-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LEivQmtR9R1BFycM/yXv1L9PRbV5A99gOo3tlzmX0NsXH0tz1V1Ns2eCaCT6wBHZ W68/3RQC4mimtnGkaaekrA== 0000950137-98-000270.txt : 19980202 0000950137-98-000270.hdr.sgml : 19980202 ACCESSION NUMBER: 0000950137-98-000270 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980130 EFFECTIVENESS DATE: 19980130 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GETTY REALTY HOLDING CORP CENTRAL INDEX KEY: 0001052752 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PETROLEUM BULK STATIONS & TERMINALS [5171] IRS NUMBER: 113412575 STATE OF INCORPORATION: MD FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45249 FILM NUMBER: 98517439 BUSINESS ADDRESS: STREET 1: 125 JERICHO TURNPIKE CITY: JERICHO STATE: NY ZIP: 11753 BUSINESS PHONE: 5163382600 MAIL ADDRESS: STREET 1: 125 JERICHO TURNPIKE CITY: JERICHO STATE: NY ZIP: 11753 S-8 1 FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 30, 1998 Registration No. 333-________ ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________________ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 __________________ GETTY REALTY HOLDING CORP. (Exact name of registrant as specified in its charter) MARYLAND 11-3412575 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 125 JERICHO TURNPIKE JERICHO, NEW YORK 11753 (Address of principal executive offices) __________________ 1998 STOCK OPTION PLAN OF GETTY REALTY CORP. (Full title of Plan) __________________ RANDI YOUNG FILIP CORPORATE SECRETARY GETTY REALTY CORP. 125 JERICHO TURNPIKE JERICHO, NEW YORK 11753 (516) 338-6000 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: MARC D. BASSEWITZ, ESQ. LATHAM & WATKINS SEARS TOWER SUITE 5800 CHICAGO, IL 60606 (312) 876-7700 CALCULATION OF REGISTRATION FEE
______________________________________________________________________________________________________________ Proposed Amount Proposed Maximum Title of Each Class of Shares Maximum Aggregate Amount of of Securities to to be Offering Price Offering Registration be Registered Registered(1) Per Share(2) Price (2) Fee ______________________________________________________________________________________________________________ Common Stock $.01 par value 1,100,000 $12.55; $21.37 $20,313,260.36 $5,992.41
2 (1) Represents the maximum number of shares that may be acquired under the 1998 Stock Option Plan of Getty Realty Corp. (the "Plan"). (2) For purposes of computing the registration fee only. Pursuant to Rule 457(h) under the Exchange Act, the Proposed Maximum Offering Price Per Share is based upon (a) the weighted average exercise price per share ($12.55) of outstanding options for 362,102 shares and (b) for the remaining 737,898 shares, $21.37, the average of the high and low price for shares of the Registrant's Common Stock as reported on the New York Stock Exchange composite tape on January 26, 1998. ____________ PART I Item 1. Plan Information Not required to be filed with this Registration Statement. Item 2. Registrant Information and Employee Plan Annual Information Not required to be filed with this Registration Statement. PART II Item 3. Incorporation of Documents by Reference The following documents filed with the Securities and Exchange Commission by Getty Realty Holding Corp., a Maryland corporation that on or about January 30, 1998 will become known as Getty Realty Corp. (the "Company"), and are incorporated as of their respective dates in this Registration Statement by reference: (1) The Company's Registration Statement on Form 8-A filed with the Commission on January 13, 1998 (No. 001-13777), including the exhibits thereto. (2) The description of the Company's common stock, par value $0.01 per share ("Common Stock"), contained in the Company's Registration Statement on Form 8-A referred to in (1) above. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers The Maryland General Corporation Law ("MGCL") permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. The Company's Charter contains such a provision which limits such liability to the maximum extent permitted by Maryland law. The Company's Charter authorizes the Company, to the maximum extent permitted by Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (a) any 2 3 present or former director or officer or (b) any individual who, while a director of the Company and at the request of the Company, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan or other enterprise from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her status as a present or former director or officer of the Company. The Company's Bylaws obligate the Company, to the maximum extent permitted by Maryland law, to indemnify and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (a) any present or former director or officer who is made a party to the proceeding by reason of his or her service in that capacity or (b) any individual who, while a director of the Company and at the request of the Company, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made a party to the proceeding by reason of his or her service in that capacity. The Company's Charter and the Company's Bylaws also permit the Company to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described above and to any employee or agent of the Company or a predecessor of the Company. The MGCL requires a corporation (unless its charter provides otherwise, which the Company's Charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, a Maryland corporation may not indemnify a present or former director or officer for an adverse judgment in a suit by or in the right of the corporation. In addition, the MGCL requires the Company, as a condition to advancing expenses, to obtain (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the Company as authorized by the Bylaws and (b) a written statement by or on his or her behalf to repay the amount paid or reimbursed by the Company if it shall ultimately be determined that the standard of conduct was not met. In addition, the Company has entered or will enter into an indemnification agreement ("Indemnification Agreement") with each of its directors. The Indemnification Agreement provides for the prompt indemnification and advancement of expenses, including attorneys' fees and other costs, to the