<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 CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2232705
(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)
__________________
1991 STOCK OPTION PLAN OF GETTY REALTY CORP.
(AMENDMENT AND RESTATEMENT OF THE 1991 STOCK OPTION PLAN OF GETTY PETROLEUM
CORP.)
(Full title of Plan)
__________________
JOHN J. FITTERON
SENIOR VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER
GETTY PETROLEUM 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 Per Share(1) Price (1) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.10 par value 250,000 $14.75 $4,492,675.00 $1,549.19
$20.125
</TABLE>
<PAGE> 2
(1) For purposes of computing the registration fee only. Pursuant to
Rule 457(h), the Proposed Maximum Offering Price Per Share is based
on (a) the exercise price per share ($14.75) of outstanding options
for 100,200 shares, and (b) for the remaining 149,800 shares,
$20.125, the average of the high and low prices for Getty Petroleum
Corp. common stock, .10 par value, on the composite tape for the
New York Stock Exchange on March 12, 1997.
____________
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
EXPLANATORY NOTE
On or about March 31, 1997 Getty Petroleum Corp. intends to change
its name to Getty Realty Corp. Accordingly, as of March 31, 1997, the 1991
Stock Option Plan of Getty Petroleum Corp. intends to change its name to the
1991 Stock Option Plan of Getty Realty Corp. (together, and both, the "Plan").
This Registration Statement pertains to the amendment of the Plan
to increase the number of shares available for issuance upon the exercise of
stock options under the Plan from 500,000 to 750,000 (an increase of 250,000).
The initial 500,000 shares were originally registered on the Getty Petroleum
Corp. Form S-8 Registration Statement as filed on June 18, 1993 (File No.
33-64746).
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission by Getty Petroleum Corp., a Delaware corporation (which, on or about
March 31, 1997, intends to change its name to Getty Realty Corp.) (the
"Company") are incorporated as of their respective dates in this Registration
Statement by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1996.
(2) All other reports filed by the Company pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since January 31, 1996.
(3) Description of the Company's Common Stock contained in
Amendment No. 1 to the Company's Registration Statement
(No. 2-98884) filed with the Commission on August 7, 1985.
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.
2
<PAGE> 3
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware permits
indemnification of directors, officers and employees of a corporation under
certain conditions and subject to certain limitations.
Section 11 of the Certificate of Incorporation of the Company
provides that the Company shall indemnify each officer and director of the
Company to the fullest extent allowed by law, except as otherwise provided in
the Company's By-Laws.
Article IX of the By-Laws of the Company provides that the Company
shall indemnify any party to any lawsuit or proceeding by reason of the fact
that such party is or was a director, officer, employee or agent of the
company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The Company has entered into an Indemnification Agreement with each
of its directors. The form of such Indemnification Agreement was appended to
the Proxy Statement for, and approved by the stockholders of the Company at,
the 1987 Annual Meeting of Stockholders.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Certificate of Incorporation of the Company. Filed as
Exhibit 3.1 to the Company's Registration Statement on Form
S-1 as filed on June 23, 1971 and incorporated herein by
reference.
4.2 Certificate of Amendment of Certificate of Incorporation of
the Company. Filed as Exhibit B to the Company's Annual
Report on Form 10-K for the fiscal year ended January 31,
1978 and incorporated herein by reference.
4.3 Certificate of Amendment of Certificate of Incorporation of
the Company. Filed as Exhibit 6.3 to the Company's
Registration Statement on Form 8-A as filed on July 19,
1985 and incorporated herein by reference.
4.4 Certificate of Amendment of Certificate of Incorporation of
the Company. Filed as Exhibit 6.4 to the Company's
Registration Statement on Form 8-A as filed on July 19,
1985 and incorporated herein by reference.
4.5 Certificate of Amendment of Certificate of Incorporation of
the Company. Filed as Exhibit 6.5 to the Company's
Registration Statement on Form 8-A is filed on July 19,
1985 and incorporated herein by reference.
4.6 Certificate of Amendment of Certificate of Incorporation of
the Company. Filed as Exhibit A to the Company's
definitive proxy statement, dated May 8, 1987 and
incorporated herein by reference.
4.7 By-laws of the Company. Filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-1 as filed on
June 23, 1971 and incorporated herein by reference.
4.8 Amendment to By-laws of the Company. Filed as Exhibit B to
the Company's definitive proxy statement, dated May 8,
1987, with respect to its Annual Meeting of Stockholders
held June 18, 1987 and incorporated herein by reference.
4.9 Amendment to By-laws of the Company. Filed as Exhibit 3.9
to the Company's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1988 and incorporated herein by
reference.
4.10 1991 Stock Option Plan of Getty Realty Corp. (Amendment and
Restatement of the 1991 Stock Option Plan of Getty
Petroleum Corp.)
5.1 Opinion of counsel regarding the legality of the Common
Stock being registered.
23.1 Consent of Independent Accountants.
3
<PAGE> 4
23.2 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 March 13,
1997.
