUEEN
	Name:	Matthew McQueen
	Title:	Senior Vice President – General Counsel & Corporate Secretary

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Exhibit Index

5	Opinion of Shumaker, Loop & Kendrick, LLP
8	Tax Opinion of Arnold & Porter Kaye Scholer LLP
23.1	Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an exhibit to this Form 8-K is included in their opinion filed herewith as Exhibit 5
23.2	Consent of Arnold & Porter Kaye Scholer LLP to the use of their opinion as an exhibit to this Form 8-K is included in their opinion filed herewith as Exhibit 8

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EX-5

Exhibit 5

	1000 Jackson Street Toledo, Ohio 43604-5573	419.241.9000 419.241.6894 fax
	www.slk-law.com

June 2, 2017

Welltower, Inc.

4500 Dorr Street

Toledo, Ohio 43615

Re: WELLTOWER INC.

566,657 Shares of Common Stock

Ladies and Gentlemen:

We have acted as counsel to Welltower Inc., a Delaware corporation (the “Company”), in connection with the prospectus supplement dated June 2, 2017 (the “Prospectus Supplement”) to the prospectus dated May 1, 2015 (the “Prospectus”), included in the Company’s registration statement on Form S-3 (File No. 333-203802) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration and possible issuance of up to 566,657 shares of the Company’s common stock, par value $1.00 per share (the “Shares”), that may be issued from time to time if, and to the extent that, certain holders of Class A units (the “Units”) of HCN G&L DownREIT II, LLC, a Delaware limited liability company (the “DownREIT”), tender such Units for redemption by the DownREIT, and HCN DownREIT Member, LLC, a majority-owned indirect subsidiary of the Company (including its permitted successors and assigns, the “Managing Member”), or a designated affiliate of the Managing Member, elects to assume the redemption obligations of the DownREIT and to satisfy all or a portion of the redemption consideration by issuing the Shares to the holders instead of or in addition to paying a cash amount in accordance with the terms of the DownREIT’s Amended and Restated Limited Liability Company Agreement, dated June 24, 2015 (the “LLC Agreement”).

In connection with this opinion, we have examined and have relied upon copies of: (i) the Second Restated Certificate of Incorporation of the Company, as amended, (ii) the Fifth Amended and Restated By-Laws of the Company (the “By-Laws”), (iii) the Registration Statement and the Prospectus included therein, (iv) the Prospectus Supplement, (v) the resolutions regarding the registration and possible issuance of the Shares adopted by the Board of Directors of the Company on May 7, 2015, (vi) the LLC Agreement, and (vii) such other documents, records, certificates, statements, and instruments as we have deemed necessary and appropriate to render the opinions herein set forth.

Welltower Inc.

June 2, 2017

Page  2

In reaching the opinions set forth below, we have assumed the following:

(a) each party to the LLC Agreement (other than the Company) is, and has been at all times relevant to this opinion, duly formed or organized, validly existing and in good standing under the laws of the jurisdiction in which each is formed or organized;

(b) each person executing any instrument, document or agreement in connection with the issuance of the Shares on behalf of any party (other than the Company) is duly authorized to do so;

(c) each natural person executing any instrument, document or agreement in connection with the issuance of the Shares is legally competent to do so;

(d) any documents submitted to us as originals are authentic; the form and content of any documents submitted to us as unexecuted final versions do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; any documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all documents are genuine; and all public records reviewed or relied upon by us or on our behalf are true and accurate; and

(e) the Shares will not be issued or transferred in violation of the provisions of Article VI of the By-Laws (relating to restrictions on issuance and transfer of stock).

As to questions of fact material to this opinion, we have relied without independent investigation on (i) written representations of each party made in the LLC Agreement and the other documents and certificates delivered in connection therewith, (ii) certificates and records of public officials, and (iii) certificates and written representations of officers and directors of the Company.

Based upon the foregoing, it is our opinion that the Shares have been duly reserved and authorized for issuance, and if, as and when such Shares are issued and delivered in exchange for the Units upon redemption thereof, upon and subject to the terms and conditions set forth in the LLC Agreement, such Shares will be legally and validly issued, fully paid, and non-assessable.

The opinions set forth herein are limited to the matters and the transactions expressly addressed herein and no opinion is to be implied or may be inferred beyond the opinions expressly stated herein.

We assume no obligation to update or supplement this opinion to reflect a change in any applicable laws after the date hereof or any fact or circumstance that may come to our attention after the date hereof.

Welltower Inc.

June 2, 2017

Page  3

The undersigned hereby consents to the filing of this opinion as Exhibit 5 to the Company’s Form 8-K to be filed with the Commission on June 2, 2017. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Shumaker, Loop & Kendrick, LLP

SHUMAKER, LOOP & KENDRICK, LLP

EX-8

Exhibit 8

June 2, 2017

Welltower Inc.

