| Item 1.01. | Entry into Material Definitive Agreement. |
On February 28, 2023, Getty Realty Corp. (the “Company”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with each of BofA Securities, Inc. and J.P. Morgan Securities LLC, as the underwriters and the forward sellers (together, in such capacities, the “Underwriters” and the “Forward Sellers,” as applicable) and each of Bank of America, N.A. and JPMorgan Chase Bank, National Association, as the forward purchasers (together, in such capacity, the “Forward Purchasers”), relating to the sale of 3,450,000 shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”) offered by the Forward Sellers in connection with certain forward sale agreements described below (including 450,000 Shares offered pursuant to the Underwriters’ option to purchase additional shares, which option was exercised in full), at a price to the Underwriters of $32.61 per share. The closing of the offering occurred on March 3, 2023.
In connection with the offering, the Company entered into separate forward sale agreements (the “Forward Sale Agreements”) with each Forward Purchaser. In accordance with the terms of the Forward Sale Agreements, the Forward Purchasers (or their affiliates) borrowed from third parties and sold to the Underwriters the 3,450,000 Shares that were sold in the offering. Pursuant to the terms of the Forward Sale Agreements, and subject to its right to elect cash or net share settlement, the Company is obligated to issue and deliver, upon physical settlement of the Forward Sale Agreements on one or more dates specified by the Company, the number of shares of Common Stock underlying the Forward Sale Agreements in exchange for a cash payment per share equal to the forward sale price under the Forward Sale Agreements. The Company expects to physically settle the Forward Sale Agreements and receive proceeds, subject to certain adjustments, from the issuance of shares of Common Stock upon one or more such physical settlements within approximately one year from the date of the prospectus supplement relating to the offering. Although the Company expects to settle the Forward Sale Agreements entirely by the physical delivery of shares of Common Stock for cash proceeds, the Company may also elect to cash or net share settle all or a portion of its obligations under the Forward Sale Agreements, in which case, it may receive, or it may owe, cash or shares of Common Stock from or to the Forward Purchasers. The Forward Sale Agreements provide for an initial forward sale price of $32.61 per share, subject to certain adjustments pursuant to the terms of the Forward Sale Agreements. The Forward Sale Agreements are subject to early termination or settlement under certain circumstances.
The Company will not receive any proceeds from the sale of the Shares by the Forward Sellers. The Company intends to use the net proceeds, if any, received upon the settlement of the Forward Sale Agreements to fund property acquisitions (including recently completed acquisitions and acquisitions currently under contract), to repay indebtedness outstanding under the Company’s revolving credit facility, for working capital and other general corporate purposes, or a combination of the foregoing.
The Shares offered pursuant to the Underwriting Agreement have been registered on the Company’s registration statement on Form S-3 (File No. 333-251977), which became effective upon filing with the Securities and Exchange Commission (the “SEC”) on January 8, 2021, and a prospectus supplement, dated February 28, 2023. This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any of the Shares.
The foregoing description of the Underwriting Agreement and the Forward Sale Agreements does not purport to be complete and is qualified in its entirety by the full text of the Underwriting Agreement and the Forward Sale Agreements, which are attached as Exhibits 1.1, 1.2, 1.3, 1.4 and 1.5 hereto and are incorporated by reference herein.
Cautionary Statement Concerning Forward-Looking Statements
This report contains “forward-looking statements” within the meaning of the safe harbor from civil liability provided for such statements by the Private Securities Litigation Reform Act of 1995 set forth in the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. The forward-looking statements include, among other things, statements regarding the expected settlement of the Forward Sale Agreements and the use of proceeds therefrom (if any), and can be identified by the use of words such as “may,” “will,” “expect,” “anticipate,” “intend,” “estimate” and other comparable terms. These forward-looking statements are based on the Company’s current beliefs and assumptions and information currently available to the Company, and are subject to known and unknown risks, uncertainties and other factors and were derived utilizing numerous important assumptions that may cause actual results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Factors and assumptions involved in the
