EXHIBIT 4.8
STANDSTILL AGREEMENT
This STANDSTILL AGREEMENT, dated as of April 30, 1997 is entered into
by and between U.S. Restaurant Properties Master L.P., a Delaware limited
partnership ("USRP"), and Valhi, Inc., a Delaware corporation ("Valhi"). Valhi
and USRP are collectively referred to as the "Parties."
TERMS AND CONDITIONS
In consideration of the respective covenants and agreements of the
Parties contained in this Agreement, the Parties agree as follows:
1. CERTIFICATES REPRESENTING UNITS. All certificates for depositary
receipts representing limited partnership units (the "Units") purchased by Valhi
pursuant to the Units Purchase Agreement dated as of April 18, 1997 ("Valhi
Units"), will bear the following legend:
"THE ISSUANCE OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT")OR ANY STATE SECURITIES OR BLUE SKY LAWS
("STATE LAWS"), AND SUCH SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND ANY APPLICABLE STATE LAWS OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE
ALSO ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN VOTING AGREEMENTS AND
CERTAIN OTHER AGREEMENTS SET FORTH IN A
STANDSTILL AGREEMENT BETWEEN THE PARTNERSHIP
AND THE INITIAL HOLDER OF THESE UNITS, DATED
AS OF ______________ __, 1997, A COPY OF WHICH
MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
PARTNERSHIP'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
2. FIRST OFFER RIGHT. If any person or entity, other than USRP and its
affiliates, commences a tender offer or exchange offer to purchase any
outstanding Units or exchange other securities for any outstanding Units (an
"Offer"), and if Valhi determines to accept such Offer, then Valhi shall notify
USRP of Valhi's intent to accept such Offer at least five business days prior to
tendering its Valhi Units pursuant to such Offer. Such notice shall disclose the
number of Valhi Units Valhi proposes to tender in the Offer.
USRP may elect to purchase, pursuant to the terms and conditions set forth in
this Section, all (but not less than all) of the Valhi Units specified in
Valhi's notice by delivering written notice of such election to Valhi as soon as
practical but in any event within two business days of USRP's receipt of Valhi's
notice. If USRP has timely elected to purchase such Valhi Units from Valhi, the
transfer of such Valhi Units will be consummated as soon as practical after USRP
delivers its notice of election, but in any event within one business day after
such delivery, provided that such one day period shall be extended to the first
date that USRP may purchase such Valhi Units under applicable law if such law
prohibits USRP from purchasing such Valhi Units by the end of the one day period
for any reason; provided however, in no event shall such period be extended
beyond the business day immediately prior to expiration of the Offer. If USRP
has not timely elected to purchase all of the Valhi Units specified in Valhi's
notice or does not consummate the purchase within the prescribed time frame,
Valhi may tender and sell such Valhi Units in the Offer. If, following the time
that USRP has elected pursuant to this Section not to purchase the Valhi Units
that Valhi proposes to tender, the person or entity making the Offer changes the
consideration offered to holders of Units pursuant to the Offer, then Valhi may
not accept such revised Offer without again offering USRP the opportunity to
purchase, pursuant to the terms and conditions set forth in this Section, any
Valhi Units Valhi proposes to sell in such revised Offer.
The consideration for the purchase by USRP of any Valhi Units
pursuant to this Section shall be equal to the maximum amount of cash offered in
the Offer, and, if the consideration offered for Units in the Offer is not
entirely cash, then in lieu of any securities or other non-cash consideration,
USRP shall pay to Valhi an amount in cash equal to the fair market value of such
securities or other non-cash consideration (such fair market value to be
determined as of the business date immediately prior to the closing of the
purchase of such Valhi Units). If fair market value is not finally determined
pursuant to this Section as of the closing of such purchase, USRP shall pay all
cash consideration at closing and shall agree at closing to pay the remainder of
such consideration, plus interest compounded daily at the prime rate as set
forth in the "Money Rates" column or similar listing in The Wall Street Journal
as of the closing (provided that such rate shall not exceed the maximum rate
permitted under applicable law), promptly upon the final determination of fair
market value.
For the purposes of this Section, fair market value of any
security shall mean the average of the highest and lowest sales prices, for the
ten business days preceding the date of determination, of any security that is
publicly traded, as reported on any exchange (or the Nasdaq National Market
System) on which such security is listed, or, if there is no such sale, the
average of the highest and lowest sales prices of such security as so reported
on the ten nearest preceding dates upon which such sales took place. If such
securities are not listed on an exchange or quoted in the Nasdaq National Market
System, fair market value shall mean the average of the highest bid and lowest
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asked prices in the domestic over-the-counter market as last reported for the
ten business days preceding the date of determination by the National Quotation
Bureau, Incorporated, or any similar successor organization. The Parties shall
make proper adjustments for any ex-dividend or any ex-distribution dates
included in the period for determining fair market value. Fair market value of
any securities which are not listed on any domestic security exchange or quoted
on the Nasdaq National Market System or the domestic over-the-counter market,
and of any other non-cash consideration shall be determined in good faith by a
nationally known investment banking firm selected by Valhi and USRP, provided,
however, that if Valhi and USRP are unable to agree on such investment banking
firm, then each of Valhi and USRP shall select a nationally known investment
banking firm and such firms shall jointly chose a third nationally known
investment banking firm which third firm shall determine fair market value. Any
such determination of fair market value shall be made as promptly as practicable
and the decision of any such investment banking firm shall be final and binding
on the Parties. USRP shall bear the costs of any investment banking firm so
selected.
