EXHIBIT 3.1
ARTICLES SUPPLEMENTARY
AGREE REALTY CORPORATION
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Agree Realty Corporation, a Maryland corporation, having its principal office in the State of
Maryland in the City of Baltimore (the “Corporation”), hereby certifies to the State of Department
of Assessments and Taxation of Maryland that:
FIRST
: Pursuant to authority conferred upon the Board of Directors by the charter
(the “Charter”) of the Corporation, the Board of Directors of the Corporation adopted resolutions
classifying 150,000 shares of the Corporation’s authorized but unissued capital stock, par value
$.0001 per share, without designation as to class or series, as shares of “Series A Junior
Participating Preferred Stock” with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other distributions, qualifications and terms and
conditions of redemption of the shares of such series as follows:
Section 1.
Designation and Amount
. The shares of such series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be One Hundred and Fifty Thousand (150,000).
Such number of shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A Preferred Stock.
Section 2.
Dividends and Distributions
.
(a) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in preference to the holders of
Common Stock, par value $0.0001 per share (the “Common Stock”), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends payable in cash on
the first day of March, June, September and December in each year (each such date being referred to
herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (i) One Dollar and No/100
($1.00) or (ii) subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock
as provided in paragraph (a) of this Section 2 immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock),
provided that, in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to receive the payment of a
dividend or distribution declared thereon, which record date shall be not more than 60 days prior
to the date fixed for the payment thereof.
Section 3.
Voting Rights
. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of
-2-
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other Articles Supplementary creating a series
of Preferred Stock or any similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4.
Certain Restrictions
.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
-3-
rights and preferences of the respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (a) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5.
Reacquired Shares
. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Articles of Incorporation, or in any other Articles Supplementary creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6.
Liquidation, Dissolution or Winding Up
. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (a) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (b) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (a) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7.
Consolidation, Merger, etc
. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
-4-
Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8.
No Redemption
. The shares of Series A Preferred Stock shall not be
redeemable.
Section 9.
Rank
. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any other class of the
Corporation’s Preferred Stock.
Section 10.
Amendment
. The Articles of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
SECOND
: These Articles Supplementary have been approved by the Board of Directors in
the manner and by the vote required by law.
THIRD
: The undersigned officer of the Corporation acknowledges these Articles
Supplementary to be the corporate act of the Corporation and, as to all matters or facts required
to be verified under oath, the undersigned acknowledges that, to the best of his knowledge,
information and belief, these matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
-5-
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in
its name and on its behalf by its President and attested to by its Secretary as of the
8
th
day of December, 2008.
|
|
|
|
|
|
ATTEST:
|
|
|
By:
|
/s/ Kenneth R. Howe
|
|
|
|
Name:
|
Kenneth R. Howe
|
|
|
Title:
|
Secretary
|
|
|
|
|
|
|
|
|
|
AGREE REALTY CORPORATION
|
|
|
By:
|
/s/ Richard Agree
|
|
|
|
Name:
|
Richard Agree
|
|
|
|
Title:
|
President
|
|
|
|
-6-
EXHIBIT 3.2
ARTICLES SUPPLEMENTARY
AGREE REALTY CORPORATION
Agree Realty Corporation, a Maryland corporation (the “Corporation”), hereby certifies to the
State of Department of Assessments and Taxation of Maryland that:
FIRST
: Pursuant to authority conferred upon the Board of Directors by the charter
(the “Charter”) of the Corporation, the Board of Directors of the Corporation adopted resolutions
classifying (i) 8,350,000 shares of the Corporation’s authorized but unissued capital stock, par
value $.0001 per share, without designation as to class or series, as shares of common stock, par
value $.0001 per share, of the Corporation (the “Common Stock”), with the preferences, conversion
and other rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of the Common Stock set forth in the Charter,
and (ii) 4,000,000 shares of the Corporation’s authorized but unissued capital stock, par value
$.0001 per share, without designation as to class or series, as shares of excess stock, par value
$.0001 per share, of the Corporation (the “Excess Stock”), with the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of the Excess Stock as set forth in the
Charter. After giving effect to the foregoing classification, the Corporation has the authority to
issue 20,000,000 shares of capital stock, par value $.0001 per share, of which 13,350,000 shares
are classified as shares of Common Stock and 6,500,000 shares are classified as shares of Excess
Stock.
SECOND
: These Articles Supplementary have been approved by the Board of Directors of
the Corporation in the manner and by the vote required by law.
THIRD
: The undersigned officer of the Corporation acknowledges these Articles
Supplementary to be the corporate act of the Corporation and, as to all matters or facts required
to be verified under oath, the undersigned acknowledges that, to the best of his knowledge,
information and belief, these matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
-
Signature page follows
-
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in
its name and on its behalf by its President and attested to by its Secretary as of the
8
th
day of December, 2008.
|
|
|
|
|
|
ATTEST:
|
|
|
By:
|
/s/ Kenneth R. Howe
|
|
|
|
Name:
|
Kenneth R. Howe
|
|
|
Title:
|
Secretary
|
|
|
|
|
|
|
|
|
|
AGREE REALTY CORPORATION
|
|
|
By:
|
/s/ Richard Agree
|
|
|
|
Name:
|
Richard Agree
|
|
|
|
Title:
|
President
|
|
|
|
-2-
EXHIBIT 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment (the “
Amendment
”) to Rights Agreement is entered into as of
December 8, 2008, by and between Agree Realty Corporation, a Maryland corporation (the
“
Company
”), and Computershare Trust Company, N.A., f/k/a EquiServe Trust Company, N.A., a
national banking association, as successor rights agent to BankBoston, N.A., a national banking
association (the “
Rights Agent
”).
