-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F3FDkf4DoIhMt8G4quDyBpVQrMeVqTkdvRw/aH6yNtRCU8BWPH6zA94UG96GvD2J 7l5qZOK632H2hY+9R+KKRg== 0000889697-97-000065.txt : 19970520 0000889697-97-000065.hdr.sgml : 19970520 ACCESSION NUMBER: 0000889697-97-000065 CONFORMED SUBMISSION TYPE: S-11MEF PUBLIC DOCUMENT COUNT: 4 333-25313 FILED AS OF DATE: 19970516 EFFECTIVENESS DATE: 19970516 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AGREE REALTY CORP CENTRAL INDEX KEY: 0000917251 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 383148187 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-11MEF SEC ACT: 1933 Act SEC FILE NUMBER: 333-27257 FILM NUMBER: 97610276 BUSINESS ADDRESS: STREET 1: 31850 NORTHWESTERN HGWY CITY: FARMINGTON HILLS STATE: MI ZIP: 48334 BUSINESS PHONE: 8107374190 MAIL ADDRESS: STREET 1: 31850 NORTHWESTERN HIGHWAY CITY: FARMINGTON HILLS STATE: MI ZIP: 48334 S-11MEF 1 REGISTRATION STATEMENT AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 1997 REGISTRATION NO. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON D.C. 20549 FORM S-11 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AGREE REALTY CORPORATION (Exact name of registrant as specified in its governing instruments) 31850 NORTHWESTERN HIGHWAY FARMINGTON HILLS, MICHIGAN 48334 (810) 737-4190 (Address of principal executive offices) RICHARD AGREE 31850 NORTHWESTERN HIGHWAY FARMINGTON HILLS, MICHIGAN 48334 (810) 737-4190 (Name and address of agent for service) COPIES TO: David P. Levin, Esq. Michelle P. Goolsby, Esq. Kramer, Levin, Naftalis & Frankel Winstead Sechrest & Minick P.C. 919 Third Avenue 1201 Elm Street New York, New York 10022 5400 Renaissance Tower Dallas, Texas 75270 Approximate date of commencement of the proposed sale of the securities to the public: as soon as practicable after this Registration Statement becomes effective. ------------- If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X] Registration No. 333-25313. If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------- CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION BEING REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE - ------------------- ------------ ---------------- ---------------- ------------ Common Stock, par value $.0001 per share 143,750 $20.625 $2,964,844 $899 (1) Price to Public per share of the Common Stock offered by the Company on Registration Statement No. 333-25313.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE This Registration Statement filed under the Securities Act of 1933, as amended, by Agree Realty Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") hereby incorporates by reference the contents of the Registration Statement on Form S-11 (File No. 333-25313) relating to the offering of up to 1,725,000 shares (including the over-allotment option) of Common Stock of the Company filed on April 16, 1997, as amended by Amendment No. 1 filed on May 6, 1997 and Amendment No. 2 filed on May 15, 1997. 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-11 and has duly caused this registration statement or amendment to be signed on its behalf by the undersigned, thereto duly authorized, in the City of Farmington Hills, State of Michigan, on May 16, 1997. AGREE REALTY CORPORATION By: /s/ RICHARD AGREE -------------------------------------- Name: Richard Agree Title: President and Chairman of the Board of Directors POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Richard Agree, Kenneth Howe and Edward Rosenberg his true and lawful attorney-in-fact and agent, each acting alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement or amendment has been signed by the following persons in the capacities and on the dates indicated. Signature Title(s) Date --------- -------- ---- /s/ RICHARD AGREE President and Chairman of the Board May 16, 1997 - ----------------------- (Principal Executive Officer) Richard Agree /s/ KENNETH HOWE Vice President - Finance and May 16, 1997 - ----------------------- Secretary (Principal Financial and Kenneth Howe Accounting Officer) /s/ EDWARD ROSENBERG Director and Senior Vice President May 16, 1997 - ----------------------- Edward Rosenberg /s/ FARRIS G. KALIL Director May 16, 1997 - ----------------------- Farris G. Kalil /s/ MICHAEL ROTCHFORD Director May 16, 1997 - ----------------------- Michael Rotchford II - 1 /s/ ELLIS G. WACHS Director May 16, 1997 - ----------------------- Ellis G. Wachs /s/ GENE SILVERMAN Director May 16, 1997 - ----------------------- Gene Silverman II - 2 INDEX TO EXHIBITS
