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EXHIBIT 10.8
STOCK OPTION REFORMATION AGREEMENT
THIS STOCK OPTION REFORMATION AGREEMENT ("Agreement") is made
and entered into as of January ____, 1997, by and between GETTY PETROLEUM
MARKETING INC., a Maryland corporation ("Marketing"), and GETTY PETROLEUM
CORP., a Delaware corporation ("Getty", after the Distribution, to be known as
Getty Realty Corp. ("Realty")).
RECITALS
WHEREAS, Getty intends to pay a special dividend to the
shareholders of Getty Stock of one share of Marketing Stock for each share of
Getty Stock, consisting of all outstanding shares of Marketing Stock (the
"Distribution"); and
WHEREAS, in connection with said special dividend, Getty and
Marketing have entered into a Reorganization and Distribution Agreement (the
"Distribution Agreement") dated as of January 31, 1997; and
WHEREAS, pursuant to the Distribution Agreement Getty and
Marketing have agreed to enter into an agreement reforming certain stock
options pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Getty and Marketing agree as follows:
ARTICLE I
DEFINITIONS
Wherever the following terms are used in this Agreement, the
following terms shall have the meanings specified below unless the context
clearly indicates to the contrary.
Section 1.1 - Conversion Award
An award of Options to reflect the effect of the Distribution
on Getty Options held on the Cut-off Date in accordance with Article II.
Section 1.2 - Cut-off Date
The date immediately preceding the Distribution Date.
Section 1.3 - Distribution Date
The date on which the Distribution occurs.
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Section 1.4 - Getty Closing Stock Price
The New York Stock Exchange closing price per share for the
common stock, par value $.10 per share, of Getty on the Distribution Date,
trading regular way, with a due xxxx for the special dividend of Marketing
Stock to be made in connection with the Distribution.
Section 1.5 - Getty Option
An option to acquire Getty Stock issued pursuant to any of the
Option Plans.
Section 1.6 - Getty Stock
The common stock, par value $.10 per share, of Getty on or
prior to the Distribution Date.
Section 1.7 - ISO Conversion Ratio
The ISO Conversion Ratio with respect to the reformation of a
Getty Option into an option to purchase Realty Stock is equal to the ratio of:
(a) the excess of the Getty Closing Stock Price
over the exercise price of the Getty Option, to
(b) the excess of the Post-Conversion Price of
the Realty Stock over the exercise price of the option with respect
thereto (as determined pursuant to Section 2.2).
Section 1.8 - Marketing Exercise Ratio
The ratio of (a) the Post-Conversion Price of Marketing Stock
to (b) the sum of the Post-Conversion Price of Marketing Stock and the Post
Conversion Price of Realty Stock.
Section 1.9 - Marketing Option
An option to acquire Marketing Stock issued pursuant to a
Conversion Award.
Section 1.10 - Marketing Stock
The common stock, par value $.01 per share, of Marketing.
Section 1.11 - Marketing Subsidiary
Any subsidiary of Marketing as defined in the Distribution
Agreement at the time of the Distribution.
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Section 1.12 - Option
A Marketing Option, Getty Option or a Realty Option.
Section 1.13 - Option Plans
Certain stock option plans, and agreements entered into
thereunder, maintained by Getty prior to the Distribution Date for employees
and directors of Getty, including the Getty Petroleum Corp. 1985 Stock Option
Plan, the 1988 Stock Option Plan of Getty Petroleum Corp. and the 1991 Stock
Option Plan of Getty Petroleum Corp.
Section 1.14 - Post-Conversion Price
The average, determined separately for each of Marketing Stock
and Realty Stock, of the closing New York Stock Exchange prices thereof for the
ten consecutive trading days commencing with the first day on or after the
Distribution Date during which Marketing Stock is traded ("First Ten Trading
Days"), as reported in the Wall Street Journal. If, for any reason, Realty
Stock (or Getty Stock, if Getty's name is not changed) is not traded on the New
York Stock Exchange on an "ex dividend" basis with respect to the Distribution
on any day during the First Ten Trading Days, then the Post Conversion Price
for Realty Stock on such day shall be equal to the closing New York Stock
Exchange price of Realty Stock (or Getty Stock, if Getty's name is not
changed), on such day, less the closing New York Stock Exchange price of
Marketing Stock on such day, as reported in the Wall Street Journal.
