UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934

(Amendment No.   )

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Preliminary proxy statement

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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

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Definitive Proxy Statement

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Definitive Additional Materials

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Soliciting Material Under §240.14a-12

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Agree Realty Corporation

(Name of registrant as specified in its charter)​

(Name of person(s) filing proxy statement, if other than the registrant)​

Payment of Filing Fee (Check all boxes that apply):

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No fee required

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Fee paid previously with preliminary materials

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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

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AGREE REALTY CORPORATION

70 E. Long Lake Road
Bloomfield Hills, MI 48304

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To be Held on May 11, 2023

NOTICE IS HEREBY GIVEN that the 2023 Annual Meeting of stockholders (the “2023 Annual Meeting”) of AGREE REALTY CORPORATION, a Maryland corporation, will be held virtually at 10:00 a.m. Eastern Time on May 11, 2023, for the following purposes:

In addition, stockholders will consider and vote on such other business as may properly come before the meeting or any adjournment or postponement thereof.

Stockholders of record at the close of business on March 17, 2023 will be entitled to notice of and to vote at the 2023 Annual Meeting or at any adjournment or postponement thereof. Stockholders are cordially invited to attend the meeting virtually via the internet. To attend the Annual Meeting, visit www.virtualshareholdermeeting.com/ADC2023 and enter the 16-digit control number included on your notice or proxy card (if you received a printed copy of the proxy materials). Stockholders may vote and submit questions while attending the 2023 Annual Meeting virtually via the internet.

Pursuant to rules promulgated by the Securities and Exchange Commission, we are providing access to our proxy materials over the internet. On or about March 31, 2023, we expect to mail our stockholders either (i) the Notice of Internet Availability of Proxy Materials (the “Notice”) only or (ii) a copy of this Notice of Annual Meeting, the proxy statement, the accompanying proxy card, and our annual report (if a stockholder previously requested paper delivery of proxy materials), each in connection with the solicitation of proxies by our board of directors for use at the 2023 Annual Meeting and any adjournments or postponements thereof. The Notice contains instructions related to this process, including how to access our Notice of Annual Meeting, proxy statement and annual report over the internet, how to authorize your proxy to vote online and how to request a paper copy of the Notice of Annual Meeting, proxy statement and annual report.

It is important that your shares be voted. You may authorize your proxy to vote your shares over the internet as described in the Notice. Alternatively, if you received a paper copy of the proxy card by mail, please complete, date, sign and promptly return the proxy card in the self-addressed stamped envelope provided. You also may vote by telephone as described in your proxy card. If you attend the 2023 Annual Meeting, you may revoke your proxy in accordance with procedures set forth in the proxy statement and vote electronically via the internet.

 

 

TABLE OF CONTENTS

 

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AGREE REALTY CORPORATION

70 E. Long Lake Road
Bloomfield Hills, MI 48304

PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS

May 11, 2023

ABOUT THE ANNUAL MEETING

This proxy statement is furnished by our board of directors (the “Board”) in connection with the Board’s solicitation of proxies to be voted at the 2023 Annual Meeting of stockholders (the “2023 Annual Meeting”) of Agree Realty Corporation (the “Company”) to be held virtually at 10:00 a.m. Eastern Time on May 11, 2023, at www.virtualshareholdermeeting.com/ADC2023, and at any adjournment or postponement thereof.

On or about March 31, 2023, we are mailing either (i) a copy of the Notice of Annual Meeting, this proxy statement, the accompanying proxy card, our annual report and the Notice of Internet Availability of Proxy Materials (the “Notice”) (if a stockholder previously requested paper delivery of proxy materials), or (ii) the Notice only, to our stockholders of record on March 17, 2023 (the “Record Date”). The Notice and this proxy statement summarize the information you need to know to vote at the 2023 Annual Meeting. You do not need to attend the 2023 Annual Meeting virtually via the internet in order to vote.

What is the purpose of the 2023 Annual Meeting?

At the 2023 Annual Meeting, holders of our common stock will be voting on the matters set forth below:

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To elect three directors to serve until the annual meeting of stockholders in 2026;

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To ratify the appointment of Grant Thornton LLP (“Grant Thornton”) as our independent registered public accounting firm for 2023;

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To approve (on an advisory basis), by non-binding vote, executive compensation; and

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To approve (on an advisory basis) whether an advisory vote on the compensation of our named executive officers should occur every one, two or three years.

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In addition, management will report on our performance and will respond to appropriate questions from stockholders. A representative of Grant Thornton will be present at the 2023 Annual Meeting and will be available to respond to appropriate questions. Such representative will also have an opportunity to make a statement.

 

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How can I Attend the Meeting?

You can attend the 2023 Annual Meeting virtually via the internet or by proxy.

Attending and Participating Online. The 2023 Annual Meeting will take place virtually via the internet at www.virtualshareholdermeeting.com/ADC2023. Stockholders may vote and submit questions while attending the 2023 Annual Meeting virtually via the internet. You will need the 16-digit control number included on your Notice or proxy card (if you received a paper delivery of proxy materials), to enter the 2023 Annual Meeting via the internet. Instructions on how to attend and participate virtually via the internet, including how to demonstrate proof of share ownership, are available at www.virtualshareholdermeeting.com/​ADC2023. Participants will be able to log in 15 minutes prior to the start of the Annual Meeting. We encourage you to access the Annual Meeting in advance of the designated start time to ensure that you do not experience any technical difficulties.

Attending by Proxy. Please see “Can I vote my shares without attending the 2023 Annual Meeting?” below.

Why are you Holding a Virtual Annual Meeting?

We believe that hosting a virtual meeting will enable more of our stockholders to attend and participate in the 2023 Annual Meeting since our stockholders can participate from any location around the world with internet access. We have designed our virtual format to enhance, rather than constrain, stockholder access, participation, and communication. For example, the virtual format allows stockholders to communicate with us during the 2023 Annual Meeting so they can ask questions of the Board or management. During the live Q&A session of the meeting, we may answer questions as they come in, to the extent relevant to the business of the meeting, as time permits.

Who is Entitled to Vote?

All stockholders of record at the close of business on the Record Date will be entitled to vote. Each share of common stock entitles the holder thereof to one vote on each of the matters to be voted upon at the 2023 Annual Meeting. As of the Record Date, 90,253,104 shares of our common stock, $.0001 par value per share, were outstanding.

What Constitutes a Quorum?

The presence at the 2023 Annual Meeting, virtually via the internet or by proxy, of stockholders entitled to cast a majority of all the votes entitled to be cast at the meeting will constitute a quorum for all purposes. Proxies marked with abstentions or instructions to withhold votes will be counted as present in determining whether or not there is a quorum.

However, if a quorum is not present at the 2023 Annual Meeting, the stockholders, present virtually via the internet or represented by proxy, have the power to adjourn the meeting until a quorum is present or represented. Regardless of whether a quorum is present, our Amended and Restated Bylaws (as amended, our “Bylaws”) provide that the chairman of the meeting may recess or adjourn the meeting.

What is the Difference Between Holding Shares as a Stockholder of Record and a Beneficial Owner?

Stockholders of Record. If your shares are registered directly in your name with our transfer agent, Computershare Trust Company, N.A., you are considered the stockholder of record with respect to those shares, the Notice and, if applicable, our proxy materials (including the Notice of Annual Meeting, the proxy statement, the accompanying proxy card and our annual report) are being sent to you by us. As the stockholder of record, you have the right to grant your voting proxy directly to us over the internet or by telephone as described in the Notice, or through an accompanying proxy card or to vote virtually via the internet at the 2023 Annual Meeting.

Beneficial Owners. Many of our stockholders hold their shares through a broker, bank or other nominee rather than directly in their own name. If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the beneficial owner of those shares, and the Notice and, if

 

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applicable, our proxy materials (including the Notice of Annual Meeting, the proxy statement, the accompanying proxy card, our annual report and the Notice) are being forwarded to you by your broker, bank or nominee who is considered the stockholder of record with respect to those shares. As the beneficial owner, you have the right to direct your broker, bank or nominee on how to vote and are also invited to attend the 2023 Annual Meeting. However, since you are not the stockholder of record, you may not vote these shares virtually via the internet at the 2023 Annual Meeting unless you request and obtain a proxy from your broker, bank or nominee. Your broker, bank or nominee has enclosed a voting instruction card for you to use in directing the broker, bank or nominee on how to vote your shares.

May I Vote my Shares at the 2023 Annual Meeting?

Even if you plan to virtually attend the 2023 Annual Meeting, we encourage you to vote your shares prior to the meeting.

Stockholders of Record. If you are a stockholder of record and attend the 2023 Annual Meeting virtually via the internet, you may deliver your completed proxy card as discussed below or vote during the meeting by electronic ballot in accordance with the instructions on how to participate virtually via the internet, which are available at www.virtualshareholdermeeting.com/ADC2023.

Beneficial Owners. If you hold your shares through a broker, bank or other nominee and want to vote such shares virtually via the internet at the 2023 Annual Meeting, you must obtain a proxy from your broker, bank or other nominee giving you the power to vote such shares.

Can I Vote my Shares Without Attending the 2023 Annual Meeting?

