<PAGE>
As Filed with the Securities and Exchange Commission on May 6, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BURNHAM PACIFIC PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
California 33-0204162
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
610 West Ash Street, Suite 2001, San Diego, CA 92101
(619) 232-2001
(Address and telephone number of registrant's principal executive offices)
RONALD R. HRUSOFF
610 West Ash Street, San Diego, California 92101
(619) 525-2626
(Name address and telephone number of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the Registration Statement becomes effective and
continuous thereafter.
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
reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate
Shares to Amount to be Price Per Offering Amount of
be Registered Registered Share(1) Price Registration Fee(1)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 10,058 $18.48 $185,872 $100
shares
- --------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(a) solely for the purpose of
calculating the registration fee.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
----------------
PURSUANT TO RULE 429, THE PROSPECTUS HEREIN IS A COMBINED PROSPECTUS RELATING
BOTH TO THE COMMON STOCK REGISTERED HEREBY AND TO THE COMMON STOCK REGISTERED
IN REGISTRATION NO. 33-70082.
<PAGE>
SUBJECT TO COMPLETION DATED MAY 6, 1994
PROSPECTUS
156,439 SHARES OF COMMON STOCK
BURNHAM PACIFIC PROPERTIES, INC.
The Shares of no par Common Stock of Burnham Pacific Properties, Inc.
(the "Corporation") covered by this Prospectus (the "Shares") are being offered
by two shareholders of the Corporation ("Selling Shareholders"). The
Corporation will not receive any of the proceeds of the sale of the Shares.
(See "Selling Shareholders" and "Plan of Distribution").
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE 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 date of this Prospectus is May 6, 1994.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+ Information contained herein is subject to completion or amendment. A +
+ registration statement relating to these securities has been filed with the +
+ Securities and Exchange Commission. These securities may not be sold nor +
+ may offers to buy be accepted prior to the time the registration statement +
+ becomes effective. This prospectus shall not constitute an offer to sell or +
+ the solicitation of an offer to buy nor shall there be any sale of these +
+ securities in any State in which such offer, solicitation or sale would be +
+ unlawful prior to registration or qualification under the securities laws +
+ of any such State. +
+ +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files periodic and current reports and other information with the
Securities and Exchange Commission (the "Commission"). Information concerning
the directors and officers, their remuneration and any material interest of such
persons in transactions with the Corporation, as of particular dates, is
disclosed in proxy statements distributed to shareholders of the Corporation and
filed with the Commission. Copies of such material can be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such reports, proxy statements and
other information can also be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices located at 500
West Madison Street (Suite 1400), Chicago, Illinois 60661 and at 7 World Trade
Center, 13th Floor, New York, New York 10048 and at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Corporation furnishes to its securities holders annual reports
containing audited financial statements and interim reports containing unaudited
financial statements.
The Shares that are the subject of this Prospectus have been
registered under the Securities Act of 1933 in two Registration Statements on
Form S-3 filed with the Commission (collectively, together with amendments and
exhibits thereto, the "Registration Statement"). This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement, copies of which may be obtained upon payment of a fee prescribed by
the Commission, or may be examined free of charge at the principal office of the
Commission in Washington, D.C.
Statements made in this Prospectus as to the contents of any contract
or other document referred to are not necessarily complete, and reference is
made to the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference its Annual Report on
Form 10-K for the year ended December 31, 1993.
All documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Prospectus and prior to the termination of the offering of the Shares shall be
deemed to be incorporated by reference in this Prospectus and to be a part
thereof from the date of the filing of such documents. Any statement contained
in a document incorporated by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed incorporated document which
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
2
<PAGE>
UPON WRITTEN OR ORAL REQUEST OF ANY PERSON TO WHOM A PROSPECTUS IS
DELIVERED, THE CORPORATION WILL PROVIDE, WITHOUT CHARGE, A COPY OF THE DOCUMENTS
WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS. REQUESTS FOR SUCH
DOCUMENTS SHOULD BE DIRECTED TO NINA GALLOWAY, VICE PRESIDENT AND SECRETARY,
BURNHAM PACIFIC PROPERTIES, INC., 610 WEST ASH STREET, SUITE 2001, SAN DIEGO,
CALIFORNIA 92101, (619) 525-2625.
