As filed with the Securities and Exchange Commission on April 7, 1998
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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U.S. RESTAURANT PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
Maryland 5310 Harvest Hill Road, Suite 270 75-2687420
Dallas, Texas 75230
(972) 387-1487
(State or other (Address, including zip code, and (I.R.S. Employer
jurisdiction of telephone number, including area Identification No.)
incorporation or code, of Registrant's Principal
organization) Executive Offices)
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ROBERT J. STETSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
U.S. RESTAURANT PROPERTIES, INC.
5310 HARVEST HILL ROAD, SUITE 270 L.B. 168
DALLAS, TEXAS 75230
(972) 387-1487
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
KENNETH L. BETTS, ESQ.
WINSTEAD SECHREST & MINICK P.C.
1201 ELM STREET, SUITE 5400
DALLAS, TEXAS 75270
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Approximate date of commencement of proposed sale to public:
As soon as practicable following the effective date of this Registration
Statement.
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
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Proposed Proposed
Maximum Maximum
Title of Amount Aggregate Aggregate Amount of
Shares to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee(2)
- - --------------------------------------------------------------------------------
Common Stock,
$.001 par 500,000
value shares $27.38 $13,690,000 $4,039
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the registration
fee has been calculated based upon the average of the high and low prices
per share on the New York Stock Exchange on March 31, 1998.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS
U.S. RESTAURANT PROPERTIES, INC.
DIVIDEND REINVESTMENT PLAN
500,000 SHARES OF COMMON STOCK
This Prospectus relates to 500,000 shares of common stock, par value
$.001 per share (the "Common Stock"), of U.S. Restaurant Properties, Inc., a
Maryland corporation (the "Company"), to be issued pursuant to the Company's
Dividend Reinvestment Plan (the "Plan"). The Plan provides holders of Common
Stock and holders of the Company's outstanding preferred stock, par value $.001
per share (the "Preferred Stock"), with an opportunity to invest cash
distributions in shares of Common Stock and/or Preferred Stock for additional
shares of Common Stock without payment of any brokerage commission or service
charge. Shares of Common Stock for the Plan will either be purchased directly
from the Company or in the open market, at the discretion of the Company. The
Plan is administered by American Stock Transfer & Trust Company (the "Plan
Agent").
Participants in the Plan may purchase additional shares of Common Stock
by having the cash distributions on all, or part, of their shares of Common
Stock and/or Preferred Stock automatically reinvested.
Stockholders may begin participating in the Plan by completing an
Authorization Card and returning it to the Plan Agent. Participants may
terminate their participation at any time. Stockholders who do not wish to
participate in the Plan need not take any action and will continue to receive
their cash dividends, if, as and when declared, as usual. It is suggested that
this Prospectus be retained for future reference.
The price per share for the additional shares of Common Stock purchased
from the Company with reinvested cash distributions will be the Market Price (as
defined in the Plan) of the Common Stock.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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THE DATE OF THIS PROSPECTUS IS APRIL 7, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement (of which this Prospectus is a part) on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to the
content of any contract or other document are not necessarily complete, and in
each instance reference is made to the copy of the contract or other document
filed as an exhibit to the Registration Statement, each statement being
qualified in all respects by that reference and the exhibits to the Registration
Statement. For further information regarding the Company and the shares of
Common Stock offered hereby, reference is hereby made to the Registration
Statement and the exhibits to the Registration Statement which may be obtained
from the Commission at its principal office in Washington, D.C., upon payment of
fees prescribed by the Commission.
In connection with the conversion of U.S. Restaurant Properties Master
L.P. (the "Predecessor") into a real estate investment trust, the Company has
succeeded to the business, operations, assets and liabilities of the Predecessor
and is the successor registrant to the Predecessor for purposes of the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Company is, and prior to the conversion the Predecessor
was, subject to the informational requirements of the Exchange Act and, in
accordance therewith, the Company files, and prior to the conversion the
Predecessor filed, reports, proxy statements and other information, with the
Commission. The reports, proxy and information statements, the Registration
Statement and exhibits thereto, and other information filed by the Company and
the Predecessor with the Commission can be inspected and copied at the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located at 13th Floor, 7 World Trade Center, New York, New York
10048, and at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
Copies of the material can be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. Such reports, proxy statements and other
information may also be obtained from the web site that the Commission maintains
at http://www.sec.gov. The Common Stock is traded on the New York Stock Exchange
(the "NYSE"). The reports, proxy and information statements and other
information can also be inspected at the offices of the NYSE, 20 Broad Street,
New York, New York 10005.
The Company furnishes its stockholders with annual reports containing
financial statements audited by its independent auditors and with other interim
reports containing unaudited summary financial information.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company (Commission
File No. 1-9079) under the Exchange Act with the Commission and are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997; and
(b) The Company's Registration Statement on Form 8-A filed February 20, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the shares of Common Stock made
hereby shall be deemed to be incorporated by reference into this Prospectus.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained in the Registration
Statement, this Prospectus, or any other subsequently filed document that is
also incorporated by reference herein modifies or supersedes that statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon written
or oral request of that person, a copy of any document incorporated herein by
reference (other than exhibits to those documents unless the exhibits are
specifically incorporated by reference into the documents that this Prospectus
incorporates by reference). Requests should be directed to Lois Martin,
Shareholder Relations, U.S. Restaurant Properties, Inc., 5310 Harvest Hill Road,
Suite 270 L.B. 168, Dallas, Texas 75230.
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<PAGE>
THE COMPANY
U.S. Restaurant Properties, Inc., a fully integrated, self-administered
and self-managed real estate investment trust (a "REIT"), is one of the largest
publicly-traded entities in the United States dedicated to acquiring, owning,
managing and selectively developing restaurant properties. At December 31, 1997,
the Company's portfolio consisted of 591 restaurant properties (the
"Properties") diversified geographically in 46 states and operated by
approximately 290 restaurant operators. The Properties are leased by the Company
on a triple net basis primarily to operators of fast food and casual dining
chain restaurants affiliated with national brands such as Burger King(R),
Arby's(R), Dairy Queen(R), Hardee's(R), Chili's(R), Pizza Hut(R) and
Schlotsky's(R) and regional franchises such as Grandy's(R) and Taco Cabana(R).
Triple net leases typically require the tenants to be responsible for property
operating costs, including property taxes, insurance and maintenance. As of
December 31, 1997, over 99% of the Properties were leased pursuant to leases
with an average remaining term (excluding extension options) in excess of ten
years.
