AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GETTY REALTY CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 11-3412575
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
125 JERICHO TURNPIKE, SUITE 103
JERICHO, NEW YORK 11753
516-478-5400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ANDREW M. SMITH, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
GETTY REALTY CORP.
125 JERICHO TURNPIKE, SUITE 103
JERICHO, NEW YORK 11753
516-478-5400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
MARC D. BASSEWITZ, ESQ.
LATHAM & WATKINS LLP
SEARS TOWER, SUITE 5800
233 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 876-7700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [X]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ______________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _____________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED SECURITY(1) PRICE(1)
Common Stock, par value $.01 per share 3,000,000 $ 22.30 $ 66,900,000 $ 8,476
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended,
based upon the average of the high and low trading prices of the common
stock on the New York Stock Exchange on April 15, 2004.
TABLE OF CONTENTS
INCORPORATION OF INFORMATION BY REFERENCE...................................3
WHERE YOU CAN FIND ADDITIONAL INFORMATION...................................3
USE OF PROCEEDS.............................................................4
GETTY REALTY CORP...........................................................4
DESCRIPTION OF THE PLAN.....................................................5
EXPERTS....................................................................19
LEGAL MATTERS..............................................................19
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
is accurate only as of the date on the front cover of this prospectus. Our
business, financial condition, results of operations and prospects may have
changed since that date.
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PROSPECTUS
GETTY REALTY CORP.
DIVIDEND REINVESTMENT/STOCK PURCHASE PLAN
3,000,000 SHARES OF COMMON STOCK
($.01 Par Value Per Share)
Through this prospectus, we are offering shares of our common stock
through the Getty Realty Corp. (which we refer to as "Getty," the "Company,"
"we" or "us") Dividend Reinvestment/Stock Purchase Plan (which we refer to as
the "Plan").
Shares of our common stock, par value $.01 per share (which we refer to
as "common stock"), are available for purchase by the holders of our common
stock by means of reinvestment of cash dividends paid on the common stock and by
making optional cash contributions. Purchases of common stock under the Plan
will be made by the plan administrator, Registrar and Transfer Company, in the
open-market or by the Company's issuance of additional shares of common stock.
The Plan will remain in effect until amended, altered or terminated by us.
Some of the significant features of the plan are as follows:
o If you participate in the Plan, your cash dividends will be
automatically reinvested in additional shares of common stock.
o If you participate in the Plan, you may purchase additional
common shares at the then current market price of the shares
through cash investments, subject to a minimum limit of $100
per quarter and a maximum limit of $3,000 per quarter. You
will be charged a $1.50 service fee for any quarterly cash
purchase, which will be deducted from your cash investment.
o With the exception of the above service fee, we will pay all
other brokerage fees and service charges for purchases and
dividend reinvestments made under the Plan. In the event
brokerage fees exceed 5% of the cash you invest or the cash
dividends you reinvest, you will be required to pay the entire
amount of such fees; however, such fees currently do not and
are not expected to exceed this amount.
o If you participate in the Plan, your recordkeeping will be
simplified because, under the Plan, you will receive
transaction reports and account statements at no cost.
o If you participate in the Plan, you will avoid cumbersome
safekeeping requirements and the risk of losing certificates
by depositing your stock certificates into your Plan account
for safekeeping. You will be charged a $5.00 fee for each
deposit of stock certificates into safekeeping and a $10.00
fee for each stock certificate you request to be issued to
you.
o If you participate in the Plan, you may sell your shares
through the Plan by directing the plan administrator to sell
your shares. You will be charged a $15.00 fee for each
request, and will pay a pro rata portion of any brokerage
commissions incurred.
o If you do not participate in the Plan, you will continue to
receive dividends in cash, as declared.
The terms governing the Plan are more fully described in this
prospectus. We suggest that you read the Prospectus carefully and retain it for
future reference.
Our common stock is listed on the New York Stock Exchange under the
symbol "GTY".
Any investment in shares of our common stock involves risk. You should
read carefully the "Risk Factors" section in our annual report on Form 10-K for
the fiscal year ended December 31, 2003 and our future filings with the
Securities and Exchange Commission (which we refer to as the "SEC" or "the
Commission"), all of which are incorporated by reference in this prospectus and
may be accessed through our web site at www.gettyrealty.com.
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Neither the SEC nor any state securities commission has approved or
disapproved of these securities or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is April 22, 2004.
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INCORPORATION OF INFORMATION BY REFERENCE
In this prospectus we have incorporated by reference certain reports
and other information we have filed, or will file, with the SEC. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. The following documents filed with the SEC by us
pursuant to the Securities Exchange Act of 1934 are incorporated herein by
reference until all of the securities covered hereby are sold or this offering
is terminated:
o our Annual Report on Form 10-K for the fiscal year ended
December 31, 2003;
o the description of our common stock contained in our
Registration Statement on Form S-3 (File No. 333-63060);
o all other documents subsequently filed by us pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus and before the termination of the
offering of all common shares to which this prospectus
relates, which shall be deemed to be a part hereof from the
date of filing of such documents.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any materials we file with
the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on
the operations at the Public Reference Room. Our SEC filings are available to
the public over the Internet at the SEC's web site at http://www.sec.gov. You
may also access our SEC filings via a hyperlink from our web site to the SEC web
site. Our website address is http://www.gettyrealty.com. Our SEC filings are
also available at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005. You may request a copy of these filings at no cost, by
writing or telephoning us at the following address: Getty Realty Corp., 125
Jericho Turnpike, Suite 103, Jericho, New York 11753, 516-478-5400, Attn:
Corporate Secretary.
This prospectus, which constitutes a part of a registration statement
on Form S-3 that we filed with the Commission under the Securities Act of 1933,
omits certain information contained in the registration statement. Accordingly,
you should refer to the registration statement and its exhibits for further
information with respect to Getty Realty Corp. and the shares of common stock
offered hereby. Furthermore, statements contained in this prospectus or in any
document incorporated in this prospectus by reference regarding any contract or
other document are not necessarily complete, and, in each instance, you should
refer to the copy of the contract or other document filed with the Commission as
an exhibit to the registration statement.
FORWARD LOOKING STATEMENTS
Certain statements made or incorporated by reference in this prospectus
may constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. When we use the words "believes",
"expects", "plans", "projects", "estimates" and similar expressions, we intend
to identify forward-looking statements. These forward-looking statements involve
known and unknown risks, uncertainties and other factors which may cause our
actual results, performance and achievements of to be materially different from
any future results, performance or achievements expressed or implied by these
forward-looking statements. These factors are more fully detailed in our Annual
Report on Form 10-K for the year ended December 31, 2003 and include, but are
not limited to: risks associated with owning and leasing real estate generally;
dependence on Getty Petroleum Marketing Inc. as a tenant and on rentals from
companies engaged in the petroleum marketing and convenience store businesses;
competition for properties and tenants; risk of tenant non-renewal; the effects
of regulation; potential environmental-related litigation exposure; our
expectations as to the cost of completing environmental remediation;
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and the impact of our electing to be taxed as a REIT, including subsequent
failure to qualify as a REIT and future dependence on external sources of
capital.
