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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 8, 2000
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8)
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GETTY PETROLEUM MARKETING INC.
(Name Of Subject Company)
GETTY PETROLEUM MARKETING INC.
(Name Of Person Filing Statement)
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COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title Of Class Of Securities)
374292 10 0
(CUSIP Number Of Class Of Securities)
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LEO LIEBOWITZ
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GETTY PETROLEUM MARKETING INC.
125 JERICHO TURNPIKE
JERICHO, NEW YORK 11753
(516) 338-6000
(Name, Address And Telephone Number Of Person Authorized To
Receive Notice And Communications On Behalf Of Person(s) Filing Statement)
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COPY TO:
MARC D. BASSEWITZ, ESQ.
LATHAM & WATKINS
233 SOUTH WACKER DRIVE, SUITE 5800
CHICAGO, ILLINOIS 60606
(312) 876-7700
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
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ITEM 7. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Item 7 is hereby amended to add the following:
SUBJECT COMPANY NEGOTIATIONS. On the afternoon of December 7, 2000, the Board
received the first of two unsolicited letters from United Sub regarding its
continued interest in acquiring all of the outstanding Shares.
(Contemporaneously, United Sub issued a press release related to its first
letter.) The first letter stated that United Sub was willing to pay $6.00 per
Share and that United Sub would be responsible for payment of the break-up fees
and expenses which could be due to Lukoil Americas as a result of the
termination of the Merger Agreement under certain circumstances described in the
Merger Agreement. The letter also purported to address and provide assurance on
certain of the Board's concerns with United Sub's previous merger proposal as
they existed on the evening of December 5.
This letter stated that a potential alternative structure that the Company
had initially raised with United Sub could eliminate the substantial additional
risk to the completion of United Sub's proposal raised by its insistence on the
90% minimum condition to United Sub's tender offer. The letter did not address
the following issues related to United Sub's potential structure:
- its high level of complexity;
- the high likelihood of litigation which could arise out of it;
- the protracted time which could be required for all of the Company's
stockholders to receive their merger consideration under it; or
- how the alternative structure resolves the Board's concerns over
United Sub's financing difficulties.
The letter cursorily addressed the Board's concerns that United Sub's
financing, as set forth in its commitment letter, had substantial risks
associated with its completion, including that United Sub and its advisors had
not provided (1) sufficient assurances that all of these issues were capable of
being resolved or (2) sufficient or complete assurance that the proposed
acquisition of the Company by United Sub would not trigger a default under the
terms of United's public debt indenture. The letter concluded with a proposal
that United Sub was prepared to proceed directly to a merger offering $6.00 per
Share plus an interest factor of 10% per annum to compensate for the delay in
completion of a transaction with United Sub from December 8, 2000 - the
expiration date of Lukoil's Offer.
Later in the afternoon, the Board received a second letter from United Sub
which reiterated the purchase price from its first letter of the day and further
proposed that they would accept a reduction in the Company's working capital
related to the payment of the break-up fees and expenses which could be due to
Lukoil Americas. This letter also stated that United Sub wished to commence a
tender offer for the Shares on December 8 and sought the Company's permission to
do so under the confidentiality agreement between the Company and United.
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(Contemporaneously, United Sub issued two additional press releases related to
its second letter.) The Company legal advisors responded by letter indicating
that the Company was confused by United Sub's request because the
confidentiality agreement does not contain a standstill provision.
Also on the afternoon of December 7, 2000, United Sub and an alleged
stockholder of the Company filed a complaint in the Supreme Court of the State
of New York, County of New York (the "Court"), against the Company, each of the
directors of the Company and each of the Lukoil Entities. The allegations of the
complaint include that the directors of the Company failed to act in the best
interests of the stockholders of the Company by (1) failing to exercise
reasonable business judgment in evaluating the economic benefits of the proposal
made by United Sub, (2) failing to disclose the scope and extent of their
conflict of interest as directors and majority stockholders of both the Company
and Getty Realty Corp., and further placing their personal interests and the
interests of Getty Realty Corp ahead of the stockholders of the Company in
rejecting the proposal made by United Sub, (3) incorporating into the Merger
Agreement a termination fee designed to discourage the acceptance of other
proposals, and (4) issuing misleading characterizations of United Sub's offer
and the financing of that offer. United Sub further alleges that the Lukoil
Entities aided and abetted the directors of the Company in committing such
conduct. Among other things, the complaint seeks to enjoin the Purchaser from
accepting for payment the shares of Common Stock validly tendered in the Offer
on the Expiration Date, consummating the Merger and unspecified damages.
