SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 1
Getty Petroleum Marketing Inc.
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(Name of Subject Company (Issuer))
OAO LUKOIL
Lukoil International GmbH
Lukoil Americas Corporation
Mikecon Corp.
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(Names of Filing Persons (Offerors))
Common Stock, Par Value $0.01 Per Share
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(Title of Class Securities)
374292100
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(CUSIP Number of Class of Securities)
Vadim Gluzman
Chairman of the Board
Lukoil Americas Corporation
540 Madison Avenue
New York, New York 10022
(212) 421-4141
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a copy to:
Patrick J. Dooley, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
(212) 872-1000
CALCULATION OF FILING FEE
.-------------------------------------- ----------------------------------------
Transaction Valuation* Amount of Filing Fee
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$73,873,505.00 $14,774.71
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* For purposes of calculating the filing fee only, this amount is based
on the purchase of 14,002,866 outstanding shares of Common Stock and
shares of Common Stock underlying 771,835 stock options all at the
tender offer price of $5.00 per share.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11 (a) (2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $14,774.71 Filing Party: OAO LUKOIL; Mikecon Corp.;
---------- Lukoil International GmbH;
Lukoil Americas Corporation
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Form or Registration No.: Schedule TO Date Filed: November 9, 2000
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<PAGE>
|_| Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer. Check
the appropriate boxes below to designate any transactions to which the
statement relates:
|X| third-party tender offer subject to Rule 14d-1.
|_| issuer tender offer subject to Rule 13e-4.
|_| going-private transaction subject to Rule 13e-3.
|_| amendment to Schedule 13D under Rule 13d-2. Check the following
box if the filing is a final amendment reporting the results of
the tender offer: |_|
<PAGE>
This Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule TO filed with the Securities and Exchange Commission on November 9,
2000 (the "Schedule TO") by OAO LUKOIL, a Russian open joint stock company
("LUKOIL"), LUKOIL International GmbH, an Austrian corporation ("Lukoil
International") and a direct, wholly owned subsidiary of LUKOIL, Lukoil Americas
Corporation, a Delaware corporation ("Parent") and an indirect, wholly owned
subsidiary of LUKOIL and Mikecon Corp., a Delaware corporation (the "Purchaser")
and the direct, wholly owned subsidiary of Parent, in connection with the offer
by Purchaser for all of the outstanding shares of common stock, par value $0.01
per share (the "Common Stock"), of Getty Petroleum Marketing Inc., a Maryland
corporation (the "Company"), at a price of $5.00 per share of Common Stock, net
to the seller in cash, without interest upon and subject to the terms and
conditions set forth in the Offer to Purchase, dated November 9, 2000 (the
"Offer to Purchase"), and the related Letter of Transmittal, which together, as
each may be amended or supplemented from time to time, constitute the "Offer"
and which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(i)
and (a)(1) (ii), respectively. Capitalized terms used herein but not otherwise
defined have the meaning ascribed to such terms in the Offer to Purchase.
Item 1 Summary Term Sheet.
Item 1 is hereby amended as follows:
1. The section of the Offer to Purchase captioned "Summary Term
Sheet" is hereby amended by replacing the second to last sentence in the first
paragraph of the response to the question "Can the offer be extended, and under
what circumstances?" on page iii thereof with the following sentence:
In addition, we may extend our offer even if all the conditions to our
offer have been satisfied, but in this instance we may do so only once
for up to an additional ten business days and we have to waive all
conditions, except the condition that at least a majority of the
outstanding shares of Common Stock of Getty Petroleum Marketing Inc.
(assuming the exercise of all outstanding stock options) (i.e.,
7,387,351 shares) have been properly tendered and the condition that
we would not violate the law by accepting the shares of Common Stock
for payment.
2. The section of the Offer to Purchase captioned "Summary Term
Sheet" is hereby amended by replacing the first bullet point in the response to
the question "What are the most significant conditions to the offer?" on page
iii with the following bullet point:
at least a majority of the outstanding shares of Common Stock of Getty
Petroleum Marketing Inc. (assuming the exercise of all outstanding
stock options) (i.e., 7,387,351 shares) are validly tendered and not
withdrawn prior to the expiration of our offer; and
3. The section of the Offer to Purchase captioned "Summary Term
Sheet" is hereby amended by replacing the first sentence in the response to the
question "How do I withdraw previously tendered shares of common stock?" on page
iv thereof with the following sentence:
To withdraw shares of Common Stock, you must deliver a written or
facsimile notice of withdrawal, or a copy of one, with the required
information to American Stock Transfer & Trust Company, the depositary
for our offer, while you still have the right to withdraw the shares.