SEQUENTIAL PAGE EXHIBIT NO. DESCRIPTION NUMBER - ----------- ----------- ------ 5.1 Opinion of Piper & Marbury L.L.P. regarding the validity of the shares of Common Stock being registered 8.1 Opinion of Kramer, Levin, Naftalis & Frankel regarding certain Federal income tax matters 23.1 Consent of BDO Seidman, LLP 23.2 Consent of Piper & Marbury L.L.P. (including in their opinion filed as Exhibit 5.1) 23.3 Consent of Kramer, Levin, Naftalis & Frankel (included in their opinion filed as Exhibit 8.1) II - 3
EX-5.1 2 Exhibit 5.1 [Letterhead of Piper & Marbury L.L.P.] May 16, 1997 Agree Realty Corporation 31850 Northwestern Highway Farmington Hills, Michigan 48334 Registration Statement on S-11 - ------------------------------ Ladies and Gentlemen: We have acted as special Maryland counsel to Agree Realty Corporation, a Maryland corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), pursuant to a Registration Statement of the Company pursuant to Rule 462(b) promulgated under the Act (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission"), of up to an additional 143,750 shares of Common Stock, par value $.0001 per share, of the Company (the Shares") to be sold by the Company. This opinion is being provided at your request in connection with the filing of the Registration Statement. In rendering the opinion expressed herein, we have examined the Registration Statement (and all amendments thereto), the Charter and ByLaws of the Company, minutes of the proceedings of the Company's Board of Directors authorizing the issuance of the Shares, and such other documents as we have considered necessary. We have also examined a Certificate of an Officer of the Company dated May 15, 1997 (the "Certificate"). In rendering our opinion, we are relying as to factual matters on the Certificate and have made no independent investigation or inquiries as to the matters set forth therein. Based upon the foregoing, we are of the opinion and so advise you that upon the issuance and delivery of the Shares in accordance with the terms set forth in the Registration Statement, the Shares will have been duly and validly authorized and will be legally issued and fully-paid and non-assessable. Agree Realty Corporation May 16, 1997 Page 2 The Opinion expressed herein is solely for the use of (i) the Company in connection with the Registration Statement, and (ii) Kramer, Levin, Naftalis & Frankel in giving their tax opinion to be filed as an exhibit to the Registration Statement. This opinion may not be relied on by any other person or in any other connection without our prior written approval. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading "Legal Matters" in the Prospectus included in the Registration Statement. In giving our 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/ Piper & Marbury L.L.P. EX-8.1 3 EXHIBIT 8.1 [ Letterhead of Kramer, Levin, Naftalis & Frankel ] KRAMER, LEVIN, NAFTALIS & FRANKEL 919 THIRD AVENUE NEW YORK, N.Y. 10022-3852 (212) 715-7550 May 16, 1997 Agree Realty Corporation 31850 Northwestern Highway Farmington Hills, MI 48334 Gentlemen: You have requested our opinion concerning certain of the Federal income tax consequences to Agree Realty Corporation, a Maryland corporation (the "Company"), and the purchasers of shares of common stock, par value $.0001 per share (the "Common Stock") of the Company, in connection with the Company's registration statement on Form S-11, filed pursuant to Rule 462(b) initially filed with the Securities and Exchange Commission on May 16, 1997, (as the same may be amended or supplemented, the "Registration Statement"). All capitalized terms used herein have their respective meanings set forth in the Registration Statement unless otherwise stated. In rendering the opinions expressed herein, we have examined and, with your consent, relied upon the following: (i) the Registration Statement and all amendments thereto; (ii) the Agreement of Limited Partnership of the Operating Partnership; (iii) the Management Agreement; and (iv) such other documents, records, and instruments as we have deemed necessary in order to enable us to render the opinions expressed herein. In our examination of documents, we have assumed, with your consent, that all documents submitted to us are authentic originals, or if submitted as photocopies, that they faithfully reproduced the originals thereof, that all such documents have been or will be KRAMER, LEVIN, NAFTALIS & FRANKEL Agree Realty Corporation May 16, 1997 Page 2 duly executed to the extent required, that all representations and statements set forth in such documents are true and correct, that all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms, and that, in all material respects, the Company and the Operating Partnership at all times have been and will be organized and operated in accordance with the terms of such documents. We have further assumed that, in all material respects, the statements and descriptions of