As a result of these and other factors, we may experience material
fluctuations in future operating results on a quarterly or annual basis, which
could materially and adversely affect our business, financial condition,
operating results and stock price. An investment in our stock involves various
risks, including those mentioned above and elsewhere in this report and those
which are detailed from time to time in our other filings with the Securities
and Exchange Commission.
You should not place undue reliance on forward-looking statements,
which reflect our view only as of the date hereof. We undertake no obligation to
publicly release revisions to these forward-looking statements that reflect
future events or circumstances or reflect the occurrence of unanticipated
events.
USE OF PROCEEDS
We cannot determine the number of shares that will ultimately be
purchased under the Plan, or the prices at which these shares will be purchased.
The net proceeds from the sale of the common stock offered pursuant to the Plan
will be used for general corporate purposes by Getty.
GETTY REALTY CORP.
Getty Realty Corp. (which we refer to as "the Company", "us" "our" or
"we") is one of the largest real estate investment trusts ("REIT") in the United
States specializing in the ownership and leasing of retail motor fuel and
convenience store properties and petroleum distribution terminals. As of
December 31, 2003, we owned 772 properties and leased 256 additional properties
in 13 states located principally in the northeastern United States.
We elected to be taxed as a REIT beginning January 1, 2001. A REIT is a
corporation, or a business trust that would otherwise be taxed as a corporation,
which meets the requirements of the Internal Revenue Code. The Internal Revenue
Code permits a qualifying REIT to deduct dividends paid, thereby effectively
eliminating corporate level federal income tax and making the REIT a
pass-through vehicle for federal income tax purposes. To meet the requirements
of the Internal Revenue Code, a REIT must, among other things, invest
substantially all of its assets in interests in real estate (including mortgages
and other REITs) or cash and government securities, derive most of its income
from rents from real property or interest on loans secured by mortgages on real
property, and distribute to shareholders annually a substantial portion of its
otherwise taxable income. As a REIT, we are required to distribute at least
ninety percent of our taxable income to our shareholders each year and would be
subject to corporate level federal income taxes on any taxable income that is
not distributed.
Our executive offices are located at 125 Jericho Turnpike, Suite 103,
Jericho, New York 11753, and our telephone number is 516-478-5400.
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DESCRIPTION OF THE PLAN
The following prospectus describes, in a question and answer format,
the Terms and Conditions under which the Plan will be administered for the
Company. The Plan provides a convenient and economical means of purchasing
additional shares of the Company's common stock and growing common stock
ownership through the reinvestment of dividends. It also provides a convenient
method of safekeeping and selling shares.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to provide eligible record owners of common stock of
the Company with a simple and convenient means of investing cash dividends and
making additional cash purchases of the Company's common stock on a quarterly
basis. The Plan also provides the Company with a means of raising additional
capital if the Company elects to directly sell newly issued shares of common
stock.
ADVANTAGES
2. What are the advantages of the Plan?
The Plan provides participants several advantages, including the following:
a) Participants in the Plan reinvest automatically their cash dividends in
additional shares of common stock. The Company pays service fees to the
Plan Administrator for the reinvestment of dividends and except as
described in Question 14 below, will pay any brokerage fees incurred in
connection with open-market purchases of common stock to provide shares
for dividend reinvestment.
b) Participants in the Plan may make a quarterly cash purchase of
additional shares of common stock of the Company. The minimum purchase
amount per quarter is $100. The maximum purchase amount per quarter is
$3,000. A service fee of $1.50 is payable by the participant in connection
with any quarterly cash purchase and will be deducted from such cash
investment. Except as described in Question 14 below, the Company will pay
any brokerage fees incurred in connection with open-market purchases to
provide shares for additional cash purchases.
c) Participants in the Plan invest the full amount of cash dividends and
optional cash payments (less applicable fees as noted above), since
purchases of shares made through the Plan are calculated to four decimal
places.
d) Participants in the Plan deposit their certificates into their Plan
accounts, avoiding cumbersome safekeeping requirements and the risk of
losing their certificates. There is a $5.00 fee for each deposit of stock
certificates into safekeeping.
e) Participants in the Plan avoid the inconvenience and expense of
recordkeeping since transaction reports and account statements are
provided to Participants at no cost under the Plan.
f) Participants in the Plan may sell their shares in the Plan through the
Plan, by directing the Plan Administrator to sell their shares.
Participants will be charged a $15.00 fee for each sell request and will
pay a pro rata portion of any brokerage commissions incurred.
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ADMINISTRATION
3. Who administers the Plan for participants?
Registrar and Transfer Company (the "Plan Administrator"), the Company's stock
transfer agent, is independent of and not affiliated with the Company, and
administers the Plan for participants. The Plan Administrator acts as agent for
participants in the Plan and keeps records, sends statements of account to
participants, and performs other duties related to the Plan. Shares purchased
through the Plan or deposited into safekeeping will be registered in the name of
the Plan Administrator or its nominee as agent for participants in the Plan. The
Company may replace the Plan Administrator at any time in its sole discretion.
All inquiries and communications regarding the Plan should include the
participant's account or Social Security number and a phone number where the
participant can be reached during business hours and should be directed to the
Plan Administrator at:
REGISTRAR AND TRANSFER COMPANY
Attn: Dividend Reinvestment Department
P.O Box 664
Cranford, NJ 07016
PHONE: 1-800-368-5948
WEBSITE: WWW.RTCO.COM
The Plan Administrator or the Company may terminate or suspend the Plan at any
time by written notice to participants. The Terms and Conditions of the Plan may
be amended by the Plan Administrator, with the concurrence of the Company, at
any time, by mailing an appropriate notice to participants at least 30 days
prior to the effective date of the amendment (see Question 34). See Question 32
for additional information regarding the responsibilities of the Plan
Administrator.
PARTICIPATION
4. Who is eligible to participate?
Record owners of common stock are eligible to enroll in the Plan. Beneficial
owners whose shares are registered in names other than their own (for example,
in the name of a broker, bank or other nominee) and who wish to participate in
the Plan must become owners of record. If a shareholder has stock registered in
the name of someone else (for example, with a bank, broker or trustee), the
shareholder may be able to arrange for that entity to handle the reinvestment of
dividends. Shareholders should consult directly with the entity holding their
common stock to determine if the entity can enroll in the Plan. If not, the
shareholder should request his or her bank, broker or trustee to have some or
all of their shares registered in the shareholder's own name in order to
participate in Plan directly.
