UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
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): July 14, 2009
AGREE
REALTY CORPORATION
(Exact
name of registrant as specified in its charter)
Maryland
(State or
other jurisdiction of incorporation)
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1-12928
(Commission
file number)
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38-3148187
(I.R.S.
Employer Identification No.)
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31850
Northwestern Highway
Farmington
Hills, MI
(Address
of principal executive offices)
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48334
(Zip
code)
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(Registrant’s
telephone number, including area code) (248) 737-4190
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:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 5.02. Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
On July
14, 2009, Agree Realty Corporation (the “Company”) entered into employment
agreements (the “Agreements”) with Richard Agree, Chief Executive Officer of the
Company, and Joey Agree, President and Chief Operating Officer of the Company
(each, an “Executive”).
Each
Agreement is effective from July 1, 2009 through June 30, 2014, with automatic
one-year extensions as of the end of each employment period unless either party
gives written notice at least 120 days prior to the expiration of such
period. Subject to the terms of the Agreement, each party may
terminate the Agreement upon 30 days’ written notice.
Each
Executive is entitled to a minimum annual base salary of $280,000, with any
increases to be determined by the Compensation Committee, and to participate in
all benefit programs generally available to the Company’s executive officers,
including any equity incentive plan or bonus plan.
Upon any
termination, Executive will receive any accrued and unpaid salary through the
termination date and any accrued and unpaid cash bonus for the fiscal year
preceding the termination date. Except as set forth below or required
by law, all other benefits and unvested securities of the Company will be
forfeited as of the termination date.
The
Agreement will be terminated if Executive dies or becomes disabled (as defined
therein). In the event of termination of the Agreement because of death or
disability, (a) Executive (or his estate) also will receive a pro rata portion
of the cash bonus with respect to the fiscal year in which the termination
occurs and (b) all unvested securities of the Company held by Executive will
become fully vested as of the termination date.
Except
with respect to a change of control, if Executive’s employment is terminated by
the Company for any reason other than death, disability or cause (as defined
therein), or Executive terminates employment for good reason (as defined
therein), (a) Executive also will receive (i) a pro rata portion of the cash
bonus with respect to the fiscal year in which the termination occurs, and (ii)
an amount equal to 2 times Executive’s compensation (as defined below), (b)
Executive will continue to participate in all benefit plans made generally
available by the Company to its executives for the remaining term of the
Agreement (as if such termination had not occurred), and (c) all unvested
securities of the Company held by Executive will become fully vested as of the
termination date.
If a
change in control (as defined therein) occurs prior to the expiration of the
Agreement and Executive’s employment is terminated by the Company for reasons
other than death, disability or cause or Executive terminates such Agreement for
good reason, in each case within 18 months after the change in control, (a)
Executive also will receive (i) a pro rata portion of the cash bonus with
respect to the fiscal year in which the termination occurs, and (ii) an amount
equal to 3 times Executive’s compensation, (b) Executive will continue to
participate in all benefit plans made generally available by the Company to its
executives for the remaining term of the Agreement (as if such termination had
not occurred) and (c) all unvested securities of the Company held by Executive
will become fully vested as of the termination date. The Agreement
does not contain a tax gross-up payment for Executive, but does entitle
Executive to receive whatever amount would generate more after tax income to
Executive, either (x) the foregoing amounts or (y) a reduced amount that would
not subject Executive to additional taxes under the Code if deemed a payment
contingent on a change in control.
“Compensation”
means the aggregate of (a) in respect of salary, an amount equal to the highest
annualized rate of Executive’s salary during the employment period; (b) in
respect of bonus (cash and securities), Executive’s average bonus over the
previous three calendar years; and (c) in respect of other benefits set forth in
the Agreement or otherwise made available generally to executives of the Company
pursuant to Company policy (excluding grants of Company securities), an amount
equal to the fair market value of such benefits.
Notwithstanding
any of the foregoing, if Executive retires at anytime after the age of 62 (Joey
Agree) or 65 (Richard Agree), except if such employment is terminated for cause,
then all unvested securities of the Company held by Executive will become fully
vested as of the retirement date, subject to other agreement between the parties
pursuant to a consulting arrangement.
If
Executive is terminated for cause or Executive terminates such employment
without good reason, Executive will be subject to non-compete and
non-solicitation provisions for one year following such termination
date. In addition, the Agreement contains customary confidentiality
provisions.
The
foregoing summary is qualified in its entirety by the Agreements, copies of
which are filed herewith as Exhibits 10.1 and 10.2, respectively, and which are
incorporated herein by reference.
Item 9.01. Financial
Statements and Exhibits.
(d) Exhibits
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Exhibit
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Description
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10.1
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Employment
Agreement by and between Agree Realty Corporation and Richard
Agree
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10.2
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Employment
Agreement by and between Agree Realty Corporation and Joey
Agree
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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.
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AGREE
REALTY CORPORATION
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/s/ Kenneth R. Howe
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Vice
President, Finance, Chief Financial
Officer
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Date: July
16, 2009
EXHIBIT
INDEX
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Description
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10.1
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Employment
Agreement by and between Agree Realty Corporation and Richard
Agree
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Employment
Agreement by and between Agree Realty Corporation and Joey
Agree
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