The Company has been engaged in the business of owning, managing and
leasing restaurant properties since 1986. Prior to 1994, the Company held a
static portfolio consisting of 123 Burger King(R) restaurant properties. In May
1994, existing management assumed control of the Company and began implementing
a number of new strategies intended to pursue Company growth. These strategies
have involved the Company in, among other things, acquiring new properties,
enhancing investment returns through merchant banking activities and developing
new co-branded service centers on a selective basis. In addition, the Company
has begun to provide acquisition financing to owners/operators of restaurant
properties and at December 31, 1997 had a security interest in 14 restaurant
properties.
The Company's management team, led by Robert J. Stetson and Fred H.
Margolin, consists of seven senior executives with an average of 15 years of
experience in the acquisition, operation, management and financing of chain
restaurants and retail properties.
The Company is a Maryland corporation which intends to make an election
to be taxed as a REIT for federal income tax purposes, commencing with its
taxable year ended December 31, 1997. The Common Stock is traded on the NYSE
under the symbol "USV." The principal executive offices of the Company are
located at 5310 Harvest Hill Road, Suite 270 L.B. 168, Dallas, Texas 75230. The
telephone number is (972) 387-1487.
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<PAGE>
DESCRIPTION OF THE PLAN
The following, in question and answer form, is a summary description of
the provisions of the Dividend Reinvestment and Stock Purchase Plan of the
Company. This description should be read in conjunction with, and is qualified
in its entirety by, reference to the Plan, a copy of which is attached to this
Prospectus as APPENDIX A. Capitalized terms not otherwise defined herein shall
have the meanings ascribed thereto in the Plan.
PURPOSE
1. WHAT IS THE PURPOSE OF THE PLAN? The purpose of the Plan is to
provide holders of shares of Common Stock and Preferred Stock with an
opportunity to reinvest cash dividends in additional shares of Common Stock,
without payment of any brokerage commission, service charge or other expense.
Shares of Common Stock for the Plan will either be purchased directly from the
Company or in the open market, at the discretion of the Company. The Company
will receive the proceeds from the sale of shares of Common Stock under the Plan
and will use such proceeds for general corporate purposes. See "Use of
Proceeds."
ADVANTAGES
2. WHAT ARE THE OPTIONS AVAILABLE TO STOCKHOLDERS? Participants in the
Plan may purchase additional shares of Common Stock by having the cash dividends
on all, or part, of their shares of Common Stock and/or Preferred Stock
automatically reinvested.
3. WHAT ARE THE ADVANTAGES OF THE PLAN? No brokerage commissions, fees
or service charges are paid by Participants in connection with purchases under
the Plan; provided, however, that if shares of Common Stock or Preferred Stock
are registered in the name of a nominee or broker, such nominee or broker may
charge a commission or fee. Full investment of dividends is possible under the
Plan because the Plan permits fractional shares, as well as whole shares, of
Common Stock, to be purchased and credited to Participants' accounts. Regular
statements of account provide simplified record keeping. All purchases by
reinvestment of dividends, will be credited to the Participant's Noncertificated
Share account on the records of the Company maintained by the Plan Agent.
The price of shares of Common Stock purchased under the Plan with
reinvested cash dividends is the Market Price (as hereinafter defined) for such
shares.
ADMINISTRATION
4. WHO ADMINISTERS THE PLAN FOR PARTICIPANTS? The Plan Agent
administers the Plan for Participants, keeps records, sends statements of
account to Participants and performs other duties relating to the Plan. The
current Plan Agent is American Stock Transfer & Trust Company. The Plan Agent
also serves as Transfer Agent for the shares of Common Stock and Preferred
Stock. Should the Plan Agent resign, or be asked to resign, another agent
will be asked to serve.
All communications, including certificates to be deposited to plan
accounts, should be sent to:
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<PAGE>
American Stock Transfer & Trust Company
Dividend Reinvestment
40 Wall Street
46th Floor
New York, New York 10005
Telephone No.: (800) 278-4353
PARTICIPATION
5. WHO IS ELIGIBLE TO PARTICIPATE? All holders of record of shares of
Common Stock and Preferred Stock are eligible to participate in the Plan.
Beneficial owners whose shares of Common Stock and/or Preferred Stock are
registered in names other than their own (for instance, in the name of a broker,
bank nominee or other record holder) must either (i) arrange for the broker,
bank nominee or other record holder to join in the Plan or (ii) have the shares
of Common Stock and/or Preferred Stock they wish to enroll in the Plan
transferred to their own name. The Company reserves the right to refuse to
permit a broker, bank nominee or other record holder to participate in the Plan
if the terms of such participation would, in the Company's sole judgment, result
in excessive cost or burden on the Company. In addition, the Company may refuse
participation in the Plan to stockholders residing in states whose securities
laws do not exempt shares of Common Stock offered pursuant to the Plan from
registration.
6. HOW DOES A STOCKHOLDER JOIN THE PLAN? In order to participate in the
Plan, an eligible stockholder must properly complete the Authorization Card
furnished by the Plan Agent and return it to American Stock Transfer & Trust
Company, Dividend Reinvestment, 40 Wall Street, 46th Floor, New York, New York
10005. An Authorization Card and postage-paid envelope are enclosed with this
Prospectus and additional cards may be obtained at any time by stockholders by
written or oral request to the Plan Agent at the foregoing address. Telephone
requests or general inquiries may be made by calling (800) 278-4353.
7. WHAT DOES THE AUTHORIZATION CARD PROVIDE? The Authorization Card
provides for the purchase by stockholders of additional shares of Common Stock
through the following investment options offered under the Plan:
FULL DISTRIBUTION REINVESTMENT -- Directs the Plan Agent to reinvest
cash dividends with respect to all shares of Common Stock and/or
Preferred Stock owned by the Participant including whole and fractional
shares acquired under the Plan)for the purchase of additional shares of
Common Stock in accordance with the Plan.
PARTIAL DISTRIBUTION REINVESTMENT -- Directs the Plan Agent to invest
cash dividends on the number of shares of Common Stock and/or Preferred
Stock specified on the Authorization Card and to remit in cash any
dividends paid on the remaining shares of Common Stock and/or Preferred
Stock owned by the Participant.
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<PAGE>
Cash dividends on shares of Common Stock credited to the Participant's
account under the Plan are automatically reinvested to purchase additional
shares of Common Stock.
Stockholders who do not wish to participate in the Plan will receive
cash dividends as declared, in the usual manner.
8. IS PARTIAL PARTICIPATION POSSIBLE UNDER THE PLAN? A stockholder who
desires the dividends on only some full shares of Common Stock and/or Preferred
Stock to be reinvested under the Plan may indicate such number of shares of
Common Stock and/or Preferred Stock on the Authorization Card under the heading
"Partial Distribution Reinvestment." Cash dividends will continue to be paid on
the remaining shares of Common Stock and/or Preferred Stock.