If you received a paper copy of the proxy card by mail, please complete, date, sign and promptly return the proxy card in the self-addressed stamped envelope provided or vote by telephone or internet as indicated on your proxy card. Voting your shares over the internet, by mailing a proxy card or by telephone, will not limit your right to attend the 2023 Annual Meeting and vote your shares virtually via the internet. If you attend the 2023 Annual Meeting, you may revoke your proxy in accordance with the procedures set forth in this proxy statement.

If you have shares held by a broker, you may instruct your broker to vote your shares by following the instructions that the broker provides to you. Most brokers allow you to authorize your proxy by mail, telephone and on the internet.

Can I Change my Vote After I have Voted?

Yes. Proxies properly submitted over the internet, by mail or by telephone do not preclude a stockholder from voting virtually via the internet at the meeting. A stockholder may revoke a proxy at any time prior to its exercise by filing with our Secretary a duly executed revocation of proxy, by properly submitting, either by internet, mail or telephone, a proxy to our Secretary bearing a later date or by attending the meeting and voting virtually via the internet. Attendance at the meeting will not by itself constitute revocation of a proxy. If you hold your shares through a bank, broker or other nominee, you should contact such person prior to the time such voting instructions are exercised.

What Does it Mean if I Receive More Than One Notice or Proxy Card or Voting Instruction Card?

If you receive more than one Notice or proxy card or voting instruction card, it means that you have multiple accounts with banks, trustees, brokers, other nominees and/or our transfer agent. If you receive more than one Notice, please submit all of your proxies over the internet, by mail or by telephone, following the instructions provided in the Notice, to ensure that all of your shares are voted. If you receive more than one proxy card or voting instruction card, please sign and deliver each proxy card and voting instruction card that you receive. We recommend that you contact your nominee and/or our transfer agent, as appropriate, to consolidate as many accounts as possible under the same name and address.

How Many Copies Should I Receive if I Share an Address With Another Stockholder?

The Securities and Exchange Commission (“SEC”) has adopted rules that permit companies and intermediaries, such as a broker, bank or other agent, to implement a delivery procedure called

 

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“householding.” Under this procedure, multiple stockholders who reside at the same address may receive a single copy of the Notice, and, if applicable, our proxy materials, unless the affected stockholder has provided us with contrary instructions. This procedure provides extra convenience for stockholders and cost savings for companies.

The Company and brokers, banks or other agents may be householding the Notice and our proxy materials. A single Notice and, if applicable, a single set of our proxy materials, including the Notice of Annual Meeting, the proxy statement, the accompanying proxy card, our annual report and the Notice, will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker, bank or other agent that it will be householding communications to your address, householding will continue until you are notified otherwise or until you revoke your consent. If you did not respond that you did not want to participate in householding, you were deemed to have consented to the process. Stockholders may revoke their consent at any time by contacting Broadridge ICS, either by calling toll-free (800) 542-1061 or by writing to Broadridge ICS, Householding Department, 51 Mercedes Way, Edgewood, New York, 11717.

Upon written or oral request, we will promptly deliver a separate copy of the Notice and, if applicable, a set of our proxy materials, to any stockholder at a shared address to which a single copy of any of those documents was delivered. To receive a separate copy of the Notice or a separate set of our proxy materials now or in the future, you may contact Agree Realty Corporation, either by calling (248) 737-4190 or by writing to 70 E. Long Lake Road, Bloomfield Hills, MI 48304, Attention: Secretary. In addition, if you are receiving multiple copies of the Notice and, if applicable, our proxy materials, you can request householding by contacting our Secretary in the same manner.

What if I do not Vote for Some of the Items Listed on my Proxy Card or Voting Instruction card?

Stockholders of Record. Proxies properly submitted via the internet, mail or telephone will be voted at the 2023 Annual Meeting in accordance with your directions. If the properly submitted proxy does not provide voting instructions on a proposal, the proxy will be voted in accordance with the recommendations of the Board on such matters. With respect to any matter not set forth on the proxy card that properly comes before the 2023 Annual Meeting, the proxy holders named therein will vote as the Board recommends or, if the Board gives no recommendation, in their own discretion.

Beneficial Owners. Proxies properly submitted via the internet mail or telephone or pursuant to your voting instruction card will be voted at the 2023 Annual Meeting in accordance with your directions. If you do not indicate a choice or return the voting instruction card, the broker, bank or other nominee will determine if it has the discretionary authority to vote on each matter. Under applicable law and New York Stock Exchange (“NYSE”) rules and regulations, brokers have the discretion to vote on routine matters, including the ratification of the appointment of our independent registered public accounting firm. However, your broker does not have discretionary authority to vote on the election of directors, the advisory vote approving our executive compensation, or the advisory vote on the frequency of executive compensation votes, in which case a “broker non-vote” will occur and your shares will not be voted on these matters.

What Vote is Required to Approve Each Item?

Proposal 1 — Election of Directors. The three nominees receiving the highest number of “for” votes at the 2023 Annual Meeting will be elected as directors. Any nominee who receives a greater number of votes “withheld” from his or her election than votes “for” such election must tender his or her resignation for consideration by the Nominating and Governance Committee. The Nominating and Governance Committee will recommend to the Board the action to be taken with respect to the resignation. The Board will publicly disclose its decision within 90 days of the certification of the election results. The slate of nominees discussed in this proxy statement consists of three directors, Merrie Frankel, John Rakolta, Jr., and Jerome Rossi, whose terms are expiring. Abstentions and broker non-votes will have no effect on the outcome of this proposal. Our stockholders do not have the right to cumulate their votes for directors.

 

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Proposal 2 — Ratification of Appointment of Independent Registered Public Accounting Firm. The affirmative vote of a majority of votes cast at the 2023 Annual Meeting is necessary to ratify the Audit Committee’s appointment of Grant Thornton as our independent registered public accounting firm for 2023. Abstentions are not treated as votes cast under Maryland law and, therefore, they have no effect on the outcome of this proposal. Although stockholder ratification of the appointment is not required and is not binding on us, the Board considers the selection of the independent registered public accounting firm to be an important matter of stockholder concern and the Audit Committee will take your vote on this proposal into consideration when appointing our independent registered public accounting firm in the future. Even if the stockholders ratify the appointment of Grant Thornton, the Audit Committee, in its sole discretion, may terminate the engagement of Grant Thornton and engage another independent auditor at any time during the year.

Proposal 3 — Advisory (Non-Binding) Vote Approving Executive Compensation. The affirmative vote of a majority of votes cast at the 2023 Annual Meeting is necessary to approve our executive compensation. Abstentions and broker non-votes are not treated as votes cast under Maryland law and, therefore, they have no effect on the outcome of this proposal.

Proposal 4 — Advisory (Non-Binding) Vote on the Frequency of Executive Compensation Votes. The affirmative vote of a majority of votes cast at the 2023 Annual Meeting is required to approve the frequency of future votes on our name executive officers’ compensation. Abstentions and broker non-votes are not treated as votes cast under Maryland law and, therefore, they have no effect on the outcome of this proposal. The Board expects to be guided by the alternative that receives the greatest number of votes, even if not a majority.

Other Matters —  If any other matter is properly submitted to the stockholders at the 2023 Annual Meeting, its adoption will require the affirmative vote of a majority of votes cast at the meeting. The Board does not propose to conduct any business at the 2023 Annual Meeting other than as stated above.

Will Anyone Contact me Regarding This Vote?

No arrangements or contracts have been made with any solicitors as of the date of this proxy statement, although we reserve the right to engage solicitors if we deem them necessary. Such solicitations may be made by mail, telephone, facsimile, e-mail or personal interviews. In addition, our directors and officers may solicit proxies by mail, telephone, e-mail, telecopy or in person.

How do I Find Out the Voting Results?

Voting results will be announced at the 2023 Annual Meeting and will be published in a Current Report on Form 8-K to be filed with the SEC within four business days after the close of the meeting.

 

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Stockholder Feedback	​	​	Response	​
The Company does not have a cap on payouts if absolute total shareholder return (“TSR”) is negative	​	​	The Company introduced a payout cap on performance units at 100% if absolute TSR is negative, starting with 2023 awards	​
The Company does not disclose metrics and actual results for management business objectives (“MBOs”)	​	​	In additional definitive materials filed in April 2022, the Company disclosed MBO metrics and actual results for 2021, and has continued that practice in this proxy statement, disclosing MBO metrics and actual results for 2022	​
The Company does not disclose the “net lease peer group” which is weighted 50% for TSR measurements for performance units	​	​	The Company disclosed its net lease peer group in the additional definitive materials filed in April 2022, and continued that practice in this proxy statement	​
With respect to performance units previously disclosed, the Company does not disclose its performance results for prior periods	​	​	The Company historically disclosed performance results for prior periods in its annual report on Form 10-K, and has now incorporated that disclosure into this proxy statement	​
Long-term incentive (“LTI”) awards are 50% performance-based and 50% time-based, and stockholders would like to see a heavier weighting towards performance-based awards	​	​	The Compensation Committed decided to change LTI awards to be 55% performance-based and 45% time-based for all Named Executive Officers (“NEOs”) for 2023	​

