UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 31, 2008
Getty Realty Corp.
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(Exact name of registrant as specified in charter)
Maryland 001-13777 11-3412575
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(State of (Commission (IRS Employer
Organization) File Number) Identification No.)
125 Jericho Turnpike, Suite 103
Jericho, New York 11753
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (516) 478-5400
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Not Applicable
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) Compensatory Arrangements of Certain Officers.
On December 31, 2008, Getty Realty Corp. (the "Company") entered into
amendments to certain of its compensation arrangements. The amendments make
technical changes to comply with Section 409A of the Internal Revenue Code of
1986, as amended ("Section 409A").
Amendment of the Company's 2004 Omnibus Incentive Compensation Plan (the
"Omnibus Incentive Plan").
The Omnibus Incentive Plan was amended to (i) add a definition of "termination
of employment" that conforms to the definition of "separation from service"
contained in Section 409A, (ii) remove the plan administrator's discretion to
modify or accelerate the settlement of awards to the extent that the existence
of such discretion would violate Section 409A, and (iii) add a Section 409A
"savings" clause (providing that if any provision of the Omnibus Incentive Plan
is found not to be in compliance with Section 409A such provision shall be
modified in the sole discretion of the plan administrator so as to bring the
provision into compliance) and "hold harmless" clause (providing that if an
award granted under the Omnibus Incentive Plan is determined not to comply with
Section 409A, the Company will reimburse the participant for any additional
taxes the participant is required to pay as a result of the noncompliance).
Amendment of Restricted Stock Unit Agreements.
Messrs Leo Liebowitz, Kevin C. Shea, Thomas J. Stirnweis, and Joshua Dicker (our
"Named Executive Officers") and the members of our board of directors consented
to the amendment of their outstanding restricted stock unit agreements to make
the amendments to the Omnibus Incentive Plan described above apply to the
restricted stock unit agreements.
Amendment of the Supplemental Retirement Plan for Executives of the Company and
Participating Subsidiaries (the "Supplemental Retirement Plan").
The Supplemental Retirement Plan was amended to (i) establish that accounts will
be distributed within 30 days after termination of employment (or within 90 days
in the event of the employee's death), unless the employee is a "specified
employee," as defined in Section 409A, when termination of employment occurs, in
which case the account will be distributed six months after the employee's
termination of employment; (ii) add a definition of termination of employment
that conforms to the definition of "separation from service" in Section 409A,
(iii) add a provision to facilitate tax withholding obligations, (iv) revise the
plan termination provision such that termination and liquidation of the
Supplemental Retirement Plan may occur only in accordance with Section 409A, and
(v) include a Section 409A "savings" clause (providing that the plan is intended
to be designed, administered and construed in compliance with Section 409A) and
"hold harmless" clause (providing that the Company will reimburse a participant
for any additional taxes the participant is required to pay as a result of the
Supplemental Retirement Plan's noncompliance with Section 409A).
Amendment of Change of Control Letter Agreement with Mr. Stirnweis (the "Letter
Agreement").
The Company's Letter Agreement dated June 12, 2001 with our Chief Financial
Officer, Thomas J. Stirnweis, provides for certain payments and other
protections to Mr. Stirnweis in the event of his termination of employment under
specified circumstances or a change in control of the Company. The Letter
Agreement was amended to (i) add a provision to clarify when the differential
payment of any Guaranteed Salary due under the Letter Agreement will be paid,
(ii) modify the provision regarding healthcare benefits to cover the cost of
healthcare coverage for 12 months following a termination of employment or a
change in control of the Company that results in a reduction in the level of
healthcare coverage or a loss of coverage, (iii) conform the definition of
change in control to include only permissible change in control events under
Section 409A, and (iv) include a Section 409A "savings" clause (providing that
the Company will undertake to administer the Letter Agreement to comply with
Section 409A) and "hold harmless" clause (providing that if the Letter Agreement
fails to meet the requirements of Section 409A the Company will reimburse Mr.
Stirnweis for any resulting additional taxes payable by him).
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GETTY REALTY CORP.
Date: January 7, 2009 By: /s/ Thomas J. Stirnweis
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Thomas J. Stirnweis
Vice President, Treasurer and
Chief Financial Officer