4. The section of the Offer to Purchase captioned "Summary Term
Sheet" is hereby amended by adding to the response to the question "What does
the Getty Petroleum Marketing Inc. board of directors recommend with respect to
the offer?" on page iv thereof the following new paragraph:
We suggest that you read the Solicitation/Recommendation Statement on
Schedule 14D-9 of Getty Petroleum Marketing Inc. which includes a
description of the reasons why the board of directors of that company
believes that our offer and the merger are in your best interests and
has recommended that you tender your shares of Common Stock in our
offer. The board of directors of Getty Petroleum Marketing Inc. was
obligated to make this recommendation in accordance with the merger
agreement. A copy of the Solicitation/Recommendation Statement on
Schedule 14D-9 should have been delivered to you along with this Offer
to Purchase.
<PAGE>
5. The section of the Offer to Purchase captioned "Summary Term
Sheet" is hereby amended by replacing the first sentence in the response to the
question "Will the tender offer be followed by a merger if all of Getty
Petroleum Marketing Inc.'s shares of common stock are not tendered in the
offer?" on page v thereof with the following sentence:
If we accept for payment and pay for at least a majority of the
outstanding shares of Common Stock of Getty Petroleum Marketing Inc.
(i.e., 7,387,351 shares), we will be merged with and into Getty
Petroleum Marketing Inc.
Item 2 Subject Company Information.
Item 2 is hereby amended as follows:
The section of the Offer to Purchase captioned Section 7 -- "Certain
Information Concerning the Company" is amended by deleting the second sentence
of the first paragraph on page 11 thereof.
Item 4 Terms Of The Transaction.
Item 4 is hereby amended as follows:
1. The cover page of the Offer to Purchase is hereby amended by
deleting clause (i) of the second paragraph and replacing it with the following
clause (i):
THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN
PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST 7,387,351
SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE (THE
"COMMON STOCK"), OF GETTY PETROLEUM MARKETING INC. (THE
"COMPANY"), WHICH REPRESENT A MAJORITY OF THE OUTSTANDING
SHARES OF COMMON STOCK ON A FULLY DILUTED BASIS,
2. The section of the Offer to Purchase captioned Section 1 --
"Terms of the Offer" is hereby amended by replacing the first sentence of the
fourth paragraph on page 3 thereof with the following sentences:
Subject to the terms of the Merger Agreement, the applicable
rules and regulations of the Commission and to applicable
law, the Purchaser also expressly reserves the right, in its
sole discretion, at any time and from time to time (i) to
delay acceptance for payment of, or, regardless of whether
such shares of Common Stock were theretofore accepted for
payment, or payment for, any shares of Common Stock (a) if
any applicable waiting period under the HSR Act has not
expired or been terminated or (b) in order to comply in
whole or in part with any other applicable law (subject to
Rule 14e-1(c) under the Exchange Act), (ii) to terminate the
Offer and not accept for payment any shares of Common Stock
if any of the conditions referred to in Section 13 --
"Conditions of the Offer" are not satisfied or any of the
events specified in Section 13 -- "Conditions of the Offer"
has occurred and remains in effect, and (iii) to waive any
condition or otherwise amend the Offer in any respect by
giving oral or written notice of such delay, termination,
waiver or amendment to the Depositary and by making a public
announcement thereof. Any delay of acceptance for payment
of, or payment for, shares of Common Stock will be effected
in compliance with Rule 14e-1(c) under the Exchange Act,
which obligates a bidder to pay for or return tendered
securities promptly after the termination or withdrawal of
such bidder's offer.
<PAGE>
3. The section of the Offer to Purchase captioned Section 2 --
"Acceptance for Payment and Payment for Shares of Common Stock" is hereby
amended by by replacing the first paragraph on page 5 thereof with the following
paragraph:
Upon the terms and subject to the conditions of the Offer,
the Merger Agreement and applicable law (including, if the
Offer is extended or amended, the terms and conditions of
any such extension or amendment), the Purchaser will
purchase, by accepting for payment, and will pay for, all
shares of Common Stock validly tendered prior to the
Expiration Date (and not properly withdrawn in accordance
with Section 4 -- "Withdrawal Rights") as promptly as
practicable after the Expiration Date if all of the
conditions set forth in Section 13 -- "Conditions of the
Offer" have been satisfied or waived on or prior to the
Expiration Date. Subject to applicable rules of the
Commission and the terms of the Merger Agreement, the
Purchaser expressly reserves the right, in its sole
discretion, to delay acceptance for payment of, or payment
for, shares of Common Stock in order to comply, in whole or
in part, with any applicable law. Any such delays will be
effected in compliance with Rule 14e-1(c) under the Exchange
Act, which obligates a bidder to pay for or return tendered
securities promptly after the termination or withdrawal of
such bidder's offer.