In order for the Company to continue to qualify for taxation as a REIT, the
Company's charter prohibits any shareholder (except certain specifically
exempted shareholders) from owning, either directly or by virtue of the
attribution provisions of the Internal Revenue Code, over 5% of the lesser of
the number or value of shares of our outstanding common stock. If any
shareholder (except those specifically exempted shareholders) acquires or is
deemed to have acquired more than 5% of our outstanding common stock, under the
Plan or otherwise, then (among other consequences) the number of shares owned by
such shareholder that exceed the 5% ownership limit will be automatically
transferred to a trust, the beneficiary of which will be a qualified charitable
organization selected by the Company. The trust will thereafter sell the shares
and remit to such shareholder the lesser of the price paid by such shareholder
for the shares or the proceeds received by the trust for the shares.
The attribution rules under the Internal Revenue Code are complex and may cause
stock owned actually or constructively by a group of related individuals or
entities to be treated as owned by one individual or entity. As a result, the
acquisition of less than 5% of our common stock (or the acquisition of an
interest in an entity that owns, actually or constructively, common stock) by an
individual or entity could cause that individual or entity, or another
individual or entity, to own constructively in excess of 5% of our outstanding
common stock and thereby subject the common stock to the ownership limitation
provisions of our charter.
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5. How does a shareholder become a participant?
An eligible shareholder may join the Plan by completing an Enrollment Form and
returning it to the Plan Administrator at the address provided in Question 3.
Enrollment Forms may be obtained at any time by contacting the Company or the
Plan Administrator.
6. When may an eligible shareholder join the Plan?
Record owners of common stock may enroll in the Plan at any time. If the
Enrollment Form is received by the Plan Administrator at least five business
days before the record date for a dividend payment, and the participant elects
to reinvest the dividends in shares of common stock, such reinvestment of
dividends will begin with that dividend payment. Please note that the Plan does
not represent any change in the Company's dividend policy or a guarantee of the
payment of any future dividends.
7. What does the Enrollment Form provide?
The Enrollment Form directs the Company to pay to the Plan Administrator for the
account of the participating shareholder of record all dividends on the shares
of common stock registered in the name of the participant as reflected in the
records of the Company's stock transfer agent, as well as dividends paid on the
shares credited to the participant's account under the Plan. It also appoints
the Plan Administrator (or such other plan administrator as the Company may from
time to time designate) as agent for the shareholder and directs such agent to
apply all of such dividends for the purchase of additional shares of the
Company's common stock in accordance with the terms and conditions of the Plan.
The Enrollment Form also may authorize the investment of additional cash
contributions for the purchase of shares of the Company's common stock as of the
next date such investment is permitted.
8. Is there a minimum level of investment under the Plan?
No.
9. What choices are available to the participant?
Reinvestment of Dividends and Purchase of Shares
By marking the appropriate space on the Enrollment Form, an eligible shareholder
may choose to reinvest automatically cash dividends on all shares of common
stock of which the participant is the owner of record. The participant also may
elect to make additional, optional cash payments, less a $1.50 transaction fee
charged by the Plan Administrator, in amounts ranging from a $100 minimum to a
$3,000 maximum per quarter per participant. Dividends and cash received for the
purchase of common stock of the Company may be commingled for purposes of
purchasing shares.
A shareholder may not participate in the Plan with respect to less than all of
the shares of common stock registered in the shareholder's name. However, if the
shareholder has shares of common stock registered in more than one name, then
such shareholder may elect to have the cash dividends on shares registered in
one name reinvested under the Plan, but decline to have the cash dividends on
shares registered in the other name reinvested under the Plan.
Deposit of Shares and Shares Held by Plan Administrator for Participants
All shares of common stock purchased through the Plan, whether with reinvested
dividends or optional cash payments, will be held by the Plan Administrator for
participants in the Plan. Dividends on these shares will be reinvested
automatically.
The Plan allows participants to deposit shares of common stock registered in
their name with the Plan Administrator to be administered under the Plan. There
is a fee of $5.00 charged to the participant for each deposit of certificate(s).
More than one certificate can be deposited for the same $5.00. The Participant
must send a check for $5.00 with the certificate(s) to be deposited.
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Sales of Shares by Participant
Participants can sell some or all of the shares held by the Plan for the benefit
of the participant. There is a $15.00 fee charged to the participant for each
sale. Brokerage commissions, if any, in connection with open-market purchases on
the New York Stock Exchange or through other stock exchanges also will be paid
by the participant. No brokerage commission will be payable by the participant
if the shares are purchased by the Company.
If all of the shares held in the Plan for a participant are sold, then Plan
participation for that participant will be terminated.
10. When do investments begin through the Plan?
If an Enrollment Form specifying reinvestment of cash dividends is received by
the Plan Administrator at least five business days before the record date of a
cash dividend payment, reinvestment will commence with the dividend payment
following the record date. If the Enrollment Form is received after that date,
the reinvestment of cash dividends through the Plan will begin with the next
cash dividend payment following the next record date.
Optional cash payments will be invested as specified in Question 9.
11. May a participant change the method of participation after enrollment?
A record shareholder may terminate Plan participation at any time by sending a
notification of termination to the Plan Administrator at the address noted in
question number 3. If a participant elects to participate in the Plan through
the reinvestment of cash dividends on shares registered in their name and later
decides to participate though the optional cash payment feature, no new
Enrollment Form is needed. Enrollment Forms may be obtained by contacting the
Company or the Plan Administrator.
OPTIONAL CASH PAYMENTS
12. When and how can optional cash payments be made?
Optional cash payments are permitted once each quarter, at least 5 days but not
more than 30 days prior to the next "Investment Date". The Investment Date is
the date on which the Plan Administrator receives payment of quarterly
dividends. Dividends are generally paid approximately 8 weeks after they are
declared, and approximately two weeks after the corresponding record date. If no
dividend has been declared with respect to a particular calendar quarter, the
Investment Date will be the first business day of the following calendar
quarter. Optional cash payments must be at least $100 and not more than $3,000.
The payments, less a $1.50 service charge, will be applied to the purchase of
shares for the account of the participant on or prior to the next Investment
Date. Cash received for investment may be commingled by the Plan Administrator
with dividends and other participant's cash for the purposes of making a
purchase of stock. Participants cannot specify the price or timing nor make any
other limitations on the purchase of shares other than those specified under
these Terms and Conditions.