THE CORPORATION
The Corporation is an equity real estate investment trust which owns a
portfolio of commercial properties, primarily in Southern California. In 1987
the Corporation succeeded a publicly-traded real estate limited partnership
organized in 1963.
The Corporation's investment objectives are to acquire, own and manage
a portfolio of income-producing commercial real estate that will provide cash
for distribution to shareholders and protect investor capital, while providing
potential for capital appreciation. The Corporation's investment focus is on
commercial properties, primarily in established locations, that are capable of
generating operating cash flow and appreciation in value through active
management, leasing, re-leasing or development of additional tenant space.
The Corporation operates so as to qualify as a REIT under Sections
856-860 of the Internal Revenue Code of 1986, as amended (the "Code"). As a
REIT, the Corporation distributes to its shareholders a significant part of its
cash flow from operations and, in any event, at least 95% of its real estate
investment trust taxable income.
The Corporation's focus on California enables the Corporation to
concentrate on the market in which it has knowledge. However, this
concentration involves the risk that a worsening of the economic conditions in
California, and Southern California particularly, could have a material adverse
impact on the business and financial result of the Corporation.
The Corporation is organized under the laws of the State of
California. Its principal executive office is located at 610 West Ash Street,
Suite 2001, San Diego, California, 92101, telephone (619) 232-2001.
3
<PAGE>
SELLING SHAREHOLDERS
The Shares covered by this Prospectus may be sold by two shareholders,
Orterra Investments, Ltd., a Delaware corporation ("Orterra"), which owns 98,351
of such Shares, and Alice Pacific, Inc., a California corporation ("Alice"),
which owns 58,088 of such Shares. The address of both Selling Shareholders is
P.O. Box 180241, Coronado, California 92178.
Of the Shares owned by Orterra, 92,039 were issued by the Corporation
in September 1993 as partial consideration for the Corporation's purchase of the
50% interest in the Navajo Shopping Center not already owned by it, and 6,312
were issued in March 1994 pursuant to an adjustment provision in the agreement
relating to that purchase. Of the shares owned by Alice, 54,342 were issued by
the Corporation in September 1993 as partial consideration for the Corporation's
purchase of the 50% interest in the Village Station Shopping Center not already
owned by it, and 3,746 were issued in March 1994 pursuant to an adjustment
provision in the agreement relating to that purchase. In connection with each
purchase, the Corporation agreed to file one or more registration statements
with the Commission after the issuance of the Shares so as to permit the Selling
Shareholders to sell the Shares from time to time following the effectiveness of
the registration.
The total aggregate consideration paid by the Corporation for the
purchased interests in the two shopping centers represents approximately 2% of
the Corporation's assets.
The Corporation is not aware that either of the Selling Shareholders
owns any Common Stock other than the Shares that may be sold pursuant to this
Prospectus.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Corporation that they may
sell their respective shares from time to time in transactions effected by or
through registered broker-dealers, in independent negotiated transactions, or
otherwise. The Shares may be sold at market prices or at negotiated prices.
DESCRIPTION OF COMMON STOCK
The Corporation is authorized to issue 40,000,000 shares of Common
Stock of no par value Common Stock. The shareholders are authorized to vote on
all matters entitled to be voted upon by shareholders as provided in the
California Corporations Code. At each election of Directors, each shareholder
is entitled to vote the number of shares of Common Stock held by the
shareholders for as many persons as there are Directors to be elected, or to
cumulate the shareholder's votes by giving one candidate as many votes as equal
the number of shares of Common Stock held by the shareholder multiplied by the
number of Directors to be elected, or by distributing such votes on the same
principle among any number of such candidates. Shareholders do not have the
right to vote on the acquisition or sale of any of the Corporation's investments
(other than upon the dissolution of the Corporation or other disposition of
substantially all of the Corporation's assets) or on the issuance of additional
shares of the Corporation's authorized Common or Preferred Stock.
