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): July 22, 2022

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)	(IRS 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))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common stock, $1.00 par value per share	WELL	New York Stock Exchange

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 July 22, 2022, Welltower Inc., a Delaware corporation (the “Company”), filed with the Securities and Exchange Commission a prospectus supplement (the “Prospectus Supplement”) to the prospectus dated April 1, 2022, which was included in the Company’s automatic shelf registration statement on Form S-3 (No. 333-264093). The Prospectus Supplement relates to the registration and possible issuance of up to 300,026 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 common units (the “Units”) of Welltower OP LLC, a Delaware limited liability company (“Welltower OP”), tender such Units for redemption by Welltower OP, and the Company elects to assume the redemption obligations of Welltower OP 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 Units will exercise their redemption rights with respect to the Units or that the Company will elect to assume the redemption obligations of Welltower OP 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.

5.1	Opinion of Gibson, Dunn & Crutcher LLP.
8.1	Tax Opinion of Gibson, Dunn & Crutcher LLP.
23.1	Consent of Gibson, Dunn & Crutcher LLP (included in Exhibits 5.1 and 8.1 hereto).
104	Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.

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.

WELLTOWER INC.
By:	/s/ MATTHEW MCQUEEN
Name:	Matthew McQueen
Title:	Executive Vice President - General Counsel & Corporate Secretary

Date: July 22, 2022

EX-8.1

Exhibit 8.1

July 22, 2022

Welltower Inc.

4500 Dorr Street

Toledo, Ohio 43615

Ladies and Gentlemen:

We have acted as special tax counsel to Welltower Inc., a Delaware corporation (the “Company”), in connection with the prospectus supplement dated July 22, 2022 to the prospectus dated April 1, 2022 (collectively, the “Prospectus”) included in the Company’s Registration Statement on Form S-3 (File No. 333-264093) (the “Registration Statement”), filed on April 1, 2022 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the registration and potential issuance of up to 300,026 shares of common stock, 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 (the “Units”) of Welltower OP LLC, a Delaware limited liability company (“Welltower OP”), tender such Units for redemption by Welltower OP, and the Company elects to assume the redemption obligations of Welltower OP 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 in accordance with the terms of the Limited Liability Company Agreement of Welltower OP, dated May 24, 2022, as amended (the “LLCA”). 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.

Prior to a reorganization (the “Reorganization”) on April 1, 2022, whereby a newly formed subsidiary of the Company (“Merger Sub”) merged with and into a company formerly known as Welltower Inc. (the “Predecessor”) and the Predecessor become a wholly owned subsidiary of the Company in a transaction intending to qualify as a reorganization under section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the “Code”), the Predecessor was known as Welltower Inc., a Delaware corporation, and the Company was known as WELL Merger Holdco Inc., a Delaware corporation. In connection with the Reorganization, the Predecessor changed its name to Welltower OP Inc., the Company changed its name to Welltower Inc. and the Predecessor became a qualified REIT subsidiary of the Company. On May 25, 2022, the Predecessor was converted into a Delaware limited liability company known as Welltower OP LLC. In giving this opinion, we have examined and relied upon originals or copies of the following documents (the “Reviewed Documents”):

• the Amended and Restated Certificate of Incorporation of the Company and the Second Restated Certificate of Incorporation of the Predecessor;

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• the Amended and Restated By-Laws of the Company and the Seventh Amended and Restated By-Laws of the Predecessor;

• the Predecessor’s Annual Report on Form 10-K for the year ended December 31, 2021 (the “Annual Report”);

• that certain Agreement and Plan of Merger, entered into as of April 1, 2022, by and among the Company, the Predecessor and Merger Sub;

• the Registration Statement and the Prospectus;

• a certificate (an “Officer’s Certificate”) from the Company, 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 Predecessor and its subsidiaries;

• the Predecessor’s 2020 U.S. federal income tax return;

• the Company’s Current Report on Form 8-K filed with the Commission on May 25, 2022;

• the Company’s Current Report on Form 8-K to be filed with the Commission on or about the date hereof;

• the LLCA; 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 Reviewed Documents has been duly authorized, executed and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended since our receipt of such documents;

2. all of the factual representations set forth in the Reviewed Documents are true, correct and complete as of the date hereof, and any representation or statement made as a belief, intention or “to the knowledge of” or similarly qualified is correct and accurate, without such qualification;

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3. each agreement described in the Reviewed Documents is valid, binding and enforceable in accordance with its terms;

4. each of the obligations of the Company, the Predecessor and their subsidiaries described in the Reviewed Documents has been or will be performed or satisfied in accordance with its terms without regard to any qualification as to level of effort in satisfying such obligations;

5. the Company, the Predecessor and their 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 with the real estate investment trust (“REIT”) provisions of Code and the Treasury Regulations (the “Regulations”) thereunder, as in effect as of the date hereof, contained in the Officer’s Certificate true;

6. the Company will not make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT under sections 856 through 860 of the Code for any taxable year; and

7. no action will be taken by the Company, the Predecessor or their subsidiaries 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 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 Certificate. 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 (the “IRS”) 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, qualifications and statements set forth above and the factual representations set forth in the Officer’s Certificate and our review of the discussion in the Prospectus under the caption “U.S. Federal Income Tax Considerations of a Redemption of Class A Units,” we are of the opinion that:

a) the Predecessor had 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, 2011 through December 31, 2021;

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b) the Company’s organization and current and proposed method of operations, if continued, will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2022 and each taxable year thereafter; and

c) the discussion contained under the caption “U.S. Federal Income Tax Considerations of a Redemption of Class A Units” in the Prospectus, to the extent it constitutes matters of U.S. federal income tax law or legal conclusions relating thereto, and subject to the limitations, qualifications and assumptions set forth therein, fairly and accurately summarizes in all material respects the matters set forth therein.