3. LIMITATIONS ON VALHI'S ACTIVITIES. Valhi shall not (a) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Securities Exchange Act of 1934, as amended) in
opposition to the recommendation of the Managing General Partner of USRP with
respect to any matter presented to unitholders of USRP, it being understood that
the provisions of this Section shall not in any way restrict the ability of
Valhi to vote Valhi Units as it wishes on any such matter (except that Valhi
Units will, during the term of this Agreement, not be voted to remove U.S.
Restaurant Properties, Inc. as the Managing General Partner of USRP), (b)
deposit Valhi Units in a voting trust, or subject such Valhi Units to any voting
arrangement or other similar agreement with any person who has not agreed to be
bound by this Standstill Agreement, (c) seek control of USRP or the conduct of
its business, or join a partnership, syndicate or group (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) for the
purpose of acquiring control of USRP or the conduct of its business, (d) enter
into a business combination with USRP, or (e) formulate any plans to do any of
the foregoing acts or assist any other person in doing any of the foregoing
acts.
4. RESTRICTIONS ON ACQUISITIONS. Valhi will not, directly or
indirectly, acquire (including under the beneficial ownership rules of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended) any
Units, except for (a) Units acquired in connection with pro rata issuances to
unitholders of USRP pursuant to a dividend or similar distribution, (b) Units
acquired pursuant to a rights offer, exchange offer or similar transaction made
by USRP, (c) Units acquired by employee benefit plans sponsored or maintained by
Valhi, provided that the investment decisions of such plans are made by persons
or entities which are independent of Valhi's management, or (d) Units acquired
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pursuant to a merger, business combination, purchase of assets or similar
transaction between two or more entities, none of which is an affiliate of Valhi
or Xxxxxx X. Xxxxxxx.
5. LIMITATIONS ON SALES. Valhi will not, directly or indirectly, sell,
transfer or otherwise dispose of any Valhi Units except pursuant to (a) public
offerings pursuant to any registration of the Valhi Units by USRP for the
benefit of Valhi, (b) sales in compliance with Rule 144 under the Securities Act
of 1933, as amended, or any successor rule then in effect, (c) sales in
compliance with Section 2 of this Agreement, (d) sales, transfers or other
dispositions pursuant to a merger, business combination, liquidation or similar
transaction involving USRP, (e) transactions in compliance with Section 4(d) of
this Agreement, (f) sales, transfers or other dispositions to any person or
entity, provided that immediately prior to such transaction the acquiring person
(together with such acquiring person's affiliates) has not filed a Schedule 13D
or 13G (or a successor form then in use to report such ownership) disclosing
beneficial ownership of 5% or more of the outstanding Units, and provided that
the acquiring person (together with such acquiring person's affiliates) will not
be required to file, as a result of such transaction with Valhi, a Schedule 13D
or 13G (or a successor form then in use to report such ownership) disclosing
beneficial ownership of 5% or more of the outstanding Units, (g) sales,
transfers or dispositions to any affiliate of Valhi, provided such affiliate
agrees in writing to be bound by all of provisions of this Agreement as a holder
of the Valhi Units, or (h) sales pursuant to bona fide pledges of the Valhi
Units.
6. TERMINATION. The provisions of this Agreement shall expire on the
earlier of (a) the fifth anniversary of the date of this Agreement, and (b) the
date upon which Valhi and its affiliates no longer hold any Valhi Units except
to the extent expressly assumed by one or more other persons.
7. REMEDIES. Each of Valhi and USRP hereby waive any defense that an
action to enforce, or enjoin the violation of, this Agreement by specific
performance or injunctive relief is inappropriate because of an adequate remedy
at law; provided, however, that such rights to enforce this Agreement shall be
cumulative and in addition to any other remedy to which an aggrieved party may
be entitled at law or equity.
8. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
9. ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
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10. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the written approval of the
other Party.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
12. HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO USRP: U.S. Restaurant Properties Master L.P.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
L.B. 168
Xxxxxx, Xxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
COPY TO: Xxxxxxx Xxxxxxxx, Esq.
Middleberg Xxxxxx & Gianna
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
IF TO VALHI: Valhi, Inc.
Three Lincoln Centre, Suite 1700
0000 XXX Xxxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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COPY TO: Xxxxx X. Xxxxxxxxx
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
15. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by USRP
and Valhi. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any such prior or subsequent occurrence.
16. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
17. EXPENSES. Each of Valhi and USRP will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
18. CONSTRUCTION. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by
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virtue of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean including
without limitation.
19. OTHER UNITS. Except for xxx Xxxxx Xxxxx, Xxxxx represents and
warrants to USRP that neither Valhi nor any of its affiliates beneficially owns
any Units on the date of this Standstill Agreement. To the extent that Valhi or
any of its affiliates acquire any additional Units, such Units shall also be
considered "Valhi Units" under this Standstill Agreement.
20. AFFILIATES. Valhi shall cause all of its affiliates to comply with
this Standstill Agreement to the same extent as if they were Valhi.
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
U.S. RESTAURANT PROPERTIES MASTER L.P.,
a Delaware limited partnership
By: U.S. Restaurant Properties, Inc., a _____
corporation, its Managing General Partner
By:
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Title:
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VALHI, INC., a Delaware corporation
By:
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Title:
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