GETTY PETROLEUM CORP.
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 Leo Liebowitz and John
J. Fitteron, 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.
5
<PAGE> 6
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 Corp. and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
President, Chief
Executive Officer
and Director
/s/ Leo Liebowitz (Principal Executive Officer) March 13, 1997
- -------------------------------------------
Leo Liebowitz
Senior Vice President, Treasurer
and Chief Financial Officer
/s/ John J. Fitteron (Principal Financial Officer) March 13, 1997
- ------------------------------------------
John J. Fitteron
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
Director ________, 1997
- -----------------------------------------
Milton Cooper
/s/ Philip E. Coviello Director March 13, 1997
- -----------------------------------------
Philip E. Coviello
Director ________, 1997
- -----------------------------------------
Warren G. Wintrub
</TABLE>
6
<PAGE> 7
Exhibit Index
4.1 Certificate of Incorporation of the Company. Filed as Exhibit 3.1 to
the Company's Registration Statement on Form S-1 as filed on June 23,
1971 and incorporated herein by reference.
4.2 Certificate of Amendment of Certificate of Incorporation of the
Company. Filed as Exhibit B to the Company's Annual Report on Form
10-K for the fiscal year ended January 31, 1978 and incorporated
herein by reference.
4.3 Certificate of Amendment of Certificate of Incorporation of the
Company. Filed as Exhibit 6.3 to the Company's Registration
Statement on Form 8-A as filed on July 19, 1985 and incorporated
herein by reference.
4.4 Certificate of Amendment of Certificate of Incorporation of the
Company. Filed as Exhibit 6.4 to the Company's Registration
Statement on Form 8-A as filed on July 19, 1985 and incorporated
herein by reference.
4.5 Certificate of Amendment of Certificate of Incorporation of the
Company. Filed as Exhibit 6.5 to the Company's Registration
Statement on Form 8-A is filed on July 19, 1985 and incorporated
herein by reference.
4.6 Certificate of Amendment of Certificate of Incorporation of the
Company. Filed as Exhibit A to the Company's definitive proxy
statement, dated May 8, 1987 and incorporated herein by reference.
4.7 By-laws of the Company. Filed as Exhibit 3.2 to the Company's
Registration Statement on Form S-1 as filed on June 23, 1971 and
incorporated herein by reference.
4.8 Amendment to By-laws of the Company. Filed as Exhibit B to the
Company's definitive proxy statement, dated May 8, 1987, with respect
to its Annual Meeting of Stockholders held June 18, 1987 and
incorporated herein by reference.
4.9 Amendment to By-laws of the Company. Filed as Exhibit 3.9 to the
Company's Quarterly Report on Form 10-Q for the quarter ended April
30, 1988 and incorporated herein by reference.
4.10 1991 Stock Option Plan of Getty Realty Corp. (Amendment and
Restatement of the 1991 Stock Option Plan of Getty Petroleum Corp.)
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 5).
7
<PAGE> 1
Exhibit 4.10
1991 STOCK OPTION PLAN OF
GETTY REALTY CORP.
(Amendment and Restatement of the
1991 Stock Option Plan of Getty Petroleum Corp.)
Getty Petroleum Corp., a corporation organized under the laws of the
State of Delaware, by resolution of its Board of Directors adopted the 1991
Stock Option Plan of Getty Petroleum Corp. on __________ ____, 1991, effective
as of ___________ _____, 1991.
On or about March 31, 1997, pursuant to a corporate restructuring,
Getty Petroleum Corp. will change its name to Getty Realty Corp. Accordingly,
prior to March 31, 1997 this plan will be known as the 1991 Stock Option Plan
of Getty Petroleum Corp., and effective March 31, 1997, this plan will be
known as the 1991 Stock Option Plan of Getty Realty Corp. (together, and both,
the "Plan").
In order to comply with amendments to applicable laws, this amendment
to and restatement of the Plan has been adopted by a resolution of the Board of
Directors of the Company on December 12, 1996, effective as of December 12,
1996, except as otherwise provided in such resolution. This amendment to and
restatement of the Plan constitutes a complete amendment, restatement and
continuation of the Plan. The purposes of this Plan are as follows:
(1) To further the growth, development and financial success of the
Company by providing additional incentives to certain of its officers,
directors, key employees and consultants who have been or will be given
responsibility for the management or administration of the Company's business
affairs, by assisting them to become owners of capital stock of the Company and
thus to benefit directly from its growth, development and financial success.
(2) To enable the Company to obtain and retain the services of the
type of professional, technical and managerial employees and officers,
directors and consultants considered essential to the long-range success of the
Company by providing and offering them an opportunity to become owners of
capital stock of the Company under Options, including Options in the case of
officers and key employees that are intended to qualify as "incentive stock
options" under Section 422 of the Internal Revenue Code of 1986, as amended.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
The masculine pronoun shall include the feminine and neuter and the neuter and
the singular shall include the plural, where the context so indicates.