4
<PAGE>
Each share of Common Stock has equal dividend and liquidation rights.
The shares of Common Stock are non-assessable and have no preference,
conversion, exchange or preemptive rights. Shareholders have no liability for
the acts or obligations of the Corporation. The shares of Common Stock are
transferable on the books or records of the Corporation in the same manner as
shares of common stock of any other California corporation. The Corporation's
shares of Common Stock are listed for trading on the New York Stock Exchange.
Any shares of Common Stock offered hereby will also be listed on the New York
Stock Exchange subject to official notice of issuance thereof.
Redemption and Restriction on Transfer of Shares. Under the
provisions of the Code, one of the requirements for qualification as a REIT is
that at no time during the second half of any taxable year may five or fewer
individuals own, directly or indirectly, more than 50% in value of the
outstanding stock of the REIT.
In order that the Corporation may meet this requirement at all times,
its Bylaws provide that no person shall at any time directly or indirectly
acquire ownership of more than 9.8% of the outstanding shares of Common Stock of
the Corporation. Shares owned by persons in excess of that amount are deemed
"Excess Shares." For purposes of determining indirect ownership, the
constructive ownership provisions applicable under Section 544(a) of the Code
attribute ownership of stock owned by a corporation, partnership, estate or
trust proportionately to its shareholders, partners or beneficiaries, attribute
ownership of stock owned by family members to other members of the same family,
treat stock for which a person has an option as actually owned by that person,
and set forth rules as to when stock constructively owned by a person is
considered to be actually owned by such person. Accordingly, shares of Common
Stock owned by a person who actually owns less than 9.8% of those outstanding
may nevertheless be Excess Shares where one or more of the foregoing
relationships exists.
The Bylaws provide that the Corporation may redeem any shares that are
Excess Shares. From the date of notice of redemption, the shares called for
redemption shall cease to be outstanding. The holder shall not be entitled to
dividends, voting rights or other benefits except the right to payment by the
Corporation of the redemption price. The redemption price will be the average
closing sales price as reported by a national securities exchange during the 30-
day period ending on the business day prior to the redemption date or, if there
have been no closing sales, the bid and asked prices, as determined by the
Directors. The Bylaws further provide that unless the Directors determine that
it is in the interest of the Corporation to make earlier payment, the
redemption price shall be payable only upon liquidation of the Corporation. The
payment shall not exceed the amount which is the sum of the per-share
distributions designated as (i) liquidating distributions, and (ii) return of
capital distributions declared with respect to unredeemed shares subsequent to
the redemption date (i.e., the amount per share that a shareholder whose shares
are not redeemed would receive upon liquidation of the Corporation). However,
if the person from whom the Excess Shares were redeemed sells a like number of
shares within 30 days of the redemption date, the Corporation shall rescind the
redemption of the Excess Shares unless counsel to the Corporation is of the
opinion that such rescission would jeopardize the Corporation's tax status as a
REIT. In that event, in lieu of rescission, the Corporation shall make
immediate payment for the shares.
The Bylaws authorize the Corporation to refuse to effect the transfer
of any shares which would result in a person holding Excess Shares, and also
provide that any purported acquisition of shares that would result in the
disqualification of the Corporation as a REIT shall be null and void.
5
<PAGE>
The Bylaws provide that the foregoing provision shall not apply to
acquisition of shares pursuant to a cash tender offer made for all outstanding
shares of the Corporation if two-thirds of the outstanding shares not owned by
the tender offeror and its associates are tendered pursuant to the offer. Such
provisions also do not apply to the acquisition of shares by an underwriter in a
public offering or to any transaction involving the issuance of shares by the
Corporation when its Board of Directors determines that its qualification as a
REIT would not be jeopardized.
