As filed with the Securities and Exchange
Commission on June 27, 2014
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Agree Realty Corporation
(Exact name of Registrant as specified in its charter)
| Maryland |
|
38-3148187 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer Identification Number.) |
| |
|
|
|
31850 Northwestern Highway
Farmington Hills, Michigan |
|
48334 |
| (Address of principal executive offices) |
|
(Zip code) |
AGREE REALTY CORPORATION
2014 OMNIBUS INCENTIVE PLAN |
| (Full title of the plan) |
| |
Joel N. Agree
President and Chief Executive Officer
Agree Realty Corporation
31850 Northwestern Highway
Farmington Hills, Michigan 48334
(Name and Address of Agent for Service)
(248) 737-4190 |
|
| |
(Name, address, including zip code, and telephone number, including area code, of agent for service) |
|
| |
|
|
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Copy to:
Donald J. Kunz, Esq.
Honigman Miller Schwartz and Cohn LLP
2290 First National Building
660 Woodward Ave.
Detroit, Michigan 48226-3506
(313) 465-7454 (telephone)
(313) 465-7455 (facsimile) |
|
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
One):
Large accelerated filer ¨ Accelerated
filer x
Non-accelerated filer ¨
(Do not check if a smaller reporting company) Smaller reporting company ¨
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount to be
registered(1) |
Proposed maximum
offering price
per share(2) |
Proposed maximum
aggregate offering
price(2) |
Amount of
registration
fee |
| Common Stock, par value $0.0001 |
700,000 |
$30.45 |
$21,311,500.00 |
$2,744.92 |
| (1) | Represents shares of common stock issuable under the Agree Realty Corporation 2014 Omnibus Incentive Plan, approved by the
registrant’s stockholder on May 5, 2014 (the “Plan”) and, pursuant to Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), an indeterminate amount of additional shares of common stock that may become issuable
under the Plan by reason of certain corporate transactions or events, including any stock dividend, stock split, reorganization
or any other similar transaction that affects the stock such that an adjustment is appropriate in order to prevent dilution of
the rights of participants under the Plan. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act, on the basis of the average of the high ($30.67) and low ($30.22) sales price for the Common Stock of the registrant
as quoted on the New York Stock Exchange on June 23, 2014, a date within five business days prior to the date of filing of this
registration statement. |
EXPLANATORY NOTE
This Registration Statement on Form S-8
is being filed by Agree Realty Corporation, a Maryland corporation (the “Registrant”), relating to 700,000 shares of
its common stock, par value $0.0001 (“Common Stock”), which have been reserved for issuance under the Plan to eligible
employees, directors and consultants of the Registrant, and its affiliates.
PART I
INFORMATION REQUIRED
IN PROSPECTUS
The documents containing the information
required in this Part I will be delivered to the participants in the Plan, as specified in Rule 428(b)(1) of the Securities Act.
Such documents are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part
of this Registration Statement.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Commission
by the Registrant are hereby incorporated by reference in this Registration Statement:
(a) the Registrant’s Annual Report on Form 10-K
for the year ended December 31, 2013, filed with the Commission on March 7, 2014;
(b) the Registrant’s Quarterly Report on Form 10-Q
for the quarter ending March 31, 2014, filed with the Commission on May 2, 2014;
(c) the Registrant’s Current Report on Form 8-K
filed with the Commission on May 6, 2014; and
(d) the description of Registrant’s Common Stock,
par value $0.0001 per share, set forth in the Registrant’s Form 8-A filed March 18, 1994.
In addition, all documents the Registrant
subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which
deregisters all securities covered hereby then remaining unsold are incorporated by reference in this Registration Statement and
are a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein 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 subsequently filed document, which also is or is deemed to
be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland General Corporation Law (“MGCL”)
permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except for liability resulting from:
| · | actual receipt of an improper benefit or profit in money, property or services; or |
| · | active and deliberate dishonesty established by a final judgment and which is material to the cause of action. |
The Registrant’s charter contains
such a provision that eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law.