SECTION 1.1 - AWARD LIMIT
"Award Limit" shall mean 100,000 shares of the Company's $.10 par value
common stock.
<PAGE> 2
SECTION 1.2 -- BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.3 -- CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.4 - COMMITTEE
"Committee" shall mean the Stock Option Committee of the Board,
appointed as provided in Section 6.1.
SECTION 1.5 - COMPANY
"Company" shall mean Getty Realty Corp., which prior to March 31,
1997 shall be known as Getty Petroleum Corp. In addition, "Company" shall mean
any corporation assuming, or issuing new employee stock options in substitution
for, Incentive Stock Options, outstanding under the Plan, in a transaction to
which Section 424(a) of the Code applies.
SECTION 1.6 - DIRECTOR
"Director" shall mean a member of the Board of Directors of the Company
or any Subsidiary.
SECTION 1.7 - EMPLOYEE
"Employee" shall mean any employee (as defined in accordance with the
Regulations and Revenue Rulings then applicable under Section 3401(c) of the
Code) of the Company, or of any corporation which is then a Parent Corporation
or a Subsidiary, whether such employee is so employed at the time this Plan is
adopted or becomes so employed subsequent to the adoption of this Plan.
SECTION 1.8 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.9 - INCENTIVE STOCK OPTION
"Incentive Stock Option" shall mean an Option which qualifies under
Section 422 of the Code and which is designated as an Incentive Stock Option by
the Committee. SECTION 1.10 - INDEPENDENT DIRECTOR
"Independent Director" shall mean a member of the Board who is not an
Employee of the Company.
SECTION 1.11 - NON-QUALIFIED OPTION
"Non-Qualified Option" shall mean an Option which is not an Incentive
Stock Option and which is designated as a Non-Qualified Option by the
Committee.
SECTION 1.12 - OFFICER
"Officer" shall mean an officer of the Company as defined in Rule
16a-1(f) under the Exchange Act, as such Rule may be amended in the future.
<PAGE> 3
SECTION 1.13 - OPTION
"Option" shall mean an option to purchase capital stock of the Company,
granted under the Plan. "Options" includes both Incentive Stock Options and
Non-Qualified Options; provided, however, that no Incentive Stock Option may be
granted to any individual who is not an Employee.
SECTION 1.14 - OPTIONEE
"Optionee" shall mean an Officer, Director, Employee or consultant to
whom an Option is granted under the Plan.
SECTION 1.15 - PARENT CORPORATION
"Parent Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
Company then owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
SECTION 1.16 - PLAN
"Plan" shall mean this 1991 Stock Option Plan of Getty Realty Corp.
SECTION 1.17 - RULE 16B-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act,
as such Rule may be amended in the future.
SECTION 1.18 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.19 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.20 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
SECTION 1.21 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when service by the
Optionee as an Employee of (or in the case of consultants, as a consultant of,
or in the case of Directors, as a Director of) the Company, a Parent
Corporation or a Subsidiary is terminated for any reason, with or without
cause, including, but not by way of limitation, a termination by resignation,
discharge, death or retirement, but excluding terminations where there is a
simultaneous reemployment by (or in the case of consultants, where there is a
simultaneous commencement of service as a consultant of, or in the case of
Directors, where there is a simultaneous commencement of service as a Director
of) the Company, a Parent Corporation or a Subsidiary. The Committee, in its
absolute discretion, shall determine the effect of all other matters and
questions relating to Termination of Employment, including, but not by way of
limitation, the question of whether a Termination of Employment resulted from a
discharge for good cause, and
<PAGE> 4
all questions of whether particular leaves of absence constitute Terminations
of Employment; provided, however, that, with respect to Incentive Stock
Options, a leave of absence shall constitute a Termination of Employment if,
and to the extent that, such leave of absence interrupts employment for the
purposes of Section 422(a)(2) of the Code and the then applicable Regulations
and Revenue Rulings under said Section.
ARTICLE II
SHARES SUBJECT TO PLAN
SECTION 2.1 -- SHARES SUBJECT TO PLAN
(a) The shares of stock subject to Options shall be shares of the
Company's $.10 par value Common Stock. The aggregate number of such
shares which may be issued upon exercise of Options shall not exceed 750,000.
(b) The maximum number of shares which may be subject to Options
granted under the Plan to any individual in any fiscal year shall not
exceed the Award Limit. To the extent required by Section 162(m) of the Code,
shares subject to Options which are canceled continue to be counted against the
Award Limit and if, after grant of an Option, the price of shares subject to
such Option is reduced, the transaction is treated as a cancellation of the
Option and a grant of a new Option and both the Option deemed to be canceled
and the Option deemed to be granted are counted against the Award Limit.
SECTION 2.2 -- UNEXERCISED OPTIONS
If any Option expires or is cancelled without having been fully
exercised, the number of shares subject to such Option but as to which such
Option was not exercised prior to its expiration or cancellation may again be
optioned hereunder, subject to the limitations of Section 2.1.