fullest extent permitted by law of a director against expenses and obligations paid or incurred in connection with investigating, defending, being a witness or participating in (including on appeal) any threatened, pending or completed action, suit or proceeding related to the fact that such director is or was a director, officer, partner, employee, agent, or fiduciary of the Company or is or was serving at the request of the Company as a director, officer, partner, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan trust or other enterprise, or by reason of anything done or not done by a director in any such capacity. The Indemnification Agreement also provides (i) that a director is automatically entitled to indemnification for expenses to the extent the director is successful in defending any indemnifiable claim whether on the merits or otherwise, (ii) that the Company has the burden of proving that a director is not entitled to indemnification in any particular case and that certain presumptions that may otherwise be drawn against a director seeking indemnification in connection with the termination of actions or proceedings are negated, except that the termination of an action or proceeding by conviction or a plea of nolo contendere (or its equivalent) creates a presumption that the director is not entitled to indemnification, (iii) a mechanism through which a director may seek court relief in the event that the Company's Board (or other person or body appointed by the Company's Board) determines that the director would not be permitted to be indemnified under applicable law (and therefore is not entitled to indemnification under the Indemnification Agreement), (iv) that a director is entitled to indemnification against all expenses (including attorneys' fees) incurred in seeking to collect an indemnification claim or advancement of expenses from the Company or incurred in seeking to recover under a directors' and officers' liability insurance policy, (v) that after there has been a change in control in the Company, all Company determinations regarding a right to indemnification, and the right to advancement of expenses, shall be made by independent legal counsel, and (vi) that prior to a change in control of the Company, a director shall not be entitled to indemnification pursuant to the Indemnification Agreement in connection with an action, suit or proceeding initiated by the director against the Company, or its directors or officers unless the Company joins in or consents to the action, suit or proceeding, except as provided in Section 3 of the Indemnification Agreement. Directors' rights under the Indemnification Agreement are not exclusive of any other rights they may have under Maryland law, directors' or officers' liability insurance, the Company's Bylaws or otherwise. However, the Indemnification Agreement does prevent double payment. The Indemnification Agreement, although not requiring the maintenance of directors' and officers' liability insurance, does require that the directors be provided with maximum coverage reasonably economically available if there is such a policy. Finally, the Indemnification Agreement provides that, if the Company pays a director pursuant to the Indemnification Agreement, the Company will be subrogated to the director's rights to recover from third parties. Item 7. Exemption from Registration Claimed 3 4 Not applicable. Item 8. Exhibits 4.1 Articles of Incorporation of Getty Realty Holding Corp., incorporated by reference to Appendix D to the Joint Proxy Statement/Prospectus dated January 12, 1998 which is part of the Registration Statement on Form S-4 (No. 333-44065) filed with the Securities & Exchange Commission by the Registrant (the "Joint Proxy Statement/Prospectus"). 4.2 Articles Supplementary of Getty Realty Holding Corp., incorporated by reference to Appendix E to the Joint Proxy Statement/Prospectus. 4.3 By-laws of Getty Realty Holding Corp., incorporated by reference to Appendix F to the Joint Proxy Statement/Prospectus. 5.1 Opinion of counsel regarding the legality of the Common Stock being registered. 23.1 Consent of counsel (included in Exhibit 5.1). 24 Power of Attorney (see page 5). Item 9. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Jericho, New York, on January 30, 1998. GETTY REALTY HOLDING CORP. By: /s/ Randi Young Filip ______________________________ Randi Young Filip Corporate Secretary POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Randi Young Filip, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments or supplements to this Registration Statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in their respective capacities with Getty Realty Holding Corp. and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- Director, President, and /s/ Leo Liebowitz Chief Executive Officer - -------------------------------- (Principal Executive Officer) January 30, 1998 Leo Liebowitz Senior Vice President, Treasurer and Chief Financial Officer /s/ John J. Fitteron (Principal Financial and - -------------------------------- Accounting Officer) January 30, 1998 John J. Fitteron /s/ Milton Cooper - -------------------------------- Director January 30, 1998 Milton Cooper - -------------------------------- Director January __, 1998 Milton Safenowitz - -------------------------------- Director January __, 1998 Warren G. Wintrub /s/ Philip E. Coviello - -------------------------------- Director January 30, 1998 Philip E. Coviello
5 6
Exhibit Index 4.1 Articles of Incorporation of Getty Realty Holding Corp., incorporated by reference to Appendix D to the Joint Proxy Statement/Prospectus dated January 12, 1998 which is part of the Registration Statement on Form S-4 (No. 333-44065) filed with the Securities & Exchange Commission by the Registrant (the "Joint Proxy Statement/Prospectus"). 4.2 Articles Supplementary of Getty Realty Holding Corp., incorporated by reference to Appendix E to the Joint Proxy Statement/Prospectus. 4.3 By-laws of Getty Realty Holding Corp., incorporated by reference to Appendix F to the Joint Proxy Statement/Prospectus. 5.1 Opinion of counsel regarding the legality of the Common Stock being registered. 23.1 Consent of counsel (included in Exhibit 5.1). 24 Power of Attorney (see page 5).