OPTIONAL CASH CONTRIBUTIONS DO NOT CONSTITUTE DEPOSITS OR SAVINGS ACCOUNTS
ISSUED BY A SAVINGS INSTITUTION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
NO INTEREST WILL BE PAID ON OPTIONAL CASH PAYMENTS PENDING INVESTMENT. TO AVOID
UNNECESSARY ACCUMULATIONS, SUCH PAYMENTS SHOULD BE SENT SO THAT THEY WILL BE
RECEIVED BY THE PLAN ADMINISTRATOR NO MORE THAN 30 DAYS BEFORE THE NEXT
INVESTMENT DATE. CASH RECEIVED EARLIER THAN THE REQUIRED DATE MAY BE RETURNED BY
THE PLAN ADMINISTRATOR. YOU MAY OBTAIN THE RETURN OF ANY OPTIONAL CASH PAYMENT
BY WRITTEN REQUEST RECEIVED BY THE PLAN ADMINISTRATOR NOT LESS THAN THREE
BUSINESS DAYS BEFORE THE NEXT INVESTMENT DATE.
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13. What are the limitations on making optional cash payments?
Optional cash payments may be made by a personal check drawn on a U.S. bank
payable in U.S. dollars to Registrar and Transfer Company or by automatic
deduction and payment (through bank draft) from the shareholder's bank account,
at least five business days before the Investment Date. Any optional cash
payment must be not less than $100 minimum per check nor more than $3,000 per
quarter. Up to four optional cash payments may be made by any participant in a
single calendar year, subject to the foregoing limitations. However, there is no
obligation to make any optional cash payment at any time and cash payments need
not be in the same amount of money each quarter.
COSTS
14. Are there any expenses to participants in connection with purchases through
the Plan?
The following are the fees charged by the Plan Administrator to participants and
other expenses relating to the Plan:
o DIVIDEND REINVESTMENT: All fees and brokerage commissions are
paid by the Company. Brokerage commissions incurred in
connection with the reinvestment of a participant's dividends
through open market purchases of common stock made pursuant to
the Plan will be paid by the Company, but only in the event
that these commissions do not exceed 5% of the cash dividends
reinvested by a participant pursuant to the Plan. In the event
that these brokerage commissions exceed 5% of the cash
dividends reinvested by a participant, the entire amount of
these commissions will be charged to the participant.
o CASH INVESTMENT: A $1.50 fee is paid by the participant.
Brokerage commissions incurred in connection with the purchase
of shares through open market purchases made pursuant to the
Plan will be paid by the Company, but only in the event that
these commissions do not exceed 5% of the cash investments
made by a participant pursuant to the Plan. In the event that
these brokerage commissions exceed 5% of the cash investments
made by a participant, the entire amount of these commissions
will be charged to the participant.
o CERTIFICATE DEPOSITS: A $5.00 fee is paid by the participant
per deposit.
o CERTIFICATE ISSUANCE: A $10.00 fee is paid by the participant
per share certificate requested to be issued by the
participant.
o SALE OF SHARES HELD IN THE PLAN: A $15.00 fee per sale is paid
by the participant, plus applicable brokerage commissions, if
any.
All purchases and sales of common stock made in conjunction with the Plan will
be conducted through routine open-market purchases on the New York Stock
Exchange or through other stock exchanges. Additionally, the Company may elect
to issue new shares of common stock to fulfill participant purchase requirements
and may elect to purchase shares of common stock offered for sale by
participants through the Plan. Open-market purchases and sales will be directed
by the Plan Administrator through an unaffiliated, registered broker-dealer.
PURCHASES
15. How may shares of common stock will be purchased for participants, and what
is the source of shares purchased through the Plan?
The number of shares purchased for a participant's account, including a
fractional share computed to four decimal places, will be equal to the total
amount invested by the participant (the amount of cash dividends reinvested and
any optional cash payments less the $1.50 fee), divided by the purchase price
per share.
Shares purchased though the Plan will be purchased by the Plan Administrator as
agent for the participants in the open market though an unaffiliated, registered
broker-dealer or will be newly issued common stock. The Company cannot exercise
any direct or indirect control over the prices or timing of purchases made by
the Plan Administrator on the open market. The participant cannot specify the
price, timing or number of shares to be purchased. Funds received from either
cash dividends or optional cash payments may be commingled for purposes of
purchasing shares for the Plan. The participant's price generally will be the
weighted average price
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of all shares purchased on the Investment Date but in no event will a
participant's price be less than the minimum price described in Question 17
below.
16. When will shares of common stock be purchased though the Plan?
Purchases under the Plan will be made during each calendar quarter on the
Investment Date and, if necessary, the day or several days following such date
if it is not administratively feasible to complete the required purchase on the
NYSE on the Investment Date.
A participant will become the owner of the shares purchased through the Plan on
the date that the shares purchased are settled (credited to the account of the
Plan Administrator at the registered broker-dealer for the benefit of Plan
participants) or, in the case of newly issued shares, the date that such shares
are issued.
If, within 30 days after a dividend payment date, the Plan Administrator cannot
buy the shares due to an inadequate supply of shares, then the Plan
Administrator will send a check to the participant for the amount of the
dividend paid and any cash contributed to the Plan for that Investment Date that
has not been used to purchase shares.
17. At what price will shares of common stock be purchased through the Plan?
The price at which the Plan Administrator will be deemed to have acquired shares
for a participant's account under the Plan will be the average price of all
shares purchased by the Plan Administrator on the open market on the Investment
Date (and, if necessary, the day or several days following such date if it is
not administratively feasible to complete the required purchase on the NYSE on
the Investment Date). The average price will be calculated as the total price
paid for all shares purchased with the proceeds of reinvested cash dividends and
optional cash payments. If the shares used to satisfy purchase requirements, in
whole or in part, are newly issued shares, then the price for such shares shall
be the average of the NYSE closing price on the Investment Date and the NYSE
closing price on the two trading days immediately preceding the Investment Date.
Notwithstanding the foregoing, however, whether a participant is reinvesting
dividends or making optional cash purchases, the participant may not purchase
shares of common stock on any particular trading day (whether such shares are
newly issued shares or purchased by the Plan Administrator in open market or
privately negotiated transactions) for an amount, less any brokerage
commissions, trading fees and any other costs of purchase paid by us
(collectively "Costs") that is less than 95% of the average of the high and low
NYSE prices on that particular trading day. If shares are purchased for
participants by the Plan Administrator over the course of several days, the
average price paid by the Plan Administrator over the course of such days must
not be less than 95% of the average of the high and low NYSE prices on the day
on which the price paid by the Plan Administrator for shares is the highest. In
the event that shares would be purchased for an amount, less any Costs, which is
below 95% of this average, the participant's purchase price, less any Costs,
will equal 95% of the average of the high and low NYSE prices on that day. In
such event, any remaining shares purchased will be returned to the Company for
cancellation.
SALE OF PLAN SHARES
18. How may participants sell their shares of common stock in the Plan?
A participant can sell shares of common stock held under the Plan in either of
two ways. First, a participant may request a certificate(s) for the shares (in
whole share amounts) they wish to sell and arrange for the sale of these shares
through a broker-dealer of their choice.
