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As Filed with the Securities and Exchange Commission on November 22, 1994
Registration No. 33-_________
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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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
610 West Ash Street, Suite 1600, San Diego, California 92101
(619) 232-2001
(Address and telephone number of registrant's principal executive offices)
RONALD R. HRUSOFF
610 West Ash Street, Suite 1600, 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: 20th day after
date of filing.
If the only securities being registered on the 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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of each class Amount Proposed maximum Proposed maximum Amount of
of securities to be to be offering price per aggregate registration
registered registered unit* offering price* fee
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<S> <C> <C> <C> <C>
Common Stock 2,000,000 shares $15.31 $30,625,000 $10,560
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</TABLE>
*Based upon 95% of $15.31 the average high and low per share price of the
Corporation's Common Stock on the New York Stock Exchange on November 17, 1994.
The Prospectus herein also relates to unissued shares previously registered in
Registration No. 33-70080.
<PAGE>
PROSPECTUS
BURNHAM PACIFIC PROPERTIES, INC.
.DIVIDEND REINVESTMENT PLAN.
The Automatic Dividend Reinvestment Plan ("the Plan") of Burnham Pacific
Properties, Inc. (the "Corporation") provides all holders of record of its
Common Stock with a simple and convenient method to reinvest cash dividends and
to make limited additional cash payments to purchase newly issued shares of
Common Stock ("Plan Shares") at a 5% discount from market price.
Shareholders of record who elect to participate in the Plan ("Participants")
have the following options to purchase Plan Shares:
FULL DIVIDEND REINVESTMENT - Reinvestment of dividends on all shares held.
PARTIAL DIVIDEND REINVESTMENT - Reinvestment of dividends on less than all
shares held while continuing to receive cash dividends on the other shares.
ADDITIONAL CASH PAYMENTS - In addition to reinvestment of dividends, those
shareholders who have held 25 shares of the Corporation's stock in the Plan
for the preceding 90 days may make additional cash payments to the
Corporation of a minimum of $100 to a maximum of $5,000 in any calendar
quarter.
Cash dividends on Plan Shares are always automatically reinvested to purchase
additional Plan Shares. The amount of any dividend reinvested will, in each
case, be after any reduction necessary to comply with any applicable United
States income tax withholding requirements.
Beneficial owners of Common Stock whose shares are registered on the
shareholder records of the Corporation in names other than their own, by
brokers, banks or other nominees, may become Participants only if the shares
they wish to enroll in the Plan are transferred to their own names, or if their
nominees register on the Corporation's shareholder records a separate account.
All expenses of the Plan will be paid by the Corporation except for a charge
of $10.00 for each request to transfer shares into certificate form except upon
withdrawal from the Plan. A description of the Plan is set forth in this
Prospectus under the caption "Automatic Dividend Reinvestment Plan." A
Participant in the Plan may withdraw at any time with proper advance notice.
Unless changed by the Corporation, the price of shares purchased with
reinvested dividends or additional cash payments will be 95% of the greater of
(i) the average of the high and low sales prices of the Common Stock listed on
the New York Stock Exchange on the Plan Share Purchase Date or (ii) the average
closing price on the New York Stock Exchange for the 10 trading days ending on
the Plan Share Purchase Date.
The "Plan Share Purchase Date" for Plan Shares purchased through reinvestment
of dividends is the dividend payment date, and for Plan Shares purchased through
additional cash payments is the business day on which the Corporation receives
the check or other form of payment for such additional Plan Shares.
The Corporation has filed registration statements with the Securities and
Exchange Commission with respect to an aggregate of 3,600,000 shares of the
Corporation's Common Stock, that may be issued pursuant to the Plan described on
the following pages. This Prospectus relates to 333,745 such shares reserved
for issuance under the Plan that have not been issued as of the date of the
Prospectus. The outstanding shares of Common Stock are listed on the New York
Stock Exchange, and the additional Plan Shares offered by this Prospectus are so
listed subject to official notice to said Exchange of the issuance of such
shares. This Prospectus should be retained for future reference.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE 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.
