As filed with the Securities and Exchange Commission on April 1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WELLTOWER INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 34-1096634 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) | |
4500 Dorr Street, Toledo, Ohio | 43615 | |
(Address of Principal Executive Offices) | (Zip Code) |
WELLTOWER INC. 2022 LONG-TERM INCENTIVE PLAN
WELLTOWER INC. 2022 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Shankh Mitra
Chief Executive Officer
Welltower Inc.
4500 Dorr Street
Toledo, Ohio 43615
(419) 247-2800
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Stephen W. Fackler, Esq.
Andrew L. Fabens, Esq.
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
(212) 351-4000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
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 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the Securities Act). Such documents need not be filed with the Securities and Exchange Commission (the Commission) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Welltower Inc. (the Company) with the Commission pursuant to requirements of the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated herein by reference:
1. | The Companys Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on February 16, 2022; |
2. | The Companys Preliminary Proxy Statement on Schedule 14A, filed on March 29, 2022, as supplemented by the additional definitive proxy soliciting materials filed on March 7, 2022; |
3. | The Companys Current Reports on Form 8-K, filed with the Commission on March 7, 2022 and March 31, 2022; |
4. | The Companys Current Report on Form 8-K12B, filed with the Commission on April 1, 2022; |
5. | The description of the Common Stock as set forth in the registration statement on Form 8-A filed by the Company with the Commission on June 17, 1985, as updated by Exhibit 4.5 to the Companys Annual Report on Form 10-K for the year ended December 31, 2019, and as subsequently amended or updated. |
All other documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part of this Registration Statement from the date of filing of each such document (except that information furnished to the Commission that is not deemed to be filed for purposes of the Exchange Act is not incorporated by reference into this Registration Statement) (such documents, and the documents enumerated above, being hereinafter referred to as Incorporated Documents).
Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed Incorporated Document modifies or supersedes such document. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 7 of the Companys Amended and Restated Certificate of Incorporation, as amended, provides that the Companys directors will not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the directors duty of loyalty to the Company or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General Corporation Law (the DGCL), or (4) for any transaction from which the director derived any improper personal benefit. Section 7 also provides that if the DGCL is amended to further eliminate or limit the personal liability of directors, then the liability of the Companys directors will be eliminated or limited to the extent permitted by the DGCL, as so amended. The Amended and Restated Certificate of Incorporation also states that any repeal or modification of the foregoing paragraph by the Companys stockholders will not adversely affect any right or protection of the Companys directors existing at the time of such repeal or modification.
The Companys Amended and Restated By-Laws provide that the Company will indemnify, to the extent permitted by the DGCL, any current or past director or officer of the Company who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the Company, or is or was serving at the Companys request as a director, officer, employee, trustee, partner, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, against expenses (including attorneys fees), judgments, fines, penalties and amounts paid in settlement, actually and reasonably incurred by him or her in connection with such threatened, pending or completed action, suit or proceeding. The Companys Amended and Restated By-Laws further obligate the Company to pay all expenses incurred by a current or past director or officer in defending or investigating a threatened or pending action, suit or proceeding of the nature referenced above in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that he or she is not entitled to be indemnified by the Company as provided above. Under these provisions, however, the Company is not obligated to indemnify any person in connection with a proceeding initiated by such person unless such proceeding is in connection with a claim by such person to enforce rights as stated above or was authorized or consented to by the Companys Board of Directors.
The Company has entered into indemnification agreements with its directors, executive officers and officers to assure them that they will be indemnified to the extent permitted by the Amended and Restated Certificate of Incorporation, Amended and Restated By-Laws and Delaware law. The indemnification agreements cover, subject to certain exceptions and limitations, any and all expenses, judgments, fines, penalties, and amounts paid in settlement, provide for the prompt advancement of all expenses incurred in connection with any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, and obligate the director, executive officer or officer to reimburse the Company for all amounts so advanced if it is subsequently determined, as provided in the indemnification agreements, that the director, executive officer or officer is not entitled to indemnification.
Delaware law requires indemnification in cases where a director or officer has been successful in defending any claim or proceeding and permits indemnification, even if a director or officer has not been successful, in cases where the director or officer acted in good faith and in a manner that he or she reasonably believed was in, or not opposed to, the best interests of the corporation. To be indemnified with respect to criminal proceedings, the director or officer must also have had no reasonable cause to believe that his or her conduct was unlawful. In the case of a claim by a third party (i.e., a party other than the corporation), Delaware law permits indemnification for expenses (including attorneys fees), judgments, fines, and amounts paid in settlement. In the case of a claim by, or in the right of, the corporation (including stockholder derivative suits), indemnification under the DGCL is limited
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to expenses (including attorneys fees) and no indemnification of expenses is permitted if the director or officer is adjudged liable to the corporation unless a court determines that, despite such adjudication but in view of all of the circumstances, such indemnification is nonetheless proper. Delaware law also permits the advancement of expenses to directors and officers of the corporation upon receipt of an undertaking to repay all amounts so advanced if it is ultimately determined that the director or officer has not met the applicable standard of conduct and is, therefore, not entitled to be indemnified by the corporation.