4. Inasmuch as Item 4 incorporates by reference the "Summary Term
Sheet" and Section 7 of the Offer to Purchase, Item 4 is hereby further amended
by reference to the amendments to Items 1 and 2 of this Amendment No. 1.
5. The section to the Offer to Purchase captioned Section 13 --
"Conditions of the Offer" is hereby amended by incorporating by reference the
information set forth in and by amending Section 13 as follows:
(a) The first sentence of the first paragraph on page 31 of the Offer
to Purchase is hereby replaced with the following sentence:
Notwithstanding any other provision of the Offer and subject
to the terms of the Merger Agreement, the Purchaser shall
not be required to accept for payment any shares of Common
Stock or, subject to any applicable rules and regulations of
the SEC, to pay for any shares of Common Stock tendered
pursuant to the Offer, unless (i) the Minimum Condition has
been satisfied and (ii) any applicable waiting period under
the HSR Act shall have expired or been terminated (the "HSR
Condition").
(b) The first sentence in the first full paragraph on page 33 of the
Offer to Purchase is hereby replaced with the following sentence:
The foregoing conditions shall be for the sole benefit of
Parent and the Purchaser subject to the terms of the Merger
Agreement and may be waived by Parent or the Purchaser, in
whole or in part, at any time and from time to time prior to
the expiration of the Offer in their respective sole
discretion.
Item 5 Past Contacts, Transactions, Negotiations And Agreements.
1. Item 5 is hereby amended and supplemented by adding the following
sentence as the last sentence of the fourth paragraph on the cover page of the
Offer to Purchase:
SEE "ITEM 4. THE SOLICITATION OR RECOMMENDATION" OF THE
COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE
14D-9
2. Item 5 is hereby amended and supplemented by adding the following
sentence as the last sentence of the fourth paragraph of the section captioned
"Introduction" on page 1 of the Offer to Purchase:
SEE "ITEM 4. THE SOLICITATION OR RECOMMENDATION" OF THE
COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE
14D-9
<PAGE>
3. Item 5 is hereby amended and supplemented by adding the following
as indicated in the section of the Offer to Purchase captioned Section 10--
"Background of the Offer":
(a) The twelfth paragraph on page 18 of the Offer to Purchase is
hereby amended by adding the following sentence at the end of such paragraph:
Lukoil USA also proposed that in order to commence its due diligence
the Company enter into an agreement that would provide for the
reimbursement of its expenses and a termination fee, all in a form
which was memorialized in the Letter Agreement entered into on August
8, 2000.
(b) The fifteenth paragraph on page 18 of the Offer to Purchase is
hereby amended by adding the following sentence at the end of such paragraph:
After extensive negotiations, Getty Properties Corp. and the
Lukoil Entities agreed to amend the master leases in order
to, among other things, consolidate the existing master
leases into a single lease, establish the initial term of
the amended master lease as being for fifteen years, modify
the rent provisions, amend the use, casualty, condemnation
and default and cure provisions, provide credit enhancements
in favor of the landlord, establish standards for the
abandonment of properties under the amended master lease and
for the allocation of environmental risks, and to permit
commercial leasehold financing.
Item 11 Additional Information.
Item 11 is hereby amended as follows:
1. The section of the Offer to Purchase captioned Section 7 --
"Certain Information Concerning the Company -- Certain Projected Financial Data
for the Company" is amended by deleting the second sentence of the last
paragraph on page 14.
2. The section of the Offer to Purchase captioned Section 14 --
"Certain Legal Matters; Regulatory Approvals" is hereby further amended by
replacing the last paragraph on page 36 in with the following paragraph:
Under the provisions of the HSR Act applicable to the
purchase of shares of Common Stock pursuant to the Offer,
such purchase may not be made until the expiration of a
fifteen calendar day waiting period following the required
filing of a Notification and Report Form under the HSR Act
by Parent, which Parent submitted on November 6, 2000.
Accordingly, the waiting period under the HSR Act would have
expired at 11:59 P.M., New York City time, on November 21,
2000, which was the fifteenth calendar day following filing
of the Notification and Report Form by Parent, if the FTC
had not granted early termination of the waiting period. The
FTC granted Parent's request for early termination on
November 20, 2000.
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
OAO LUKOIL
Dated: November 30, 2000 By: /s/ Ralif Safin
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Name: Ralif Safin
Title: First Vice President
LUKOIL INTERNATIONAL GMBH
Dated: November 30, 2000 By: /s/ Ralif Safin
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Name: Ralif Safin
Title: Authorized Representative
LUKOIL AMERICAS CORPORATION
Dated: November 30, 2000 By: /s/ Vadim Gluzman
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Vadim Gluzman
Chairman of the Board
MIKECON CORP.
Dated: November 30, 2000 By: /s/ Vadim Gluzman
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Vadim Gluzman
Chairman of the Board