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​	Do										​
​	✔	​	​	provide compensation that is aligned with performance by linking the achievement of pre-established short and long-term goals	​	​	✔	​	​	allow for claw-backs of cash and equity awards	​
​	✔	​	​	provide total compensation that is both fair and competitive	​	​	✔	​	​	require executives to own and retain shares of our common stock to further align their interests with those of our stockholders	​
​	✔	​	​	attract, retain and motivate key executives who are critical to our operations	​	​	✔	​	​	engage a third-party consultant to advise the Compensation Committee on executive compensation matters	​
​	✔	​	​	reward superior individual and company performance on both a short-term and long-term basis	​	​	✔	​	​	have a Compensation Committee comprised entirely of independent directors	​

​	Do Not										​
​		​	​	provide total compensation that is not linked to short and long-term company goals	​	​		​	​	overweight compensation that is not “at-risk” for executives	​
​		​	​	provide incentives for executives to take excessive risk to reach short term targets	​	​		​	​	provide uncapped award opportunities to our executives	​
​		​	​	provide executives with excessive perquisites or other personal benefits	​	​		​	​	guarantee annual base salary increases but instead consider increases if warranted	​
​		​	​	permit executives to engage in derivative or hedging transactions in our securities	​	​		​	​	provide for excise tax gross-up payments in connection with a change in control	​

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Proposal No.	​	​	Description	​	​	Board’s Recommendation	​	​	Page	​
1	​	​	The election of three directors nominated by our Board of Directors and named in the accompanying Proxy Statement to hold office until the 2026 Annual Meeting	​	​	For	​	​	49	​
2	​	​	Ratification of the appointment of Grant Thornton as our independent registered public accounting firm for the year 2023	​	​	For	​	​	53	​
3	​	​	A non-binding vote to approve executive compensation of our named executive officers as described in the accompanying Proxy Statement.	​	​	For	​	​	54	​
4	​	​	A non-binding vote on whether an advisory vote on the compensation of our named executive officers should occur every one, two or three years	​	​	Every Year	​	​	55	​

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

Security Ownership of Management

The following table sets forth information regarding the beneficial ownership of our common stock (our only outstanding class of voting securities) as of March 17, 2023, with respect to each director and named executive officer, and all of our directors and executive officers as a group. As of March 17, 2023, there were 90,253,104 shares of our common stock outstanding. Unless otherwise indicated, each person has sole voting and investment power with respect to the shares listed below and none of the named executive officers or directors has pledged his or her shares of common stock as collateral. Unless otherwise indicated, the business address for each of the identified stockholders is 70 E. Long Lake Road, Bloomfield Hills, Michigan 48304.

*

Less than 1%

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(1)

The amount of common stock beneficially owned is reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Amounts include the following number of unvested shares of restricted stock as of March 17, 2023: Mr. Richard Agree: 19,113 shares, Mr. Joel Agree: 108,128 shares, Mr. Coughenour: 4,306 shares, Mr. Erlich: 11,355 shares, Ms. Spehar: 8,182 shares, Ms. Witteveen: 7,137 shares, Ms. Dearing: 2,661 shares, Ms. Frankel: 1,501 shares, Mr. Hollman: 1,501 shares, Mr. Judlowe: 2,457 shares, Mr. Lehmkuhl: 2,457 shares, Mr. Rakolta: 2,457 shares, Mr. Rossi: 1,501 shares; and all executive officers and directors as a group, 169,835 shares.

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(2)

Percentages are based on 90,253,104 shares of common stock outstanding as of March 17, 2023. The amount of common stock outstanding used in calculating such percentages assumes that none of the common limited partnership units in Agree Limited Partnership (the “Common OP Units”) are converted to common stock.

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(3)

Consists of (i) 413,939 shares owned directly, (ii) 70,512 shares owned by his spouse and (iii) 94,355 shares owned by irrevocable trusts for his children and does not include 347,619 shares of common stock issuable upon conversion of his Common OP Units.

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(4)

Consists of 514,253 shares owned directly and 50 shares owned by his children.

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(5)

Consists of 30,651 shares owned directly and 700 shares owned by his children.

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(6)

Consists of 6,073 shares owned directly and 100 shares owned by his spouse.

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(7)

Consists of 271,273 shares owned directly and 213 shares owned by his spouse.

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(8)

Does not include 347,619 shares of common stock issuable upon conversion of Common OP Units.

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Security Ownership of Certain Beneficial Owners

The following table sets forth information regarding the beneficial ownership of our common stock (our only outstanding class of voting securities) as of March 17, 2023, to our knowledge, for each beneficial owner of more than 5.0% of the outstanding shares of our common stock. As of March 17, 2023, there were 90,253,104 shares of our common stock outstanding.

(1)

The amount of common stock beneficially owned is reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities.

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(2)

Percentages are based on 90,253,104 shares of common stock outstanding as of March 17, 2023. The amount of common stock outstanding used in calculating such percentages assumes that none of the Common OP Units are converted to common stock.

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(3)

Pursuant to Schedule 13G/A (Amendment No. 1) filed with the SEC on January 26, 2023 by BlackRock, Inc. Represents holdings of various subsidiaries of the holding company and includes ownership of more than 5% of our common stock by Blackrock Fund Advisors, and iShares Core S&P Small-Cap ETF. The business address of such person is 55 East 52nd Street, New York, NY 10055. BlackRock, Inc. is deemed to have sole voting power with respect to 16,664,878 shares and sole dispositive power with respect to 17,163,492 shares.

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(4)

Pursuant to Schedule 13G/A (Amendment No. 10) filed with the SEC on February 9, 2023 by The Vanguard Group. Represents 13,970,181 shares of common stock beneficially owned by The Vanguard Group and certain of its affiliates. The business address of such person is 100 Vanguard Blvd., Malvern, PA 19355. The Vanguard Group is deemed to have shared voting power with respect to 136,663 shares, sole dispositive power with respect to 13,750,579 shares and shared dispositive power with respect to 219,602 shares.

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(5)

Pursuant to Schedule 13G/A filed with the SEC on February 6, 2023 by State Street Corporation Represents 5,331,244 shares of common stock beneficially owned by State Street Corporation and certain of its affiliates. The business address of such person is 1 Lincoln Street, Boston, MA 02111. State Street Corporation is deemed to have shared voting power with respect to 4,141,565 shares and shared disposition power with respect to 5,331,244 shares.

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BOARD MATTERS

The Board of Directors

The Board has general oversight responsibility for our affairs, and the directors, in exercising their duties, represent and act on behalf of the stockholders. Although the Board does not have responsibility for our day-to-day management, it stays regularly informed about our business and provides guidance to management through periodic meetings and other informal communications. The Board is significantly involved in, among other things, the strategic and financial planning process, leadership development and succession planning, as well as other functions carried out through the Board committees as described below.

Board Leadership Structure. The Board recognizes that one of its key responsibilities is to evaluate and determine its optimal leadership structure so as to provide independent oversight of management. The Board understands that there is no single, generally accepted approach to providing board leadership and the right board leadership structure may vary as circumstances warrant.

Richard Agree served as our Chairman of the Board and Chief Executive Officer from December 1993 to January 2013 and has served as our Executive Chairman of the Board since January 2013. Joel Agree served as our President and Chief Operating Officer until his promotion to Chief Executive Officer in January 2013 and has served as a director since June 2009. Subject to the direction of the Board, including the Executive Chairman, Joel Agree has general responsibility and ultimate authority for the implementation of our policies. Based on a review of the Board leadership structure in 2019, the Board created the Lead Independent Director position to further promote independence and to demonstrate our commitment to corporate governance. Mr. Lehmkuhl has served as the Lead Independent Director since December 2020.

The Board, which consists of a majority of independent directors, exercises a strong, independent oversight function. This oversight function is enhanced by the fact that the Audit Committee, the Compensation Committee and the Nominating and Governance Committee are comprised entirely of independent directors and by oversight by the Lead Independent Director. Under our Bylaws and Corporate Governance Guidelines, the Board has the ability to change its structure, should that be deemed appropriate and in the best interest of our Company and our stockholders. The Board believes that these factors provide the appropriate balance between the authority of those who oversee our Company and those who manage it on a day-to-day basis.

Risk Management. The Board takes an active and informed role in our risk management policies and strategies. Our executive officers, who are responsible for our day-to-day risk management practices, present to the Board on the material risks to our Company, including credit risk, liquidity risk, operational risk, risk related to information technology and cybersecurity. At that time, the management team also reviews with the Board our risk mitigation policies and strategies specific to each risk that is identified. Our Compensation Committee reviews and determines whether any of our compensation policies or practices subject the Company to inappropriate risk. Our Audit Committee role includes assisting the Board in fulfilling its responsibilities related to the oversight of major financial exposures review generally the guidelines and policies governing the process by which management assesses and manages such risk exposures, accounting and reporting processes; our system of internal accounting and financial controls; our technology security policies and internal cybersecurity and privacy controls. Our Audit Committee reviews and determines cybersecurity, privacy, information security and financial risk exposures and the steps our management has taken to monitor and control these exposures. Throughout the year, management monitors our risk profile and updates the Board as new material risks are identified or the aspects of a risk previously presented to the Board materially change.

Meetings. The Board and its committees meet throughout the year at regularly scheduled meetings, and also hold special meetings and act by written consent as appropriate. The Board met four times during 2022. During 2022, each director attended, virtually or in person, 75% or more in aggregate of (i) the number of meetings of the Board and (ii) the number of meetings held by all committees of the Board on which such director served. It has been and is the policy of the Board that directors attend annual meetings of stockholders except where the failure to attend is due to unavoidable circumstances

 

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or conflicts discussed in advance by the director with the Chairman of the Board. Each director serving on the Board at the time of the 2022 annual meeting attended our 2022 annual meeting of stockholders.