SECTION 2.3 -- CHANGES IN COMPANY'S SHARES
In the event that the outstanding shares of Common Stock of the Company
are hereafter changed into or exchanged for a different number or kind of
shares or other securities of the Company, or of another corporation. by reason
of reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, stock dividend or combination of shares, appropriate
adjustments shall be made by the Committee in the number and kind of shares for
the purchase of which Options may be granted, including adjustments of the
limitations in Section 2.1 on the maximum number and kind of shares which may
be issued on exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
SECTION 3.1 -- ELIGIBILITY
Any Director, Officer, key Employee or consultant of the Company or of
any corporation which is then a Parent Corporation or a Subsidiary shall be
eligible to be granted Options, except as provided in Section 3.2.
SECTION 3.2 -- QUALIFICATION OF INCENTIVE STOCK OPTIONS
<PAGE> 5
No Incentive Stock Option shall be granted unless such Option, when
granted, qualifies as an "incentive stock option" under Section 422 of the
Code. No Incentive Stock Option shall be granted to any person who is not an
Employee.
SECTION 3.3 -- GRANTING OF OPTIONS
(a) The Committee shall from time to time, in its absolute discretion,
and subject to the applicable limitations of this Plan:
(i) Determine which Directors, Officers, key Employees or
consultants should be granted Options; and
(ii) Subject to the Award Limit, determine the number of shares
to be subject to such Options granted to such selected persons; and
(iii) Determine whether such Options are to be Incentive Stock
Options or Non-Qualified Options and whether such Options are to
qualify as performance-based compensation as described in Section
162(m)(4)(C) of the Code; and
(iv) Determine the terms and conditions of such Options,
consistent with the Plan; provided, however, that the terms and
conditions of Options intended to qualify as performance-based
compensation as described in Section 162(m)(4)(C) of the Code shall
include, but not be limited to, such terms and conditions as may be
necessary to meet the applicable provisions of Section 162(m) of the
Code.
(b) Upon the selection of a person to be granted an Option, the
Committee shall instruct the Secretary to issue such Option and may
impose such conditions on the grant of such Option as it deems appropriate.
Without limiting the generality of the preceding sentence, the Committee may,
in its discretion and on such terms as it deems appropriate, require as a
condition on the grant of an Option to any person that such person surrender
for cancellation some or all of the unexercised Options which have been
previously granted to him. An Option, the grant of which is conditioned upon
such surrender, may have an Option price lower (or higher) than the Option
price of the surrendered Option, may cover the same (or a lesser or greater)
number of shares as the surrendered Option, may contain such other terms as the
Committee deems appropriate and shall be exercisable in accordance with its
terms, without regard to the number of shares, price, Option period or any
other term or condition of the surrendered Option.
ARTICLE IV
TERMS OF OPTIONS
SECTION 4.1 -- OPTION AGREEMENT
Each Option shall be evidenced by a written Stock Option Agreement,
which shall be executed by the Optionee and an authorized officer of the
Company and which shall contain such terms and conditions as the Committee
shall determine, consistent with the Plan. Stock Option Agreements evidencing
Options intended to qualify as performance-based compensation as described in
Section 162(m)(4)(C) of the Code shall contain such terms and conditions as may
be necessary to meet the applicable provisions of Section 162(m) of the Code.
Stock Option Agreements evidencing Incentive Stock Options shall contain such
terms and conditions as may be necessary to meet the applicable provisions of
Section 422 of the Code.
<PAGE> 6
SECTION 4.2 -- OPTION PRICE
(a) The price per share of the shares subject to each Option shall
be set by the Committee; provided, however, that the price per share
shall not be less than 100% of the fair market value of such shares on the date
such Option is granted; provided, further, that, in the case of an Incentive
Stock Option, the price per share shall not be less than 110% of the fair
market value of such shares on the date such Option is granted in the case of
an individual then owning (within the meaning of Section 424(d) of the Code)
more than 10% of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any Parent Corporation.
(b) For purposes of the Plan, the fair market value of a share of the
Company's stock as of a given date shall be: (i) the closing price of a
share of the Company's stock on the principal exchange on which shares of the
Company's stock are then trading, if any, on such date, or, if shares were not
traded on such date, then on the next preceding trading day during which a sale
occurred; or (ii) if such stock is not traded on an exchange but is quoted on
NASDAQ or a successor quotation system, (1) the last sales price (if the stock
is then listed as a National Market Issue under the NASD National Market
System) or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the stock on such date as reported by NASDAQ or such
successor quotation system; or (iii) if such stock is not publicly traded on an
exchange and not quoted on NASDAQ or a successor quotation system, the mean
between the closing bid and asked prices for the stock, on such date, as
determined in good faith by the Committee; or (iv) if the Company's stock is
not publicly traded, the fair market value established by the Committee acting
in good faith.