9. WHEN MAY A STOCKHOLDER JOIN THE PLAN? If an Authorization Card
specifying "Full Distribution Reinvestment," or "Partial Distribution
Reinvestment" is properly completed and received by the Plan Agent on or prior
to the record date established for the payment of the next dividend,
reinvestment will commence with that dividend payment. If the Authorization Card
is received in between any dividend record date and the applicable Reinvestment
Date (the date on which a dividend is paid, which the Company anticipates to be
in March, June, September and December each year) unless that date is not a
Trading Day (as defined in the Plan), in which case the Reinvestment Date shall
be the next succeeding Trading Day), that dividend will be paid in cash and the
stockholder's initial dividend reinvestment will begin with the next dividend.
The record date is normally a business day at or near the end of the month
preceding the applicable March, June, September and December dates.
COSTS
10. ARE THERE ANY EXPENSES TO PARTICIPANTS IN CONNECTION WITH PURCHASES
UNDER THE PLAN? No. Participants will incur no brokerage commissions, service or
other charges for purchases made under the Plan. Any costs of administration of
the Plan will be borne by the Company.
PURCHASES
11. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR PARTICIPANTS?
The number of shares of Common Stock to be purchased will be determined by the
amount of the Participant's dividends being reinvested or paid and the price of
the shares of Common Stock. Each Participant's account in the Plan will be
credited with the number of shares of Common Stock, including fractional shares
computed to three (3) decimal places, equal to the amount of the dividends to be
reinvested divided by the applicable purchase price of the shares of Common
Stock.
12. HOW WILL THE PURCHASE PRICE OF SHARES OF COMMON STOCK BE
DETERMINED? Shares of Common Stock for the Plan will be purchased from the
Company or in the open market, at the discretion of the Company. The price per
share for all shares of Common Stock purchased under the Plan with reinvested
cash dividends will be (a) the average of the closing sales prices of the Common
Stock on the composite tape of the New York Stock Exchange, Inc. for the five
Trading Days immediately preceding the applicable Reinvestment Date if the
shares are purchased from the Company or (b) the weighted average price paid by
the Plan Agent to acquire the shares if such shares are acquired in the open
market (the "Market Price").
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<PAGE>
13. WHEN WILL DIVIDENDS BE INVESTED? Dividends will be invested in
additional shares of Common Stock and credited to a Participant's
Noncertificated Share account with respect to each Reinvestment Date (the date
on which a dividend is paid on shares of Common Stock and/or Preferred Stock)
(a) within three business days of such Reinvestment Date if the shares are
purchased from the Company and (b) within 45 calendar days if the shares are
purchased in the open market.
14. WILL CERTIFICATES BE ISSUED TO PARTICIPANTS FOR SHARES OF COMMON
STOCK PURCHASED UNDER THE PLAN? No certificates for shares of Common Stock
acquired by a Participant under the Plan will be issued, except as described in
Question 16. Shares of Common Stock purchased under the Plan will be credited to
a Participant's Noncertificated Share account and will be shown on a
Participant's statement of account. Certificates for the shares of Common Stock
purchased pursuant to the Plan will be issued to Participants upon their written
request, except that no certificates will be issued for fractional shares of
Common Stock. A Participant requesting a certificate for all the shares of
Common Stock in the Participant's Noncertificated Share account will receive
cash for the fractional shares only if participation in the Plan is terminated.
(See Question 16 for how a Participant may obtain certificates.) Cash dividends
on all shares of Common Stock held in the Participant's Noncertificated Share
account under the Plan will be automatically reinvested to purchase additional
shares of Common Stock which will be reflected in the Participant's
Noncertificated Share account.
REPORT TO PARTICIPANTS
15. WHAT TYPE OF REPORTS WILL BE SENT TO PARTICIPANTS IN THE PLAN?
Participants will receive a quarterly statement indicating the total dividend
payment, the amount of the dividend payment reinvested, the purchase price per
share of Common Stock, the number of shares of Common Stock purchased and the
number of shares of Common Stock in the Participant's Noncertificated Share
account. These statements are a record of the cost of purchases under the Plan
and should be retained for tax purposes. In addition, each Participant will
receive copies of the Company's annual and interim reports to stockholders,
proxy statements and income tax information for reporting dividends. Beneficial
owners whose shares of Common Stock and/or Preferred Stock are registered in
names other than their own (for instance, in the name of a broker, bank nominee
or other record holder) must arrange to obtain their copies of such reports from
the record holder.
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<PAGE>
ISSUANCE OF CERTIFICATES
16. HOW MAY A PARTICIPANT OBTAIN CERTIFICATES FOR SHARES OF COMMON
STOCK PURCHASED UNDER THE PLAN? A Participant who has purchased shares of Common
Stock under the Plan may obtain certificates for those shares of Common Stock in
the Participant's Noncertificated Share account at any time by sending a written
request to that effect to the Plan Agent. No certificates will be issued for
fractional shares of Common Stock, but a Participant requesting termination of
participation in the Plan will receive, in cash, the market price of any
fractional shares of Common Stock as well as a certificate for all whole shares
of Common Stock held for such terminating participant in the Noncertificated
Share account. This notice should be mailed to American Stock Transfer & Trust
Company, Dividend Reinvestment, 40 Wall Street, 46th Floor, New York, New York
10005. The Company, however, reserves the right at any time to issue
certificates to Participants for any shares of Common Stock in their
Noncertificated Share accounts. (See Questions 17 and 19 for information on
termination of participation.)
MODIFICATION OR TERMINATION BY A PARTICIPANT
17. HOW DOES A PARTICIPANT CHANGE OR TERMINATE PARTICIPATION IN THE
PLAN? A Participant may change participation from partial to total dividend
reinvestment, from total to partial dividend reinvestment, or may simply change
the number of shares of Common Stock and/or Preferred Stock which are enrolled
in the Plan by executing and delivering a new Authorization Card to the Plan
Agent, American Stock Transfer & Trust Company, Dividend Reinvestment, 40 Wall
Street, 46th Floor, New York, New York 10005.
A Participant may terminate participation in the Plan by notifying the
Plan Agent in writing to that effect. Notices will be effective only upon
receipt by the Plan Agent. Notices to change or discontinue dividend
reinvestment received by the Plan Agent on or before any record date for a
dividend payment will be effective as of that date. In order to re-enter the
Plan after termination, a stockholder must complete a new Authorization Card.