Section 1.15 - Realty Exercise Ratio
The ratio of (a) the Post-Conversion Price of Realty Stock to
(b) the sum of the Post-Conversion Price of Realty Stock and the Post
Conversion Price of Marketing Stock.
Section 1.16 - Realty Option
An option to acquire Realty Stock, issued pursuant to a
Conversion Award.
Section 1.17 - Realty Stock
The common stock, par value $.10 per share, of Realty after
the Distribution Date.
Section 1.18 - Service Credit
The period taken into account under any Option Plan for
purposes of determining length of service to satisfy any eligibility, vesting,
benefit accrual or similar requirements under such Option Plan.
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Section 1.19 - Stock
Marketing Stock, Getty Stock or Realty Stock.
Section 1.20 - Subsidiary
Any corporation, a majority of whose capital stock with voting
power, under ordinary circumstances, to elect directors is, at the date of
determination, directly or indirectly owned by any person as to which a
determination of subsidiary status is to be made, including a Marketing
Subsidiary.
ARTICLE II
STOCK OPTION REFORMATION
Section 2.1 - Substitution of Stock Options
(a) On the Distribution Date, each nonqualified Getty
Option shall be reformed as one Realty Option and one Marketing Option each,
except as described below, with terms identical to those of the Getty Option,
except with respect to the exercise price which shall be adjusted as provided
in Section 2.2.
(b) On the Distribution Date, each Getty Option awarded
as an incentive stock option pursuant to Section 422 of the Internal Revenue
Code of 1986 ("Incentive Stock Option") shall be reformed as a number of whole
or fractional Incentive Stock Options with respect to Realty Stock equal to the
ISO Conversion Ratio ("Realty ISOs"), with terms identical to those of the
Getty Option, except with respect to the exercise price which shall be adjusted
as provided in Section 2.2. Any Realty ISOs not exercised within three months
following the Distribution Date shall thereupon automatically convert into the
number of nonqualified Options equal to the number of Getty Options from which
they were converted pursuant to the preceding sentence and each such
nonqualified Option shall thereupon be reformed as one Realty Option and one
Marketing Option, as described in Section 2.1(a).
Section 2.2 - Exercise Prices of New Options
The exercise price of each such Realty Option shall be equal
to the product of the exercise price of the applicable Getty Option and the
Realty Exercise Ratio. The exercise price of each such Marketing Option shall
be equal to the product of the exercise price of the applicable Getty Option
and the Marketing Exercise Ratio.
Section 2.3 - Service Credits
In connection with the Distribution and for purposes of
determining Service Credits under any Option Plan, Realty and Marketing shall
credit each of their respective employees and directors with such employee's or
director's Service Credit as reflected in the Getty payroll system records as
of the Cut-off date. Such Service Credit shall continue to be
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maintained as described herein for as long as the employee or director does not
terminate employment (or in the case of a director, does not cease providing
services as a director).
Section 2.4 - Effect of Post-Distribution Transfer on Conversion Awards
Conversion Awards shall be administered with respect to any
provisions relating to continuing employment requirements to give Service
Credit for service with the party employing the grantee as of the Distribution
Date. Solely with respect to such Conversion Awards (and not with respect to
new awards made after the Cut-off Date), for purposes of determining whether a
termination of employment has occurred under the terms of any provision
requiring continued employment, termination of employment through January 31,
1998 shall not be deemed to occur if an employee leaves the service of one
party hereto to immediately begin employment with the other party; the business
operation or business unit from which such employee terminates employment shall
promptly notify the administrator of the Option Plan of each party of the
occurrence of any termination subject to the provisions of this Section 2.4.
Whichever party is the new employer shall inform the former employer of any
termination of employment of such transferred employee. Any termination of
employment other than as described in this Section 2.4 shall be treated by
applying the applicable provisions of the Option Plan relating to terminations
of employment without the modifications described in this Section 2.4.
Section 2.5 - Written Statement
Within 30 days after the Distribution Date, the Secretary of
Realty (or any officer of Realty to whom appropriate authority has been
delegated) shall provide each holder of a Getty Option with a written statement
containing a general description of this Agreement and specifically listing the
exercise price of such option holder's Realty Option and Marketing Option.