The date of this Prospectus is December 12, 1994.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities and Exchange Act of 1934 and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at the Commission's office at 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Commission's regional offices located
at Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661, and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies
of such material can also be obtained by mail from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such reports, proxy statements and other information
concerning the Corporation can also be inspected at the office of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation incorporates herein by reference, and at any time hereafter
prior to the termination of the offering made by this Prospectus the
Corporation shall be deemed to have incorporated herein by reference, its
latest Annual Report on Form 10-K, its latest proxy statement for an Annual
Meeting of Shareholders and all other documents filed by it pursuant to Section
13, 14 or 15 of the Securities Exchange Act, subsequent to the filing of such
Annual Report on Form 10-K; and all such documents shall be deemed to be a part
hereof.
The Corporation hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written request of
any such person, a copy of any or all of the documents referred to above which
have been or may be incorporated in this Prospectus by reference, other than
exhibits to such documents. Written requests should be directed to Ms. Nina
Galloway, Burnham Pacific Properties, Inc., 610 West Ash Street, Suite 1600,
San Diego, California 92101.
THE CORPORATION
Burnham Pacific Properties, Inc. is an equity real estate investment trust
("REIT") which owns all or a portion of 24 commercial real estate properties,
19 of which are located in San Diego County, California, where it has a
significant presence. The other properties are located in North Hollywood and
Puente Hills (Los Angeles County), Fullerton and Orange (Orange County), and
Gilroy, (Santa Clara County) California.
The Corporation is organized under the laws of the State of California. Its
principal executive office is located at 610 West Ash Street, Suite 1600, San
Diego, California 92101, telephone (619) 232-2001. The Corporation is the
issuer of the Plan Shares offered hereby.
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AUTOMATIC DIVIDEND REINVESTMENT PLAN
1. PURPOSE
The purpose of the Plan is to provide registered owners of the Corporation's
Common Stock with a simple and convenient method of investing dividends and
other distributions paid in cash ("dividends"), as well as periodic additional
cash amounts, in additional shares of the Corporation's Common Stock at a
modest discount from current market value and without payment of any brokerage
commission. Such additional shares of Common Stock will be purchased from the
Corporation. (See "Use of Proceeds.")
2. ADVANTAGES
A. Participating shareholders may have cash dividends on all or a portion of
their shares of Common Stock ("Certificate Shares") automatically reinvested in
additional shares of the Corporation's Common Stock.
B. Participating shareholders who have held 25 or more shares of the
Corporation's Common Stock in the Plan for the preceding 90 days ("Qualified
Participants") may purchase quarterly, for cash, a minimum of $100 and up to
$5,000 of additional Plan Shares which will be credited to a Participant's
account.
C. The price of the Plan Shares purchased with reinvested dividends or with
cash will be 95% of the market price as more fully explained in Section 6
"Price of Shares."
D. No commission will be paid by a Participant in connection with purchases
under the Plan.
E. Participants' funds will be fully invested because the Plan permits
fractions of shares to be credited to a Participant's account. Dividends on
such fractions, as well as on whole shares, will be reinvested in additional
shares, and such shares will be credited to a Participant's account.
F. Participants will avoid the need for safekeeping of stock certificates
for Plan Shares credited to their accounts under the Plan.
G. Regular statements reflecting all current activity, including purchases
and latest balances and, if applicable, amounts withheld in conformity with any
United States income tax requirements, will simplify Participant's record
keeping.
3. ADMINISTRATION
The Corporation, which serves as its own transfer agent for its Common
Stock, administers the Plan. The Corporation will establish on its books a
separate account for each Participant to which will be credited, as of the
close of business on the Plan Share Purchase Date, the number of Plan Shares
purchased with the cash dividend which the Participant has elected to have
reinvested and/or with the additional cash payment (minimum $100, maximum
$5,000 in any calendar quarter). The Plan Share Purchase Date for Plan Shares
purchased through reinvestment of dividends is the relevant dividend payment
date, and for Plan Shares purchased with an additional cash payment is the
business day the Corporation receives payment for such additional Plan Shares.
The Corporation will not issue any certificates for Plan Shares unless
specifically requested in writing by the Participant (see Section 10
"Certificates for Shares") or upon the
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Participant's withdrawal from the Plan (see Section 11 "Withdrawal from the
Plan") or upon the termination of the Plan (see Section 17 "Termination or
Modification of the Plan").
