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Section 1: S-8 (S-8 FEBRUARY 2018)

gty-s8.htm

 

As filed with the Securities and Exchange Commission on February 15, 2018

Registration Statement No. 333-[]

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

Under

THE SECURITIES ACT OF 1933

 

GETTY REALTY CORP.

(Exact name of registrant as specified in its charter)

 

Maryland

11-3412575

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

 

Two Jericho Plaza, Suite 110

Jericho, New York 11753-1681

(Address of principal executive offices)

Getty Realty Corp. Second Amended and Restated 2004 Omnibus Incentive Compensation Plan

(Full title of the plan)

 

Joshua Dicker, Esquire

Wm. David Chalk, Esquire

Executive Vice President,

General Counsel and Secretary

Partner

Getty Realty Corp.

DLA Piper LLP (US)

Two Jericho Plaza, Suite 110

6225 Smith Avenue

Jericho, New York 11753

Baltimore, Maryland 21209-3600

(516) 478-5400

(410) 580-3000

(Name, address and telephone

number of agent for service)

(Name, address and telephone

number of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer

 

  

Accelerated filer

 

 

 

Non-accelerated filer

 

  (Do not check if a smaller reporting company)

  

Smaller reporting company

 

 

 

 

 

 

Emerging growth company

 

 

 

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. 

 

CALCULATION OF REGISTRATION FEE

Title of each Class of

Securities to be Registered

Amount

to be

Registered(1)

Proposed Maximum

Offering Price

Per Share(2)

Proposed Maximum

Aggregate

Offering Price(2)

Amount of

Registration Fee(2)

Common Stock

500,000

$24.13

$12,065,000

$1,502.09

(1)

An aggregate of 1,500,000 shares of Common Stock may be issued pursuant to the Getty Realty Corp. Second Amended and Restated 2004 Omnibus Incentive Compensation Plan (the “Plan”), of which 1,000,000 shares were previously registered on Form S-8 (File No. 333-115672) and 500,000 shares are being registered hereunder.  In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate number of shares of Common Stock that may be offered or issued by reason of stock splits, stock dividends or similar transactions.

(2)

Estimated pursuant to Rule 457(c) and (h) under the Securities Act on the basis of the average of the high and low sale prices for a share of the common stock, par value $0.01 per share, of Getty Realty Corp. as reported on New York Stock Exchange on February 13, 2018.

 

 

 

 


 

Explanatory Note

Getty Realty Corp. (the “Registrant”) has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register an additional 500,000 shares of common stock authorized for issuance under the Registrant’s Second Amended and Restated 2004 Omnibus Incentive Compensation Plan (the “2004 Plan”). The increase in the number of shares authorized for issuance under the 2004 Plan, as well as certain other amendments described in the Registrant’s definitive proxy statement filed with the United States Securities and Exchange Commission (the “Commission”) on March 23, 2017, was approved by the Registrant’s shareholders on May 4, 2017.

In accordance with General Instruction E to Form S-8, the contents of the Registration Statement filed by the Registrant with the Commission (File No. 333-115672), with respect to securities offered pursuant to the Registrant’s Second Amended and Restated 2004 Omnibus Incentive Compensation Plan are hereby incorporated by reference.

Part II

Item 3. Incorporation of Documents by Reference.

The following documents are hereby incorporated by reference into this Registration Statement.

 

(a)

our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the SEC on March 2, 2017, including portions of our Definitive Proxy Statement of Schedule 14A filed on March 23, 2017, relating to our 2017 Annual Meeting of Stockholders held on May 4, 2017, to the extent incorporated by reference into such Annual Report on Form 10-K;

 

(b)

our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2017, and June 30, 2017 and September 30, 2017, filed with the SEC on May 5, 2017, July 28, 2017 and October 26, 2017, respectively;

 

(c)

our Current Reports on Form 8-K filed with the SEC on February 21, 2017, May 5, 2017 (Item 5.07), June 27, 2017, July 14, 2017, and July 20, 2017; and

 

(d)

the description of our capital stock contained in Amendment No. 1 to the Registration Statement on Form 8-A filed with the SEC on November 30, 2017 and any amendment or report filed for the purposed of updating such description.

All reports and other documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, except that the portion of any Current Report on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof shall not be incorporated by reference herein. 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 8. Exhibits.

 

Exhibit

 

 

 

 

No.

 

Description

 

Incorporation by Reference

4.1

 

Articles of Incorporation of Getty Realty Holding Corp. (“Holdings”), now known as Getty Realty Corp., filed December 23, 1997.

 

Incorporated by reference from the Company’s Registration Statement on Form S-4, filed on January 12, 1998 (File No. 333-44065), included as Appendix D to the Joint Proxy/Prospectus that is a part thereof.