SECTION 4.3 -- COMMENCEMENT OF EXERCISABILITY AND LIMITATIONS ON EXERCISE
(a) Except as the Committee may otherwise provide, no Option may be
exercised in whole or in part during the first year after such Option is
granted.
(b) Subject to the provisions of Sections 4.3(a), 4.3(c), 4.3(d) and
7.3, Options shall become exercisable at such times and in such
installments (which may be cumulative) as the Committee shall provide in the
terms of each individual Option; provided, however, that by a resolution
adopted after an Option is granted the Committee may, on such terms and
conditions as it may determine to be appropriate and subject to Sections
4.3(a), 4.3(c), 4.3(d) and 7.3, accelerate the time at which such Option or any
portion thereof may be exercised.
(c) No portion of an Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
(d) Notwithstanding any other provision of this Plan, in the case of
an Incentive Stock Option, the aggregate fair market value (determined
at the time the Incentive Stock Option is granted) of the shares of the
Company's stock with respect to which "incentive stock options" (within the
meaning of Section 422 of the Code) are exercisable for the first time by the
Optionee during any calendar year (under the Plan and all other Incentive Stock
Option plans of the Company, any Subsidiary and any Parent Corporation) shall
not exceed $100,000.
SECTION 4.4 -- EXPIRATION OF OPTIONS
(a) No Option may be exercised to any extent by anyone after the
first to occur of the following events:
<PAGE> 7
(i) The expiration of ten years from the date the Option was
granted; or
(ii) With respect to an Incentive Stock Option in the case of
an Optionee owning (within the meaning of Section 424(d) of the
Code), at the time the Incentive Stock Option was granted, more than
10% of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any Parent Corporation, the expiration of
five years from the date the Incentive Stock Option was granted; or
(iii) Except in the case of any Optionee who is disabled
(within the meaning of Section 22(e)(3) of the Code), the
expiration of three months from the date of the Optionee's Termination
of Employment for any reason other than such Optionee's death unless
the Optionee dies within said three-month period; or
(iv) In the case of an Optionee who is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of one
year from the date of the Optionee's Termination of Employment for any
reason other than such Optionee's death unless the Optionee dies within
said one-year period; or
(v) The expiration of one year from the date of the
Optionee's death.
(b) Subject to the provisions of Section 4.4(a), the Committee shall
provide, in the terms of each individual Option, when such Option
expires and becomes unexercisable; and (without limiting the generality of the
foregoing) the Committee may provide in the terms of individual Options that
said Options expire immediately upon a Termination of Employment for any
reason.
SECTION 4.5 -- CONSIDERATION
In consideration of the granting of an Option, the Optionee shall
agree, in the written Stock Option Agreement, to remain in the employ (or to
serve as a Director in the case of Directors, or to serve as a consultant in
the case of consultants) of the Company, a Parent Corporation or a Subsidiary
for a period of at least one year after the Option is granted. Nothing in this
Plan or in any Stock Option Agreement hereunder shall confer upon any Optionee
any right to continue in the employ (or to serve as a Director in the case of
Directors, or to serve as a consultant in the case of consultants) of the
Company, any Parent Corporation or any Subsidiary or shall interfere with or
restrict in any way the rights of the Company, its Parent Corporations and its
Subsidiaries, which are hereby expressly reserved, to discharge (in the case of
consultants, for the applicable corporation to terminate the consultancy, and
in the case of Directors, for the applicable corporation or its shareholders to
terminate the service as Director of) any Optionee at any time for any reason
whatsoever, with or without cause.
SECTION 4.6 -- ADJUSTMENTS IN OUTSTANDING OPTIONS
(a) In the event that the
outstanding shares of the stock subject to Options are changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend or combination of shares, the
Committee shall make an appropriate and equitable adjustment in the number and
kind of shares as to which all outstanding Options, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the
Optionee's proportionate interest shall be maintained as
<PAGE> 8
before the occurrence of such event. Such adjustment in an outstanding Option
shall be made without change in the total price applicable to the Option or the
unexercised portion of the Option (except for any change in the aggregate price
resulting from rounding-off of share quantities or prices) and with any
necessary corresponding adjustment in Option price per share; provided,
however, that, in the case of Incentive Stock Options, each such adjustment
shall be made in such manner as not to constitute a "modification" within the
meaning of Section 424(h)(3) of the Code. Any such adjustment made by the
Committee shall be final and binding upon all Optionees, the Company and all
other interested persons.
(b) In the event the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in the
event the property or stock of the Company is acquired by another corporation,
or in the event of a separation, reorganization, spin-off or liquidation of the
Company or any business unit thereof, the Committee or the Board of Directors
(or any committee thereof to which appropriate authority has been delegated) of
any other corporation assuming the obligations of the Company hereunder, shall
either:
(i) make appropriate provision for the protection of any
outstanding Options by the substitution on an equitable basis
of appropriate stock of the Company, and/or of the merged, consolidated
or otherwise reorganized corporation or corporations which will be
issuable in respect to the shares of common stock of the Company,
provided only that the excess of the aggregate fair market value of the
shares subject to such Options immediately after such substitution or
substitutions over the purchase price thereof is not more than the
excess of the aggregate fair market value of the shares subject to such
Options immediately before such substitution over the purchase price
thereof, and provided that the new Option or the assumption of the old
Option does not give any Optionee additional benefits which the
Optionee did not have under the old Option; or
(ii) upon written notice to the Optionee provide that the
Option must be exercised within sixty (60) days after the date
of such notice or it will be terminated, provided that the Committee
may, at its discretion, waive the exercise period.