Lead Independent Director. Our independent directors meet in executive sessions quarterly without management. As Lead Independent Director, Mr. Lehmkuhl presides at executive sessions of our independent directors and Board meetings at which the Executive Chairman is not present; serves as liaison between the Executive Chairman and management as needed; reviews and approves Board meeting agendas, topics and schedules; communicates as appropriate with the Executive Chairman and management regarding matters discussed by the independent directors; and performs other duties as the Board may from time to time delegate to assist the Board in fulfilling its responsibilities.

Director Independence. The NYSE listing standards set forth objective requirements for a director to satisfy, at a minimum, in order to be determined to be independent by the Board. In addition, in order to conclude a director is independent in accordance with the NYSE listing standards, the Board must also consider all relevant facts and circumstances, including commercial, industrial, banking, consulting, legal, accounting, charitable and familial relationships. Pursuant to our Corporate Governance Guidelines and the NYSE listing standards, which require that a majority of our directors be independent within the meaning of the NYSE listing standards, the Board undertook a review of the independence of all non-management directors. The Board has affirmatively determined that the following seven of our nine directors are independent under NYSE listing standards and our Corporate Governance Guidelines and do not have a relationship with us that would interfere with such person’s ability to exercise independent judgment as a member of the Board: Ms. Dearing, Ms. Frankel, Mr. Hollman, Mr. Judlowe, Mr. Lehmkuhl, Mr. Rakolta, and Mr. Rossi. In making this determination, the Board has considered the relationships described below under “Related Person Transactions,” and determined they do not affect independence. The Board’s director independence standards outlined in our Corporate Governance Guidelines can be found on our website at www.agreerealty.com in the Corporate Governance FAQ section.

Stock Ownership Requirements. To further align the interests of certain of our executive officers and directors with the interest of our stockholders, and to promote our commitment to sound corporate governance, the Board has adopted stock ownership guidelines. The stock ownership guidelines apply to the Executive Chairman, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel and non-employee directors. A summary of those guidelines is set forth in “Compensation Discussion and Analysis — Stock Ownership Guidelines.”

Committees of the Board

The Board has delegated various responsibilities and authority to four standing committees of the Board. Each committee regularly reports on its activities to the full Board. Each committee, other than the Executive Committee, operates under a written charter approved by the Board, which is reviewed annually by the respective committees of the Board and is available in the Corporate Governance FAQ section of our website at www.agreerealty.com. Each committee may form, and delegate power and authority to, subcommittees of one or more of its members for any purpose that such committee deems appropriate. The Audit Committee, the Compensation Committee and the Nominating and Governance Committee are composed entirely of independent directors. In addition, the Board has determined that each member of the Audit Committee and the Compensation Committee qualifies as independent in accordance with the additional independence rules established by the SEC and NYSE. The table below sets forth the current membership of the four standing committees of the Board and the number of meetings held in 2022 by such committees:

 

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Audit Committee. The Audit Committee is responsible for providing independent, objective oversight of our auditing, accounting and financial reporting processes, including reviewing the audit results and monitoring the effectiveness of our internal audit function and review and discussing our policies and procedures with respect to cybersecurity risk assessment and risk management. In addition, the Audit Committee engages the independent registered public accounting firm. See “Audit-Related Matters — Report of the Audit Committee,” “Audit-Related Matters — Audit Committee Matters” and the Audit Committee’s charter for additional information on the responsibilities and activities of the Audit Committee.

The Board has determined that each Audit committee member has sufficient knowledge in reading and understanding financial statements to serve thereon and is otherwise financially literate, and that Ms. Dearing, Ms. Frankel and Mr. Hollman qualify as “audit committee financial experts” as that term is defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Board has further determined that Ms. Dearing, Ms. Frankel and Mr. Hollman possess financial management expertise within the meaning of the listing standards of the NYSE.

Compensation Committee. The Compensation Committee is responsible for overseeing compensation and benefit plans and policies, reviewing and approving equity grants and otherwise administering share- based plans, and reviewing and approving annually all compensation decisions relating to our executive officers. The Compensation Committee also has authority to grant awards under the Company’s 2020 Omnibus Incentive Plan (the “2020 Plan”). See “Compensation Discussion and Analysis,” “Compensation Committee Report” and the Compensation Committee’s charter for additional information on the responsibilities and activities of the Compensation Committee.

Role of Management. After consultation with our executive officers, Joel Agree, our President and Chief Executive Officer, makes recommendations to the Compensation Committee with respect to the design and implementation of the compensation program for the named executive officers. See “Compensation Discussion and Analysis — Determining Compensation for Named Executive Officers.”

Role of Compensation Consultant. In 2022, the Compensation Committee engaged Meridian Compensation Partners, LLC (“Meridian”) to assist the Company and the Compensation Committee with matters related to the Company’s executive compensation program. The Compensation Committee determined that Meridian meets the criteria for an independent consultant in accordance with SEC guidelines for such services.

Nominating and Governance Committee. The Nominating and Governance Committee is responsible for establishing the requisite qualifications for directors, identifying and recommending the nomination of individuals qualified to serve as directors, establishing corporate governance practices in compliance with applicable regulatory requirements and consistent with the highest standards, recommending to the Board the corporate governance guidelines applicable to the Company, leading the Board in its annual review of the performance of the Board and management, recommending directors for each Board committee and overseeing the evaluation of the Board, including its committees, and management of the Company. The Nominating and Governance Committee also establishes corporate

 

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governance practices in compliance with applicable regulatory requirements consistent with the highest standards and recommends to the Board the corporate governance guidelines applicable to us. In addition, the Nominating and Governance Committee has formal oversight responsibility for the Company’s ESG program. Refer to the Nominating and Governance Committee’s charter for additional information on the responsibilities and activities of the Nominating and Governance Committee.

Director Qualifications. Our Nominating and Governance Committee has established policies for the desired attributes of the Board as a whole, including as set forth in our Corporate Governance Guidelines. The Board seeks to ensure that a majority of its members are independent within the NYSE listing standards. Further, each director generally may not serve as a member of more than three other public company boards. In addition, Audit Committee members may not simultaneously serve on the audit committee of more than two other public companies, unless the Board determines that such simultaneous service would not impair the ability of the member to effectively serve on the Audit Committee. Each director must possess personal integrity, leadership skills, a business and professional background that would complement the skills and experience of the other members of the Board, the ability to think strategically about the long-term interests of the Company and our stockholders, and a breadth of knowledge about matters affecting the Company and its industry. In addition, directors must be committed to devoting the time and effort necessary to be responsible and productive members of the Board. The Board values diversity, in its broadest sense, reflecting, but not limited to, profession, gender, race, ethnicity, age, skills and experience and endeavors to include women and minority candidates in the qualified pool from which Board candidates are chosen. The Nominating and Governance Committee conducts reviews of current directors in light of the considerations described above and their historical contributions to the Board. The Board reviews the effectiveness of its director candidate nominating practices annually.

Identifying and Evaluating Nominees. Generally, the Nominating and Governance Committee will re- nominate incumbent directors who continue to satisfy its criteria for membership on the Board, who it believes will continue to make important contributions to the Board and who consent to continue their service on the Board.

Our Nominating and Governance Committee periodically assesses the appropriate number of directors comprising the Board and whether any vacancies on the Board are expected due to retirement or otherwise. The Nominating and Governance Committee will evaluate the qualifications set forth above and may consider additional factors it deems appropriate including judgment, skill, strength of character, experience with businesses and organizations comparable to our size or scope and specialized knowledge or experience. Depending on the current needs of the Board, certain factors may be weighted more or less heavily by the Nominating and Governance Committee.

The Nominating and Governance Committee considers candidates for the Board from any responsible source, including current Board members, stockholders, professional search firms or other persons. The Nominating and Governance Committee does not evaluate candidates differently based on who has made the recommendation. The Nominating and Governance Committee has the authority under its charter to hire and pay a fee to consultants or search firms to assist in the process of identifying and evaluating candidates.

Stockholder Nominees. Our Bylaws permit stockholders to nominate directors for consideration at an annual meeting of stockholders. We did not receive any director nominations by stockholders for the 2023 Annual Meeting. The Nominating and Governance Committee will consider properly submitted stockholder submissions for nominations to the Board and will apply the same evaluation criteria in considering such nominees as it would to persons nominated under any other circumstances. Such nominations may be made by a stockholder entitled to vote, who delivers written notice along with the additional information and materials to our Secretary in compliance with the requirements set forth in our Bylaws and below in “Additional Information — Proposals for 2024 Annual Meeting.”

Any stockholder nominations proposed for consideration by the Nominating and Governance Committee should include the nominee’s name, sufficient biographical information to demonstrate that the nominee meets the qualification requirements for Board service as set forth under “Director Qualifications,” and such other information regarding each nominated person as set forth in our Bylaws and that would be required in a proxy statement filed pursuant to the SEC’s proxy rules in the event of an

 

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election contest. The nominee’s written consent to the nomination should also be included with the nominating submission, which should be addressed to: Agree Realty Corporation, 70 E. Long Lake Road, Bloomfield Hills, MI 48304, Attention: Secretary.