 

 

 

 

 

4.2

 

Articles Supplementary to Articles of Incorporation of Holdings, filed January 21, 1998.

 

Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (File No. 001-13777).

 

 

 

 

 

4.3

 

Bylaws of Getty Realty Corp.

 

Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on November 14, 2011 (File No. 001-13777).

 

 

 

 

 

4.4

 

Articles of Amendment of Holdings, changing its name to Getty Realty Corp., filed January 30, 1998.

 

Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (File No. 001-13777).

 

 

 

 

 

4.5

 

Amendment to Articles of Incorporation of Holdings, filed August 1, 2001.

 

Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (File No. 001-13777).

 

 

 

 

 

4.6

 

Articles Supplementary to Articles of Incorporation of Holdings, filed October 25, 2017.

 

Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 (File No. 001-13777).

 

 

 

 

 

4.7

 

Getty Realty Corp. Second Amended and Restated 2004 Omnibus Incentive Compensation Plan

 

Incorporated by reference from the Company’s Form DEF-14A filed March 23, 2017.

 

 

 

 

 

5.1

 

Opinion of DLA Piper LLP (US)

 

Filed herewith.

 

 

 

 

 

23.1

 

Consent of PricewaterhouseCoopers LLP

 

Filed herewith.

 

 

 

 

 

23.2

 

Consent of DLA Piper LLP (US)

 

Included in Exhibit 5.1.

 

 

 

 

 

24.1

 

Powers of Attorney

 

Filed herewith.

 

 


 

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 the City of Jericho, State of New York on February 15, 2018.

 

 

 

GETTY REALTY CORP.

 

 

 

 

 

 

By:

/s/ Danion Fielding

 

 

 

Danion Fielding

 

 

 

Vice President, Chief Financial Officer and Treasurer

(Principal Financial Officer)

 

Pursuant to the requirements of the Securities Act of 1933, this Form S-8 Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

/s/ Christopher J. Constant

President, Chief Executive Officer and Director

February 15, 2018

Christopher J. Constant

(Principal Executive Officer)

 

 

 

 

/s/ Danion Fielding

Vice President, Chief Financial Officer and Treasurer

February 15, 2018

Danion Fielding

(Principal Financial Officer)

 

 

 

 

/s/ Eugene Shnayderman

Chief Accounting Officer and Controller

February 15, 2018

Eugene Shnayderman

(Principal Accounting Officer)

 

 

A majority of the Board of Directors (Leo Liebowitz, Howard B. Safenowitz, Milton Cooper, Philip E. Coviello, Richard E. Montag and Christopher J. Constant)

 

/s/ Christopher J. Constant

For himself and as Attorney-in-Fact

February 15, 2018

Christopher J. Constant

 

 

 

 

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Section 2: EX-5.1 (EX-5.1)

gty-ex51_8.htm

 

Exhibit 5.1

 

 

DLA Piper LLP (US)

 

The Marbury Building

 

6225 Smith Avenue

 

Baltimore, Maryland 21209-3600 www.dlapiper.com

 

 

T    410.580.3000

 

 

F    410.580.3001

February 15, 2018

Getty Realty Corp.

Two Jericho Plaza

Suite 110

Jericho, New York 11753

Re:    Registration Statement on Form S-8

Ladies and Gentlemen:

We serve as counsel to Getty Realty Corp., a Maryland corporation (the “Company”), and have been requested to render this opinion in connection with the Company’s Registration Statement on Form S-8 of (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) on under the Securities Act of 1933, as amended (the “Securities Act”), for registration of up to 500,000 shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”) that may be issued pursuant to the Getty Realty Corp. Second Amended and Restated 2004 Omnibus Incentive Compensation Plan (the “Plan”).

In connection with our representation of the Company, and as a basis for the opinion expressed herein, we have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):

 

(a)

the charter of the Company (the “Charter”), represented by the Articles of Incorporation filed of record with the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”) on December 23, 1997, as amended and supplemented by the Articles Supplementary filed of record with the SDAT on January 21, 1998, the Articles of Amendment filed of record with the SDAT on January 30, 1998, the Articles of Amendment filed of record with the SDAT on August 1, 2001 and the Articles Supplementary filed of record with the SDAT on October 25, 2017, and as in full force and effect on the date hereof (in the form attached to the Secretary’s Certificate (as defined below));

 

(b)

the bylaws of the Company (the “Bylaws”), as amended to the date hereof and as in effect on the date hereof (in the form attached to the Secretary’s Certificate);

 

(c)

resolutions adopted by the Board of Directors of the Company at its meeting held on February 28-March 1, 2017 relating to the approval of the Plan, the authorization and approval of the preparation and filing of the Registration Statement, and the issuance of the Shares (in the form attached to the Secretary’s Certificate);

 

(d)

the Registration Statement;

 

(e)

the Plan;

 

(f)

a good standing certificate for the Company, dated as of the date hereof, issued by the SDAT; and

 

(g)

a certificate executed by the Secretary of the Company (the “Secretary’s Certificate”), dated as of the date hereof, as to certain factual matters therein.