4500 Dorr Street

Toledo, Ohio 43615

Ladies and Gentlemen:

We have acted as special tax counsel to Welltower Inc. (formerly known as Health Care REIT, Inc.), a Delaware corporation (the “Company”), in connection with the prospectus supplement dated June 2, 2017 to the prospectus dated May 1, 2015 (collectively, the “Prospectus”) included in the Company’s Registration Statement on Form S-3 (File No. 333-203802) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration and potential issuance of up to 566,657 common shares of beneficial interest, par value $1.00 per share, of the Company (the “Common Shares”), that may be issued from time to time if, and to the extent that, certain holders of Class A Units of membership interests (the “Units”) in HCN G&L DownREIT II, LLC, a Delaware limited liability company (the “DownREIT”), tender such Units for redemption by the DownREIT, and HCN DownREIT Member, LLC, a majority-owned indirect subsidiary of the Company (including its permitted successors and assigns, the “Managing Member”), or a designated affiliate of the Managing Member, elects to assume the redemption obligations of the DownREIT and to satisfy all or a portion of the redemption consideration by issuing the Common Shares to the holders instead of or in addition to paying a cash amount. You have requested our opinion regarding certain U.S. federal income tax matters. Certain capitalized terms used herein without definition are as defined in the Registration Statement.

In giving this opinion, we have examined and relied upon originals or copies of the following documents:

• the Second Restated Certificate of Incorporation, as amended, of the Company;

• the Fifth Amended and Restated By-Laws of the Company;

Welltower Inc.

June 2, 2017

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• the Company’s Annual Report on Form 10-K for the year ended December 31, 2016;

• the Registration Statement and the Prospectus;

• the Company’s 2015 federal income tax return;

• a certificate (each an “Officer’s Certificate”) from each of the Company and certain subsidiaries of the Company that have also elected to be taxed as “real estate investment trusts” for federal income tax purposes (each, other than the Company, a “REIT Subsidiary”), dated on or about the date hereof and executed by a duly appointed officer, setting forth certain factual representations relating to the organization, operations and proposed operations of the Company, the REIT Subsidiaries and their respective subsidiaries; and

• such other documents as we have deemed necessary or appropriate for purposes of this opinion.

In connection with the opinions rendered below, we have assumed with your consent that:

1. Each of the documents referred to above has been duly authorized, executed and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended;

2. the Company, the REIT Subsidiaries and their respective subsidiaries, have operated and will operate, in a manner that has caused or will make, as the case may be, the factual representations relating to the ownership, operation, future method of operations, and compliance of the Company and the REIT Subsidiaries with the real estate investment trust (“REIT”) provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations (the “Regulations”) thereunder, as in effect as of the date hereof, contained in the Officer’s Certificates, true;

3. Neither the Company nor any REIT Subsidiary will make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT under sections 856-860 of the Code for any taxable year; and

4. No action will be taken by the Company or a REIT Subsidiary after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based.

In our capacity as special tax counsel to the Company, we have made such legal and factual examinations and inquiries as we have deemed necessary or appropriate for

Welltower Inc.

June 2, 2017

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purposes of our opinions rendered below. For the purposes of rendering these opinions, we have not made an independent investigation of the facts set forth in any documents delivered to us, including, without limitation, the Officer’s Certificates. We have relied completely upon the Company’s representations that the information presented in such documents accurately reflects all material facts. In the course of our representation of the Company, we have not been made aware of any facts inconsistent with such factual representations. In addition, where such factual representations involve terms defined or used in the Code, the Regulations, published rulings of the Internal Revenue Service or other relevant authority, we have explained such terms to the Company’s representatives and are satisfied that the Company’s representatives understand such terms and are capable of making such factual representations.

Based on the Code, Regulations, documents, assumptions and statements set forth above, the factual representations set forth in the Officer’s Certificates and our review of the discussion in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 under the caption “Taxation”, which discussion is incorporated by reference in the Registration Statement and Prospectus, we are of the opinion that:

(a) the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT pursuant to sections 856 through 860 of the Code for its taxable years ended December 31, 2012 through December 31, 2016;

(b) the Company’s organization and current and proposed method of operations, if continued, will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2017 and each taxable year thereafter; and

(c) the discussion contained under the caption “Taxation” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016, to the extent it constitutes matters of federal income tax law or legal conclusions relating thereto, is accurate in all material respects and presents fairly and accurately the material aspects of the federal income tax (i) treatment of the Company and (ii) considerations that are likely to be material to a holder of the Common Stock.

We will not review on a continuing basis either the Company’s or any REIT Subsidiary’s compliance with the documents or assumptions set forth above, or the factual representations set forth in the Officer’s Certificates. Accordingly, no assurance can be given that the actual results of the Company’s operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT.

Welltower Inc.

June 2, 2017

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The foregoing opinions are based on current provisions of the Code and the Regulations, published administrative interpretations thereof and published court decisions and assume that none of these will change. No assurance, however, can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT.

The foregoing opinions are limited to the U.S. federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. You must judge for yourselves whether the matters addressed in this opinion letter are sufficient for your purposes. This letter speaks only of this date, and we undertake no obligation to update the opinions expressed herein after the date of this letter.

We hereby consent to the filing of this opinion as an exhibit to Form 8-K to be filed with the Securities and Exchange Commission on or about the date hereof. In giving this consent, we do not acknowledge that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the U.S. Securities and Exchange Commission.

Very truly yours,

/s/ Arnold & Porter Kaye Scholer LLP

ARNOLD & PORTER KAYE SCHOLER LLP