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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 8, 2006
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AGREE REALTY CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 1-12928 38-3148187
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification No.)
incorporation)
31850 NORTHWESTERN HIGHWAY
FARMINGTON HILLS, MI 48334
(Address of principal executive offices and Zip Code)
(248) 737-4190
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
On and effective November 8, 2006, the Board of Directors of Agree Realty
Corporation, referred to herein as the Company, adopted amendments to the
Company's Bylaws (the "Bylaw Amendments"). The following is a summary of changes
effected by adoption of the Bylaw Amendments, which is qualified in its entirety
by reference to the amended Bylaws of the Company filed as Exhibit 99.1 hereto.
ARTICLE I. STOCKHOLDERS.
Threshold required to call a stockholder-requested special meeting. The
former Bylaws provided that a stockholder-requested special meeting of
stockholders shall be called upon the written request of stockholders entitled
to cast at least 25% of the votes entitled to be cast at the meeting. The
amended Bylaws increase the threshold required to call a stockholder-requested
special meeting of stockholders from 25% of the votes entitled to be cast at the
meeting to a majority of the votes entitled to be cast at the meeting.
Procedures governing stockholder-requested special meetings. The former
Bylaws did not contain procedures governing stockholder-requested special
meetings of stockholders. The new Bylaws clarify the procedures relating to
stockholder-requested special meetings of stockholders by specifying (a) the
procedures by which stockholders may request a record date for determining
stockholders entitled to request a special meeting, (b) the time frame for the
Board to fix such record date, (c) who is responsible for the costs of preparing
and mailing the notice of special stockholders meetings, (d) that the Board has
the authority to set the time, date and place of special stockholders meetings,
(e) under what circumstances a notice of a special stockholders meeting may be
revoked, and (f) methods by which the Board may seek verification of the
validity of a stockholder request for a special meeting.
Location of stockholder meetings. The former Bylaws limited the location of
stockholders meetings to within the United States. The amended Bylaws delete the
requirement that meetings of stockholders be held within the United States.
Place of Meetings. The amended Bylaws clarify that the Board may determine
that the meeting may be held solely by means of remote communication, rather
than at a physical location, provided that, if a stockholder requests, the Board
shall provide a place for a meeting.
Notice of stockholders meetings. The former Bylaws required that notice of
stockholders meetings be delivered personally, left at the stockholder's
residence or place of business or delivered by mail. The amended Bylaws
expressly permit other means of notice, such as e-mail, which is now authorized
by Maryland law. The amended Bylaws also clarify that when mailing a notice, the
notice is deemed to be given when deposited in the U.S. mail addressed to the
stockholder at the stockholder's address as it appears in the Corporation's
records.
Quorum; Adjournment. The former Bylaws provided that a majority vote of the
stockholders present in person or by proxy, whether or not a quorum is present,
may adjourn the meeting. The amended Bylaws vest the chairman of a stockholders
meeting with the sole power to adjourn the meeting if a quorum is not present at
the meeting. Additionally, the amended Bylaws clarify that stockholders present
either in person or by proxy at a meeting which has been duly called and
convened may continue to transact business until the adjournment of that
meeting, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
List of Stockholders. The former Bylaws provided that a list of
stockholders must be furnished by the Secretary of the Company at each meeting
of stockholders. The amended
Bylaws delete this requirement, as stockholders have specified inspection rights
under Maryland law that are subject to certain conditions.
Advance notice of stockholder nominations and proposals of other business.
The former Bylaws provided for advance notice of stockholder proposals for
nominees for director and for other business at an annual meeting of
stockholders 60 to 90 days before the first anniversary of the preceding year's
annual meeting. The amended Bylaws provide that such advance notice shall be
delivered to the Secretary at the principal executive office of the Company not
earlier than the 150th day prior to the first anniversary of the date of mailing
of the notice for the preceding year's annual meeting nor later than 5:00 p.m.,
Eastern Time, on the 120th day prior to the first anniversary of the date of
mailing of the notice for the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced or
delayed by more than 30 days from the first anniversary of the date of the
preceding year's annual meeting, notice by the stockholder to be timely must be
so delivered not earlier than the 150th day prior to the date of such annual
meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th
day prior to the date of such annual meeting or the tenth day following the day
on which public announcement of the date of such meeting is first made.
Additionally, the amended Bylaws (a) expand the information required to be
provided by the stockholder making a proposal, including information about
persons controlling, or acting in concert with, such stockholder, and (b)
establish procedures for the verification of information provided by the
stockholder making the proposal.
The amended Bylaws also provide that, notwithstanding anything in the
advance notice provisions to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement of such action at least 130 days prior to the first
anniversary of the date of mailing of the notice of the preceding year's annual
meeting, a stockholder's notice required by the advance notice provisions shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive office of the Company not later than 5:00 p.m., Eastern
Time, on the tenth day following the day on which such public announcement is
first made by the Company.
The former Bylaws did not provide for advance notice of stockholder
nominees for director at a special meeting called for the purpose of electing
directors. The amended Bylaws provide that, in the event the Company calls a
special meeting of stockholders for the purpose of electing one or more
individuals to the Board of Directors, a stockholder may nominate an individual
or individuals for election as a director as specified in the Company's notice
of meeting, if the stockholder's notice required by the advance notice
provisions shall be delivered to the Secretary at the principal executive office
of the Company not earlier than the 150th day prior to such special meeting and
not later than 5:00 p.m., Eastern Time, on the later of the 120th day prior to
such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
Inspectors. The former Bylaws provided that at the request of holders of
ten percent of the shares entitled to be cast in the election, that voting be
conducted by two inspectors. The amended Bylaws allow the Board, in advance of a
meeting of shareholders, to appoint inspectors and allow the chairman of the
meeting of shareholders to appoint inspectors if the Board does not do so.