RECITALS:
WHEREAS,
the Company and the Rights Agent are parties to that certain Rights Agreement dated
as of December 7, 1998, as amended by the Amendment to Rights Agreement dated as of October 18,
2001 (the “
Agreement
”), pursuant to which each holder of the Company’s common stock
received one preferred share purchase right (collectively, the “
Rights
”) for each
outstanding share of common stock. The Rights will expire on December 22, 2008 unless the
expiration date under the Rights Agreement is extended.
WHEREAS,
the Company’s Board of Directors has determined that it is in the best interests of
the Company to extend the expiration of the Rights pursuant to the Rights Agreement to December 22,
2018, as set forth below.
NOW, THEREFORE,
in consideration of the premises and mutual agreements hereinafter set out and
of other consideration (the receipt and sufficiency of which are acknowledged), the parties hereto
agree as follows:
1.
Definitions
. Except as otherwise indicated herein or unless the context otherwise
requires, capitalized terms used but not defined herein shall have the meanings ascribed thereto in
the Agreement.
2.
Amendment to Section 5
. Section 5(b) of the Agreement is hereby amended to delete
the term “manually” in its entirety and to insert the following new language after the term
“countersigned”:
“, either manually or by facsimile signature,”
3.
Extension of Expiration Date
. Section 7(a) of the Agreement is hereby amended,
restated and replaced in its entirety with the following:
(a) Except as otherwise provided herein (including Section 24 hereof),
each Right shall entitle the registered holder thereof, upon exercise
thereof as provided herein, to purchase for the Purchase Price, at any time
after the Distribution Date and at or prior to the earliest of (i) the close
of business on December 22, 2018 (the “Final Expiration Date”), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (the
“Redemption Date”) and (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof, one one-hundredth of a Preferred
Share, subject to adjustment from time to time as provided in Section 11 or
13 hereof.
4.
Amendment to Section 21
. Section 21 of the Agreement is hereby amended by
inserting the following new sentence after the existing first sentence:
“In the event the transfer agency relationship in effect between the Company
and the Rights Agent terminates, the Rights Agent will be deemed to have
resigned automatically and be discharged from its duties under this
Agreement as of the 30
th
day after the effective date of such
termination (and, unless such transfer agency relationship is terminated by
the Company, the receipt by the Company of written notice of such
termination) or, if such 30
th
day is not a Business Day, the next
following Business Day, and the Company shall be responsible for sending any
required notice to the holders of Rights Certificates.”
5.
Address of Rights Agent
. The Rights Agent address information set forth in Section 26 of the Agreement is hereby amended, restated and replaced in its entirety with the following:
Computershare Trust Company, N.A.
250 Royall Street
Canton, MA 02021
Attention: Client Services
6.
Amendment to Section 31
. Section 31 of the Agreement is hereby amended to insert
the following new language at the end of the sentence:
“; except that the rights, duties and obligations of the Rights Agent shall
be governed by and construed in accordance with the laws of the Commonwealth
of Massachusetts.”
7.
Amendment to Agreement
. The Agreement is hereby amended to insert the following
new Section 35 at the end thereof:
“Section 35. Force Majeure. Notwithstanding anything to the contrary
contained herein, the Rights Agent shall not be liable for any delays or
failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, shortage of
supply, breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical difficulties
with information storage or retrieval systems, labor difficulties, war, or
civil unrest.”
-2-
8.
Miscellaneous
.
a. Except as expressly modified hereby, the Agreement remains in full force and effect. Upon
the execution and delivery hereof, as of the day and year first above written, the Agreement shall
thereupon be deemed to be amended and supplemented as hereinabove set forth as fully and with the
same effect as if the amendments and supplements made hereby were originally set forth in the
Agreement, and this Amendment and the Agreement shall henceforth be read, taken and construed as
one and the same instrument, but such amendments and supplements shall not operate so as to render
invalid or improper any action heretofore taken under the Agreement.
b. Section headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose.
c. This Amendment may be executed in one or more counterparts, each of which will be deemed to
be an original copy of this Amendment and all of which, when taken together, will be deemed to
constitute one and the same agreement. The exchange of copies of this Amendment and of signature
pages by facsimile or electronic transmission shall constitute effective execution and delivery of
this Amendment as to the parties hereto and may be used in lieu of the original Amendment for all
purposes. Signatures of the parties hereto transmitted electronically or by facsimile shall be
deemed to be their original signatures for all purposes
d. This Amendment and the Agreement, as amended hereby, shall be governed by and construed in
accordance with the laws of the State of Maryland, without regard to conflicts of laws principles.
-
Signature page follows
-
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day
and year first above written.
|
|
|
|
|
|
|
|
AGREE REALTY CORPORATION
|
|
|
|
By:
|
/s/ Richard Agree
|
|
|
|
|
Name:
|
Richard Agree
|
|
|
|
|
Title:
|
President
|
|
|
|
|
|
COMPUTERSHARE TRUST COMPANY, N.A.
|
|
|
|
By:
|
/s/ Katherine Anderson
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
-4-