18. CAN THE SHARES OF COMMON STOCK HELD IN THE PLAN BE SOLD THROUGH THE
PLAN AGENT? A Participant can instruct the Plan Agent to sell any or all of the
whole shares of Common Stock held in the Plan, provided that a service charge
will be deducted by the Plan Agent from the proceeds of such sale. The written
notification to the Plan Agent should include the number of shares of Common
Stock that are to be sold. The Plan Agent will make the sale as soon as
practicable following receipt of a Participant's request through an independent
securities broker selected by the Company or the Plan Agent in its sole
discretion. A check for the proceeds of such sale, less brokerage commission and
transfer taxes (if any), will usually be sent by the Plan Agent on the
settlement date, which will be three (3) business days from the date of sale. No
Participant shall have the authority or power to direct the date or sales price
at which shares of Common Stock may be sold. Requests must indicate the number
of shares to be sold and not the dollar amount to be attained. Any such request
that does not clearly indicate the number of shares of Common Stock to be sold
will be returned to the Participant with no action taken. A
withdrawal/termination form is provided at the bottom of the account statement
for this purpose. This notice should be addressed to American Stock Transfer &
Trust Company, Dividend Reinvestment, 40 Wall Street, 46th Floor, New York, New
York 10005.
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<PAGE>
19. WHAT HAPPENS TO THE SHARES OF COMMON STOCK HELD IN THE
NONCERTIFICATED SHARE ACCOUNT WHEN A PARTICIPANT TERMINATES PARTICIPATION IN THE
PLAN? A certificate for the shares of Common Stock held in the account will be
issued to the Participant upon the Participant's written request or upon a
Participant's termination of participation in the Plan. No fractional shares
will be issued. (See Question 14 for information on share certificates and
Question 16 for information on the cash payment for fractional shares in the
account.)
OTHER INFORMATION
20. WHAT HAPPENS IF THE COMPANY ISSUES A STOCK DIVIDEND, DECLARES A
STOCK SPLIT OR HAS A RIGHTS OFFERING? Any shares of Common Stock issued in a
stock dividend or stock split with respect to a Participant's shares of Common
Stock which are subject to the Plan will be added to the Participant's
Noncertificated Share account. If the Company has a rights offering in which
separately tradable and exercisable rights are issued to registered holders of
Common Stock, the rights attributable to whole shares of Common Stock in a
Participant's Plan account will be transferred to the Participant as promptly as
practicable after the rights are issued. No partial rights will be issued with
respect to fractional shares of Common Stock in the Participant's account.
21. HOW WILL SHARES IN A PARTICIPANT'S NONCERTIFICATED SHARE ACCOUNT BE
VOTED AT A MEETING OF STOCKHOLDERS? All of a Participant's shares of Common
Stock, both Certificated and Noncertificated, may be voted by the Participant.
For any meeting of stockholders, the Participant will be sent proxy material for
that meeting covering all of the shares of Common Stock that the Participant
owns on the record date for the meeting. The Participant may vote all of
Participant's shares of Common Stock in person or by proxy.
22. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN
THE PLAN? Under the current provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), the purchase of shares of Common Stock under the Plan will
generally result in the following Federal income tax consequences:
(a) A distribution on the shares of Common Stock will
be treated for Federal income tax purposes as a dividend
distribution received by the Participant notwithstanding that
it is used to purchase additional shares of Common Stock
pursuant to the Plan. The full amount of cash distributions
reinvested under the Plan represents dividend distributions to
Participants. As in the case of cash dividend distributions,
the full amount will be taxable income to the extent of the
Company's current and accumulated earnings and profits, and
the excess will be a return of capital which reduces the basis
of the Participant's shares of stock in the Company or results
in gain to the extent it exceeds such stock basis.
(b) Distributions paid to corporate stockholders, including
amounts taxable as dividends to corporate Participants under
(a) above, will not be eligible for the corporate
dividends-received deduction under the Code.
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(c) A Participant's tax basis in additional shares of Common Stock
acquired under the Plan will be equal to the full amount
treated as a dividend distribution for Federal income tax
purposes. The Participant's holding period for such shares of
Common Stock will commence on the day after the investment
date.
(d) A Participant will not realize any taxable income upon the
receipt of a certificate for full shares of Common Stock
credited to the Participant's account. A Participant will
recognize gain or loss when a fractional share interest is
liquidated or when the Participant sells or exchanges shares
of Common Stock received from the Plan. Such gain or loss will
equal the difference between the amount which the Participant
receives for such fractional share interest or such shares and
the tax basis therefor.
In the case of Participants whose distributions are subject to
withholding of Federal income tax, distributions will be reinvested less the
amount of tax required to be withheld.
THE ABOVE IS INTENDED ONLY AS A GENERAL DISCUSSION OF THE CURRENT
FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN. PARTICIPANTS
SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE FEDERAL AND STATE INCOME TAX
CONSEQUENCES (INCLUDING THE EFFECTS OF ANY CHANGES IN LAW) OF THEIR INDIVIDUAL
PARTICIPATION IN THE PLAN.
23. WHAT PROVISION IS MADE FOR FOREIGN PARTICIPANTS SUBJECT TO INCOME
TAX WITHHOLDING OR OTHER PARTICIPANTS SUBJECT TO BACK-UP WITHHOLDING? In the
case of both foreign Participants who elect to have their distributions
reinvested and whose distributions are subject to United States income tax
withholding and other Participants who elect to have the distributions
reinvested and who are subject to "backup" withholding under Section 3406(a)(1)
of the Code, the Plan Agent will invest in shares of Common Stock in an amount
equal to the distributions of such Participants less the amount of tax required
to be withheld. The quarterly statements confirming purchases made to such
Participants will indicate the net payment reinvested.
Under Section 3406(a)(1) of the Code, the Company is currently required
to withhold for United States income tax purposes 31% of all distribution
payments to a stockholder if (i) such stockholder has failed to furnish to the
Company his taxpayer identification number ("TIN"), which for an individual is
his social security number, (ii) the Internal Revenue Service (the "Service")
has notified the Company that the TIN furnished by the stockholder is incorrect,
(iii) the Service notifies the Company that back-up withholding should be
commenced because the stockholder has failed to properly report distributions or
(iv) the stockholder has failed to certify, under penalties of perjury, that he
is not subject to back-up withholding. Stockholders have previously been
requested by the Company or their broker to submit all information and
certifications required in order to exempt them from back-up withholding if
such exemption is available to them.
24. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN
THE PLAN BY AN IRA, KEOGH PLAN, 401(K) PLAN, SIMPLIFIED PENSION ACCOUNT OR ANY
CORPORATE EMPLOYER-SPONSORED RETIREMENT PLAN? The tax consequences of
participation in the Plan by retirement plans differ from those outlined above
for individuals. Since the law and regulations regarding the Federal income tax
consequences of retirement plan participation are complex and subject to change,
those considering such participation should consult with their own retirement
plan trustees, custodians or tax advisors for specific information.
-11-
<PAGE>
25. WHAT IS THE RESPONSIBILITY OF THE COMPANY UNDER THE PLAN? Neither
the Company nor the Plan Agent will be liable for any act done in good faith or
for any good faith omission to act, including, without limitation, any claim of
liability arising out of failure to terminate participation in the Plan upon a
Participant's death. In addition, no stockholder, director, officer, employee,
representative or agent of the Company shall be personally liable for the
satisfaction of the Company's obligations under the Plan and a Participant shall
look solely to the assets of the Company for satisfaction of any claims
thereunder.
Participants should recognize that neither the Company nor the Plan
Agent can provide any assurance of a profit or protection against loss on any
shares of Common Stock purchased under the Plan.
26. MAY THE PLAN BE CHANGED OR DISCONTINUED? While the Company hopes to
continue the Plan indefinitely, the Company reserves the right to suspend or
terminate the Plan at any time. It also reserves the right to make modifications
to the Plan. Participants will be notified of any suspension, termination or
modification of the Plan. The Company may also suspend, terminate or refuse
participation in the Plan to any investor in the Company if, participation or
any increase in the number of shares of Common Stock held by such investor,
would, in the opinion of the Board of Directors of the Company, jeopardize the
status of the Company as a REIT.
27. WHO ANSWERS A PARTICIPANT'S QUESTIONS OR SUPPLIES INFORMATION? Any
inquiries or correspondence about the Plan should be addressed as follows: Plan
Agent, American Stock Transfer & Trust Company, Dividend Reinvestment, 40 Wall
Street, 46th Floor, New York, New York 10005. Telephone inquiries to the Plan
Agent should be made to (800) 278-4353.
28. WILL THE PLAN AGENT HOLD CERTIFICATED SHARES? The Plan provides a
share deposit feature to eliminate the need for Participants to hold physical
Common Stock certificates. If a Participant currently holds physical Common
Stock certificates and would like to combine these shares with his Plan shares
held in book-entry, the Participant should complete the tear-off section of his
account statement and complete the portion designated for share deposit. The
certificates need not be endorsed. The Participant should ensure that his Common
Stock certificates are sent by registered/insured mail or by some other similar
means as the Participant bears the risk of loss in transit. PARTICIPANTS SHOULD
BE AWARE THAT DIVIDENDS ON THE SHARES SO DEPOSITED WILL BE AUTOMATICALLY
REINVESTED. Certificates should be sent to the address set forth in response to
Question 4.
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<PAGE>
USE OF PROCEEDS
The net proceeds from the sale, from time to time, of the shares of
Common Stock by the Company under the Plan, if any, will be used by the Company
for general corporate purposes, which may include the acquisition of restaurant
properties as suitable opportunities arise, the improvement of certain
properties in the Company's portfolio, the purchase of shares of Common Stock,
from time to time, in the open market and the repayment of certain
then-outstanding indebtedness. Pending such uses, net proceeds may be invested
temporarily in short-term or intermediate-term government securities,
obligations of the Government National Mortgage Association, bankers'
acceptances, certificates of deposit of commercial banks and savings and loan
associations which are members of the Federal Deposit Insurance Corporation,
deposits in members of the Federal Home Loan Bank System, time deposits,
commercial paper, other money market instruments, bonds, notes, common and
preferred stock and any other investments, consistent with the Company's
investment policies and qualification as a REIT.
The purpose of the Plan is to provide holders of Common Stock and
Preferred Stock with an opportunity to reinvest cash distributions in additional
shares of Common Stock, without payment of any brokerage commission, service
charge or other expense. Shares of Common Stock for the Plan will either be
purchased directly from the Company or in the open market, at the Company's
discretion. Shares of Common Stock purchased from the Company, if any, will be
previously unissued shares and will provide the Company with funds for general
corporate purposes.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Winstead Sechrest & Minick P.C., Dallas, Texas.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1997
and 1996, the related consolidated statements of income, stockholders' equity
and partners' capital and cash flows for each of the three years in the period
ended December 31, 1997 referred to and incorporated by reference in this
Prospectus have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report which is incorporated by reference herein, and have been
incorporated by reference in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
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<PAGE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation, as amended and restated (the
"Articles of Incorporation"), provide certain limitations on the liability of
the Company's directors and officers for monetary damages to the Company. The
Articles of Incorporation obligate the Company to indemnify its directors and
officers, and permit the Company to indemnify its employees and other agents,
against certain liabilities incurred in connection with their service in such
capacities. These provisions could reduce the legal remedies available to the
Company and the stockholders against these individuals.
The Articles of Incorporation require it to indemnify (a) the Company's
directors and officers whether serving the Company or at its request any other
entity who have been successful, on the merits or otherwise, in the defense of a
proceeding to which he has made a party by reason of his service in that
capacity, against reasonable expenses incurred by him in connection with the
proceeding unless it is established that (i) his act or omission was material to
the matter giving rise to the proceeding and was committed in bad faith or was
the result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful and (b) other employees and agents of the Company to such
extent as shall be authorized by the Board of Directors of the Company or the
Company's Bylaws and be permitted by law. In addition, the Articles of
Incorporation require the Company to pay or reimburse, in advance of the final
disposition of a proceeding, reasonable expenses incurred by a director or
officer who is a party to a proceeding under procedures provided for under the
Maryland General Corporation Law (the "MGCL"). The Company's Bylaws also permit
the Company to provide such other and further indemnification or payment or
reimbursement of expenses as the Board of Directors of the Company deems to be
in the interest of the Company and as may be permitted by the MGCL for
directors, officers and employees of Maryland corporations.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
-14-
<PAGE>
APPENDIX A
U.S. RESTAURANT PROPERTIES, INC.
Dividend Reinvestment Plan
1. DEFINITIONS
The following terms when used herein shall have the following
definitions:
"AUTHORIZATION CARD" means such authorization form as the Plan Agent may
from time to time or upon request furnish Stockholders and which shall be
returned to the Plan Agent to indicate their election to participate in
specified portions of the Plan.
"CERTIFICATED SHARES" means shares of Common Stock which are evidenced by
physical certificates.
"COMMON STOCK" means the common stock, par value $.001 per share, of the
Company.
"COMPANY" means U.S. Restaurant Properties, Inc.