Vesting the decision to engage an inspector solely in the Board eliminates
frivolous requests for routing meetings.
Voting by Ballot. The former Bylaws provided that at the request of holders
of ten percent of the shares entitled to be cast in the election, that voting is
by ballot. The amended Bylaws vests in the chairman of the meeting the sole
power to order voting by ballot.
Informal Action by Stockholders. The former Bylaws provided that
stockholders may act by unanimous written consent. The amended Bylaws delete
this requirement as it is conferred by the Maryland General Corporation Law
("MGCL") without the need of an express bylaw.
Organization and conduct of stockholder meetings. The amended Bylaws adds a
provision which sets forth clearly the person who will act as chair of the
meeting and the powers of the chair.
Shareholder Meetings By Teleconference. The former Bylaws did not contain
provisions governing meetings by conference telephone or other equipment. The
amended Bylaws include a new section providing for shareholder meetings by
teleconference and vesting in the Board or the chairman of the meeting the
decision to authorize a meeting by teleconference.
Voting of stock by certain holders. The former Bylaws did not contain
procedures for voting by record stockholders who are non-natural persons. The
amended Bylaws include procedures for voting of stock held of record by
non-natural persons. Additionally, the amended Bylaws expressly empower the
Board to adopt a procedure by which record holders may certify as to the
beneficial owners of shares held by such record holders. Upon such
certification, the beneficial owners will be regarded as the record owners for
the purposes specified in the certification.
ARTICLE II. BOARD OF DIRECTORS.
Notice of Board Meetings. The amended Bylaws provide that the Board may
provide by resolution for the date, time and place for holding meetings of the
Board without any other notice other than such resolution. The former Bylaws did
not contain such a provision. The amended Bylaws contain updated provisions
governing notice of Board meetings, which permit notice by e-mail, and clarify
when notice is deemed to have been given. The amended Bylaws also clarify that a
majority of the Board then in office may call a special meeting of the Board.
Actions by Directors. The amended Bylaws provide that, in accordance with
the MGCL, unanimous consents in lieu of a meeting of the Board, or any
committee, may be given by electronic transmission, as well as in writing.
Additionally, the amended Bylaws clarify that directors present at a meeting
which has been duly called and convened may continue to transact business until
the adjournment of that meeting, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
Organization of Board Meetings. The amended Bylaws include a new section
providing that the Chairman of the Board shall act as chairman of a Board
meeting and the Secretary of the Company meeting shall act as the secretary of
the meeting. The amended Bylaws include succession provisions in the event that
either the Chairman of the Board or Secretary of the Company are absent from the
meeting.
ARTICLE III. COMMITTEES.
Committee. The former Bylaws required committees to be composed of two or
more directors. In accordance with the MGCL, the amended Bylaws permits
committees to be composed of one or more directors. The amended Bylaws also
delete the list of various limits on the powers of committees and clarify that
the Board may delegate any of its powers except those prohibited by law.
Action by Committee. The amended Bylaws add a new provision to the effect
that consents by committee members may be given via electronic transmission in
addition to a signed
writing. The amended Bylaws clarify that that notice of committee meetings shall
be given in the same manner as notice for special meetings of the Board.
Vacancies. The amended Bylaws add a provision for the filling of vacancies
on committees and provide the Board the power to change the membership of any
committee and to designate alternate members to replace any absent or
disqualified member or to dissolve any such committee.
ARTICLE IV. OFFICERS.
Chief Executive Officer. The amended Bylaws establish the Chief Executive
Officer as an officer with the power to execute certain documents and provide
that in the absence of a Chief Executive Officer, the Chairman of the Board
shall be the Chief Executive Officer.
Chief Operating Officer. The amended Bylaws establish the Chief Operating
Officer as an officer.
Chief Financial Officer. The amended Bylaws establish the Chief Financial
Officer as an officer.
ARTICLE VI. STOCK.
Certificates. The amended Bylaws clarify that the Company is permitted to
issue uncertificated shares of stock. The amended Bylaws add the Vice Chairman
of the Board, the Chief Executive Officer, the Chief Operating Officer and Chief
Financial Officer as officers permitted to sign stock certificates.
Transfers. The amended Bylaws clarify the Company's procedures in
transferring stock on its records and provide that all transfers of stock be
subject to the Company's charter.
Replacement Certificates. The amended Bylaws clarify that the Board may
require a bond as a condition precedent to the issuance of a new certificate or
certificates.
Fractional Stock. The amended Bylaws add a new provision incorporating
provisions of Maryland law governing the issuance of fractional stock.
ARTICLE VIII. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The amended Bylaws clarify that the Company shall indemnify and advance
expenses to the full extent permitted by Maryland law by adding language which
parallels the Company's charter and is in accordance with the MGCL.
ARTICLE IX. SUNDRY PROVISIONS.
Amendments. The former Bylaws provide the stockholders and the Board with
the concurrent power to amend the Bylaws. The amended Bylaws vest solely in the
Board the power to amend the Bylaws.
Other Changes. In addition to the amendments described above, the amended
Bylaws include certain non-substantive and organizational changes as necessary
to the adoption of the foregoing Bylaw Amendments.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
The following exhibit is filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBITS
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99.1 Bylaws of Agree Realty Corporation, as amended on November 8,
2006.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: November 8, 2006 AGREE REALTY CORPORATION
By: /s/ Kenneth R. Howe
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Vice President, Finance, Chief
Financial Officer
Exhibit Index
Exhibit No. Description
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99.1 Bylaws of Agree Realty Corporation, as amended on November 8,
2006.