We will not review on a continuing basis the Company’s compliance with the documents or assumptions set forth above or the factual representations set forth in the Officer’s Certificate.

The Company’s qualification and taxation as a REIT under the Code depends upon the ability of the Company to meet on an ongoing basis (through actual quarterly and annual operating results, distribution levels, diversity of stock ownership and otherwise) the various qualification tests imposed under the Code and upon the Company utilizing any and all appropriate “savings provisions” (including the provisions of Sections 856(c)(6), 856(c)(7) and 856(g) of the Code, the provision of Section 856(c)(4) of the Code (flush language) allowing for the disposal of assets within 30 days after the close of a calendar quarter and all available deficiency dividend procedures) available to the Company under the Code to correct violations of specified REIT qualification requirements of Sections 856 and 857 of the Code. Our opinion set forth above does not foreclose the possibility that the Company may have to utilize one or more of the “savings provisions” in the future, which could require the Company to pay an excise or penalty tax (which could be significant in amount) in order to maintain its REIT qualification.

We have not undertaken to review the Company’s compliance with these requirements on a continuing basis, nor will we do so in the future. Accordingly, no assurance can be given that the actual results of the Company’s operations for any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT. 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, possibly with retroactive effect, in a way that will prevent the Company from qualifying as a REIT. Any change occurring after the date hereof in, or a variation from, any of the foregoing bases for our opinions could

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affect the conclusions expressed herein. The foregoing opinions do not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction or of a contrary position taken by the IRS or the Treasury Department in Regulations or rulings issued in the future. In this regard, an opinion of counsel with respect to an issue represents counsel’s best professional judgment with respect to the outcome on the merits with respect to such issue, if such issue were to be litigated, but an opinion is not binding on the IRS or the courts and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position asserted by the IRS.

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.

We undertake no obligation to update the opinions expressed herein after the date of this letter. This letter has been prepared solely for your use in connection with the filing of the Registration Statement and speaks only as of this date.

We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed with the 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 Commission.

Very truly yours,

/s/ Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP

EX-5.1

Exhibit 5.1

July 22, 2022

Welltower Inc.

4500 Dorr Street

Toledo, Ohio 43615

Re: Welltower Inc.

300,026 Shares of Common Stock

Ladies and Gentlemen:

We have acted as counsel to Welltower Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Prospectus Supplement dated July 22, 2022 (the “Prospectus Supplement”) to the prospectus dated April 1, 2022 (the “Prospectus”), included in the Company’s Registration Statement on Form S-3 (File No. 333-264093) (the “Registration Statement”), filed with the Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration and possible issuance of up to 300,026 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 common units (the “Units”) of Welltower OP LLC, a Delaware limited liability company (“Welltower OP”), tender such Units for redemption by Welltower OP, and the Company elects to assume the redemption obligations of Welltower OP 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 Limited Liability Company Agreement of Welltower OP, dated May 24, 2022 (as amended from time to time, the “LLC Agreement”).

In arriving at the opinions 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 forms of the LLC Agreement, specimen common stock certificates and such other 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 opinions 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 these opinions, 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.

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We have assumed without independent investigation that:

(i)    at the time any Shares are issued pursuant to the Registration Statement (the “Relevant Time”), the Registration Statement and any supplements and amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws;

(ii)    all Shares will be issued and exchanged in the manner stated in the Registration Statement and the applicable prospectus supplement;

(iii)    at the Relevant Time, all corporate or other action required to be taken by the Company to duly authorize each proposed issuance of Shares and any related documentation shall have been duly completed and shall remain in full force and effect; and

(iv)    upon issuance of any Shares, the total number of shares of the Company’s common stock or preferred stock issued and outstanding will not exceed the total number of shares of common stock or preferred stock, as applicable, that the Company is then authorized to issue under its certificate of incorporation and other relevant documents;

Based on the foregoing and in reliance thereon, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly reserved and authorized for issuance, and if, as and when issued in exchange for the Units as provided in the LLC Agreement, will be validly issued, fully paid and non-assessable.

The opinions expressed above are subject to the following exceptions, qualifications, limitations and assumptions:

A.    We render no opinion herein as to matters involving the laws of any jurisdiction other than the State of New York and the United States of America. This opinion is limited to the effect of the current state of the laws of the State of New York and, the United States of America 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 laws or the interpretations thereof or such facts.

B.    We express no opinion regarding the Securities Act, the Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940, as amended, or any other federal or state securities laws or regulations.

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We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, 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 promulgated thereunder.

Very truly yours,

/s/ Gibson, Dunn & Crutcher LLP

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Document and Entity Information	Jul. 22, 2022
Cover [Abstract]
Amendment Flag	false
Entity Central Index Key	0000766704
Document Type	8-K
Document Period End Date	Jul. 22, 2022
Entity Registrant Name	Welltower Inc.
Entity Incorporation State Country Code	DE
Entity File Number	1-8923
Entity Tax Identification Number	34-1096634
Entity Address, Address Line One	4500 Dorr Street
Entity Address, City or Town	Toledo
Entity Address, State or Province	OH
Entity Address, Postal Zip Code	43615
City Area Code	(419)
Local Phone Number	247-2800
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Common stock, $1.00 par value per share
Trading Symbol	WELL
Security Exchange Name	NYSE
Entity Emerging Growth Company	false