"MARKET PRICE" means (a) with respect to shares purchased from the Company,
the average of the closing sales prices of the Common Stock on the composite
tape of the NYSE for the five Trading Days immediately preceding the applicable
Reinvestment Date and (b) with respect to shares acquired in the open market,
the weighted average price paid by the Plan Agent to acquire such
shares.
"NONCERTIFICATED SHARES" means shares of Common Stock which are held by the
Plan Agent in an account for each Participant and for which no physical
certificates are issued.
"NYSE" means the New York Stock Exchange, Inc.
"PARTICIPANT" means any Stockholder who has returned a properly completed
Authorization Card to the Plan Agent indicating election to participate in any
portion of the Plan and who has been enrolled in that portion
of the Plan by the Plan Agent.
"PLAN" means this Dividend Reinvestment Plan.
"PLAN AGENT" means any bank or trust company as from time to time may be
appointed by the Company as agent to administer the Plan. Initially, the Plan
Agent shall be American Stock Transfer & Trust Company and thereafter shall be
the Company or any successor institution appointed by the Company in
substitution therefor.
"PREFERRED STOCK" means any outstanding series of preferred stock, par
value $.001 per share, of the Company.
"REINVESTMENT DATE" means each date on which a dividend is paid on the
shares of Common Stock and/or Preferred Stock, which payment date the Company
anticipates to be in
A-1
<PAGE>
March, June, September and December each year, unless such payment date is not a
Trading Day, in which case the Reinvestment Date shall be the next succeeding
Trading Day.
"STOCKHOLDER" means any holder of shares of Common Stock and/or Preferred
Stock.
"TRADING DAY" means a day on which the NYSE is open for trading.
2. PURPOSE
The purpose of this Plan is to provide Stockholders with a convenient
and economical method for having all or part of their dividends automatically
reinvested in additional shares of Common Stock without payment of any brokerage
commission or service charge. Because shares of Common Stock will be purchased
for the Plan directly from the Company by the Plan Agent, the Plan will assist
the Company in raising funds for general business purposes. The Plan does not
reflect a change in the Company's dividend policy or a guarantee of future
dividends, which will continue to be determined by the Board of Directors based
on the Company's results of operations, financial condition, regulatory
requirements and other factors.
3. ELIGIBILITY FOR PARTICIPATION
All Stockholders of record are automatically eligible to participate in
the Plan and may do so by completing and returning to the Plan Agent the
Authorization Card furnished to them by the Plan Agent. Beneficial owners of
shares of Common Stock and/or Preferred Stock which are registered in names
other than their own (e.g., in the name of a broker, bank nominee or other
record holder), who want to participate, must either (a) make appropriate
arrangements to have their broker, bank nominee or other record holder
participate in the Plan (b) or have their shares of Common Stock and/or
Preferred Stock transferred into their own names. Only record holders may
participate in the optional cash payment feature of the Plan. The Company
reserves the right to refuse to permit a broker, bank nominee or other record
holder to participate in the Plan if the terms of such participation would, in
the Company's sole judgment, result in excessive cost or burden on the Company.
4. ADMINISTRATION OF THE PLAN
The Plan Agent shall administer the Plan and will maintain records and
perform such other duties as may be required. In addition, the Plan Agent will
send each Participant (a) after each dividend reinvestment, a statement which
will indicate the amount of the dividend, the purchase price per share of Common
Stock, the number of shares of Common Stock purchased and the total number of
Certificated and Noncertificated Shares owned by the Participant; (b) upon
investment of optional cash payments, a statement indicating purchase price,
number of shares of Common Stock purchased, and the total number of Certificated
and Noncertificated Shares owned by the Participant; and (c) annual and
quarterly reports to holders of Common Stock, proxy statements and income tax
information for reporting dividends earned. Shares of Common Stock purchased by
a Participant through reinvested dividends will be credited to the Participant's
Noncertificated Share account. Upon request of a Participant, the Plan Agent
will furnish certificates for shares of Common Stock in the Participant's
Noncertificated Share account. No certificates will be issued for fractional
shares of Common Stock, but the Market Price thereof will be paid in cash to a
requesting Stockholder. The Plan Agent will have the responsibility for
furnishing certificates for shares of Common Stock upon request or termination
of participation by the Stockholder.
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<PAGE>
5. REINVESTMENT OF DIVIDENDS
Stockholders may join the Plan at any time. Stockholders may elect to
have dividends on all or part of their shares of Common Stock and/or Preferred
Stock automatically reinvested by completing the Authorization Card provided by
the Plan Agent to that effect and returning it to the Plan Agent. If the
Authorization Card is received by the Plan Agent on or before the record date
for the payment of the next dividend, reinvestment will begin with that
dividend. If the Authorization Card is received in the period between any
dividend record date and the applicable Reinvestment Date, that dividend will be
paid in cash and the Stockholder's initial dividend reinvestment will begin with
the next dividend. The purchase price per share for shares of Common Stock
purchased for the Plan with reinvested dividends shall be the Market Price. Cash
dividends on shares of Common Stock credited to the Participant's account will
be automatically reinvested to purchase additional shares of Common Stock.
6. CALCULATION OF SHARES OF COMMON STOCK PURCHASED
The number of shares of Common Stock purchased shall be determined by
dividing the amount of the dividends reinvested by the purchase price per share
of Common Stock determined in accordance with Section 5 above. Each
Participant's account will be credited as of each Reinvestment Date with that
number of shares of Common Stock, plus fractional share interests computed to
three (3) decimal points, equal to the total amount of the cash dividends to be
invested on behalf of such Participant on such date divided by the Market Price
per share of Common Stock as of such date.
7. COSTS
There are no brokerage fees on purchases. All costs of administration
of the Plan are paid by the Company, except that Participants may incur certain
costs in connection with their withdrawal from the Plan if they direct the Plan
Agent to sell their shares of Common Stock. See Section 10 below.
A-3
<PAGE>
8. SOURCE OF COMMON STOCK
Shares of Common Stock purchased under the Plan may come either from
the legally authorized but unissued shares of Common Stock of the Company or
from purchases of Common Stock in the open market, at the discretion of the
Company.
9. MODIFICATION OR TERMINATION OF PARTICIPATION
Participants may modify their participation in the Plan by notifying
the Plan Agent in writing that they wish to reinvest dividends on an increased
or decreased number of shares of Common Stock and/or Preferred Stock specified
in such notice. Participants may terminate participation in the Plan any time by
notifying the Plan Agent in writing to that effect. Any notice is effective only
upon receipt. If a Participant's notice of termination or modification is
received by the Plan Agent at least three (3) business days prior to the record
date for determining the Stockholders entitled to receive the next dividend
payment, the Plan Agent will modify or terminate the reinvestment of the
Participant's dividends under the Plan as of that Reinvestment Date. If the
notice of termination or modification is received by the Plan Agent on or after
two (2) business days prior to the record date for the next dividend, that
dividend will be reinvested in shares of Common Stock for the Participant in
accordance with the Participant's previous instructions, and the request for
termination or modification will be processed promptly thereafter. In order to
re-enter the Plan after termination, the Stockholder must complete a new
Authorization Card.