4. SHAREHOLDER PARTICIPATION
All of the Corporation's registered shareholders who own shares for their
own account are eligible to participate and may join the Plan by completing and
signing an Authorization Card and returning it to the Corporation; provided,
however, that the Corporation has reserved the right to limit additional cash
purchases to those shareholders who have held 25 or more shares in the Plan for
the immediately preceding 90 day period ("Qualified Participants") and to
terminate and modify the Plan as set forth in Sections 16 and 17. When shares
are registered in more than one name (i.e., joint tenants, trustees, etc.), all
registered holders must sign. Shareholders with Shares registered in
corporate, trust or partnership name may be required to provide copies of the
articles of incorporation, trust or partnership agreement with an opinion of
legal counsel that the corporation, trust or partnership has been validly
formed.
Registered shareholders may obtain an Authorization Card at any time by
writing or telephoning the Corporation at the following address:
BURNHAM PACIFIC PROPERTIES, INC.
610 West Ash Street, Suite 1600
San Diego, CA 92101
(619)525-2631
When corresponding with the Corporation, we suggest that you give your
telephone number and area code.
Partial participation in the Plan by a registered shareholder is possible.
If you are a registered shareholder and want to reinvest the dividends on only
some of your shares, you must sign the Authorization Card and indicate under
"Partial Dividend Reinvestment" the number of shares on which dividends are to
be reinvested rather than paid.
Registered shareholders may become Participants in the Plan at any time. If
the signed Authorization Card is received by the Corporation prior to the
record date for the next dividend payment, reinvestment of dividends will begin
with the next dividend payment. If the Authorization Card is received after
the record date, reinvestment of dividends will begin with the next succeeding
dividend payment.
Qualified Participants in the Plan may make additional cash purchases at any
time, subject to a minimum purchase of $100 and a limit of $5,000 in any
calendar quarter. Such additional purchases will be made for the account of
the Participant on the business day the Corporation receives the Participant's
check or other form of payment for such additional Plan Shares. The price of
these newly issued Plan Shares will be determined in accordance with Section 6.
Once a registered shareholder has enrolled in the Plan, dividend
reinvestment continues automatically on all Plan Shares as long as the
Participant wishes. However, if there is any subsequent change in the manner
in which a Participant's name appears on his certificate shares, the
Participant must sign another Authorization Form to continue participation
under the new registration.
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Participants may change their investment options at any time by completing a
revised Authorization Card. (See Section 10.)
Dividends paid on whole and fractional Plan Shares held for the account of
each Participant will automatically be reinvested.
5. NOMINEES FOR BENEFICIAL OWNERS
Only shareholders of record may participate in the Plan. Beneficial owners
of shares that are held of record by a nominee may participate in the Plan only
by causing the shares to be transferred directly into their own name or by
causing the nominee to register on the Corporation's shareholders records a
separate account for beneficial owners that desire to become Participants in
the Plan.
Confirmation of purchases and statements of account under the Plan, annual
and other reports, and other communications from the Corporation will be
directed to the registered shareholder at the address shown on the
Corporation's records. The Corporation may also elect to send additional
copies of reports and various shareholder communications to the underlying
beneficial owners.
6. PRICE OF SHARES
Unless changed by the Corporation, the purchase price of shares purchased
under the Plan will be 95% of the greater of (i) the average of the high and
low sales prices of the Corporation's Common Stock on the New York Stock
Exchange on the Plan Share Purchase Date (as defined in Section 7) or (ii) the
average closing price on the New York Stock Exchange for the 10 trading days
ending on the Plan Share Purchase Date.
7. PURCHASES
Purchases will be made for a Participant's account from the Corporation
effective as of the close of business on the Plan Share Purchase Date. The
Plan Share Purchase Date for Plan Shares purchased through reinvested dividends
is the relevant dividend payment date. For Plan Shares purchased from
additional optional cash payments received from Qualified Participants, the
Plan Share Purchase Date is the business day the Corporation receives the
Participant's check or other form of payment provided that such payment is at
least $100, and the total amount of such payments during a calendar quarter do
not exceed $5,000.
The number of Plan Shares purchased on any Plan Share Purchase Date will
depend upon the amount of a Participant's reinvested dividends and/or the
amount of additional cash received and the purchase price per share. A
Participant's account will be credited with that number of Plan Shares,
including fractions computed to three decimal places, equal to the
Participant's total amount to be invested, divided by the applicable purchase
price per share.
8. COSTS
There are no out-of-pocket costs to Participants in connection with
purchases under the Plan except for a charge of $10.00 per certificate for the
issuance of share certificates for shares purchased through additional cash
payments. All other costs of administration of the Plan will be paid by the
Corporation, and there are no brokerage fees or commissions on purchases under
the Plan.
