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
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
BEING REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
- ------------------- ------------ ---------------- ---------------- ------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.0001
per share 143,750 $20.625 $2,964,844 $899
<FN>
(1) Price to Public per share of the Common Stock offered by the Company on
Registration Statement No. 333-25313.
</TABLE>
<PAGE>
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.
<PAGE>
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
<PAGE>
/s/ ELLIS G. WACHS Director May 16, 1997
- -----------------------
Ellis G. Wachs
/s/ GENE SILVERMAN Director May 16, 1997
- -----------------------
Gene Silverman
II - 2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
PAGE
EXHIBIT NO. DESCRIPTION NUMBER
- ----------- ----------- ------
<S> <C>
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
</TABLE>
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.
<PAGE>
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.
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
<PAGE>
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
<PAGE>
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
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
