<PAGE> 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
<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 1,100,000 $12.55; $21.37 $20,313,260.36 $5,992.41
</TABLE>
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
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
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
Exhibit Index
<S> <C>
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).
</TABLE>
6
<PAGE> 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
<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 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
