AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 1997
REGISTRATION NO. 333-25313
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
POST-EFFECTIVE AMENDMENT No. 1
TO
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.
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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. [ ]
__________
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. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<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>
8.1 Opinion of Kramer, Levin, Naftalis & Frankel regarding
certain Federal income tax matters
23.3 Consent of Kramer, Levin, Naftalis & Frankel (included in
their opinion filed as Exhibit 8.1)
</TABLE>
II - 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 15, 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, No. 333-25313, initially filed
with the Securities and Exchange Commission on April 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 15, 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 15, 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