Any adjustment of an Incentive Stock Option under this paragraph shall be made
in such a manner so as not to constitute a "modification" within the meaning of
Section 424(h)(3) of the Code.
(c) With respect to Options intended to qualify as Incentive Stock
Options or as performance-based compensation under Section 162(m) of the Code,
no adjustments or action described in this Section 4.6 or in any other
provision of the Plan shall be authorized to the extent that such adjustment or
action would cause the Plan to violate Section 422(b)(1) of the Code or would
cause such Option to fail to so qualify under Section 162(m) of the Code,
respectively, or any successor provisions thereto. Furthermore, no such
adjustment or action shall be authorized to the extent such adjustment or
action would result in short-swing profits liability under Section 16 or
violate the exemptive conditions of Rule 16b-3 unless the Committee (or the
Board, in the case of Options granted to Independent Directors) determines that
the Option or other award is not to comply with such exemptive conditions. The
number of share subject to any Option, right or award shall always be rounded
to the next whole number.
SECTION 4.7 -- MERGER, CONSOLIDATION, ACQUISITION, LIQUIDATION OR DISSOLUTION
Notwithstanding the provisions of Section 4.6, in its absolute
discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide by the terms of any Option that such Option cannot be
exercised after the merger or consolidation of the Company
<PAGE> 9
with or into another corporation, the acquisition by another corporation or
person of all or substantially all of the Company's assets or 80% or more of
the Company's then outstanding voting stock or the liquidation or dissolution
of the Company; and if the Committee so provides, it may, in its absolute
discretion and on such terms and conditions as it deems appropriate, also
provide, either by the terms of such Option or by a resolution adopted prior to
the occurrence of such merger, consolidation, acquisition, liquidation or
dissolution, that, for some period of time prior to such event, such Option
shall be exercisable as to all shares covered thereby, notwithstanding anything
to the contrary in Section 4.3(a), Section 4.3(b) and/or any installment
provisions of such Option, but subject to Section 4.3(d).
ARTICLE V
EXERCISE OF OPTIONS
SECTION 5.1 -- PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only he may exercise an Option (or
any portion thereof) granted to him. After the death of the Optionee, any
exercisable portion of an Option may, prior to the time when such portion
becomes unexercisable under the Plan or the applicable Stock Option Agreement,
be exercised by his personal representative or by any person empowered to do so
under the deceased Optionee's will or under the then applicable laws of descent
and distribution.
SECTION 5.2 -- PARTIAL EXERCISE
At any time and from time to time prior to the time when any
exercisable Option or exercisable portion thereof becomes unexercisable under
the Plan or the applicable Stock Option Agreement, such Option or portion
thereof may be exercised in whole or in part; provided, however, that the
Company shall not be required to issue fractional shares and the Committee may,
by the terms of the Option, require any partial exercise to be with respect to
a specified minimum number of shares.
SECTION 5.3 -- MANNER OF EXERCISE
An exercisable Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or his office of all of the
following prior to the time when such Option or such portion becomes
unexercisable under the Plan or the applicable Stock Option Agreement:
(a) Notice in writing signed by the Optionee (or other person
then entitled to exercise such Option or portion) stating that such
Option or portion is exercised, such notice complying with all applicable rules
established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares with
respect to which such Option or portion is thereby exercised; or
(ii) With the consent of the Committee, shares of the Company's
Common Stock owned by the Optionee duly endorsed for transfer
to the Company with a fair market value (as determinable under Section
4.2(b)) on the date of delivery equal to the aggregate Option price of
the shares with respect to which such Option or portion is thereby
exercised; or
<PAGE> 10
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at least such rate as shall
then preclude the imputation of interest under the Code or any
successor provision) and payable upon such terms as may be prescribed
by the Committee. The Committee may also prescribe the form of such
note and the security, if any, to be given for such note. No Option
may, however, be exercised by delivery of a promissory note or by a
loan from the Company when or where such loan or other extension of
credit is prohibited by law; or
(iv) With the consent of the Committee, any combination
of the consideration provided in the foregoing subsections (i), (ii),
and (iii); and
(c) The payment to the Company (or other employer corporation) of all
amounts which it is required to withhold under federal, state or local
law in connection with the exercise of the Option; with the consent of the
Committee, and subject to the requirements of Rule 16b-3, shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer, or
issuable to the Optionee upon exercise of the Option, valued in accordance with
Section 4.2(b) at the date of Option exercise, may be used to make all or part
of such payment; and
(d) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect compliance
with all applicable provisions of the Securities Act and any other federal or
state securities laws or regulations. The Committee may, in its absolute
discretion, also take whatever additional actions it deems appropriate to
effect such compliance including, without limitation, placing legends on share
certificates and issuing stop-transfer orders to transfer agents and
registrars; and
(e) In the event that the Option or portion thereof shall be exercised
pursuant to Section 5.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or persons to exercise
the Option or portion thereof.