The Company believes that United Sub's action is frivolous and totally without
merit. The Company intends to oppose and seek dismissal of United Sub's
complaint. The Court has ordered that the parties appear before it for a hearing
on the issue of whether an injunction is appropriate, at 3:00 p.m. on Friday,
December 8, 2000 and has further ordered that pending such hearing the Lukoil
Entities are enjoined from accepting for payment the shares of Common Stock
tendered in the Offer and the parties are enjoined from consummating the Merger.
On the evening of December 7, 2000, the Board held a special meeting at
which the Board discussed with its legal and financial advisors the events
occurring since its December 5 special meeting. After lengthy discussion, the
Board temporarily adjourned the meeting in order to provide the Special
Committee of the independent directors of the Board with an opportunity to
convene with its counsel.
Upon reconvening the Board's special meeting, the legal advisor to the
Special Committee advised the Board that the Special Committee had considered
whether United Sub's letters constituted a "Superior Company Proposal" (as
defined in the Merger Agreement). In particular, the Special Committee members
focused on the requirement in the Merger Agreement that an offer is a "Superior
Company Proposal," only where the proposed transaction is "reasonably capable of
being completed, taking into account all financial, regulatory, legal and other
aspects of such proposal." The Board was further advised that the Special
Committee had unanimously determined that United Sub's December 7 letters did
not constitute a "Superior Company Proposal" under the Merger Agreement. The
Special Committee recommended that the Board reject United's December 7 letters,
and continue to recommend that stockholders accept the Lukoil Offer. In reaching
its conclusion, the Special Committee considered various factors, including:
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- Its uncertainty as to whether (1) the issues regarding United Sub's
proposed financing were capable of being resolved or (2) United Sub
could provide the Company with sufficient or complete assurance that
United Sub's proposed acquisition of the Company would not trigger a
default under the terms of United's public debt indenture.
- The pattern of United Sub's actions with respect to the previous
merger discussions with the Company and its advisors (including United
Sub's failure to timely produce or significantly delaying the
production of a formal merger proposal, as well as necessary documents
and other information) which presented substantial doubt as to the
likelihood that a merger between United Sub and the Company would
close.
- The potential that the Company's stockholders could be left with no
transaction or opportunity to sell their Shares at a premium if the
Merger Agreement was terminated, a merger agreement with United Sub
was not timely consummated due to its substantial conditions or
otherwise, or the terms of United's proposal were substantially
renegotiated.
After further consultation with its outside counsel and financial advisors
and discussions, the Board concluded that United Sub had not demonstrated that
it had resolved or had the ability to resolve any of the uncertainties, risks or
impediments to completion of United Sub's merger proposal that the Board had
considered on December 5. The Board reaffirmed its December 5 conclusion that it
could not determine that it had received a "Superior Company Proposal" (as
defined in the Merger Agreement) from United Sub. The Board then reaffirmed its
recommendation that stockholders accept Lukoil's Offer.
In view of these and other factors considered in connection with its
evaluation of United Sub's letters, neither the Special Committee nor the Board
found it practicable to, or did, quantify or otherwise attempt to assign
relative weights to the specific factors considered in reaching its conclusion.
The Board urges all stockholders who have not tendered their Shares
pursuant to Lukoil's Offer to tender their Shares before 12:00 Midnight, New
York City time, on Friday, December 8, 2000, the scheduled expiration time of
Lukoil's Offer.
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SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: December 7, 2000
GETTY PETROLEUM MARKETING INC.
By: /s/ LEO LIEBOWITZ
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Leo Liebowitz
Chairman and Chief Executive Officer