Alternatively, a participant may request that the Plan Administrator sell for
them some or all of their shares held by the Plan. The Plan Administrator will
sell shares for them through a registered broker-dealers selected by the Plan
Administrator in its sole discretion. All broker-dealers used by the Plan
Administrator for these sales will be independent of, and not affiliated with,
the Plan Administrator. If the participant requests that the Plan Administrator
arrange for the sale of their shares, they will be charged a fee of $15.00 and
the brokerage commissions, if any, by the broker-dealer selected by the Plan
Administrator. These amounts will be deducted from the cash proceeds paid to the
participant. The
10
amount of the commission will vary depending on the broker-dealer selected and
other factors. Shares being sold for a participant may be aggregated with those
of other Plan participants who have requested sales. In that case, the
participant will receive proceeds based on the average sale price of all shares
sold, less their pro rata share of brokerage commissions and other costs of
sale. If the proceeds of the sale are insufficient to cover the transaction fee,
the participant will not receive a check, but the participant will not be billed
any additional amount. Participants cannot set any price limits or other
restrictions for the sales.
Notwithstanding the above, in the case of any shares requested by a participant
to be sold, the Plan Administrator may sell such shares to the Company in the
Company's sole discretion. In such event, the participant will be charged the
$15.00 fee for the sale. However, no brokerage commission will be charged. The
shares will be sold at a price which is the average of the closing price on the
sale date and on the two trading days immediately preceding the sale date,
reported as the NYSE closing price.
19. When will shares of common stock be sold?
If a participant requests the sale of shares held by the Plan for them, the Plan
Administrator will sell such shares as their agent as soon as practicable after
receipt of their written request. Payment will be made by check and mailed to
the participant as soon as practicable after the sale.
The Plan Administrator will use its best efforts to sell the participant's
shares on the open market as soon as practicable after receipt of written
instructions to such effect. There can be no assurances with respect to the
ability of the Plan Administrator to sell those shares or the price, timing, or
terms on which a sale may be made. The Company and the Plan Administrator have
no obligation under the Plan, and assume no responsibility, to purchase full
shares credited to a participant's Plan account if such shares cannot be sold by
the Plan Administrator.
Notwithstanding the above, in the case of any shares requested by a participant
to be sold, the Plan Administrator may sell such shares to the Company, in the
Company's sole discretion. In such event, you will be charged the $15.00 fee for
the sale. However, no brokerage commission will be charged. The shares will be
sold at a price which is the average of the closing price on the sale date and
on the two trading days immediately preceding the sale date, reported as the
NYSE closing price.
DIVIDENDS
20. Will participants be credited with dividends on shares held in their Plan
accounts?
Yes. The Plan Administrator will receive the cash dividends (less the amount of
tax withheld, if any) for all Plan shares held on the dividend record date and
credit them to participant's accounts on the basis of full shares and any
fractional shares held. These dividends received will be reinvested
automatically in additional shares of common stock as a dividend reinvestment.
Participants who wish to receive dividends in cash on shares purchased through
the Plan must terminate their participation in the Plan, requesting certificates
for the full shares held by the Plan in their account (and payment for any
fractional shares).
REPORTS TO PARTICIPANTS
21. What reports will be sent to participants in the Plan?
As soon as practicable after each transaction, the participant will receive a
statement showing account information, including amounts invested, purchase
and/or sale prices, and shares purchased and/or sold. This statement will
provide a cost record of purchases under the Plan and should be retained for tax
purposes. In addition, each participant will receive the same material sent to
every other holder of common stock, including the Company's annual and quarterly
reports to shareholders, notices of shareholder meetings, proxy materials and
information for income tax reporting.
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DEPOSITING AND RECEIVING CERTIFICATES
22. Will certificates be issued for shares of common stock purchased through the
Plan?
Certificates for shares of common stock purchased through the Plan will not be
issued to participants unless requested. All shares credited to Plan accounts
will be issued to the Plan Administrator or its nominees as agent for the
participants. The number of shares credited to a Plan account will be shown on
the account statement. This convenience protects against loss, theft or
destruction of stock certificates and reduces the costs to be borne by the
Company. A certificate for any number of full shares credited to a Plan account
will be issued upon receipt of a written request by the Plan Administrator.
Certificates for fractional shares will not be issued under any circumstances.
Plan accounts will be maintained in the name in which the participant's
certificates are registered at the time they enter the Plan. Certificates for
full shares will be registered in the same manner when issued to the
participant.
23. Can a participant deliver common stock certificates to be credited to the
participant's Plan account for safekeeping?
A participant can deposit any shares of common stock to be held for their Plan
account by the Plan Administrator for safekeeping. A service fee of $5.00 is
charged by the Plan Administrator for the deposit of one or more certificates. A
check for $5.00 made payable to Registrar and Transfer Company must accompany
the request. A participant desiring to deposit certificates into the Plan should
mail them by certified or registered mail to the Plan Administrator with a note
requesting that they be so credited. When mailing the certificates, participants
should insure the certificate for 1.5% of the current market value. This is the
amount that is usually charged for surety protection should the certificate
become lost in the mail.
TERMINATION OF PARTICIPATION
24. How can participation in the Plan be terminated?
The Plan is entirely voluntary. A participant may terminate participation in the
Plan at any time by writing instructions to the Plan Administrator. When such
notice is received, the Plan Administrator will issue certificates for full
shares credited to the participant's account under the Plan and a payment will
be made to the participant for any fractional shares. If a notice of termination
is received by the Plan Administrator less than five business days prior to a
cash dividend record date, that cash dividend will be reinvested for the
participant's account. When a participant's account is terminated, subsequent
cash dividends on certificated shares will be paid to the shareholder directly.
INCOME TAX INFORMATION
25. What are the federal income tax consequences of participating in the Plan?
The following summary describes certain United States federal income tax
consequences of participating in the Plan to U.S. participants (as defined
below). This summary is based on current law, including:
o the Internal Revenue Code of 1986, as amended, or the Code;
o current, temporary and proposed Treasury regulations
promulgated under the Code;
o the legislative history of the Code;
o current administrative interpretations and practices of the
Internal Revenue Service, or IRS; and
o court decisions;
in each case, as of the date of this prospectus. In addition, the administrative
interpretations and practices of the IRS include its practices and policies as
expressed in private letter rulings which are not binding on us, or the IRS,
except with respect to the particular taxpayers who requested and received those
rulings. Future legislation, Treasury regulations, administrative
interpretations and practices and/or court decisions may adversely affect the
tax considerations described in this prospectus. Any such change could apply
retroactively to transactions preceding the
12
date of the change. We have not requested and do not intend to request a ruling
from the IRS that we qualify as a real estate investment trust or regarding the
tax consequences associated with participating in the Plan, and the statements
in this prospectus are not binding on the IRS or any court. Thus, we can provide
no assurance that the tax considerations contained in this summary will not be
challenged by the IRS or will be sustained by a court if challenged by the IRS.