EAST\151420606.3


Getty Realty Corp.

 

February 15, 2018

 

Page 2

 

In rendering the opinion set forth below, we have assumed, without independent investigation, the following:

 

(1)

Each individual executing any of the Documents, whether on behalf of such individual or an entity, is legally competent to do so.

 

(2)

Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

 

(3)

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 has been no oral or written modification or amendment to the Documents by action or omission of the parties or otherwise.

Based on the foregoing, it is our opinion that the Shares to be issued under the Plan have been duly authorized, and upon the issuance and delivery of the Shares in the manner contemplated by the Plan and the Registration Statement, and assuming the Company completes all actions and proceedings required on its part to be taken prior to the issuance and delivery of the Shares pursuant to the terms of the Plan, including, without limitation, collection of any required payment for the Shares, the Shares will be validly issued, fully paid and non-assessable.

In addition to the qualifications set forth above, the foregoing opinion is further qualified as follows:

 

(a)

The foregoing opinion is rendered as of the date hereof. We assume no obligation to update such opinion to reflect any facts or circumstances that may hereafter come to our attention or changes in the law which may hereafter occur.

 

(b)

We do not express any opinion herein concerning any law other than the laws of the State of Maryland.  

 

(c)

We do not express any opinion herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.

 

(d)

We have assumed that the issuance of the Shares, together with any other shares of Common Stock then outstanding will not cause the Company to issue shares of Common Stock in excess of the number of such shares then authorized under its Amended and Restated Certificate of Incorporation.  The Company has represented to us and we have also assumed that the Company has reserved from its duly authorized but unissued and otherwise unreserved stock a sufficient number of shares of Common Stock as were approved by the Company’s stockholders for issuance under the Plan.  We have also assumed that the Company will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue the Shares in accordance with the Plan, the number of Shares which are then issuable and deliverable upon the settlement of awards under the Plan.

 

(e)

This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement and the use of our name wherever it appears in the Registration Statement.  In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, the rules and regulations of the Commission promulgated thereunder or Item 509 of Regulation S-K.

 

Very truly yours,

 

DLA PIPER LLP (US)

 

/s/ DLA PIPER LLP (US)

 

EAST\151420606.3

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Section 3: EX-23.1 (EX-23.1)

gty-ex231_7.htm

 

EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 2, 2017 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in Getty Realty Corp.’s Annual Report on Form 10 K for the year ended December 31, 2016.

/s/ PricewaterhouseCoopers LLP

New York, NY

February 15, 2018

 

 

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Section 4: EX-24.1 (EX-24.1)

gty-ex241_6.htm

EXHIBIT 24.1

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of Getty Realty Corp., a Maryland corporation (the “Registrant”), hereby constitute and appoint Christopher J. Constant, the true and lawful agent and attorney-in-fact of the undersigned with full power and authority in said agent and attorney-in-fact to sign for the undersigned and in their respective names as officers and as directors of the Registrant, a registration statement on Form S-8 (or other appropriate form) (the “Registration Statement”) relating to the proposed issuance of Common Stock, par value $0.01, of the Registrant and other securities pursuant to the Registrant’s Second Amended and Restated 2004 Omnibus Incentive Compensation Plan (or any and all amendments, including post-effective amendments, to such Registration Statement) and file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and with full power of substitution; hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

/s/ Christopher J. Constant

 

President, Chief Executive Officer and Director

 

February 15, 2018

Christopher J. Constant

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Danion Fielding

 

Vice President, Chief Financial Officer and Treasurer

 

February 15, 2018

Danion Fielding

 

(Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Eugene Shnayderman

 

Chief Accounting Officer and Controller

 

February 15, 2018

Eugene Shnayderman

 

(Principal Accounting Officer)

 

 

 

 

 

 

 

/s/ Leo Liebowitz

 

Chairman

 

February 15, 2018

Leo Liebowitz

 

 

 

 

 

 

 

 

 

/s/ Howard B. Safenowitz

 

Director

 

February 15, 2018

Howard B. Safenowitz

 

 

 

 

 

 

 

 

 

/s/ Milton Cooper

 

Director

 

February 15, 2018

Milton Cooper

 

 

 

 

 

 

 

 

 

/s/ Phillip E. Coviello

 

Director

 

February 15, 2018

Phillip E. Coviello

 

 

 

 

 

 

 

 

 

/s/ Richard E. Montag

 

Director

 

February 15, 2018

Richard E. Montag

 

 

 

 

 

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