The Company maintains indemnification insurance that provides for reimbursement of indemnification payments properly and lawfully made to the Companys directors and officers and coverage, subject to certain exceptions and limitations, for directors and officers in situations where the Company cannot or do not indemnify them.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Set forth below are the exhibits included as part of this Registration Statement.
* | Filed herewith. |
Item 9. Undertakings.
(a) | The Company hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Companys annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toledo, State of Ohio, on this 1st day of April, 2022.
WELLTOWER INC. | ||
By: | /s/ Shankh Mitra | |
Shankh Mitra | ||
Chief Executive Officer, Chief Investment Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below on this 1st day of April, 2022 by the following persons in the capacities indicated.
/s/ KENNETH J. BACON* |
/s/ SERGIO D. RIVERA* | |||
Kenneth J. Bacon, Chairman of the Board | Sergio D. Rivera, Director | |||
/s/ KAREN B. DESALVO* |
/s/ JOHNESE M. SPISSO* | |||
Karen B. DeSalvo, Director | Johnese M. Spisso, Director | |||
/s/ JEFFREY H. DONAHUE* |
/s/ KATHRYN M. SULLIVAN* | |||
Jeffrey H. Donahue, Director | Kathryn M. Sullivan, Director | |||
/s/ PHILIP L. HAWKINS* |
/s/ SHANKH MITRA | |||
Philip L. Hawkins, Director | Shankh Mitra, Chief Executive Officer, Chief Investment Officer and Director (Principal Executive Officer) | |||
/s/ DENNIS G. LOPEZ* |
/s/ TIMOTHY G. MCHUGH* | |||
Dennis G. Lopez, Director | Timothy G. McHugh, Executive Vice PresidentChief Financial Officer (Principal Financial Officer) | |||
/s/ ADE J. PATTON* |
/s/ JOSHUA T. FIEWEGER* | |||
Ade J. Patton, Director | Joshua T. Fieweger, Chief Accounting Officer (Principal Accounting Officer) | |||
/s/ DIANA W. REID* Diana W. Reid, Director |
*By: /s/ SHANKH MITRA Shankh Mitra, Attorney-in-Fact |
II-5
Exhibit 5
April 1, 2022
Welltower Inc.
4500 Dorr Street
Toledo, Ohio 43615
Re: 2022 Long-Term Incentive Plan and 2022 Employee Stock Purchase Plan
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8, (the Registration Statement) of Welltower Inc., a Delaware corporation (the Company), to be filed with the Securities and Exchange Commission (the Commission) pursuant to the Securities Act of 1933, as amended (the Securities Act), in connection with the offering by the Company of up to 10,873,567 shares of the Companys Common Stock, par value $1.00 per share (the Shares). 5,537,970 of the Shares subject to the Registration Statement are reserved for issuance pursuant to future awards under the Welltower Inc. 2022 Long-Term Incentive Plan (2022 LTIP), 1,400,079 of the Shares subject to the Registration Statement are to be issued with respect to outstanding options under the 2022 LTIP, 3,061,951 of the Shares subject to the Registration Statement are to be issued with respect to outstanding restricted stock units under the 2022 LTIP, 851,557 of the Shares subject to the Registration Statement are reserved for issuance pursuant to future awards under the Welltower Inc. 2022 Employee Stock Purchase Plan (the 2022 ESPP, and, together with the 2022 LTIP, the Plans and individually, a Plan), and 22,010 of the Shares subject to the Registration Statement are reserved for issuance with respect to outstanding purchase rights under the 2022 ESPP.
In arriving at the opinion expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of such documents, corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render the opinion set forth below. In our examination, we have assumed without independent investigation the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any facts material to this opinion, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Company and others. We have also assumed that there are no agreements or understandings between or among the Company and any participants in one or more of the Plans that would expand, modify or otherwise affect the terms of either Plan or the respective rights or obligations of the participants thereunder.
Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against payment therefor in accordance with the terms set forth in the applicable Plan as set forth in the Registration Statement, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the DGCL). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption Legal Matters in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Welltower Inc. 2022 Long Term Incentive Plan and the Welltower Inc. 2022 Employee Stock Purchase Plan of our reports dated February 16, 2022, with respect to the consolidated financial statements and schedules of Welltower Inc., and the effectiveness of internal control over financial reporting of Welltower Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Toledo, Ohio
April 1, 2022
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, a director or officer of Welltower Inc., a Delaware corporation (the Company), that contemplates filing a Registration Statement on Form S-8 (Form S-8) with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act shares of the Companys common stock, $1.00 par value per share, offered to eligible officers, key employees and non-employee directors of the Company pursuant to the Companys 2022 Long-Term Incentive Plan, and to eligible employees of the Company pursuant to the Companys 2022 Employee Stock Purchase Plan, hereby constitutes and appoints Shankh Mitra and Timothy G. McHugh, and each of them, his or her true and lawful attorneys-in-fact and agents, for him or her and in his or her name, place and stead, in any and all capacities, to sign such Form S-8 and any and all amendments and supplements, including post-effective amendments, to such Form S-8, and to file such Form S-8 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Companys common stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-8, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of this 1st day of April 2022.