These limitations of liability do not apply to liabilities arising under the federal securities laws and do not generally affect
the availability of equitable remedies such as injunctive relief or rescission.
The Registrant’s officers and directors
are and will be indemnified under Maryland law and the Registrant’s articles of incorporation, as amended, against certain
liabilities. The Registrant’s charter requires it to indemnify its directors and officers to the fullest extent permitted
from time to time by the laws of the State of Maryland.
Maryland law requires a corporation (unless
its charter provides otherwise, which the Registrant’s charter does not) to indemnify a director or officer who has been
successful in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her
service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities
unless it is established that:
| · | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed
in bad faith or (2) was the result of active and deliberate dishonesty; |
| · | the director or officer actually received an improper personal benefit in money, property or services; or |
| · | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was
unlawful. |
However, under Maryland law, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability
on the basis of that personal benefit was improperly received, unless in either case a court orders indemnification and then only
for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon the
corporation’s receipt of:
| · | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the corporation; and |
| · | a written undertaking by him or her on his or her behalf to repay the amount paid or reimbursed by the corporation if it is
ultimately determined that the standard of conduct was not met. |
The Registrant maintains liability insurance
for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities
as the Registrant’s directors or officers.
Insofar as the foregoing provisions permit
indemnification of directors, executive officers or persons controlling the Registrant for liability arising under the Securities
Act, the Registrant has been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
| Exhibit No. |
Description |
| |
|
|
4.1
|
Articles of Incorporation of the Registrant, including all amendments and articles supplementary thereto, (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (No. 001-12928) for the quarter ended June 30, 2013) |
| |
|
| 4.2 |
Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 8-K (No. 001-12928) filed on May 9, 2013) |
| |
|
| 4.3 |
Rights Agreement, dated as of December 7, 1998, by and between Agree Realty Corporation, a Maryland corporation, and Computershare Trust Registrant, N.A., f/k/a EquiServe Trust Company, N.A., a national banking association, as successor rights agent to BankBoston, N.A., a national banking association (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3/A (No. 333-161520) filed on November 13, 2009) |
| |
|
| 4.4 |
Second Amendment to Rights Agreement, dated as of December 8, 2008, by and between Agree Realty Corporation, a Maryland corporation, and Computershare Trust Company, N.A., f/k/a EquiServe Trust Company, N.A., a national banking association, as successor rights agent to BankBoston, N.A., a national banking association (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (No. 001-12928) filed on December 9, 2008) |
| |
|
| 4.5 |
Amended and Restated Registration Rights Agreement, dated July 8, 1994 by and among the Registrant, Richard Agree, Edward Rosenberg and Joel Weiner (incorporated by reference to Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K (No. 001-12928) for the year ended December 31, 1994) |
| |
|
| 5.1* |
Opinion of Honigman Miller Schwartz and Cohn LLP |
| |
|
| 10.1 |
Agree Realty Corporation 2014 Omnibus Incentive Plan, incorporated by reference to Appendix A to the Registrant’s Proxy Statement filed on Schedule 14A with the Commission on April 4, 2014 |
| |
|
| 23.1* |
Consent of Grant Thornton LLP |
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|
| 23.2* |
Consent of Baker Tilly Virchow Krause, LLP |
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|
| 23.3* |
Consent of Honigman Miller Schwartz and Cohn LLP (included in its opinion filed as Exhibit 5.1 to this Registration Statement) |
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| 24.1* |
Power of Attorney (included after the signature of the Registrant contained on Signature Page of this Registration Statement) |
* Filed herewith
Item 9. Undertakings.
| (a) | The Registrant 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; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the 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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the Registration Statement; and
| (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 offer 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 Registrant hereby undertakes that,
for the purpose of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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 Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant 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 Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, 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 Farmington Hills, State of Michigan, on June 27, 2014.