10. SALE OF PLAN SHARES
A Participant can instruct the Plan Agent to sell any or all of the
whole shares of Common Stock held in the Plan, provided that a service charge
will be deducted by the Plan Agent from the proceeds of such sale. The written
notification to the Plan Agent should include the number of shares of Common
Stock that are to be sold. The Plan Agent will make the sale as soon as
practicable following receipt of the written notification and a check for the
proceeds less brokerage commission and transfer taxes (if any) will usually be
sent by the Plan Agent to the Participant on the settlement date, which will be
three (3) business days from the date of sale. No Participant shall have the
authority or power to direct the date or sales price at which shares of Common
Stock may be sold. Requests must indicate the minimum number of shares of Common
Stock to be sold and not the dollar amount to be attained. Any such request that
does not clearly indicate the number of shares of Common Stock will be returned
to the Participant with no action taken. A withdrawal/termination form is
provided on the bottom of the account statement for this purpose. This notice
should be addressed to American Stock Transfer & Trust Company, Dividend
Reinvestment, 40 Wall Street, 46th Floor, New York, New York 10005. Shares of
Common Stock held in a Participant's account may not be pledged. In order to
pledge such shares, a Participant must request certificates for such shares of
Common Stock.
A-4
<PAGE>
11. CERTIFICATES FOR PURCHASED SHARES OF COMMON STOCK
No certificates for shares of Common Stock acquired for a Participant
under the Plan will be issued. Common Stock purchased under the Plan will be
credited to a Participant's Noncertificated Share account and will be held in
the name of the Plan Agent or its nominee. A Participant who wishes to obtain
certificates for those shares of Common Stock that he has purchased under the
Plan may do so by notifying the Plan Agent in writing to that effect. No
certificate will be issued for fractional shares of Common Stock, but the Market
Price of any fractional shares of Common Stock will be paid in cash to the
Participant requesting a certificate for all his Noncertificated Shares.
12. STOCK SPLITS, STOCK DIVIDENDS AND RIGHTS OFFERINGS
Shares of Common Stock issued in a stock dividend or stock split with
respect to a Participant's shares of Common Stock which are subject to the Plan
will be credited to a Participant's Noncertificated Share account. If the
Company has a rights offering in which separately tradable and exercisable
rights are issued to registered holders of Common Stock, the rights attributable
to whole shares of Common Stock held in a Participant's Plan account will be
transferred to the Participant as promptly as practicable after the rights are
issued. No partial rights will be issued with respect to fractional shares of
Common Stock in the Participant's account.
13. VOTING
All shares of Common Stock credited to a Participant's Noncertificated
Share account under the Plan may be voted by the Participant. A Participant will
receive a proxy to vote the number of shares of Common Stock held in his Plan
account. The shares of Common Stock held in a Participant's Plan account may
only be voted by proxy and not in person at the meeting. If the Participant
returns an executed proxy, it will be voted with respect to all of Participant's
shares of Common Stock (including any fractional shares of Common Stock), or the
Participant may vote all of the shares of Common Stock in person at the meeting.
14. LIABILITY
Neither the Company, nor its duly appointed Plan Agent (if any) in
administering the Plan, shall be liable for any act or failure to act taken in
good faith, including, without limitation, any claim of liability arising out of
failure to terminate a Participant's participation in the Plan upon the
Participant's death. In addition, no Stockholder, director, officer, employee,
representative or agent of the Company shall be personally liable for the
satisfaction of the Company's obligations under the Plan and a Participant shall
look solely to the assets of the Company for satisfaction of any claims
hereunder.
15. TERMINATION, SUSPENSION OR MODIFICATION
The Company reserves the right to modify, suspend or terminate the Plan
at any time and from time to time, including during the period between the
record date for a dividend payment and the related Reinvestment Date. The
Company may also suspend, terminate or refuse participation in the Plan to any
Stockholder if, participation or any increase in the number of shares of Common
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<PAGE>
Stock held by such Stockholder, would, in the opinion of the Board of Directors
of the Company jeopardize the status of the Company as a real estate investment
trust.
16. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS
The Company's obligation to offer, issue or sell shares of Common Stock
hereunder shall be subject to the Company's obtaining any necessary approval,
authorization and consent from any regulatory authorities having jurisdiction
over the issuance and sale of the shares of Common Stock. The Company may elect
not to offer or sell its shares of Common Stock hereunder to Stockholders
residing in any jurisdiction where, in the sole discretion of the Company, the
burden or expense of compliance with applicable blue sky or securities laws make
that offer or sale impracticable or inadvisable.
17. PARTICIPANTS SUBJECT TO BACK-UP WITHHOLDING
In the case of both foreign participants who elect to have their
dividends reinvested and whose dividends are subject to United States income tax
withholding and other Participants who elect to have their dividends reinvested
and who are subject to "backup" withholding under Section 3406(a)(1) of the
Internal Revenue Code of 1986, as amended, the Plan Agent shall invest in shares
of Common Stock in an amount equal to the dividends of such Participants less
the amount of tax required to be withheld.
18. SAFEKEEPING
At a Participant's request, the Plan Agent will receive and hold any
Certificated Shares now held by or for such Participant. A Participant may send
such Certificated Shares to the Plan Agent for credit to such Participant's
account in the Plan. These Certificated Shares will be added to the shares of
Common Stock in such Participant's account and will appear in subsequent
statements in combination with a Participant's previous Plan shares of Common
Stock and dividends. If a Participant is interested in having the Plan Agent
hold shares of Common Stock now in such Participant's possession, write for
further information to:
American Stock Transfer & Trust Company
Dividend Reinvestment
40 Wall Street
46th Floor
New York, New York 10005
(800) 278-4353
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<PAGE>
===================================================== ========================
No person has been authorized to give 500,000 Shares
any information or to make any representations
other than those contained herein and, if given or
made, such information or representations must
not be relied upon as having been authorized by
the Company. This Prospectus does not U.S. Restaurant
constitute an offer to sell, or a solicitation of an Properties, Inc.
offer to buy, the securities offered hereby in any
jurisdiction to any person to whom it is unlawful
to make an offer or solicitation. Neither the
delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create Common Stock
an implication that there has not been any change Offered by U.S.