SECTION 5.4 -- CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock issuable and deliverable upon the exercise of an
Option, or any portion, thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the
Company. The Company shall not be required to issue or deliver any certificate
or certificates for shares of stock purchased upon the exercise of any Option
or portion thereof prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges
on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
<PAGE> 11
(d) The payment to the Company (or other employer corporation) of all
amounts which it is required to withhold under federal, state or local
law in connection with the exercise of the Option; and
(e) The lapse of such reasonable the exercise of the Option as the
Committee may establish from time to time for reasons of administrative
convenience.
SECTION 5.5 -- RIGHTS AS SHAREHOLDERS
The holders of Options shall not be, nor have any of the rights or
privileges of, shareholders of the Company in respect of any shares purchasable
upon the exercise of any part of an Option unless and until certificates
representing such shares have been issued by the Company to such holders.
SECTION 5.6 -- TRANSFER RESTRICTIONS
With respect to Options granted prior to November 1, 1996, no shares
acquired upon exercise of any Option by any Director or Officer may be sold,
assigned, pledged, encumbered or otherwise transferred until at least six
months have elapsed from (but excluding) the date that such Option was granted,
unless otherwise approved in writing by the Committee. The Committee, in its
absolute discretion, may impose such other restrictions on the transferability
of the shares purchasable upon the exercise of an Option as it deems
appropriate. Any such other restriction shall be set forth in the respective
Stock Option Agreement and may be referred to on the certificates evidencing
such shares. The Committee may require the Optionee to give the Company prompt
notice of any disposition of shares of stock, acquired by exercise of an
Incentive Stock Option, within two years from the date of granting such Option
or one year after the transfer of such shares to such Optionee. The Committee
may direct that the certificates evidencing shares acquired by exercise of an
Incentive Stock Option refer to such requirement to give prompt notice of
disposition.
ARTICLE VI
ADMINISTRATION
SECTION 6.1 -- STOCK OPTION COMMITTEE
The Stock Option Committee (or another committee or a subcommittee of
the Board assuming the functions of the Committee under this Plan) shall
consist solely of two or more members of the Board appointed by and holding
office at the pleasure of the Board, each of whom is both a "non-employee
director" as defined by Rule 16b-3 and an "outside director" for purposes of
Section 162(m) of the Code. Appointment of Committee members shall be
effective upon acceptance of appointment. Committee members may resign at any
time by delivering written notice to the Board. Vacancies in the Committee
shall be filled by the Board.
SECTION 6.2 -- DUTIES AND POWERS OF COMMITTEE
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Options and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret, amend or revoke any such rules. Any
such interpretations and rules in regard to Incentive Stock Options shall be
consistent with the basic purpose of the Plan to grant "incentive stock
options" within the meaning of Section 422 of the Code. In its absolute
discretion, the Board may at any time and from time to time exercise any and
all rights and duties of the Committee under the Plan, except with respect to
matters which
<PAGE> 12
under Rule 16b-3 or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the sole discretion of the
Committee.
SECTION 6.3 -- MAJORITY RULE
The Committee shall act by a majority of its members in office. The
Committee may act either by vote at a meeting or by a memorandum or other
written instrument signed by a majority of the Committee.
SECTION 6.4 -- COMPENSATION; PROFESSIONAL ASSISTANCE; GOOD FAITH ACTIONS
Members of the Committee shall receive such compensation for their
services as members as may be determined by the Board. All expenses and
liabilities incurred by members of the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may,
with the approval of the Board, employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, members of the Board, the
Company and its Officers shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon all Optionees, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Options, and
all members of the Committee shall be fully protected by the Company in respect
to any such action, determination or interpretation.
ARTICLE VII
OTHER PROVISIONS
SECTION 7.1 -- OPTIONS NOT TRANSFERABLE
No Option or interest or right therein or part thereof shall be liable
for the debts, contracts or engagements of the Optionee or his successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that nothing in this Section 7.1
shall prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 7.2 -- AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Board or the
Committee. However, without approval of the Company's shareholders given
within 12 months before or after the action by the Board or the Committee, no
action of the Board or the Committee may, except as provided in Section 2.3,
increase any limit imposed in Section 2.1 on the maximum number of shares which
may be issued on exercise of Options, materially modify the eligibility
requirements of Section 3.1, reduce the minimum Option price requirements of
Section 4.2(a) or extend the limit imposed in this Section 7.2 on the period
during which Options may be granted or amend or modify the Plan in a manner
requiring shareholder approval under Rule 16b-3. None of the amendment,
suspension or termination of the Plan shall, without the consent of the holder
of the Option, impair any rights or obligations under any Option theretofore
granted. No Option may be granted during any period of suspension nor after
termination of the Plan, and in no event may any Option be granted under this
Plan after the first to occur of the following events:
<PAGE> 13
(a) The expiration of ten years from the date the Plan is adopted by
the Board; or
(b) The expiration of ten years from the date the Plan is approved by
the Company's shareholders under Section 7.3.