ARTICLE III
MISCELLANEOUS
Section 3.1 - Relationship of Parties
Nothing in this Agreement shall be deemed or construed by the
parties or any third party as creating the relationship of principal and agent,
partnership or joint venture between the parties, it being understood and
agreed that no provision contained herein, and no act of the parties, shall be
deemed to create any relationship between the parties other than the
relationship set forth herein.
Section 3.2 - Access to Information; Cooperation
Realty and Marketing and their authorized agents will be given
reasonable access to and may take copies of all information relating to the
subjects of this Agreement (to the extent permitted by federal and state
confidentiality laws) in the custody of the other
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party, including any agent, contractor, subcontractor, agent or any other
person or entity under contract of such party. The parties will provide one
another with such information within the scope of this Agreement as is
reasonably necessary to administer each party's Option Plans. The parties will
cooperate with each other to minimize the disruption caused by any such access
and providing of information.
Section 3.3 - Assignment
Neither party shall, without prior written consent of the
other, have the right to assign any rights or delegate any obligations under
this Agreement.
Section 3.4 - Headings
The headings used in this Agreement are inserted only for the
purpose of convenience and reference, and in no way define or limit the scope
or intent of any provision or part hereof.
Section 3.5 - Severability of Provisions
Neither Realty nor Marketing intend to violate statutory or
common law by executing this Agreement. If any section, sentence, paragraph,
clause or combination of provisions in this Agreement is in violation of any
law, such sections, sentences, paragraphs, clauses or combinations shall be
inoperative and the remainder of this Agreement shall remain in full force and
effect and shall be binding upon the parties.
Section 3.6 - Parties Bound
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Nothing herein, expressed or implied, shall be construed to give any other
person any legal or equitable rights hereunder.
Section 3.7 - Notices
All notices, consents, approvals and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given when delivered personally or by overnight courier or three days
after being mailed by registered or certified mail (postage prepaid, return
receipt requested) to the named representatives of the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(i) if to Realty
Getty Realty Corp.
000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: __________________
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(ii) if to Marketing
Getty Petroleum Marketing Inc.
000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: __________________
Section 3.8 - Further Action
Realty and Marketing each shall cooperate in good faith and
take such steps and execute such papers as may be reasonably requested by the
other party to implement the terms and provisions of this Agreement.
Section 3.9 - Waiver
Realty and Marketing each agree that the waiver of any default
under any term or condition of this Agreement shall not constitute a waiver of
any subsequent default or nullify the effectiveness of that term or condition.
Section 3.10 - Governing Law
All controversies and disputes arising out of or under this
Agreement shall be determined pursuant to the laws of the state of New York,
regardless of the laws that might be applied under applicable principals of
conflicts of laws.
Section 3.11 - Entire Agreement
This Agreement and the Distribution Agreement constitute the
entire understanding between the parties hereto, and supersede all prior
written or oral communications, relating to the subject matter covered by said
agreements. To the extent that this Agreement or the Distribution Agreement
are inconsistent with (i) the change-in-control agreements dated December 9,
1994 and amended on March 7, 1996, made by Getty in favor of certain officers
and employees of Getty (the "Change-in-Control Agreements"), or (ii) the option
agreements made by Getty pursuant to the Option Plans in favor of certain
officers and key employees of Getty to whom stock options were granted (the
"Option Agreements"), the terms and provisions of this Agreement or the
Distribution Agreement will control; provided, however, that neither this
Agreement nor the Distribution Agreement shall limit the applicability of any
supplemental terms or provisions (including, e.g., any vesting provisions)
contained in the Change-in-Control Agreements or the Option Agreements which
are not inconsistent with this Agreement or the Distribution Agreement.
No amendment, modification, extension or failure to enforce
any condition of this Agreement by either party shall be deemed a waiver of its
rights herein. This agreement shall not be amended except by a writing
executed by the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GETTY PETROLEUM CORP.,
a Delaware corporation
By: __________________________
Its: __________________________
GETTY PETROLEUM MARKETING INC.,
a Maryland Corporation
By: __________________________
Its: __________________________
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