The Bylaws also grant the Board of Directors the authority to cause
the Corporation, from time to time, to repurchase its shares.
Transfer Agent and Registrar. The Corporation acts as its own
transfer agent and registrar of shares. The Corporation maintains an agency
for the delivery of share certificates at IBJ Schroder Bank & Trust Company, One
State Street Plaza, New York, New York 10004.
Preferred Stock. The Corporation is also authorized to issue up to
5,000,000 shares of Preferred Stock, which may be issued in one or more series
with such terms as established by the Board of Directors. No shares of
Preferred Stock are outstanding and the Board of Directors has not established
any series of Preferred Stock.
EXPERTS AND LEGAL OPINIONS
The Financial Statements and the related financial statement schedules
included in the Corporation's Annual Report on Form 10-K and incorporated by
reference in this Prospectus have been audited by Deloitte & Touche, independent
accountants, as stated in their reports incorporated herein and have been so
incorporated in reliance upon such reports given upon the authority of that firm
as experts in accounting and auditing.
The legality of the Shares that have been issued to the Selling
Shareholders and that may be sold by them has been passed upon by Ronald R.
Hrusoff, Esq. Mr. Hrusoff is general counsel to the Corporation and owns 10,750
shares of Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Paragraph 9.2 of the Corporation's Bylaws provides that directors,
officers, employees and agents of the Corporation shall be indemnified to the
full extent permitted by, and in the manner permissible under, the laws of the
State of California. Pursuant to the California Corporations Code, such
indemnification can be provided only if the person being indemnified acted in
good faith and in a manner he reasonably believed to be in the best interests of
the Corporation, and with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful. The California
Corporations Code also provides that such indemnification shall be made by the
Corporation (unless ordered by a court) only upon a determination by a majority
of the Directors not a party to such proceedings, or approval of stockholders of
the Corporation that the above standards have been met. The foregoing
statements are subject to the detailed provisions of Sections 317 of the
California Corporations Code.
6
<PAGE>
Article V of the Corporation's Articles of Incorporation states:
Section 1. The liability of the directors of this Corporation
for monetary damages shall be eliminated to the fullest extent
permissible under California law.
Section 2. This Corporation is authorized to provide
indemnification of agents (as defined in Section 317 of the California
Corporations Code) through bylaw provisions, agreements with agents,
vote of shareholders or disinterested directors or otherwise, in
excess of the indemnification otherwise permitted by Section 317 of
the California Corporations Code, subject only to applicable limits
set forth in Section 204 of the California Corporations Code with
respect to actions for breach of duty to the Corporation and its
shareholders.
Section 3. No provisions of the bylaws of this Corporation in
effect prior to approval of this Article V by the shareholders of the
Corporation shall limit the effect of the provisions of Section 1 and
2 of this Article V.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
person controlling the registrant pursuant to the foregoing
provisions, the registrant has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
7
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Corporation.
This Prospectus does not constitute an offer to sell or a solicitation of
an offer to buy any securities other than the Shares to which it relates or such
Shares in any jurisdiction where, or to any person to whom, such offer or
solicitation would be unlawful. Except where otherwise indicated, the delivery
of this Prospectus shall not imply that the information herein is correct as of
any time subject to its date.
BURNHAM PACIFIC PROPERTIES, INC.
156,439 SHARES OF
COMMON STOCK
PROSPECTUS
MAY 6, 1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses of the Registrant in connection with the registration,
issuance and distribution of the securities being registered are set forth in
the following table (all amounts except the registration fee are estimated):
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $ 100
Accountants' Fees and Expenses 1,000
Legal Fees and Expenses 2,000
Miscellaneous 900
------
Total $4,000
======
</TABLE>
All selling expenses in connection with the issuance and distribution of
the securities being offered will be borne by the Selling Shareholders.
Item 15. Indemnification of Directors and Officers.
