UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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| Item 1.01. | Entry into a Material Definitive Agreement. |
On September 17, 2021, Agree Realty Corporation (the “Company”), as the sole general partner of Agree Limited Partnership (the “Operating Partnership”), amended and restated the agreement of limited partnership of the Operating Partnership (as amended and restated, the “Second Amended and Restated Partnership Agreement”) to, among other things, provide for the issuance of 7,000 4.250% Series A Cumulative Redeemable Preferred Units (liquidation preference $25,000.00 per unit) (the “Series A Preferred Units”). The Second Amended and Restated Partnership Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein. The Series A Preferred Units have economic terms that generally mirror the terms of the 4.250% Series A Cumulative Redeemable Preferred Stock of the Company, par value $0.0001 per share (the “Series A Preferred Stock”). The issuance of the Series A Preferred Units will be exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended.
This description of the material terms of the Second Amended and Restated Partnership Agreement is qualified in its entirety by reference to the Second Amended and Restated Partnership Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is hereby incorporated by reference into this Item 1.01.
| Item 3.03. | Material Modification to Rights of Security Holders. |
On September 17, 2021, the Company closed its underwritten public offering of depositary shares (the “Depositary Shares”), each representing 1/1,000th of a share of Series A Preferred Stock, which resulted in net proceeds to the Company of approximately $170.3 million, after deducting the underwriting discounts and commissions and the estimated offering expenses payable by the Company. At the closing, the Company issued 7,000 shares of Series A Preferred Stock and 7,000,000 Depositary Shares. The offering was conducted pursuant to an Underwriting Agreement, dated September 8, 2021, by and among the Company, the Operating Partnership and Wells Fargo Securities, LLC, J.P. Morgan Securities LLC and Raymond James & Associates, Inc., as representatives of the several underwriters named on Schedule I therein. The Company issued the Depositary Shares pursuant to the Company’s registration statement on Form S-3 (File No. 333-238729) which became effective upon filing with the Securities and Exchange Commission (“SEC”) on May 27, 2020, as amended by post-effective amendment no. 1 filed with the SEC on August 12, 2020 and post-effective amendment no. 2 filed with the SEC on May 5, 2021. The Company has contributed the net proceeds from the sale of the Depositary Shares described in this Item 3.03 to the Operating Partnership in exchange for 7,000 Series A Preferred Units corresponding to the number of shares of Series A Preferred Stock underlying the Depositary Shares.
The terms of the Series A Preferred Stock are set forth in the Articles Supplementary (the “Articles Supplementary”) to the Company’s Articles of Incorporation, as amended and supplemented, establishing and fixing the rights and preferences of the Series A Preferred Stock, which are incorporated by reference into this Item 3.03 and which are filed as Exhibit 3.1 to this Current Report on Form 8-K. The description of the Series A Preferred Stock set forth in Item 3.03 of the Company’s Current Report on Form 8-K filed on September 13, 2021 is incorporated by reference into this Item 3.03 and is qualified in its entirety by reference to the Articles Supplementary.
A summary of the material terms of the Depositary Shares is set forth under the caption “Description of the Series A Preferred Shares and the Depositary Shares” in the Company’s prospectus supplement, dated September 8, 2021 and filed with the SEC on September 9, 2021 (the “Prospectus Supplement”). The terms of the Depositary Shares are set forth in the Master Deposit Agreement, dated September 17, 2021, by and among the Company, Computershare Inc. and Computershare Trust Company, N.A., as depositary, and the holders from time to time of the depositary receipts described therein relating to shares of preferred stock of the Company (the “Deposit Agreement”). The summary of the Depositary Shares in the Prospectus Supplement is qualified in its entirety by reference to (i) the Deposit Agreement, which is incorporated by reference into this Item 3.03 and which is filed as Exhibit 4.1 to this Current Report on Form 8-K and (ii) the specimen receipt evidencing the Depositary Shares, which is incorporated by reference into this Item 3.03 and which is filed as Exhibit 4.2 to this Current Report on Form 8-K.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information about the Articles Supplementary set forth under Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 5.03.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
* Filed herewith.
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 hereunto duly authorized.
| AGREE REALTY CORPORATION | ||
| Date: September 17, 2021 | By: | /s/ Peter Coughenour |
| Name: Peter Coughenour | ||
| Title: Interim Chief Financial Officer | ||