This summary does not discuss any state, local or foreign tax consequences
associated with the participation in the Plan, the ownership, sale or other
disposition of our stock or our election to be taxed as a real estate investment
trust.
This summary deals only with holders who hold our common stock as a "capital
asset" (generally, property held for investment within the meaning of Section
1221 of the Code). It does not address all the tax consequences that may be
relevant to participants in light of participants' particular circumstances. In
addition, it does not address the tax consequences relevant to persons who
receive special treatment under the federal income tax law, except where
specifically noted. Holders receiving special treatment include, without
limitation:
o financial institutions, banks and thrifts,
o insurance companies,
o tax-exempt organizations,
o "S" corporations,
o regulated investment companies and real estate investment
trusts,
o except for the limited discussion below, foreign corporations
or partnerships, and persons who are not residents or citizens
of the United States,
o dealers in securities or currencies,
o persons holding our common stock as a hedge against currency
risks or as a position in a straddle, or
o United States persons whose functional currency is not the
United States dollar.
If a partnership holds our common stock, the tax treatment of a partner in the
partnership will generally depend upon the status of the partner and the
activities of the partnership. If a holder of our common stock is a partner of a
partnership holding our common stock, such holder should consult their tax
advisor regarding the tax consequences of participating in the Plan and the
ownership and disposition of our common stock.
Shareholders considering participating in the Plan are strongly urged to consult
their own tax advisors concerning the application of United States federal
income tax laws to their particular situation, the consequences of their
participation in the Plan, the ownership and disposition of our common stock
arising under the laws of any state, local or foreign taxing jurisdiction and
our tax treatment as a real estate investment trust.
U.S. PARTICIPANT
When we use the term "U.S. participant," we mean a participant in the Plan who,
for United States federal income tax purposes is:
o a citizen or resident of the United States;
o a corporation, partnership, limited liability company or other
entity created or organized in or under the laws of the United
States or of any State thereof or in the District of Columbia
unless, in the case of a partnership or limited liability
company, Treasury regulations provide otherwise;
13
o an estate the income of which is subject to United States
federal income taxation regardless of its source; or
o a trust whose administration is subject to the primary
supervision of a United States curt and which has one or more
United States persons who have the authority to control all
substantial decisions of the trust. Notwithstanding the
preceding sentence, to the extent provided in the Treasury
regulations, certain trusts in existence on August 20, 1996,
and treated as United States persons prior to this date that
elect to continue to be treated as United States persons,
shall also be considered U.S. participants.
PARTICIPATION IN THE PLAN
Distributions a participant receives on shares of our common stock that the
participant holds in the Plan and that are reinvested in newly issued shares
will be treated for federal income tax purposes as a taxable stock distribution
to that participant. Accordingly, a participant will receive taxable dividend
income in an amount equal to the fair market value of the shares of our common
stock that the participant receives on the date we make distributions (to the
extent we have current or accumulated earnings and profits for federal income
tax purposes). On the other hand, distributions participants receive on shares
of our common stock that they hold in the Plan which are reinvested in shares of
our common stock purchased by the Plan Administrator in the open market or in
privately negotiated transactions are treated for federal income tax purposes as
a taxable dividend to the participant in an amount equal to the purchase price
of such shares (to the extent that we have current or accumulated earnings and
profits for federal income tax purposes).
The portion of a distribution a participant receives that is in excess of our
current and accumulated earnings and profits will not be taxable to that
participant if that portion of the distribution does not exceed the adjusted tax
basis of that participant's shares. If a portion of that participant's
distribution exceeds the adjusted tax basis of their shares, that portion of
that participant's distribution will be taxable as a capital gain. In addition,
if we properly designate a portion of that participant's distribution as a
capital gain dividend, then that portion will be taxable as a capital gain.
Capital gains will be taxed to participants at a 15% or 25% income tax rate, as
discussed below under "--New Legislation". Participants' statement of account
will show the fair market value of the common stock purchased with reinvested
dividends on the applicable date we pay dividends. Each participant also will
receive a Form 1099-DIV after the end of the year which will show for the year
the participant's total dividend income, their amount of any return of capital
distribution and their amount of any capital gain dividend.
The IRS has indicated that a participant who makes an optional cash purchase of
common stock under a plan similar to our Plan will be treated as having received
a distribution equal to the excess, if any, of the fair market value on the
investment date of the common shares over the amount of the optional cash
payment made by the participant. Any distributions that the participant is
treated as receiving would result in taxable dividend income, reduced basis in
the shares of common stock, capital gain or some combination thereof, under the
rules described above.
Under the Plan, we will bear certain trading fees or brokerage commissions
related to the acquisition of, but not the sale of, shares of our common stock.
The IRS has indicated that brokerage commissions paid by a corporation with
respect to open market purchases on behalf of participants in a dividend
reinvestment plan or pursuant to the optional cash purchase features of a plan
are to be treated as constructive distributions to participants who are
shareholders of the corporation. In these rulings the IRS determined that the
payment of these fees or commissions is subject to income tax in the same manner
as distributions and includable in the participant's cost basis of the shares
purchased. The IRS has indicated that administrative expenses of the Plan paid
by us are not constructive distributions to participants in our Plan.
Participants' tax basis in their common shares acquired under the dividend
reinvestment features of the Plan generally will equal the total amount of
distributions the participants are treated as receiving, as described above. The
participant's tax basis in their common shares acquired through an optional cash
purchase under the Plan generally will equal the total amount of any
distributions participants are treated as receiving, as described above, plus
the amount of the optional cash payment. A participant's holding period for the
shares of our common stock acquired under the Plan will begin on the day
following the date such shares were purchased for their account. Consequently,
shares of our common stock purchased in different quarters will have different
holding periods.
14
A participant will not realize any gain or loss when they receive certificates
for whole shares of our common stock credited to their account, either upon that
participant's request, when the participant withdraws from the Plan or if the
Plan terminates. However, participants will recognize gain or loss when whole
shares of our common stock or rights applicable to our common stock acquired
under the Plan are sold or exchanged. A participant will also recognize gain or
loss when they receive a cash payment for a fractional share of our common stock
credited to the participant's account when the participant withdraws from the
Plan or if the Plan terminates. The amount of the participant's gain or loss
will equal the difference between the amount that participant receives for their
shares or fractional shares of our common stock or rights applicable to common
stock, net of any costs of sale paid by the participant, and the participant's
tax basis of such shares.
