AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GETTY REALTY CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 11-3412575
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
125 JERICHO TURNPIKE, SUITE 103
JERICHO, NEW YORK 11753
516-478-5400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GETTY REALTY CORP. 2004 OMNIBUS INCENTIVE COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
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ANDREW M. SMITH, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
GETTY REALTY CORP.
125 JERICHO TURNPIKE, SUITE 103
JERICHO, NEW YORK 11753
516-478-5400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
MARC D. BASSEWITZ, ESQ.
LATHAM & WATKINS LLP
SEARS TOWER, SUITE 5800
233 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 876-7700
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CALCULATION OF REGISTRATION FEE
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AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED SECURITY(2) PRICE(2) FEE
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Common Stock, par value $.01 per share 1,000,000 $22.10 $22,100,000 $2,800
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate number of
shares of common stock to be issuable pursuant to anti-dilution provisions
contained in the Getty Realty Corp. 2004 Omnibus Incentive Compensation
Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended,
based upon the average of the high and low trading prices of the common
stock on the New York Stock Exchange on May 17, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
In this registration statement, Getty Realty Corp. (which we refer to
as "the Company", "us", "our" or "we") has incorporated by reference certain
reports and other information we have filed, or will file, with the SEC. The
information incorporated by reference is an important part of this registration
statement, and information that we file later with the SEC will automatically
update and supersede this information. The following documents filed with the
SEC by us pursuant to the Securities Exchange Act of 1934 are incorporated
herein by reference until all of the securities covered hereby are sold or this
offering is terminated:
o our Annual Report on Form 10-K for the fiscal year ended December 31,
2003;
o our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2004;
o the description of our common stock contained in our Registration
Statement on Form S-3 (File No. 333-63060);
o all other documents subsequently filed by us pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement that indicates
that all securities offered have been sold or that deregisters all
securities that remain unsold, which shall be deemed to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Philip E. Coviello, a retired partner of the law firm of Latham &
Watkins LLP, counsel to the Company, is a member of the Board of Directors of
the Company.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Maryland corporation. The Maryland General Corporation
Law (the "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 shareholders 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 charter of the
Company contains such a provision which eliminates such liability to the maximum
extent permitted by Maryland law.
The charter of the Company authorizes it, 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 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. The bylaws of the Company obligate it, 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 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 service in that capacity.
The charter and 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 is made a party by reason of his 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 for
an adverse judgment in a suit by or in the right of the corporation or for a
judgment liability on the basis that personal benefit was improperly received,
unless in either case a court orders indemnification and then only for expenses.
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
good faith belief that he has met the standard of conduct necessary for
indemnification by the Company as authorized by the Bylaws, and (b) a written
undertaking by him or on his 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
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5.1 Opinion of Venable LLP Filed herewith.
23.1 Consent of Independent Accountants Filed herewith.
23.2 Consent of Venable LLP (Contained in opinion
filed as Exhibit 5.1.)
24 Power of Attorney Included on signature
page hereto.
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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the 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. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
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)(ii) and
(a)(1)(iii) shall not apply to information contained
in periodic reports filed by the registrant pursuant
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to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 the purposes
of determining any liability under the Securities Act of 1933, each filing of
our annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 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 those securities at that time
shall be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers and
controlling persons pursuant to the provisions described under Item 6 of this
registration statement, or otherwise (other than insurance), we have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in that Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
those liabilities (other than the payment by us of expenses incurred or paid by
our director, officer or controlling person in the successful defense of any
action, suit or proceeding) is asserted by that director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether that
indemnification by us is against public policy as expressed in that Act and will
be governed by the final adjudication of that issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 the City of Jericho, State of New York on May 20, 2004.
GETTY REALTY CORP.
By: /s/ Leo Liebowitz
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Leo Liebowitz
President and Chief Executive Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose
signature appears on the signature page to this Registration Statement
constitutes and appoints Leo Liebowitz, Thomas J. Stirnweis and Andrew M. Smith,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) 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, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done 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 attorneys-in-fact and
agents or any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on behalf of
the Registrant and in the capacities and on the dates indicated.
By: /s/ Leo Liebowitz By: /s/ Thomas J. Stirnweis
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Leo Liebowitz Thomas J. Stirnweis
President, Chief Executive Vice President, Treasurer and
Officer and Director Chief Financial Officer
May 20, 2004 (Principal Financial and
Accounting Officer)
By: /s/ Milton Cooper May 20, 2004
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Milton Cooper By: /s/ Philip E. Coviello
Director -----------------------------------
May 20, 2004 Philip E. Coviello
Director
By: /s/ Howard Safenowitz May 20, 2004
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Howard Safenowitz By: /s/ Warren G. Wintrub
Director -----------------------------------
May 20, 2004 Warren G. Wintrub
Director
May 20, 2004
S-1
EXHIBIT INDEX
GETTY REALTY CORP.
EXHIBIT
NO. DESCRIPTION
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5.1 Opinion of Venable LLP Filed herewith.
23.1 Consent of Independent Filed herewith.
Accountants
23.2 Consent of Venable LLP (Contained in opinion filed
as Exhibit 5.1.)
24 Power of Attorney Included on signature page
hereto.