Executive Committee. The Executive Committee has the authority to acquire and dispose of real property and the power to authorize, on behalf of the full Board, the execution of certain contracts and agreements, including those related to our borrowing of money, and generally to exercise all other powers of the Board except for those which require action by a majority of the independent directors or the entire Board.

Director Compensation

The Compensation Committee establishes and oversees our director compensation program. Director compensation is established with a view to attract highly qualified non-management directors and fairly compensate non-management directors for their time and effort on behalf of stockholders. In consultation with Meridian, our Compensation Committee regularly benchmarks our director compensation to that of our peers to ensure that it remains competitive to attract and retain non-employee directors.

2023 Compensation

As part of its review of director compensation in consultation with Meridian, effective on February 3, 2023, the Compensation Committee adopted an updated policy with respect to non-employee director compensation. Pursuant to this policy, each of our non-employee directors receives an annual retainer of $180,000, $110,000 of which is payable in restricted stock awards with one year vesting, and the remainder of which is payable, at each director’s election, either quarterly in cash or in an additional restricted stock award with one-year vesting.

Additionally, the Lead Independent Director and Audit Committee Chair receive an additional annual payment of $15,000, and the Chair of each of our Compensation and Nominating and Governance Committees receive an additional annual payment of $7,500. These payments are subject to the same cash or stock election described above.

2022 Compensation

Each non-management director who is not an employee of, or affiliated with, the Company received an annual fee of $132,000 in 2022. $66,000 of the annual fee was payable in restricted stock awards with one year vesting, and the remaining $66,000 was payable in either cash or stock at each Director’s election. Cash payments were made quarterly. Stock payments were made in February 2022, and vested on the first anniversary of the grant date.

In 2022, the Chairperson of the Audit Committee and the Lead Independent Director each received an additional $6,000, which were subject to the same cash or common stock election described above.

Non-management directors do not receive any additional compensation in any form for their service, including for attendance at meetings of the Board or its committees. The Company reimburses directors for out-of-pocket expenses incurred in connection with their service on the Board.

The following table provides compensation information for the year ended December 31, 2022 for each non-management director.

 

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(1)

Our non-management directors had the option to receive shares of common stock in lieu of a portion of their cash fees earned and reported in this column. The aggregate number of shares of common stock issued in lieu of cash for 2022 included: Ms. Dearing, 1,150; Mr. Judlowe, 1,054; and Mr. Rakolta, 1,054.

​

(2)

Reflects restricted stock awards granted under the 2020 Plan. The amounts reported represent the grant date fair value of the restricted stock award, which is the closing trading price of a share of our common stock on the grant date multiplied by the number of shares subject to the award. The Company does not pay fractional shares.

​

(3)

Ms. Dearing held 2,204 shares of unvested restricted stock as of December 31, 2022.

​

(4)

Ms. Frankel held 1,054 shares of unvested restricted stock as of December 31, 2022.

​

(5)

Mr. Hollman held 1,054 shares of unvested restricted stock as of December 31, 2022.

​

(6)

Mr. Judlowe held 2,108 shares of unvested restricted stock as of December 31, 2022.

​

(7)

Mr. Lehmkuhl held 1,054 shares of unvested restricted stock as of December 31, 2022.

​

(8)

Mr. Rakolta held 2,108 shares of unvested restricted stock as of December 31, 2022.

​

(9)

Mr. Rossi held 1,054 shares of unvested restricted stock as of December 31, 2022.

​

As a named executive officer of the Company, compensation paid to Joel Agree for fiscal 2022 is fully reflected under “Executive Compensation Tables — Summary Compensation Table.” Richard Agree does not receive any compensation for his service as a director, but he does receive compensation for his position as Executive Chairman. In 2022, he received 6,971 shares with an aggregate grant date fair value of $436,524. Such awards will vest ratably over a five-year period.

Corporate Governance

The Board has adopted Corporate Governance Guidelines, a copy of which can be found in the Corporate Governance section of our website at www.agreerealty.com. These guidelines address, among other things, director responsibilities, qualifications (including independence), compensation and access to management and advisors. The Nominating and Governance Committee is responsible for overseeing and reviewing these guidelines and recommending any changes to the Board.

The Board also has adopted a Code of Business Conduct and Ethics (the “Code of Conduct”), which sets out basic principles to guide the actions and decisions of all of our employees, officers, including our chief executive officer, chief financial officer and chief accounting officer, and directors. The Code of Conduct, also available in the Corporate Governance section of our website at www.agreerealty.com, covers numerous topics including honesty, integrity, conflicts of interest, compliance with laws, corporate opportunities and confidentiality. Waivers of the Code of Conduct are discouraged, but any waiver that relates to our executive officers or directors may only be granted by the Board. See “Related Person Transactions” for additional information on the Board’s policies and procedures regarding related person transactions. The Board recently adopted several new policies, including a Human Rights Policy, an ESG Policy, and a Whistleblower Policy.

Copies of our committee charters, Corporate Governance Guidelines, Code of Conduct, and other policies are available on our website and will be sent to any stockholder, without charge, upon written request to our executive offices: Agree Realty Corporation, 70 E. Long Lake Road, Bloomfield Hills, MI 48304, Attention: Secretary.

Communications with the Board

Interested parties who want to communicate with our non-management directors confidentially may do so by sending correspondence to:

Non-Management Directors
Agree Realty Corporation
70 E. Long Lake Road
Bloomfield Hills, MI 48304
Attention: Secretary

Please note that the mailing envelope must contain a clear notification that it is confidential and your letter should indicate whether you are a stockholder of the Company.

 

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Interested parties and stockholders of the Company who want to communicate with the Board or any individual director can write to:

Agree Realty Corporation
70 E. Long Lake Road
Bloomfield Hills, MI 48304
Attention: Secretary

Your letter should indicate that you are an interested party or a stockholder of the Company. Depending on the subject matter, the Secretary will:

•

Forward the communication to the director or directors to whom it is addressed;

​

•

Attempt to handle the inquiry directly; for example, where it is a request for information about our Company or if it is a stock-related matter; or

​

•

Not forward the communication if it is primarily commercial in nature or if it relates to an improper or irrelevant topic.

​

 

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EXECUTIVE OFFICERS

The following table sets forth our executive officers, followed by biographical information regarding each executive officer who is not also a director.

Peter Coughenour has served as Chief Financial Officer since December 2021, and had served as Interim Chief Financial Officer since August 2021. He is responsible for leading the Company’s capital markets, investor relations, risk management and financial planning and analysis functions. He also chairs the Company’s ESG Steering Committee. Prior to his appointment as Interim Chief Financial Officer, Mr. Coughenour served as Vice President, Corporate Finance of the Company and has served in various finance roles since joining the Company in 2015. He holds a Bachelor of Arts in Economics from Indiana University. Mr. Coughenour is also a member of the International Council of Shopping Centers as well as the National Association of Real Estate Investment Trusts.

Craig Erlich has served as Chief Operating Officer since February 2021. Prior to his appointment as Chief Operating Officer, Mr. Erlich served as the Company’s Chief Investment Officer since August 2020 and was a member of the Board from July 2018 to August 2020. Prior to his appointment as Chief Investment Officer, Mr. Erlich served as an Executive Vice President and General Manager of the George P. Johnson Company (“GPJ”), a global experiential marketing firm with 30 offices worldwide since 2015. Mr. Erlich had full responsibility for operations in GPJ’s world headquarters in Detroit, Michigan and its Nashville, Tennessee facilities. Prior to GPJ, Mr. Erlich was the owner, President and Chief Executive Officer of pulse220, a boutique meetings and events firm which he successfully sold to GPJ in 2015. Prior to pulse220, Mr. Erlich served as the President of QMS, a direct marketing and fulfillment firm in Detroit, Michigan. Mr. Erlich is a two-time nominee of the Ernst & Young Entrepreneur of the Year award and holds a Bachelor of Arts in Marketing from the Eli Broad College of Business at Michigan State University. Mr. Erlich currently serves on the Executive Board of the Michigan and Northwest Ohio Chapter of JDRF (formerly called the Juvenile Diabetes Research Foundation).

Danielle Spehar joined the Company in 2016 as Vice President of Transactions and was promoted to General Counsel in February 2019. She is responsible for leading the Company’s transaction team and managing the Company’s legal affairs. Prior to joining the Company, Ms. Spehar was engaged in the private practice of law at Maddin, Hauser, Roth & Heller, P.C. from November 2001 to December 2016, where she previously served as a member of the firm’s Executive Committee, co-head of the firm’s Real Estate Practice Group and member of the firm’s Recruiting Committee. She has extensive experience in the leasing and the acquisition, sale, and development of commercial real estate. Ms. Spehar holds a Juris Doctor degree from the University of Detroit Mercy School of Law, a Master of Business Administration from Wayne State University and a Bachelor of Science in Business Administration from Central Michigan University. She is a member of the Real Property Section of the State Bar of Michigan as well as the American Bar Association.

