<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
GETTY PETROLEUM MARKETING INC.
(Exact name of registrant as specified in its charter)
MARYLAND 11-3339235
(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)
GETTY PETROLEUM MARKETING INC. RETIREMENT (401(k)) AND PROFIT SHARING PLAN
(Full title of Plan)
--------------------
SAMUEL M. JONES
VICE PRESIDENT AND GENERAL COUNSEL
GETTY PETROLEUM MARKETING INC.
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
<TABLE>
<CAPTION>
==================================================================================
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
===================================================================================
<S> <C> <C> <C> <C>
Common Stock
$.01 par value (3) 200,000 $3.47 $694,000.00 $239.31
</TABLE>
<PAGE> 2
(1) Represents the maximum number of shares that may be acquired under the
Getty Petroleum Marketing Inc. Retirement (401(k)) and Profit Sharing
Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(h) of the Securities Act of 1933, based on the book
value of the common stock, par value $.01 per share ("Common Stock"), of
Getty Petroleum Marketing Inc. on October 31, 1996.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the Plan described herein.
____________
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 Petroleum Marketing Inc., a Maryland corporation (the
"Company"), or the Getty Petroleum Marketing Inc. Retirement (401(k)) and
Profit Sharing Plan (the "Plan") are incorporated as of their respective dates
in this Registration Statement by reference:
(1) The Company's Registration Statement on Form 10/A filed
with the Commission on March 13, 1997 (File No. 001-14990)
including the exhibits thereto.
(2) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 10/A referred to
in (1) above.
All documents filed by the Company or the Plan 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.
2
<PAGE> 3
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 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.
3
<PAGE> 4
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Articles of Incorporation of the Company. Filed as
Exhibit 3.1 to the Company's Registration Statement on Form 10 as
filed on November 19, 1996 (File No. 1-14490) and incorporated
herein by reference.
4.2 Form of Articles of Incorporation of the Company, as
amended. Filed as Exhibit 3.2 to the Company's Registration
Statement on Form 10/A as filed on January 13, 1997 and
incorporated herein by reference.
4.3 By-laws of the Company. Filed as Exhibit 3.4 to the
Company's Registration Statement on Form 10/A as filed on January
13, 1997 and incorporated herein by reference.
5.1 Opinion of counsel regarding the legality of the Common
Stock being registered.
23.1 Consent of Independent Accountants.
23.2 Consent of counsel (included in Exhibit 5.1).
24 Power of Attorney (see page 6).
Pursuant to Item 8 of the instructions to Form S-8, the undersigned registrant
hereby undertakes to submit the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner, and has made or will make all
changes required by the IRS in order to qualify the Plan.
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
4
<PAGE> 5
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.
5
<PAGE> 6
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 March 13, 1997.
GETTY PETROLEUM MARKETING INC.
By: /s/ Samuel M. Jones
---------------------------------
Samuel M. Jones
Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, hereby constitutes and appoints each of Samuel M. Jones and Michael K.
Hantman, 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 his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
6
<PAGE> 7
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 Petroleum Marketing Inc. and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
President, Chief
Executive Officer and
Director (Principal
Executive Officer and
/s/ Leo Liebowitz Principal Financial Officer) March 13, 1997
-------------------------
Leo Liebowitz
Vice President and
Corporate Controller
(Principal Accounting
/s/ Michael K. Hantman Officer) March 13, 1997
-------------------------
Michael K. Hantman
/s/ Milton Safenowitz Director March 13, 1997
-------------------------
Milton Safenowitz
/s/ Ronald E. Hall Director March 13, 1997
-------------------------
Ronald E. Hall
/s/ Richard E. Montag Director March 13, 1997
-------------------------
Richard E. Montag
Director ________, 1997
-------------------------
Matthew J. Chanin
</TABLE>
7
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in Jericho, New York, on January
March 13, 1997.
GETTY PETROLEUM MARKETING INC. RETIREMENT
(401(K)) AND PROFIT SHARING PLAN
By: Getty Petroleum Marketing Inc.
Retirement (401(k)) and
Profit Sharing Plan Committee
Plan Administrator
By: /s/ Samuel M. Jones
-------------------------------
Samuel M. Jones
By: /s/ Linda Raynor
--------------------------------
Linda Raynor
By: /s/ Michael K. Hantman
--------------------------------
Michael K. Hantman
8
<PAGE> 9
Exhibit Index
4.1 Articles of Incorporation of the Company. Filed as Exhibit
3.1 to the Company's Registration Statement on Form 10 as filed on
November 19, 1996 and incorporated herein by reference.
4.2 Form of Articles of Incorporation of the Company, as amended.
Filed as Exhibit 3.2 to the Company's Registration Statement on
Form 10/A as filed on January 13, 1997 and incorporated herein by
reference.
4.3 By-laws of the Company. Filed as Exhibit 3.4 to the
Company's Registration Statement on Form 10/A as filed on January
13, 1997 and incorporated herein by reference.
5.1 Opinion of counsel regarding the legality of the Common Stock being
registered.
23.1 Consent of Independent Accountants.
23.2 Consent of counsel (included in Exhibit 5.1)
24 Power of Attorney (see page 6).
9
<PAGE> 1
Exhibit 5.1
BALLARD SPAHR ANDREWS & INGERSOLL
March 14, 1997
Getty Petroleum Marketing Inc.
125 Jericho Turnpike
Jericho, New York 11753
Re: Registration Statement on Form S-8:
Getty Petroleum Marketing Inc. Retirement
(401(k)) and Profit Sharing Plan (the "Plan")
---------------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Getty Petroleum Marketing Inc., 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") relating to 200,000 shares
(the "Shares") of Common Stock, $.01 par value per share, of the Company (the
"Common Stock") to be offered or sold by the Company to participants of 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 charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company (the "Bylaws"), certified as of a recent date
by its Secretary;
4. A certificate as of a recent date of the SDAT as to the good standing
of the Company;
5. 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 Secretary of the Company;
6. A form of certificate representing the Shares, certified as of a recent
date by the Secretary of the Company.
7. A certificate executed by Samuel M. Jones, Vice President, Corporate
Secretary and General Counsel of the Company, dated as of a recent date; and
8. 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 conduct of the parties or otherwise.
<PAGE> 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 are duly authorized and, when and if delivered against
payment therefor in accordance with the Plan and the resolutions of the Board of
Directors of the Company authorizing their issuance, will be duly and 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
-------------------------------------
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 (File No. 333- ) of our reports, dated November 6,
1996, except for notes 6, 9 and 12, as to which the date is February 28, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of Getty Petroleum Marketing Inc. and Subsidiaries as of January 31,
1996 and 1995, and for each of the three years in the period ended January 31,
1996, which report is included in the registration statement on Form 10/A of
Getty Petroleum Marketing Inc. (File No. 001-14990).
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
March 13, 1997