6 EX-5.1 2 OPINION 1 Exhibit 5.1 BALLARD SPAHR ANDREWS & INGERSOLL January 30, 1998 Getty Realty Holding Corp. 125 Jericho Turnpike Jericho, New York 11753 Re: Registration Statement on Form S-8: Getty Realty Corp. 1998 Stock Option Plan Ladies and Gentlemen: We have served as Maryland counsel to Getty Realty Holding Corp., a Maryland corporation (the "Company"), in connection with its filing with the Securities and Exchange Commission (the "Commission") of a Registration Statement on Form S-8 (the "Registration Statement") to register up to 1,100,000 shares (the "Shares") of Common Stock, $.01 par value per share, of the Company (the "Common Stock"), which are issuable upon exercise of employee stock options granted or which may be granted under the Company's 1998 Stock Option Plan (the "Plan"). Capitalized terms used but not defined herein shall have the meanings given to them in the Registration Statement. In connection with our representation of the Company, and as a basis for the opinions hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the "Documents"): 1. The Registration Statement; 2. The Plan; 3. The charter of the Company (the "Charter"), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the "SDAT"); 4. The Bylaws of the Company (the "Bylaws"), certified as of a recent date by its Corporate Secretary; 5. A certificate as of a recent date of the SDAT as to the good standing of the Company; 6. Resolutions adopted by the Board of Directors of the Company relating to the sale, issuance and registration of the Shares (the "Resolutions"), certified as of a recent date by the Corporate Secretary of the Company; 7. A form of certificate representing the Shares, certified as of a recent date by the Corporate Secretary of the Company. 8. A certificate executed by Randi Young Filip, Corporate Secretary of the Company, dated as of a recent date; and 9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the assumptions, limitations and qualifications stated herein. In expressing the opinions set forth below, we have assumed, and so far as is known to us there are no facts inconsistent with, the following: 1. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms. 2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so. 3. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so. 4. All Documents submitted to us as originals are authentic. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There are no modifications of or amendments to the Documents, and there has been no waiver of any of the provisions of the Documents, by action or omission of the parties or otherwise. 7 2 The phrase "known to us" is limited to the actual knowledge, without independent inquiry, of the lawyers at our firm who have performed legal services in connection with the issuance of this opinion for the Company. Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that: 1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Maryland and is in good standing with the SDAT. 2. The Shares have been duly authorized and, when and if delivered against payment therefor in accordance with the resolutions of the Board of Directors of the Company authorizing their issuance and the Plan, will be (assuming that the sum of (i) all shares of Common Stock issued and outstanding on the date hereof, (ii) all shares of Common Stock issued between the date hereof and the date on which the Shares are issued (not including any Shares) and (iii) the Shares, will not exceed the number of shares of Common Stock that the Company then has authority to issue) validly issued, fully paid and nonassessable. The foregoing opinion is limited to the substantive laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any state or federal securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is being furnished to you solely for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon by, quoted in any manner to, or delivered to any other person or entity without, in each instance, our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended. Very truly yours, /s/ Ballard Spahr Andrews & Ingersoll 8 -----END PRIVACY-ENHANCED MESSAGE-----