in the facts set forth in this Prospectus or in the Restaurant Properties,
affairs of the Company since the date hereof. Inc. to its
Stockholders Solely in
Connection with its
Dividend Reinvestment
Plan
---------------
TABLE OF CONTENTS
Page
----
Available Information........................2
Incorporation of Certain Documents by ----------------
Reference.................................2 PROSPECTUS
The Company..................................4 ----------------
Description of the Plan......................5
Use of Proceeds.............................14
Legal Matters...............................14
Experts.....................................14
Indemnification of Directors April 7, 1998
and Officers...............................15
Dividend Reinvestment and Stock
Purchase Plan.............................A-1
===================================================== ========================
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses expected to be paid by the Company in connection
with the issuance and distribution of the securities being registered are as
follows:
SEC Registration Fee........................ $7,197
Legal Fees and Expenses..................... 10,000
Accountant's Fees and Expenses.............. 5,000
Miscellaneous Expenses...................... 2,803
-------
Total.................................... $ 25,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation, as amended and restated (the
"Articles of Incorporation"), provide certain limitations on the liability of
the Company's directors and officers for monetary damages to the Company. The
Articles of Incorporation obligate the Company to indemnify its directors and
officers, and permit the Company to indemnify its employees and other agents,
against certain liabilities incurred in connection with their service in such
capacities. These provisions could reduce the legal remedies available to the
Company and the stockholders against these individuals.
The Articles of Incorporation require it to indemnify (a) the Company's
directors and officers whether serving the Company or at its request any other
entity who have been successful, on the merits or otherwise, in the defense of a
proceeding to which he was made a party by reason of his service in that
capacity against reasonable expenses incurred by him in connection with the
proceeding unless it is established that (i) his act or omission was material to
the matter giving rise to the proceeding and was committed in bad faith or was
the result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services, or (iii) in the case
of a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful and (b) other employees of the Company and agents of the
Company to such extent as shall be authorized by the Board of Directors of the
Company or the Company's Bylaws and be permitted by law. In addition, the
Articles of Incorporation require the Company to pay or reimburse, in advance of
the final disposition of a proceeding, reasonable expenses incurred by a
director or officer who is a party to a proceeding under procedures provided for
under the Maryland General Corporation Law (the "MGCL"). The Company's Bylaws
also permit the Company to provide such other and further indemnification or
payment or reimbursement of expenses as the Board of Directors of the Company
deems to be in the interest of the Company and as may be permitted by the MGCL
for directors, officers and employees of Maryland corporations.
The Company has entered into indemnification agreements with each of
the Company's officers and directors. The indemnification agreements require,
among other things, that the Company indemnify its officers and directors to the
fullest extent permitted by law and advance to the officers and directors all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements and cover officers and directors under the
Company's directors' and
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<PAGE>
officers' liability insurance. Although the indemnification agreements offer
substantially the same scope of coverage afforded by law, they provide assurance
to directors and officers that indemnification will be available because such
contracts cannot be modified unilaterally in the future by the Board of
Directors of the Company or the stockholders to eliminate the rights they
provide.
ITEM 16. EXHIBITS
4.1 Specimen of Stock Certificate*
5.1 Opinion of Winstead Sechrest & Minick P.C. regarding the legality of
the Common Stock
10.1 Dividend Reinvestment Plan (attached hereto and made a part hereof)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winstead Sechrest & Minick P.C. (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
- - ----------------
* Incorporated by reference to Exhibit 4.1 and the Company's Registration
Statement on Form S-3 (Registration No. 33-90438)
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)
(3) of the Securities Act of 1933:
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement
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<PAGE>
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on April 6, 1998.
U.S. RESTAURANT PROPERTIES, INC.,
a Maryland corporation
By: /s/ Robert J. Stetson
----------------------------------
Robert J. Stetson
Chief Executive Officer and
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert J. Stetson and Fred H.
Margolin or either of them, his or her attorneys-in-fact and agents, each with
full power of substitution and resubstitution for him or her in any and all
capacities, to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith with the Commission, granting unto each of
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his substitutes may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert J. Stetson Chief Executive Officer, President April 6, 1998
- - ----------------------- and Director (Principal Executive
Robert J. Stetson Officer)
/s/ Fred H. Margolin Chairman of the Board, Treasurer, April 6, 1998
- - ----------------------- Secretary and Director
Fred H. Margolin
/s/ Michael D. Warren Director of Finance (Principal April 6, 1998
- - ----------------------- Financial and Accounting Officer)
Michael D. Warren
/s/ Gerald H. Graham Director April 6, 1998
- - -----------------------
Gerald H. Graham
/s/ Darrel L. Rolph Director April 6, 1998
- - -----------------------
Darrel L. Rolph
II-4
<PAGE>
/s/ David K. Rolph Director April 6, 1998
- - -----------------------
David K. Rolph
/s/ Eugene G. Taper Director April 6, 1998
- - -----------------------
Eugene G. Taper
II-5
EXHIBIT 5.1
WINSTEAD SECHREST & MINICK P.C.
5400 RENAISSANCE TOWER
1201 ELM STREET
DALLAS, TEXAS 75270
Direct Dial: (214) 745-5724
[email protected]
April 6, 1998
U.S. Restaurant Properties, Inc.
5310 Harvest Hill Road
Suite 270 L.B. 168
Dallas, Texas 75230
Gentlemen:
We have acted as counsel to U.S. Restaurant Properties, Inc. a Maryland
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the registration of 500,000 shares
of the Company's common stock, par value $.001 per share (the "Shares"), to be
issued pursuant to the Company's Dividend Reinvestment Plan (the "Plan"). In
connection with such representation, we have examined such documents, records
and matters of law as we have deemed necessary for purposes of this opinion.
Based upon such examination, we are of the opinion that the Shares are duly and
validly authorized and, when sold in exchange for the consideration, and upon
the terms and conditions, as provided for in the Plan, will be legally issued,
fully-paid and non-assessable.
Our opinion is limited in all respects to the substantive laws of the
State of Texas and the federal law of the United States, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction. To the extent the opinions set forth herein are
governed by the laws of the State of Maryland, our opinion is based solely on
our review of Maryland General Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus contained therein. In giving our consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By: /s/ Kenneth L. Betts
----------------------------
Kenneth L. Betts
KLB/dds
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
U.S. Restaurant Properties, Inc. on Form S-3 of our report dated March 19, 1998,
appearing in the Annual Report on Form 10-K of U.S. Restaurant Properties, Inc.
for the year ended December 31, 1997 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Dallas, Texas
April 7, 1998
