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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 24, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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 75-2687420
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12240 INWOOD ROAD
SUITE 300
DALLAS, TEXAS 75244
(972) 387-1487
(Address of principal executive offices, including zip code)
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U.S. RESTAURANT PROPERTIES, INC. FLEXIBLE INCENTIVE PLAN
AGREEMENT BY AND BETWEEN U.S. RESTAURANT PROPERTIES, INC.
AND H.G. CARRINGTON, JR.
(Full title of the plan)
H.G. CARRINGTON, JR.
CHIEF OPERATING OFFICER
AND CHIEF FINANCIAL OFFICER
12240 INWOOD ROAD
SUITE 300
DALLAS, TEXAS 75244
(972)387-1487
(Name, address and telephone number of agent for service)
copy to:
MARK EARLY
ANTHONY P. CANALE
VINSON & ELKINS L.L.P.
2001 ROSS AVENUE, SUITE 3700
DALLAS, TEXAS 75201-2975
(214) 220-7700
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee
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Common Stock, $0.001 par 1,066,186 $13.35 $14,233,583.10 $ 3,558.40
value per share................ shares (2)
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(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, using the
exercise price with respect to the 100,000 shares subject to stock purchase
rights granted pursuant to the Letter Agreement and the 80,000 shares
subject to stock options granted pursuant to the Letter Agreement and using
the average of the high and low trading prices of the Registrant's Common
Stock reported on the New York Stock Exchange on August 21, 2001 with
respect to the remaining shares.
(2) Of the shares being registered hereby, 878,186 relate to shares issuable
pursuant to the U.S. Restaurant Properties, Inc. Flexible Incentive Plan,
100,000 relate to shares subject to stock purchase rights granted pursuant
to the Letter Agreement, 80,000 relate to shares subject to stock options
granted pursuant to the Letter Agreement and 8,000 relate to shares granted
pursuant to the Letter Agreement. If, as a result of stock splits, stock
dividends or similar transactions, the number of securities purported to be
registered on this Registration Statement changes, the provisions of Rule
416 shall apply to this Registration Statement, and this Registration
Statement shall be deemed to cover the additional securities resulting from
the split of, or dividend on the securities covered by this Registration
Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
U.S. Restaurant Properties, Inc. (the "Registrant") will send or give
to all participants in each of the U.S. Restaurant Properties, Inc. Flexible
Incentive Plan and the Agreement by and between U.S. Restaurant Properties, Inc.
and H.G. Carrington Jr. the document(s) containing information specified by Part
I of this Form S-8 Registration Statement (the "Registration Statement") as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "Securities
Act"). The Registrant has not filed such document(s) with the Commission, but
such documents (along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) shall constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Registrant's Current Report on Form 10-K filed on April 2,
2001.
(b) The description of the Registrant's Common Stock, par value $.001
per share, contained in Item 1 of the Registrant's Registration Statement on
Form 8-A filed on June 13, 1997 pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act").
(c) The Registrant's Current Report on Form 8-K filed on March 30,
2001.
(d) The Registrant's Current Report on Form 10-Q filed on March 15,
2001.
(e) The Registrant's Current Report on Form 10-Q filed on August 14,
2001.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold shall also be
deemed to be incorporated by reference herein and to be a part hereof from the
dates of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Charter obligates the Registrant to indemnify and
advance expenses to present and former directors and officers to the maximum
extent permitted by Maryland law. The Maryland General Corporation Law (the
"MGCL") permits a corporation, subject to certain limitations, to indemnify its
present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities,
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unless it is established that (i) the act or omission of the director or officer
was material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty, (ii) the
director or officer actually received an improper personal benefit in money,
property or services or (iii) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or omission was
unlawful. The Registrant's Board of Directors may make further provision for
indemnification of directors and officers as may be permitted by law.
The MGCL permits the Charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) it is proved that the person actually received an improper benefit or profit
in money, property or services or (ii) a judgment or other final adjudication is
entered in a proceeding based on a finding that the person's action, or failure
to act, was the result of active and deliberate dishonesty and was material to
the cause of action adjudicated in the proceeding. The Charter contains a
provision providing for elimination of the liability of its directors or
officers to the Registrant or its stockholders for money damages to the maximum
extent permitted by Maryland law from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
3.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form
S-3 (File No. 333-34263))
3.2 Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-4 (File No. 333-21403))
4.1 Specimen of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-4 (File No.
333-21403))
5.1* Opinion of Vinson & Elkins L.L.P.
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Vinson & Elkins L.L.P. (included in the
opinion filed as Exhibit 5.1 hereto).
24.1* Powers of Attorney (included in the signature pages
hereto).
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*Filed herewith
ITEM 9. UNDERTAKINGS.
(a) The 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;
(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,
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individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(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
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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 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.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 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 August 24, 2001.
U.S. RESTAURANT PROPERTIES, INC.
By: /s/ H.G. Carrington, Jr.
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H.G. Carrington, Jr.
Chief Financial Officer and
Chief Operating Officer
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. Each person whose signature appears below authorizes and
appoints Robert T. Stetson and H. G. Carrington, Jr., and each of them, as his
attorney-in-fact to execute in the name of such person and to file any
amendments to this Registration Statement necessary or advisable to enable the
Registrant to comply with the Securities Act and any rules, regulations and
requirements of the registration of the securities which are the subject of this
Registration Statement, which amendments may make such changes in the
Registration Statement as such attorney-in-fact may deem appropriate.
Signature Title Date
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/s/ Robert T. Stetson
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Robert T. Stetson Chief Executive Officer August 24, 2001
and Director (Principal Executive
Officer)
/s/ H. G. Carrington, Jr.
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H. G. Carrington, Jr. Chief Financial Officer and Chief August 24, 2001
Operating Officer (Principal
Financial Officer)
/s/ David M. West
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David M. West Chairman of the Board of Directors August 24, 2001
and Director
/s/ Len W. Allen, Jr.
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Len W. Allen, Jr. Director August 24, 2001
/s/ G. Steven Dawson
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G. Steven Dawson Director August 24, 2001
/s/ Robert Gidel
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Robert Gidel Director August 24, 2001
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/s/ John C. Deterding
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John C. Deterding Director August 24, 2001
/s/ Greg I. Strong
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Greg I. Strong Director August 24, 2001
/s/ James H. Kropp
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James H. Kropp Director August 24, 2001
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INDEX TO EXHIBITS
Exhibit
Number Description
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3.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-3 (File No.
333-34263))
3.2 Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-4
(File No. 333-21403))
4.1 Specimen of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-4 (File No. 333-21403))
5.1* Opinion of Vinson & Elkins L.L.P.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Vinson & Elkins L.L.P. (included in the opinion
filed as Exhibit 5.1 hereto).
24.1* Powers of Attorney (included in the signature pages hereto).
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*Filed herewith.