Nicole Witteveen joined the Company in April 2019 and has been serving as the Company’s Executive Vice President, People & Culture and Chief of Staff, since August 2021. She is responsible for the Company’s talent management practices and the administration team. Ms. Witteveen served as the Company’s Director, People & Culture from April 2019 to August 2019 and Vice President, People & Culture from August 2019 to August 2021. Prior to joining Agree, she previously led the Human Resources department at Career Now Brands from May 2018 to April 2019 and served as Lead People Resources Business Partner at Enova International from November 2015 to May 2018. Ms. Witteveen has extensive experience in talent management, employee engagement, and workforce planning. She holds a Bachelor of Arts in Organizational Studies from the University of Michigan.

 

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COMPENSATION DISCUSSION AND ANALYSIS

Overview of Compensation Program

The Compensation Committee (referred to as the “Committee” in this section), composed entirely of independent directors, administers our executive compensation program. The Committee’s responsibilities include recommending and overseeing compensation, benefit plans and policies, reviewing and approving equity grants, administering share-based and unit-based plans, and reviewing and approving, annually, all compensation decisions relating to our executive officers. This section of the proxy statement explains how our compensation programs are designed and operate with respect to our named executive officers, which includes Joel Agree, our President and Chief Executive Officer; Peter Coughenour, our Chief Financial Officer and Secretary; Craig Erlich, our Chief Operating Officer; Danielle Spehar, our General Counsel; and Nicole Witteveen, Executive Vice President, People & Culture and Chief of Staff. The following discussion and analysis should be read together with the tables and related footnote disclosures detailed below.

Compensation Objectives and Philosophy

Our compensation program for the named executive officers generally consists of base salary, annual incentive awards, long-term share-based and unit-based incentive awards and certain other benefits. We also provide severance arrangements for certain of our named executive officers. The following summarizes the key principles and objectives of our approach to executive compensation:

➢

Provide total compensation that is both fair and competitive. To attract and reduce the risk of losing the services of valuable officers but to avoid the expense of excessive pay, compensation should be competitive. The Committee assesses the competitiveness of our compensation for our executive officers by comparing our compensation to executive officer compensation at peer public companies.

​

➢

Attract, retain and motivate key executives who are critical to our operations. The primary purpose of our executive compensation program has been, and is, to achieve our business objectives by attracting, retaining and motivating talented executive officers by providing them with incentives and economic security.

​

➢

Reward superior individual and Company performance on both a short-term and long-term basis. Performance-based pay aligns the interests of management with the interests of our stockholders. Performance-based compensation motivates and rewards individual efforts and company success.

​

➢

Align executives’ long-term interests with those of our stockholders. The Company seeks to align these interests by providing a significant portion of executive officer compensation in the form of common stock. Through stock ownership guidelines for named executive officers and grants of restricted common stock with time-based vesting provisions and performance unit awards, the amount of which are based on total shareholder return, the value of the executive officers’ total compensation should increase as total returns to stockholders increase. The Company expects the value of these elements as a percentage of each executive officer’s annual base salary to motivate executive officers to continually improve their performance and create value for the Company over the long-term. In 2023, the Company’s executive compensation program will continue to be designed to reward favorable execution of specific Company performance goals.

​

The Committee seeks to ensure the foregoing objectives are achieved by considering individual performance reviews, Company performance, hiring and retention needs, internal pay equity, market data and other external market pressures in finalizing its compensation determinations.

 

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Determining Compensation for Named Executive Officers

The Committee meets without management present to determine the compensation of the named executive officers. Prior to such meeting, the Committee receives compensation recommendations from Joel Agree, our President and Chief Executive Officer. We believe that because of his experience with our Company and his involvement in setting and executing the Company’s business goals, strategies, and performance, he is able to provide valuable input regarding the overall effectiveness of the management team and each individual’s contribution to our performance. Joel Agree’s recommendations are supported by formal performance reviews for each named executive officer which include an evaluation of the individual’s performance against pre-determined performance metrics. The Committee retains the discretion to modify his recommendations and reviews such recommendations for their reasonableness based on Company performance, market information, and the Committee’s compensation philosophy and related considerations. Joel Agree does not provide input with respect to his own compensation.

In 2022, the Company and the Committee utilized Meridian to assist the Company with matters related to the composition of the Company’s compensation peer group and the Company’s establishment of, accounting for, and benchmarking of its executive compensation program.

Compensation Committee Consideration of the 2022 Vote on Executive Compensation

In determining our executive compensation program for the remainder of 2022 and for 2023, the Committee considered the results of the 2022 advisory vote of our stockholders on executive compensation presented in our 2022 proxy statement. The Committee noted that prior to 2022, at least 95% of votes cast on our say-on-pay proposal approved executive compensation in each of the past 10 years. In 2022, while there were few changes to the Company’s compensation practices compared to prior years, the recommendation of the proxy advisory firm ISS changed, and the percentage of votes that were cast in support of executive compensation declined to 77%. To better understand stockholder concerns, we reached out to stockholders representing more than 77% of outstanding shares and communicated with approximately 65% of outstanding shares. The table below summarizes the feedback received from those conversations and the actions taken in response:

 

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Elements and Criteria of Compensation in 2022 for Named Executive Officers

Our compensation program for named executive officers generally consists of base salary, annual cash incentive awards, long-term share-based and unit-based incentive awards and certain other benefits. We also provide severance arrangements for certain of our named executive officers. Below is an overview of the main components of the Company’s compensation program:

In consultation with Meridian, the Committee assesses the competitiveness of the Company’s current compensation levels for the named executive officers on an annual basis, considering the objectives above. This assessment compares the Company’s compensation of certain named executive officers to the same officer levels of a peer group. In 2022, the Committee worked with Meridian to determine a new peer group comprising companies of comparable size and performance. The Committee selected 13 publicly traded REITs, considering factors including enterprise value, market capitalization, funds from operations, total assets and alignment with peer groups selected by proxy advisory firms. The members of the peer group are:

According to the materials provided to the Committee, which members of management prepared and Meridian reviewed: (i) enterprise values of the peer group ranged from approximately $3.4 billion to approximately $12.6 billion, and the Company’s enterprise value was in the 65th percentile of the peer group; and (ii) market capitalizations of the peer group ranged from approximately $1.4 billion to approximately $10.4 billion, and the Company’s market capitalization was in the 80th percentile of the peer group.

The materials provided to the Committee and reviewed by Meridian included the tenure of the executive officers of the peer group companies in their current positions, as well as the following compensation components for the executive officers of the peer group companies: (i) base salary (data

 

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primarily from 2021), (ii) target annual incentives (data primarily from 2021), (iii) target total cash compensation (sum of (i) and (ii)), (iv) long-term incentives (data primarily from 2021) and (v) total direct compensation (sum of (iii) and (iv)).

Based on the materials provided to the Committee, we believe that our compensation program is competitive and provides an appropriate mix of fixed and at-risk pay, while incentivizing both the achievement of short-term performance goals and long-term value creation for our stockholders. The Company sets annual base salaries at a level it believes necessary to attract and retain the named executive officers, commensurate with the officers’ responsibilities, reputations, and experience. The Company sets annual cash target incentive awards at levels it believes necessary to attract and retain the named executive officers, the amount of which ultimately is approved by the Committee and depends on management’s achievement of certain Company and individual objectives. The Company has also determined to pay time-based long-term equity incentive compensation to (i) encourage the named executive officers to pursue strategies that will create long-term value for our stockholders, (ii) align the interests of management with those of our stockholders by tying a significant portion of compensation to the value of common stock with time-based vesting and (iii) promote continuity of management by retaining our named executive officers.

For fiscal year 2022, the Committee paid or granted compensation that consisted of: (i) annual cash base salaries; (ii) annual cash incentive awards; and (iii) two forms of long-term equity-based compensation: 50% restricted share awards subject to time-based vesting provisions over a five-year period and 50% performance-based equity awards subject to a performance-based measurement period of three years and vesting provisions over a three-year period. The following narrative discusses the components of fiscal year 2022 compensation.

Base Salary

In 2022, each named executive officer received an annual base salary paid in cash. Initial base salaries of our named executive officers are negotiated in connection with their hiring, and the Committee reviews the base salaries of the named executive officers on an annual basis.

The Committee believes that base salary is a primary factor in retaining and attracting key employees in a competitive marketplace, as well as in preserving an employee’s commitment during downturns in the REIT industry and/or equity markets. When determining the base salary for each of the named executive officers, the Committee considers the individual’s experience, current performance, potential for advancement, internal pay equity and market data.

The base salaries paid to the named executive officers in 2022 are set forth below in the “Executive Compensation Tables — Summary Compensation Table.” For 2022, taking into account benchmarking data and individual performance, the Committee approved base salaries for the named executive officers as set forth below:

The Executive Incentive Plan

The Company maintains an Executive Incentive Plan under which annual cash and long-term equity incentive awards for 2022 were granted to our participating named executive officers by our Committee. For purposes of the Executive Incentive Plan during 2022, participating named officers include the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel, and Executive Vice President, People & Culture, Chief of Staff.

 

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In 2022, the Committee continued its practice of awarding annual cash awards and long-term equity incentive awards under the Executive Incentive Plan. In February 2020, following a review of the Company’s long-term equity incentive award program against that of its peer group, the Committee amended its Executive Incentive Plan through the establishment of fixed equity awards for each named executive officer. In connection with this decision, in February 2022, the Committee granted to certain executive officers long-term equity incentive awards comprised of restricted common stock and performance units. The restricted common stock awards are subject to time-based vesting conditions, and the restricted performance unit awards are subject to performance-based vesting conditions, which were established at the time of grant. A detailed summary of the awards and the vesting conditions are set forth below under “Long-Term Equity Incentive Compensation.”