BACKUP WITHHOLDING
Under the backup withholding rules, a participant may be subject to backup
withholding with respect to dividends paid unless the participant is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or provides a taxpayer identification number, certifies
as to no loss of exemption from backup withholding, and otherwise complies with
applicable requirements of the backup withholding rules. Backup withholding is
not an additional tax. Any amount paid as backup withholding will be creditable
against the participant's federal income tax liability. In addition, we may be
required to withhold a portion of capital gain distributions to any shareholders
who fail to certify their non-foreign status.
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST
Qualification as a real estate investment trust involves the application of
highly technical and complex Code provisions for which there are only limited
judicial and administrative interpretations. The determination of various
factual matters and circumstances not entirely within our control may affect our
ability to qualify as a real estate investment trust. For example, in order to
qualify as a real estate investment trust, at least 95% of our gross income in
any year must be derived from qualifying sources, and we must satisfy a number
of requirements regarding the composition of our assets. Also, we must make
distributions to shareholders aggregating annually at least 90% of our real
estate investment trust taxable income, excluding capital gains. In addition,
new legislation, Treasury regulations, administrative interpretations or court
decisions may adversely affect our investors or our ability to qualify as a real
estate investment trust for tax purposes. Although we believe that we have been
organized and have operated in such manner, we can give no assurance that we
have qualified or will continue to qualify as a real estate investment trust for
tax purposes.
If we lose our real estate investment trust status, we will face serious tax
consequences that will substantially reduce the funds available to make payments
of principal and interest on the debt securities we issue and to make
distributions to our shareholders. If we fail to qualify as a real estate
investment trust:
o we would not be allowed a deduction for distributions to
shareholders in computing our taxable income and would be
subject to federal income tax at regular corporate rates;
o we also could be subject to the federal alternative minimum
tax and possibly increased state and local taxes; and
o unless we are entitled to relief under statutory provisions,
we could not elect to be subject to tax as a real estate
investment trust for four taxable years following the year
during which we were disqualified.
In addition, if we fail to qualify as a real estate investment trust, all
distributions to shareholders would be subject to tax as regular corporate
dividends to the extent of our current and accumulated earnings and profits and
we would not be required to make distributions to shareholders.
Foreign participants who elect to have their cash dividends reinvested and whose
dividends are subject to United States income tax withholding will have the
applicable taxes withheld prior to the reinvestment of the cash dividends. Other
participants for whom federal income tax withholding on dividends is required
will have these
15
taxes withheld prior to the reinvestment of the cash dividends. Foreign
participants are urged to consult their legal advisors with respect to any local
exchange, control, tax, or other law or regulation that may affect their
participation in the Plan. The Company and the Plan Administrator assume no
responsibility regarding such laws or regulations and will not be liable for any
act or omission in respect thereof.
NEW LEGISLATION
The maximum tax rate of non-corporate taxpayers for (i) capital gains, including
"capital gain dividends," has generally been reduced from 20% to 15% (for
taxable years ending on or after May 6, 2003, although certain amounts in 2003
may continue to be taxed at a 20% rate and, depending on the characteristics of
the assets which produced these gains and on designations which we may make,
certain capital gain dividends may be taxed at a 25% rate) and (ii) dividends
has generally been reduced from 38.6% to 15% (for taxable years beginning after
December 31, 2002). In general, dividends payable by real estate investment
trusts are not eligible for the reduced tax rate on corporate dividends, except
to the extent the real estate investment trust's dividends are attributable to
dividends received from taxable corporations, to income that was subject to tax
at the corporate/real estate investment trust level (for example, if we
distribute taxable income that we retained and paid tax on in the prior taxable
year) or to dividends properly designated by us as "capital gain dividends."
Although these tax rate changes do not adversely affect the taxation of real
estate investment trusts or dividends paid by real estate investment trusts, the
more favorable treatment of regular corporate dividends could cause investors
who are individuals to consider stock of other corporations that pay dividends
as more attractive relative to stock of real estate investment trusts. The
currently applicable provisions of the United States federal income tax laws
relating to the 15% tax rate are currently scheduled to "sunset" or revert back
to the provisions of prior law effective for taxable years beginning after
December 31, 2008, at which time the capital gains tax rate will be increased to
20% and the rate applicable to dividends will be increased to the tax rate then
applicable to ordinary income.
THE FOREGOING IS ONLY AN OUTLINE OF THE COMPANY'S UNDERSTANDING OF SOME OF THE
APPLICABLE FEDERAL INCOME TAX PROVISIONS. THE OUTLINE IS GENERAL IN NATURE AND
DOES NOT PURPORT TO COVER EVERY SITUATION. MOREOVER, IT DOES NOT INCLUDE A
DISCUSSION OF STATE AND LOCAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE
PLAN. FOR SPECIFIC INFORMATION REGARDING THE TAX CONSEQUENCES OF PARTICIPATION
IN THE PLAN, INCLUDING ANY FUTURE CHANGES IN APPLICABLE LAWS OR ANY
INTERPRETATION THEREOF, PARTICIPANTS SHOULD CONSULT THEIR OWN TAX ADVISORS.
OTHER INFORMATION
26. What happens if a participant sells a portion of the shares of common stock
registered in the participant's name?
If a participant authorizes the reinvestment of cash dividends on shares
registered in their name and then disposes of a portion of those shares, the
cash dividends on the remaining shares will continue to be reinvested.
27. Can shares in the Plan be pledged or assigned?
Shares credited to a Plan account may not be assigned, pledged or otherwise
transferred in any way. If a participant wishes to assign, pledge or transfer
all or any portion of the full shares credited to their account, they must
request that certificates for those shares be issued in their name.
28. What happens when a participant sells or transfers all of the shares
registered in their name or stops all purchases?
If a participant stops purchases through optional cash payments, the cash
dividends on the shares credited to their Plan account that remain in the Plan
will continue to be reinvested. If a participant ceases to be the record owner
of any shares of common stock in the Plan, the Plan Administrator will terminate
the holder's Plan account.
16
29. If the Company has a rights offering, how will rights on the Plan shares be
handled?
No preemptive rights attach to the common stock of the Company. If the Company,
nevertheless, makes available to holders of common stock rights or warrants to
purchase additional shares of common stock or other securities, such rights or
warrants will be made available to participants. This allocation to each
participant will be based on the number of shares (including any fractional
interests to the extent practicable) held for them in their Plan account on the
record date established for determining the holders of common stock entitled to
such rights or warrants.
30. What happens if the Company issues a stock dividend or declares a stock
split?
Any stock dividend or split shares in the form of common stock distributed by
the Company on shares of common stock held by a participant in certificated form
or for a participant in their Plan account will be credited to their account in
the Plan. Both full and fractional shares, where applicable, will be credited to
their account.
A stock dividend or split shares distribution in the form of common stock will
increase automatically by that amount the number of shares held in a
participant's name on which cash dividends are reinvested.