/s/ Kenneth J. Bacon Kenneth J. Bacon, Chair of the Board |
/s/ Sergio D. Rivera Sergio D. Rivera, Director | |||
/s/ Karen B. DeSalvo Karen B. DeSalvo, Director |
|
/s/ Johnese M. Spisso Johnese M. Spisso, Director | ||
/s/ Jeffrey H. Donahue Jeffrey H. Donahue, Director |
/s/ Kathryn M. Sullivan Kathryn M. Sullivan, Director | |||
/s/ Philip L. Hawkins Philip L. Hawkins, Director |
/s/ Shankh Mitra Shankh Mitra, Chief Executive Officer, Chief Investment Officer and Director (Principal Executive Officer) | |||
/s/ Dennis G. Lopez Dennis G. Lopez, Director |
/s/ Timothy G. McHugh Timothy G. McHugh, Executive Vice PresidentChief Financial Officer (Principal Financial Officer) | |||
/s/ Ade J. Patton Ade J. Patton, Director |
/s/ Joshua T. Fieweger Joshua T. Fieweger, Chief Accounting Officer (Principal Accounting Officer) | |||
/s/ Diana W. Reid Diana W. Reid, Director |
Exhibit 107
CALCULATION OF FILING FEE TABLE
Form S-8
Welltower Inc.
Table 1 Newly Registered Securities
Security Type | Security Class Title (1) |
Fee Calculation Rule |
Amount Registered (2) |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee | |||||||
Equity | Common Stock, par value $1.00 per share |
|||||||||||||
To be issued pursuant to future awards under the Welltower Inc. 2022 Long-Term Incentive Plan (the 2022 Plan) |
457(c); 457(h) |
5,537,970 | $95.65(3) | $529,706,831(3) | $92.70 per $1,000,000 |
$49,103.83 | ||||||||
To be issued pursuant to assumed outstanding options originally granted under the Welltower Inc. 2016 Long-Term Incentive Plan (2016 Plan) |
457(c); 457(h) |
1,400,079 | $79.01(4) | $110,620,242 (4) |
$92.70 per $1,000,000 |
$10,254.50 | ||||||||
To be issued pursuant to assumed outstanding restricted stock units originally granted under the 2016 Plan |
457(c); 457(h) |
3,061,951 | $95.65 (3) |
$292,875,613 (3) |
$92.70 per $1,000,000 |
$27,149.57 | ||||||||
To be issued pursuant to future awards under the Welltower Inc. 2022 Employee Stock Purchase Plan |
457(c); 457(h) |
873,567 | $81.30 (5) |
$71,020,997 (5) | $92.70 per $1,000,000 |
$6,583.65 | ||||||||
To be issued pursuant to assumed outstanding purchase rights originally granted under the Welltower Inc. Employee Stock Purchase Plan |
457(c); 457(h) |
22,010 | $68.60 (6) |
$1,509,886(6) | $92.70 per $1,000,000 |
$139.97 | ||||||||
Total Offering Amounts | 10,873,567 | $1,005,733,569 | $93,231.52 | |||||||||||
Total Fee Offsets (7) | $5,985.87 | |||||||||||||
Net Fee Due | $87,245.65 |
(1) In addition to the number of shares of the common stock, par value $1.00 per share (the Common Stock), of Welltower Inc. (the Company or Registrant) stated above, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the Securities Act), this registration statement also covers an indeterminate number of options and other rights to acquire Common Stock, that may be granted pursuant to the compensatory stock plans listed above.
(2) Pursuant to Rule 416(a) under the Securities Act, this registration statement also covers any additional securities that may from time to time be offered or issued in respect of the securities registered by this registration statement to prevent dilution as a result of any stock dividend, stock split, recapitalization or other similar transaction, and any other securities with respect to which the outstanding shares are converted or exchanged.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, based upon the average of the high and low prices of the Registrants Common Stock on the New York Stock Exchange (NYSE) on March 25, 2022.
(4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, based upon the exercise price of the options.
(5) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, based upon a 15% discount from the average of the high and low prices of the Registrants Common Stock on the NYSE on March 25, 2022, such discount representing the maximum permissible discount offered pursuant to such plan.
(6) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, based upon a 15% discount from the average of the high and low prices of the Registrants Common Stock on the NYSE on December 1, 2021, the date of grant of such outstanding purchase rights, such discount representing the maximum permissible discount offered pursuant to such plan.
(7) Offset from post-effective amendment filed on April 1, 2022, Registration Number 333-225006, to the registration statement on Form S-8 originally filed on May 17, 2018 deregistering 873,576 shares of the common stock of Welltower, Inc.