See "Indemnification of Directors and Officers" in Prospectus.
Item 16. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No.
-----------
5 Opinion of Ronald R. Hrusoff, Esq., counsel to the Corporation,
as to legality of shares (including consent).
23.1 Consent of Deloitte & Touche.
Item 17. Undertakings
(a) 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
this Registration Statement;
II-1
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) above 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 Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 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 that is incorporated by reference in this
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 hereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California on May 6, 1994.
BURNHAM PACIFIC PROPERTIES, INC.
By: /Louis J. Garday/
---------------------------
Louis J. Garday, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated, each of whom also constitutes and
appoints Louis J. Garday and Ronald R. Hrusoff, and each of them singly, his
true and lawful attorney-in-fact and agent, for him, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same with all
exhibits thereto, any other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and conforming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Name Title Date
- --------------------------- ------------------------------ -----------
<S> <C> <C>
/Louis J. Garday/ President (Principal Executive May 6, 1994
- --------------------------- Officer) and Director
Louis J. Garday
/Kim S. Kundrak/ Principal Financial Officer May 6, 1994
- ---------------------------
Kim S. Kundrak
/Jeffrey R. Fisher/ Principal Accounting Officer May 6, 1994
- ---------------------------
Jeffrey R. Fisher
/Malin Burnham/ Director May 6, 1994
- ---------------------------
Malin Burnham
/Philip L. Gildred, Jr./ Director May 6, 1994
- ---------------------------
Philip L. Gildred, Jr.
/Robert J. Lauer/ Director May 6, 1994
- ---------------------------
Robert J. Lauer
/Thomas A. Page/ Director May 6, 1994
- ---------------------------
Thomas A. Page
Director
- ---------------------------
Henry Rasmussen, Jr.
/Richard R. Tartre/ Director May 6, 1994
- ---------------------------
Richard R. Tartre
</TABLE>
II-3
<PAGE>
EXHIBIT 5
[LETTERHEAD OF RONALD HRUSOFF]
May 6, 1994
Burnham Pacific Properties, Inc.
610 West Ash Street, Suite 2001
San Diego, CA 92101
Re: Registration Statement on Form S-3
Gentlemen:
This opinion is delivered in my capacity as general counsel to Burnham
Pacific Properties, Inc. (the "Corporation") in connection with the issuance and
sale by the Corporation to Orterra Investments, Ltd. and to Alice Pacific, Inc.
(collectively the "Selling Shareholders") of 10,058 shares of its Common Stock
(the "Shares"). The Shares are the subject of the registration statement on
Form S-3 (the "Registration Statement") which the Corporation is filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
pursuant to Rule 415 of the Securities and Exchange Commission, to permit the
Selling Shareholders to sell the Shares from time to time.
As general counsel for the Corporation, I have examined the Registration
Statement, the Articles of Incorporation and Bylaws of the Corporation each as
amended to date, certificates of action of the Corporation's Board of Directors,
documents relating to the transaction pursuant to which the Shares were issued
and such other records, certificates and documents of the Corporation as I have
deemed appropriate for the purposes of this opinion.
Based on and subject to the foregoing, I am of the opinion that Shares
described in the Registration Statement were duly authorized and validly issued
and are fully paid and non-assessable.
I hereby consent to being named as counsel to the Corporation in the
Registration Statement, to the reference therein to me, and to the inclusion of
this opinion as an exhibit to the Registration Statement.
Sincerely,
/RONALD R. HRUSOFF/
Ronald R. Hrusoff
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Burnham Pacific Properties, Inc. on Form S-3 of our report dated February 22,
1994 appearing in the Annual Report on Form 10-K of Burnham Pacific Properties,
Inc. for the year ended December 31, 1993 and to the reference to us under the
heading "Experts and Legal Opinions" in the Prospectus which is part of this
Registration Statement.
DELOITTE & TOUCHE
SAN DIEGO, CALIFORNIA
MAY 2, 1994