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9. REPORTS TO PARTICIPANTS
As soon as practical after each purchase under the Plan, Participants will
receive a statement of their accounts from the Corporation. These statements
are the Participant's continuing record of current activity and of the cost of
their purchases and should be retained for tax purposes. In addition,
Participants will continue to receive copies of the various other
communications sent to holders of the Corporation's stock, including the
Corporation's interim reports, annual reports, the notice of the annual
meeting, proxy statement and the information the Participant will need for
federal income tax return purposes. (See Section 15 "Federal Income Tax
Consequences.")
10. CERTIFICATES FOR SHARES
Shares purchased through the Plan will be credited to each Participant's
account and will be known as Plan Shares. Certificates will not be issued for
Plan Shares unless the Participant requests the Corporation in writing to do so
or unless the Participant withdraws from the Plan. The number of Plan Shares
credited to a Participant's account will be shown on the statements of the
Participant's account. This service eliminates the need for safekeeping by a
Participant to protect against loss, theft, or destruction of stock
certificates.
At any time, a Participant may request in writing that the Corporation send
a certificate for all or part of the whole shares credited to a Participant's
account. This request should be mailed to: Burnham Pacific Properties, Inc.,
610 West Ash Street, Suite 1600 San Diego, California 92101. Whole shares will
be mailed to a Participant within 14 days of receipt by the Corporation of the
request. A charge of $10.00 will be required for each request to transfer
shares into certificate form except upon withdrawal from the Plan.
Plan Shares may not be pledged or assigned. Any purported pledge or
assignment will be void. If a Participant wants to pledge or assign such
shares, the Participant must request that a certificate for the shares be
issued in the Participant's name.
Certificates for fractional shares will not be issued under any
circumstances.
Accounts under the Plan are maintained in the name in which the
Participant's shares are registered on the Corporation's shareholder records at
the time a Participant enters the Plan. Consequently, certificates for whole
shares purchased under the Plan will be similarly registered when issued to a
Participant upon request. A Participant who wants shares registered and issued
in a different name, must so indicate in a written request accompanied by an
approved signature guarantee. There will be a charge of $10.00 for each such
transfer and the Participant will be responsible for any transfer taxes that
may be due, and for compliance with any applicable transfer requirements in
connection with such registration.
11. WITHDRAWAL FROM THE PLAN
In order to withdraw from the Plan, a Participant must notify the
Corporation in writing at least five days prior to the record date of the next
dividend payment. Such notice should be addressed to: Burnham Pacific
Properties, Inc., 610 West Ash Street, Suite 1600 San Diego, California 92101.
Upon withdrawal, a Participant will receive a stock certificate for all
whole shares held for a Participant's account in the Plan, plus a check for the
value of any fractional share. The value of a
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fractional share will be based upon the closing price on the New York Stock
Exchange on the date preceding the date of receipt by the Corporation of the
request to withdraw from the Plan.
12. STOCK DIVIDEND, STOCK SPLIT OR RIGHTS OFFERING
Any stock dividend or split shares distributed by the Corporation on Plan
Shares will be added to a Participant's account and will appear on the
Participant's quarterly statement. Stock dividends or split shares distributed
on certificate shares will be mailed directly to the Participant.
As soon as practicable after effectiveness of a stock dividend or a stock
split, the Corporation will send statements to all Participants indicating the
number of shares of the Corporation's stock credited to their account under the
Plan as a result of the stock dividend or stock split. Participants may
receive a certificate for such shares (other than fractional shares) at any
time by sending a written request to the Corporation at the address indicated
above.
In the event of a rights offering, a Participant will receive rights based
upon the total number of whole certificate and Plan Shares owned.
13. VOTING OF SHARES
Whole Plan Shares held by the Corporation as well as Certificate Shares
will be voted as each Participant directs. A proxy card will be sent to each
Participant in connection with the annual or any special meeting of
shareholders. This proxy will apply to all Certificate Shares registered in
each Participant's name, if any, as well as to all whole Plan Shares credited
to each Participant's account. If properly signed, all shares will be voted in
accordance with the instructions that each Participant gives on the proxy card.
If no instructions are indicated on a properly signed and returned proxy
card, all Certificate Shares - those registered in a Participant's name, if any
- and all whole Plan Shares - those credited to a Participant's account under
the Plan - will be voted in accordance with the recommendations of the
Corporation's management. If the proxy card is not returned or is returned
unsigned, a Participant's shares will be voted only if the Participant votes in
person at the meeting.