the Company's and the Operating Partnership's businesses, properties, and activities as described in the Registration Statement are accurate and all actions contemplated in the Registration Statement with respect to the organization of the Company as a real estate investment trust (a "REIT") have been or will be completed in a timely fashion. For purposes of rendering the opinions expressed herein, we also have assumed, with your consent, the accuracy of the representations contained in the letter from the Company to us dated May 15, 1997. These representations relate to the classification and operation of the Company as a REIT and the organization and operation of the Operating Partnership. Included are representations that (i) beneficial ownership of the Company's shares are and will be held by 100 or more persons, and (ii) not more than 50% of the Company's shares have been or will be owned, actually or constructively (within the meaning of Section 544 of the Code), by or for any five or fewer individuals at any time during the last half of any taxable year. In issuing our opinions, we have also relied on the representations contained in the letter from the General Partner of the Operating Partnership, dated May 15, 1997, that, among other things, (i) the Operating Partnership has been and will be operated in accordance with the Partnership Agreement, other relevant documents, and applicable laws, and (ii) the Operating Partnership has not made and will not make an election to be excluded from the provisions of Subchapter K of the Code and has not made and will not make an election on Form 8832 to be classified as an association taxable as a corporation. Based upon and subject to the foregoing, and further subject to the matters hereinafter set forth, we are of the following opinions: 1. For Federal income tax purposes, the Company will be treated as having met the requirements for qualification and taxation as a REIT commencing with its taxable year ending December 31, 1994, and the Company's and the Operating Partnership's proposed methods of continued operation as described in the Registration Statement and as KRAMER, LEVIN, NAFTALIS & FRANKEL Agree Realty Corporation May 16, 1997 Page 3 represented by the Company will enable the Company to continue to meet the requirements for qualification and taxation as a REIT. 2. The Operating Partnership will, for all taxable years since its inception, be treated as a partnership, and not as a corporation or association taxable as a corporation, for Federal income tax purposes, and will not be treated as a "publicly traded partnership" under section 7704 of the Code. 3. The discussion contained in that portion of the Registration Statement under the caption "Federal Income Tax Considerations" fairly summarizes all Federal income tax considerations that are likely to be material to Company stockholders. This opinion is expressed as of the date hereof and is based on various provisions of the Code regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Further, any variation or difference in the facts from those set forth in the Registration Statement or represented to by the Company may affect the conclusions stated herein. Moreover, the Company's qualification and taxation as a REIT depends upon the Company's ability to meet, through actual annual operating results, distribution levels, diversity of stock ownership, and the various qualification tests imposed under the Code regarding income and assets, the results of which will not be reviewed by us. Accordingly, no assurance can be given that the actual results of the Company's operation for any one taxable year will satisfy such requirements. This opinion is furnished to you solely for use in connection with the Registration Statement. We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement and reference to this opinion under the caption "Federal Income Tax Considerations" in the Registration Statement and the prospectus included therein. We express no opinion as to any federal income tax issue or other matter except those set forth herein. Very truly yours, /s/ Kramer, Levin, Naftalis & Frankel EX-23.1 4 CONSENT OF ACCOUNTANTS Consent of Independent Certified Public Accountants Agree Realty Corporation Farmington Hills, Michigan We hereby consent to the use in the Prospectus constituting a part of this Registration Statement of our report dated February 14, 1997, relating to the financial statements and schedule of Agree Realty Corporation and the Agree Predecessors which is contained in that Prospectus. We also consent to the reference to us under the caption "Experts" in the Prospectus. BDO SEIDMAN, LLP Troy, Michigan May 16, 1997 -----END PRIVACY-ENHANCED MESSAGE-----