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AGREE REALTY CORPORATION |
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|
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By: /s/ Joel N. Agree |
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Joel N. Agree |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below hereby constitutes and appoints Joel N. Agree and Brian R. Dickman as
his true and lawful attorneys-in-fact and agents with full power of substitution, severally, for him in any and all capacities,
to sign the Registration Statement on Form S-8 of Agree Realty Corporation, and any or all amendments (including post-effective
amendments thereto), 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 full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith, 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, or his or their 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 on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
| SIGNATURE |
TITLE |
DATE |
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|
|
|
/s/ Richard
Agree |
Executive Chairman of the Board |
June 27, 2014 |
| Richard Agree |
and Director |
|
| |
|
|
|
/s/ Joel
N. Agree |
President, Chief Executive Officer |
June 27, 2014 |
| Joel N. Agree |
and Director |
|
| |
|
|
|
/s/ Brian
R. Dickman |
Chief Financial Officer |
June 27, 2014 |
| Brian R. Dickman |
(Principal Financial and Accounting
Officer) |
|
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|
|
|
/s/ Farris
G. Kalil |
Director |
June 27, 2014 |
| Farris G. Kalil |
|
|
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|
|
|
/s/ Gene
Silverman |
Director |
June 27, 2014 |
| Gene Silverman |
|
|
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|
|
|
/s/ John
Rakolta, Jr. |
Director |
June 27, 2014 |
| John Rakolta, Jr. |
|
|
| |
|
|
|
/s/ Michael
Rotchford |
Director |
June 27, 2014 |
| Michael Rotchford |
|
|
| |
|
|
[Signature Page to Registration Statement
on Form S-8]
|
/s/ William
S. Rubenfaer |
Director |
June 27, 2014 |
| William S. Rubenfaer |
|
|
| |
|
|
|
/s/ Leon
M. Schurgin |
Director |
June 27, 2014 |
| Leon M. Schurgin |
|
|
[Signature Page to Registration Statement
on Form S-8]
EXHIBIT INDEX
| Exhibit No. |
Description |
| |
|
|
4.1
|
Articles of Incorporation of the Registrant, including all amendments and articles supplementary thereto, (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (No. 001-12928) for the quarter ended June 30, 2013) |
| |
|
| 4.2 |
Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 8-K (No. 001-12928) filed on May 9, 2013) |
| |
|
| 4.3 |
Rights Agreement, dated as of December 7, 1998, by and between Agree Realty Corporation, a Maryland corporation, and Computershare Trust Registrant, N.A., f/k/a EquiServe Trust Company, N.A., a national banking association, as successor rights agent to BankBoston, N.A., a national banking association (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3/A (No. 333-161520) filed on November 13, 2009) |
| |
|
| 4.4 |
Second Amendment to Rights Agreement, dated as of December 8, 2008, by and between Agree Realty Corporation, a Maryland corporation, and Computershare Trust Company, N.A., f/k/a EquiServe Trust Company, N.A., a national banking association, as successor rights agent to BankBoston, N.A., a national banking association (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (No. 001-12928) filed on December 9, 2008) |
| |
|
| 4.5 |
Amended and Restated Registration Rights Agreement, dated July 8, 1994 by and among the Registrant, Richard Agree, Edward Rosenberg and Joel Weiner (incorporated by reference to Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K (No. 001-12928) for the year ended December 31, 1994) |
| |
|
| 5.1* |
Opinion of Honigman Miller Schwartz and Cohn LLP |
| |
|
| 10.1 |
Agree Realty Corporation 2014 Omnibus Incentive Plan, incorporated by reference to Appendix A to the Registrant’s Proxy Statement filed on Schedule 14A with the Commission on April 4, 2014 |
| |
|
| 23.1* |
Consent of Grant Thornton LLP |
| |
|
| 23.2* |
Consent of Baker Tilly Virchow Krause, LLP |
| |
|
| 23.3* |
Consent of Honigman Miller Schwartz and Cohn LLP (included in its opinion filed as Exhibit 5.1 to this Registration Statement) |
| |
|
| 24.1* |
Power of Attorney (included after the signature of the Registrant contained on Signature Page of this Registration Statement) |
* Filed herewith
