PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is a statement of the estimated fees and expenses, other than underwriting discounts and commissions, to be incurred by the Registrants in connection with the offerings described in this registration statement.
| | | | |
SEC registration fee | | $ | * | |
Legal fees and expenses | | | ** | |
Accounting fees and expenses | | | ** | |
Trustee’s fees and expenses | | | ** | |
Transfer agent’s fees and expenses | | | ** | |
Printing expenses and postage | | | ** | |
Rating agency fees | | | ** | |
Listing fees | | | ** | |
Miscellaneous | | | ** | |
Total | | $ | ** | |
| * | The Registrants are registering an indeterminate amount of securities under this registration statement and in accordance with Rules 456(b) and 457(r), the Registrants are deferring payment of all of the registration fee. |
| ** | Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are not currently determinable. The foregoing sets forth the general categories of fees and expenses that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate fees and expenses in connection with the distribution of the securities being offered will be included in any applicable prospectus supplement. |
Item 15. Indemnification of Officers and Directors.
Section 7 of Welltower’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), provides that its directors will not be personally liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to it 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 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 Welltower’s directors will be eliminated or limited to the extent permitted by the DGCL, as so amended. The Certificate of Incorporation also states that any repeal or modification of the foregoing paragraph by Welltower’s stockholders will not adversely affect any right or protection of its directors existing at the time of such repeal or modification.
Welltower’s Amended and Restated By-Laws (the “By-Laws”) provide that it will indemnify, to the extent permitted by the DGCL, any current or past director or officer of Welltower 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 Welltower, or is or was serving at its 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 By-Laws further obligate Welltower 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 Welltower as provided above. Under these provisions, however, Welltower 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 Welltower’s board of directors.
Welltower OP’s Limited Liability Agreement (the “LLC Agreement”) provides that it will indemnify, to the fullest extent permitted by law, Welltower or any of Welltower OP’s directors or officers, among others (each, an “Indemnitee”), from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including, without limitation, attorneys’ fees and other legal fees and expenses), judgments, fines, settlements and other amounts, arising from or in connection with any and all claims, demands, subpoenas, requests for information, formal or informal investigations, actions, suits or proceedings, whether civil, criminal, administrative or investigative, incurred by the Indemnitee and relating to Welltower OP, Welltower or the direct or indirect operation of, or the direct or indirect ownership of property by, the Indemnitee, Welltower OP or Welltower as set forth in the LLC Agreement in which he or she may be involved, or is threatened to be involved, so long as he or she acted in good faith and in a manner that such Indemnitee reasonably believed to be within the scope of such Indemnitee’s authority pursuant to the LLC Agreement, and such Indemnitee’s act or omission from which such loss claim, damage, judgment, fine or liability arises does not constitute willful misconduct, gross negligence, bad faith or fraud by such Indemnitee. The LLC Agreement further obligates Welltower OP to pay all reasonable expenses to be incurred by an Indemnitee in advance of the final disposition of any and all such claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative made or threatened against such Indemnitee under certain circumstances.
We have entered into indemnification agreements with our directors, executive officers and officers to assure them that they will be indemnified to the extent permitted by the Certificate of Incorporation, the By-Laws, the LLC Agreement and Delaware law, as applicable. 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 us 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.