Annual Cash Incentive Awards. The Committee believes that annual cash incentive awards provide a meaningful incentive for the achievement of short-term Company and individual goals, while assisting us in retaining, attracting and motivating employees in the near term. The 2022 objectives were approved by the Committee in February 2022. For the Chief Executive Officer, the Committee considered that the target opportunity is set at a below-market 150% of base salary. This design was intentional as the Committee determined that a 150% target with a 233% maximum payout (350% of base salary) was more shareholder friendly and designed to incentivize corporate outperformance than a 175% target with a 200% maximum payout (same 350% of base salary). With this intentional design, the Committee was choosing to not overpay for merely target performance, while at the same time properly rewarding exceptional results. The 2022 threshold, target, and maximum cash incentive award opportunity, as well as the 2022 actual award as a percentage of base salary, is included below.

The annual cash incentive opportunities were awarded to the extent the Company attained certain threshold, target or maximum-level achievements for the following performance goals during 2022, as certified by the Committee in February 2023:

AFFO Growth Goal: For the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel and Executive Vice President People & Culture, Chief of Staff, 50% of the award was based upon year-over-year percentage growth of the Company’s AFFO per share. The 2022 threshold, target, and maximum- level achievements and 2022 actual performance is included below:

Management Business Objectives: For the Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer, 35%, 35%, and 40%, respectively, of the award was based upon the achievement of specific operating and management business objectives. The specific operating and management business objectives are detailed below:

 

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$ in millions.

(1)

Proforma for the settlement of any outstanding forward equity at year-end.

​

The threshold, target, and maximum-level achievements and 2022 actual performance is included below:

(1)

The awards for the General Counsel and Executive Vice President, People & Culture and Chief of Staff were not related to the achievement of specific operating results given the nature of their positions.

​

Subjective Achievements: For the Chief Executive Officer and Chief Financial Officer, 15% of the award was based upon the Committee’s subjective review of activities or objectives determined at the discretion of the Committee. For the Chief Operating Officer, 10% of the award was based upon the Committee’s subjective review of activities or objectives determined at the discretion of the Committee. For the General Counsel and Executive Vice President People & Culture, Chief of Staff, 50% of the award was based upon the Committee’s subjective review of activities or objectives determined at the discretion of the Committee.

While the Committee takes the Chief Executive Officer’s recommendations under advisement in determining each named executive officer’s individual performance, the Committee retains the discretion to make the final compensation decision. The Committee evaluates each named executive officer’s performance through reports by these executives to the Board, and through other interactions with these executives concerning the Company’s strategy, operations, and performance. In reaching the subjective compensation decisions, the Committee evaluated the contribution of each named executive officer to the Company’s many achievements in 2022, including robust total shareholder returns, record investment volume while maintaining a high-quality portfolio, and conservative and proactive balance sheet management which strategically positioned the Company for continued growth.

Long-Term Equity Incentive Compensation. The Committee believes that share-based incentive awards, with multi-year vesting, provide a strong incentive for employees to focus on our long-term fundamentals and thereby create long-term stockholder value. These awards also assist us in maintaining a stable, continuous management team in a competitive market. The Committee historically has issued restricted stock for purposes of long-term incentive compensation, which provides significant upside incentive and aligns our officers’ interests with our stockholders, while also maintaining some down-market protection. In 2022, the Committee determined to grant long-term equity grants consisting of 50% restricted common stock and 50% performance units.

Awards of Restricted Common Stock. The shares of restricted common stock granted to the individuals in February 2022 vest ratably over a five-year period with one-fifth (1/5th) of the shares on each of the first, second, third, fourth and fifth anniversaries of the grant date. The Committee awarded

 

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an aggregate of 37,766 shares of restricted common stock for the 2022 incentive plan year for a total value of $2,364,907 to certain named executive officers. The grant date fair value of each share was $62.62 based on the closing sales price of our common stock on February 23, 2022. The grants were as follows: Joel Agree, 27,946 shares; Peter Coughenour, 1,437 shares; Craig Erlich, 3,593 shares; Danielle Spehar, 2,395 shares; and Nicole Witteveen, 2,395 shares.

Awards of Performance Units. The Committee awarded an aggregate of 33,934 performance units for a total value of $2,327,455 to the participating named executive officers on February 23, 2022. The number of units awarded were calculated based on the closing sales price of our common stock on the grant date of February 23, 2022, which was $62.62. The grants were as follows: Joel Agree, 27,946 units; Craig Erlich, 3,593 units; and Danielle Spehar, 2,395 units. The awards are subject to forfeiture in the event that the performance level is below threshold, as defined in the table below. The actual number of units to eventually be earned by the individuals will be calculated based on a three-year performance period beginning on January 1, 2022 and will be based on the achievement of the following performance goals:

•

Position within the MSCI US REIT Index: 50% of the award is based upon the TSR percentile rank versus the MSCI US REIT index for the three-year performance period; and

​

•

Position within the Company-defined Peer Group: 50% of the award is based upon TSR percentile rank versus a specified net lease peer group for the three-year performance period. The net lease peer group is defined as:

​

Following the three-year performance period, shares of restricted common stock will be issued correlating to the levels of achievement on the performance units: 50% at Threshold, 100% at Target, and 150% at Maximum. Achievement percentages between the threshold and target and between the target and maximum levels will be interpolated based on actual results in each category. Following the performance period, one-third of the shares earned will vest each year for three years. Performance levels and corresponding award funding levels for 2022 performance units are summarized in the below table:

Perquisites and Other Benefits

We have historically maintained a conservative approach to providing perquisites to executive officers. We provide certain named executive officers with perquisites and other personal benefits that the Committee believes are reasonable and consistent with the overall executive compensation program and will better enable us to attract and retain superior employees for key positions. These perquisites have been carefully selected to ensure that the value provided to employees is not adverse to the interests of stockholders. The Committee periodically reviews the levels of perquisites and other personal benefits provided to the named executive officers. In 2022, certain of our officers were provided with an annual car allowance, associated car maintenance and fuel allowance. The Committee may revise, amend or add to each named executive officer’s perquisites and personal benefits if it deems it advisable.

Severance Payments. We currently have employment agreements with Joel Agree, Peter Coughenour and Craig Erlich that provide severance payments under specified conditions. The

 

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Committee believes these agreements help to retain executives who are essential to our long-term success. See “Executive Compensation Tables — Potential Payments Upon Termination or Change-in- Control” for a description of potential payments and benefits received by our named executive officers under our compensation plans and arrangements upon termination of employment or a change in control of our Company.

Timing and Pricing of Share-Based Grants

We do not coordinate the timing of share-based grants with the release of material non-public information. The Committee approves its annual grants of restricted stock to the named executive officers at its regularly scheduled executive compensation meeting which occurs at the beginning of the following fiscal year. The effective date for annual share-based grants is determined at each meeting and is generally the date of such meeting or shortly thereafter. The Committee generally establishes the date for its regularly scheduled meeting at least a year in advance. The Committee has not granted stock options in recent years.

Stock Ownership Guidelines

To further align the interests of certain executive officers and directors with the interest of our stockholders, and to promote our commitment to sound corporate governance, the Board has adopted stock ownership guidelines. The guidelines are applicable to the Executive Chairman, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel and non-employee directors.

The stock ownership guidelines provide that within three years of the date a named executive officer first becomes subject to the guidelines, or within five years of the date a non-employee director first becomes subject to the guidelines, such individual will be subject to the following guidelines, as applicable:

•

Our Chief Executive Officer is required to own shares of our common stock, including restricted stock, valued at a minimum of five times annual base compensation;

​

•

Our Executive Chairman, Chief Financial Officer, Chief Operating Officer and General Counsel are required to own shares of our common stock, including restricted stock, valued at a minimum of three times annual base compensation; and

​

•

Non-employee directors are required to own shares of our common stock valued at a minimum of five times the cash portion of their annual director compensation.

​

As of December 31, 2022, all of our directors and the above-referenced executive officers were either in compliance with our stock ownership guidelines or within the transition period and making progress to be compliant within the period specified by the guidelines.

Policy Prohibiting Hedging and Pledging of Company Stock

The Board believes that ownership of shares of the Company’s common stock by the Company’s executive officers and members of the Board promotes alignment of the interests of the Company’s stockholders with those of its leadership. The Board recognizes that transactions that are designed to hedge or offset declines in the market value of the Company’s shares of common stock can disrupt this alignment, interfere with the Company’s compensation programs and philosophies, and undermine policies regarding share ownership.

The Board also recognizes that officer and director pledging of the Company’s common stock as collateral for indebtedness can be adverse to the interests of the Company’s stockholders because it creates the risk of forced sales that depress the value of the Company’s common stock, creates risk of legal violations, and may encourage excessive risk-taking by executives and directors.

The Board has adopted an anti-hedging and pledging policy that applies to transactions in shares of the Company’s common stock and other equity securities by members of the Board and officers of the Company designated by the Board as “executive officers” for the purposes of federal securities laws.

