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): August 9, 2023

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 August 9, 2023, 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), as amended. The Prospectus Supplement relates to the registration of up to 13,559,535 shares of the Company’s common stock, par value $1.00 per share (the “Shares”), that may, under certain circumstances, be issuable upon exchange of the 2.750% Exchangeable Senior Notes due 2028 of Welltower OP LLC, a Delaware limited liability company, and the resale from time to time by the recipients of such Shares.

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: August 9, 2023

EX-5.1

Exhibit 5.1

August 9, 2023

Welltower Inc.

4500 Dorr Street

Toledo, Ohio 43615

Re: Welltower Inc.

Registration Statement on Form S-3 (File No. 333-264093)

Ladies and Gentlemen:

We have examined the Registration Statement on Form S-3 (File No. 333-264093), as amended by post-effective amendment no. 1 thereto (as amended, the “Registration Statement”), of Welltower Inc., a Delaware corporation (the “Company”), filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the prospectus supplement dated August 9, 2023 (the “Prospectus Supplement”) to the prospectus dated April 1, 2022 (the “Prospectus”), relating to the registration of up to 13,559,535 of shares of common stock, $1.00 par value per share, of the Company (the “Shares”) that may in certain circumstances be issuable upon exchange of the 2.750% Exchangeable Senior Notes due 2028 (the “Notes”) of Welltower OP LLC, a Delaware limited liability company (“Welltower OP”), and the resale from time to time by the recipients of such Shares. The Notes were issued pursuant to the terms of the Indenture, dated as May 11, 2023, by and among Welltower OP, the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “Indenture”).

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, specimen common stock certificates, the Indenture 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.

Based upon the foregoing, 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 and when issued upon the exchange of the Notes as provided in the Indenture, will be validly issued, fully paid and non-assessable.

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

A. The effectiveness of the Registration Statement under the Securities Act will not have been terminated or rescinded.

Welltower Inc.

August 9, 2023

Page 2

B. We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (“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 herein. 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 laws 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 Prospectus Supplement. 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

EX-8.1

Exhibit 8.1

August 9, 2023

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 August 9, 2023 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 (the “Securities Act”), as amended by Post-Effective Amendment No. 1 thereto filed by the Company on May 3, 2023 with the Commission under the Securities Act, relating to the registration and potential issuance of up to 13,559,535 shares of common stock, par value $1.00 per share, of the Company (the “Common Shares”), that may be issued from time to time upon exchange of the 2.750% Exchangeable Senior Notes due 2028 of Welltower OP LLC, a Delaware limited liability company (“Welltower OP”). 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 (“Welltower OP”). 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;

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

Welltower Inc.

August 9, 2023

Page 2

• the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 (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 2021 U.S. federal income tax return;

• Limited Liability Company Agreement of Welltower OP, dated as of May 24, 2022, as amended, 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;

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;

Welltower Inc.

August 9, 2023

Page 3

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 Annual Report under the caption “Taxation,” 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, 2022;

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, 2023 and each taxable year thereafter; and

c) the discussion contained under the caption “Taxation” in the Annual Report, 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.

Welltower Inc.

August 9, 2023

Page 4

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 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.

Welltower Inc.

August 9, 2023

Page 5

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 or the rules and regulations promulgated thereunder by the Commission.

Very truly yours,

/s/ Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP

XML

Document and Entity Information	Aug. 09, 2023
Cover [Abstract]
Amendment Flag	false
Entity Central Index Key	0000766704
Document Type	8-K
Document Period End Date	Aug. 09, 2023
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