31. How will a participant's shares be voted at meetings of shareholders?
Shares held under the Plan will not be voted by the Plan Administrator.
Participants will receive a proxy indicating the total number of shares of
common stock registered in their name and shares of common stock credited to
their Plan account.
If the proxy is returned properly signed and marked for voting, all shares
covered by the proxy, including those registered in the participant's name and
those held for the participant under the Plan, will be voted as marked. If the
proxy is returned properly signed but without indicating instructions on the
manner in which shares are to be voted with respect to any item thereon, all of
the participant's shares, including those registered in their name and those
held for them under the Plan, will be voted in accordance with the
recommendations of the Board of Directors of the Company.
If a participant's proxy is not returned, or if it is returned not executed or
improperly executed, the participant's shares will be voted only if the
participant votes in person.
32. What is the responsibility of the Company and the Plan Administrator for the
Plan?
The Plan Administrator has no responsibility with respect to the preparation and
the contents of this Prospectus. Neither the Company nor the Plan Administrator
or its nominee(s), in administering the Plan, will be liable for any act done in
good faith. Nor will the Company or the Plan Administrator be liable for any
good faith omission to act, including, without limitation, any claims of
liability arising out of (i) failure to terminate a participant's account upon
the participant's death prior to the receipt of notice in writing of the death,
(ii) the prices and times at which shares of common stock are purchased or sold
for the participant's account or the terms on which such purchases or sales are
made, or, (iii) fluctuations in the market value of the common stock.
NEITHER THE COMPANY NOR THE PLAN ADMINISTRATOR CAN ASSURE ANY PARTICIPANT OF A
PROFIT OR PROTECT ANY PARTICIPANT AGAINST A LOSS FROM THE SHARES PURCHASED OR
SOLD THROUGH THE PLAN. AN INVESTMENT IN THE COMMON STOCK, AS WITH ALL EQUITY
INVESTMENTS, MAY BE SUBJECT TO SIGNIFICANT MARKET FLUCTUATIONS. THE COMPANY CAN
NEITHER CONTROL PURCHASE BY THE PLAN ADMINISTRATOR UNDER THE PLAN NOR GUARANTEE
THAT DIVIDENDS ON THE COMMON STOCK WILL NOT BE REDUCED OR ELIMINATED.
33. Who regulates and interprets the Plan?
The Company and the Plan Administrator reserve the right to interpret and
regulate the Plan as they deem necessary or desirable. Any such interpretation
or regulation will be final. The Plan, related Plan documentation, and Plan
accounts will be governed by and construed in accordance with the laws of the
State of New York.
17
34. May the Plan be changed or discontinued?
While the Company hopes to continue a dividend reinvestment and stock purchase
plan indefinitely, the Company and the Plan Administrator reserve the right to
suspend the Plan at any time by written notice to participants. The terms and
conditions of the Plan also may be amended by the Plan Administrator, with the
concurrence of the Company, at any time by mailing an appropriate notice to
participants at least 30 days prior to the effective date of such amendment. The
Company may amend the Plan by mailing an appropriate notice to participants.
Such amendments to the Plan as may be required from time to time due to changes
in or new rules and regulations under the federal or state securities laws may
be made by the Plan Administrator prior to notice to each participant.
18
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 2003 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be
passed on for Getty by Venable LLP.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses of the sale and
distribution of the common stock being registered, all of which are being borne
by the Company.
Securities and Exchange Commission registration fee ........................ $ 8,476
Blue Sky fees .............................................................. $ 5,000
NYSE listing fee ........................................................... $ 37,000
Legal and accounting fees and expenses ..................................... $ 50,000
Printing and Engraving ..................................................... $ 50,000
Miscellaneous .............................................................. $ 4,163
---------
TOTAL: $ 155,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Maryland General Corporation Law (the "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 shareholders 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
charter of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The charter of the Company authorizes it, 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 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. The bylaws of the Company obligate it, 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 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 service in that capacity.
The charter and 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 is made a party by reason of his 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 for
an adverse judgment in a suit by or in the right of the corporation or for a
judgment liability on the basis that personal benefit was improperly received,
unless in either case a court orders indemnification and then only for expenses.
In addition, the MGCL requires the Company, as a condition to advancing
expenses, to
20
obtain (a) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the Company as authorized by the Bylaws, and (b) a written undertaking by him or
on his 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.
ITEM 16. EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
5.1 Opinion of Venable LLP Filed herewith.
23.1 Consent of Independent Accountants Filed herewith.
23.2 Consent of Venable LLP (Contained in opinion filed as Exhibit 5.1.)
24 Power of Attorney Included on signature page hereto.
99.1 Letter to Getty Realty Corp. shareholders Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of our
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 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 those securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the provisions described under Item 15 of this registration
statement, or otherwise (other than insurance), we have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that Act and is, therefore, unenforceable.
In the event that a claim for indemnification against those liabilities (other
than the payment by us of expenses incurred or paid by our director, officer or
controlling person in the successful defense of any action, suit or proceeding)
is asserted by that director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether that indemnification by us is
against public policy as expressed in that Act and will be governed by the final
adjudication of that issue.
21
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jericho, State of New York on April 22, 2004.
GETTY REALTY CORP.
By: /s/ Leo Liebowitz
----------------------------------
Leo Liebowitz
President and Chief Executive Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature
appears on the signature page to this Registration Statement constitutes and
appoints Leo Liebowitz, Thomas J. Stirnweis and Andrew M. Smith, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) 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, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done 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 attorneys-in-fact and
agents or any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
By: /s/ Leo Liebowitz By: /s/ Thomas J. Stirnweis
---------------------------- -----------------------------
Leo Liebowitz Thomas J. Stirnweis
President, Chief Executive Vice President, Treasurer and
Officer and Director Chief Financial Officer
April 22, 2004 (Principal Financial and
Accounting Officer)
By: /s/ Milton Cooper April 22, 2004
----------------------------
Milton Cooper
Director By: /s/ Philip E. Coviello
April 22, 2004 -----------------------------
Philip E. Coviello
Director
By: /s/ Howard Safenowitz April 22, 2004
----------------------------
Howard Safenowitz
Director By: /s/ Warren G. Wintrub
April 22, 2004 ------------------------------
Warren G. Wintrub
Director
April 22, 2004
S-1
EXHIBIT INDEX
GETTY REALTY CORP.
EXHIBIT
NO. DESCRIPTION
------- -----------
5.1 Opinion of Venable LLP Filed herewith.
23.1 Consent of Independent Filed herewith.
Accountants
23.2 Consent of Venable LLP (Contained in opinion filed as Exhibit 5.1.)
24 Power of Attorney Included on signature page hereto.
99.1 Letter to Getty Realty Corp. shareholders Filed herewith.