SECTION 7.3 -- APPROVAL OF PLAN BY SHAREHOLDERS
This Plan will be submitted for the approval of the Company's
shareholders within 12 months after the date of the Board's initial adoption of
the Plan. Options may be granted prior to such shareholder approval; provided,
however, that such Options shall not be exercisable prior to the time when the
Plan is approved by the shareholders; provided, further, that if such approval
has not been obtained at the end of said 12-month period, all Options
previously granted under the Plan shall thereupon be cancelled and become null
and void. The Company shall take such actions with respect to the Plan as may
be necessary to satisfy the requirements of Rule 16b-3(b), or any comparable
rule adopted thereunder then in effect.
SECTION 7.4 -- LIMITATIONS APPLICABLE TO SECTION 16 PERSONS AND
PERFORMANCE-BASED COMPENSATION
Notwithstanding any other provision of this Plan, this Plan, and any
Option granted to any individual who is then subject to Section 16 of the
Exchange Act, shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the
application of such exemptive rule. To the extent permitted by applicable law,
the Plan, and Options granted hereunder shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule. Furthermore,
notwithstanding any other provision of this Plan, any Option intended to
qualify as performance-based compensation as described in Section 162(m)(4)(C)
of the Code shall be subject to any additional limitations set forth in Section
162(m) of the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as performance-based compensation as described in Section
162(m)(4)(C) of the Code, and this Plan shall be deemed amended to the extent
necessary to conform to such requirements.
SECTION 7.5 -- EFFECT OF PLAN UPON OTHER OPTION AND COMPENSATION PLANS
The adoption of this Plan shall not affect any other option,
compensation or incentive plans in effect for the Company, any Parent
Corporation or any Subsidiary. Nothing in this Plan shall be construed to
limit the right of the Company, any Parent Corporation or any Subsidiary (a) to
establish any other forms of incentives or compensation for Officers,
Directors, Employees or consultants of the Company, any Parent Corporation or
any Subsidiary or (b) to grant or assume options otherwise than under this Plan
in connection with any proper corporate purpose, including, but not by way of
limitation, the grant or assumption of options in connection with the
acquisition by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, firm or association.
SECTION 7.6 -- TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of the Plan.
SECTION 7.7 -- CONFORMITY TO SECURITIES LAWS
<PAGE> 14
The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and Options shall be
granted and may be exercised, only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, the Plan and
Options granted hereunder shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
* * * *
I hereby certify that the foregoing
Plan was duly adopted by the Board of Directors of Getty Petroleum Corp. on
___________________, 199__.
Executed on this day of , 199
----- ---------- -.
---------------------------
Secretary
* * * *
I hereby certify that the foregoing
Plan was duly approved by the shareholders of Getty Petroleum Corp. or Getty
Realty Corp., as the case may be, on ____________, 199__.
Executed on this day of , 199
----- ---------- -.
---------------------------
Secretary
<PAGE> 1
Exhibit 5.1
March 13, 1997
Getty Petroleum Corp.
125 Jericho Turnpike
Jericho, New York 11753
Re: Registration Statement on Form S-8
Gentlemen:
As Vice President and General Counsel of Getty Petroleum Corp. (the
"Company"), I am familiar with the Registration Statement, together with
exhibits thereto, to be filed by the Company in connection with the
registration of 250,000 shares of Common Stock, $.10 par value (the "Common
Stock'), to be offered or sold to participants in the 1991 Stock Option Plan of
Getty Realty Corp. (Amendment and Restatement of the 1991 Stock Option Plan of
Getty Petroleum Corp.) (the "Plan"). I am familiar with the proceedings
undertaken by the Company in connection with the Plan and the authorization of
the issuance of Common Stock thereunder, and have examined such documents and
such questions of law and fact as I have deemed necessary in order to express
the opinions contained herein.
Based on the foregoing, it is my opinion that, as of the date hereof,
the 250,000 shares of Common Stock which may be issued by the Company pursuant
to the Plan, when and if so issued in accordance with the terms of the Plan,
will be duly authorized, validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Samuel M. Jones
Samuel M. Jones
<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 report, dated March 14, 1996,
on our audits of the consolidated financial statements and financial statement
schedule of Getty Petroleum Corp. 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 Annual Report on Form 10-K of Getty Petroleum
Corp. for the fiscal year ended January 31, 1996.
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
March 13, 1997