 

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Under the policy, executive officers and directors of the Company shall not, directly or indirectly:

•

Purchase any financial instrument or enter into any transaction that is designed to hedge or offset any decrease in the market value of the Company’s common stock or other equity securities (including, but not limited to, prepaid variable forward contracts, equity swaps, collars, or exchange funds); or

​

•

Pledge, hypothecate, or otherwise encumber the Company’s common stock or other equity securities as collateral for indebtedness, including holding such shares in a margin account.

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Executive Compensation Clawback Policy

In the event that the Board determines that any fraud, intentional misconduct or lack of sufficient oversight by a current or former executive officer of the Company was a significant contributing factor to the Company (i) having to restate all or a portion of its financial statements or (ii) having miscalculated one or more performance metrics used by the Committee to determine previously paid compensation that, if calculated correctly, would have resulted in a lower payment to one or more executive officers, the Board or Committee may take, in its discretion, such action as it deems appropriate to recover any cash or equity- based incentive compensation of any executive officer that was granted, earned, paid or vested in the three completed fiscal years immediately preceding the date of such determination and take other actions to prevent the recurrence of such fraud, intentional misconduct or lack of sufficient oversight to the fullest extent permitted by governing law. They may approve or recommend to the Board for approval the creation or revision of any such clawback policy as the Committee determines to be necessary or appropriate, or as required by applicable law or stock exchange requirements.

Tax and Accounting Implications

Deductibility of Executive Compensation. Section 162(m) (“Section 162(m)”) of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), provides that subject to certain exceptions, a publicly-held corporation may not deduct compensation for federal income tax purposes exceeding $1 million in any one year paid to any of its “covered employees”. For this purpose, a “covered employee” is any individual who (i) is or acts in the capacity as the principal executive officer or the principal financial officer of the publicly-held corporation at any time during the year, (ii) is one of the three other most highly compensated officers of the publicly-held corporation for the year, or (iii) was an individual listed in either of the foregoing clauses (i) or (ii) in respect of the publicly-held corporation or any predecessor in any prior year beginning after 2016. We must distribute a specified minimum percentage of our taxable income to maintain our qualification as a REIT under the Internal Revenue Code, and we are not subject to federal income tax on our REIT taxable income if and to the extent we distribute the income to our stockholders. Accordingly, to the extent we pay compensation to any of our covered employees in excess of $1 million in any year, we may have to increase the amount of our distributions to stockholders to avoid tax liability and the loss of our REIT status. This in turn may result in a larger portion of distributions being taxable to stockholders as dividend income, instead of being treated as a nontaxable return of capital to stockholders.

Nonqualified Deferred Compensation. Section 409A of the Internal Revenue Code provides that amounts deferred under nonqualified deferred compensation arrangements will be included in an employee’s income when vested unless certain conditions are met. If the certain conditions are not satisfied, amounts subject to such arrangements will upon vesting be taxable and employees will be subject to additional income tax, penalties and a further additional income tax calculated as interest on income taxes deferred under the arrangement.

 

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COMPENSATION COMMITTEE REPORT

The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management and based on such review and discussions, the Committee recommended to the Board that the Compensation Discussion and Analysis be included in this 2023 proxy statement and the Company’s annual report on Form 10-K for the year ended December 31, 2022.

COMPENSATION COMMITTEE

Gregory Lehmkuhl, Chair
Michael Judlowe
Jerome Rossi

 

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Executive Compensation Tables

Summary Compensation Table

The following table sets forth information concerning the total compensation paid or earned by each of the named executive officers in 2022, 2021 and 2020.

(1)

For Mr. Agree, the 2020 amount reported reflects a one-time cash bonus granted in connection with the signing of Mr. Agree’s new employment agreement in October 2020.

​

(2)

The amounts reported represent the full value of the stock awards issued for the applicable year and have been issued in accordance with the Company’s 2014 Omnibus Incentive Plan (the “2014 Plan”) or the 2020 Plan, depending on the year. Regarding the performance-based units, the amounts reported reflect the grant date fair value determined in accordance with FASB ASC Topic 718. For a discussion of the assumptions used to calculate the value of performance share awards made to Named Executive Officers, refer to Note 11 to our Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended December 31, 2022. The amounts that would be earned at the maximum performance level are set forth below in the Grant of Plan-Based Awards Table. For Mr. Erlich, the amount reported in 2020 includes a sign-on bonus in the form of restricted stock on August 19, 2020. Mr. Erlich received 4,541 shares subject to time-based vesting provisions over a five-year period in connection with the award, based on a fair market value of $66.06 per share, the closing price of our common stock on August 19, 2020. For Ms. Witteveen, the amount reported in 2021 includes a sign-on bonus in the form of restricted stock on August 19, 2021. Ms. Witteveen received 3,369 shares subject to time-based vesting provisions over a five-year period in connection with the award, based on a fair market value of $74.21 per share, the closing price of our common stock on August 19, 2021.

​

(3)

The amounts reported represent annual cash incentive awards under the Executive Incentive Plan or pursuant to separate determination by the Compensation Committee. Because Mr. Coughenour was not appointed to Chief Financial Officer until December 2021, Mr. Coughenour’s non-equity incentive plan award for 2021 was not granted pursuant to the Executive Incentive Plan. Because Mr. Erlich was not appointed to Chief Investment Officer until August 2020, Mr. Erlich’s non-equity incentive plan award for 2020 was not granted pursuant to the Executive Incentive Plan. Because Ms.  Witteveen was not appointed to Executive Vice President, People & Culture, Chief of Staff until August 2021, Ms. Witteveen’s non-equity incentive plan award for 2021 was not granted pursuant to the Executive Incentive Plan.

​

(4)

For Mr. Agree, the amounts reported in 2022 represent the aggregate incremental cost to the Company of his matching Simple IRA contribution, $14,000; health insurance premiums, $17,074; and annual car allowance and associated car maintenance and fuel, $20,768. For Mr. Coughenour, the amounts reported in 2022 represent the aggregate incremental cost to the Company of his matching Simple IRA contribution, $10,500; and health insurance premiums, $5,157. For Mr. Erlich, the amounts reported in 2022 represent the aggregate incremental cost to the Company of his matching Simple IRA contribution, $17,000; and health insurance premiums, $27,868. For Ms. Spehar, the amounts reported in 2022 represent the aggregate incremental cost to the Company of her matching Simple IRA contribution, $17,000; and health insurance premiums, $22,140. For Ms. Witteveen, the amounts reported in 2022 represent the aggregate incremental cost to the Company of her matching Simple IRA contribution, $12,452; and health insurance premiums, $12,242.

​

(5)

Mr. Coughenour was appointed as Chief Financial Officer and Secretary in December 2021.

​

(6)

Mr. Erlich served as Chief Investment Officer from August 2020 to February 2021.

​

(7)

Ms. Witteveen was appointed Executive Vice President, People & Culture and Chief of Staff in August 2021.

​

 

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Grants of Plan-Based Awards for 2022

The following table sets forth information concerning equity and non-equity awards granted to the named executive officers in 2022:

(1)

The equity awards set forth in this column reflect restricted stock granted in 2022. Awards vest in equal installments over a five-year period from February 23, 2022, the date of the grant. Awards set forth in this column were granted under the 2020 Plan. Cash dividends are paid on the restricted stock during the vesting period.

​

(2)

The amounts reported in this column represent the full value of the stock awards granted in 2022 and have been issued in accordance with the 2020 Plan. For Joel Agree, Craig Erlich and Danielle Spehar the awards consist of 50% restricted common stock subject to time-based vesting provisions over a five-year period and 50% performance-based units subject to a performance-based measurement period of three years and vesting provisions over a three-year period. Regarding the performance-based units, the amounts reported assume the achievement of target performance levels. For Peter Coughenour and Nicole Witteveen, the awards consist of shares of restricted common stock that vest in equal installments over a five-year period from the date of grant.

​

 

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Narrative Disclosure of Summary Compensation Table and Grants of Plan-Based Awards Table

In the case of Ms. Spehar and Ms. Witteveen, certain base salary determinations and grants of plan-based awards during the periods reflected in the tables above were influenced by the employment agreements and promotions discussed below.

Initially hired pursuant to the terms of a letter agreement dated October 11, 2016 (the “Spehar Agreement”), Danielle Spehar was employed as our Vice President of Transactions. Ms. Spehar was subsequently promoted to General Counsel in February 2019 and her compensation was increased based on a review of executive officers of peer group companies in similar positions. The compensation reflected in the Summary Compensation Table above is based on the Committee’s review of peer group benchmarking on an annual basis.

Initially hired pursuant to the terms of a letter agreement dated March 18, 2019 (the “Witteveen Agreement”), Nicole Witteveen was employed as our Director, People & Culture. Ms. Witteveen was subsequently promoted to Executive Vice President, People & Culture and Chief of Staff in August 2021 and her compensation was increased based on a review of executive officers of peer group companies in similar positions. The compensation reflected in the Summary Compensation Table above is based on the Committee’s review of peer group benchmarking on an annual basis.

For a discussion of the material terms of the employment agreements of Joel Agree, Peter Coughenour, and Craig Erlich, see “Executive Compensation Tables — Potential Payments Upon Termination or Change-in-Control — Employment Agreements” discussion below.

Outstanding Equity Awards at December 31, 2022

The following table sets forth information on the holdings of unvested stock awards by the named executive officers as of December 31, 2022. No stock options are outstanding.