14. SALES AND TRANSFERS OF SHARES
Following the sale by a Participant of all Certificate Shares, there will
be no dividends to be reinvested for such shares. However, the dividends on any
existing Plan Shares will continue to be reinvested in additional Plan Shares
until the Corporation receives written notification from the Participant to
terminate the reinvestment account. (See Section 11 "Withdrawal From The
Plan.")
If a Participant sells part of the Certificate Shares registered in the
Participant's name, dividends on all remaining Certificate Shares participating
in the Plan will continue to be reinvested for the Participant's account.
Example: A Participant owns 100 Certificate Shares and directs the
Corporation to reinvest the dividends on only 50. Quarterly dividends on 50
shares will be sent to the Participant directly, and dividends on 50 shares
will be reinvested. The Participant then sells 25 Certificate Shares. The
Participant will now receive quarterly dividends on 25 shares and dividends on
the 50 shares will continue to be reinvested. If, instead, the Participant
sold 75 Certificate Shares, the dividends
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on the remaining 25 shares will continue to be reinvested. In any event,
dividends on all Plan Shares held in the Plan will continue to be reinvested.
If the account balance falls below 25 shares, Participants in the Plan or
Shareholders may no longer be considered a "Qualified Participant" as defined
in Sections 2B and 4.
15. FEDERAL INCOME TAX CONSEQUENCES
A shareholder who participates in the Plan will have somewhat different
federal income tax obligations for dividends reinvested under the Plan than for
dividends received in cash. A Participant will be treated as having received a
dividend distribution equal to the fair market value of the Plan Shares
purchased on the dividend payment date. Therefore, because shares purchased
with reinvested dividends will be purchased for 95% of their market price, the
resulting taxable income will be greater than the taxable income that would
have resulted from the receipt of the dividend in cash. A Participant's tax
basis in the dividend shares will be equal to the fair market value of the
dividend shares credited to the Participant's account, and the holding period
for such shares will begin the day after the dividend payment date. So long as
the Corporation continues to qualify as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"), the distribution will be taxable under the
provisions of the Code applicable to REITs and their shareholders, pursuant to
which (i) distributions will be taxable to shareholders as ordinary income to
the extent of the current or accumulated earnings and profits of the
Corporation, (ii) distributions which are designated as capital gain
distributions by the Corporation will be taxed as long-term capital gains to
shareholders to the extent they do not exceed the Corporation's net capital
gain for the taxable year, (iii) distributions which are not designated as
capital gains distributions and which are in excess of the Corporation's
current or accumulated earnings and profits will be treated as a return of
capital to the shareholders and reduce the adjusted tax basis of a
shareholder's shares (but not below zero), and (iv) distributions in excess of
a shareholder's adjusted tax basis in its shares will be treated as gain from
the sale or exchange of such shares.
Similarly, a Participant who makes additional cash purchases of Plan Shares
(also at 95% of their market price) will be deemed to receive a distribution
from the Corporation equal to the excess of the fair market value of such
shares over the cash amount paid for them. The Participant's basis for such
additional Plan Shares will be equal to such fair market basis (i.e., the sum
of the cash amount paid and the deemed distribution). Such distribution will
be taxable in accordance with the principles described in the previous
paragraph.
Example: The Corporation makes a quarterly dividend distribution which
would amount to $100 if the shareholder received it in cash. The
shareholder is, instead, a Participant in the Plan. The greater of the
average of the high and low sales price on the New York Stock Exchange on
the dividend payment date and the average closing prices for the 10 trading
days ending on the dividend payment date is $20. The $100 dividend is
reinvested for the Participant in Plan Shares at $19 per share (95% of
$20), with 5.263 shares ($100 divided by $19) being credited to the
Participant's account. The fair market value of these 5.263 shares is $20
each, or $105.26. For federal income tax purposes, the Corporation is
deemed to have distributed to the Participant and the Participant to have
received $105.26. This amount will be the tax basis for the 5.263 dividend
shares. If the full amount of the distribution paid by the Corporation is a
distribution of the current or accumulated earnings and profits of the
Corporation, then the Participant is deemed to have a taxable dividend of
$105.26; if only 50% of such distribution is determined to be from the
earnings and profits of the Corporation, then $52.63 will be taxable as a
dividend to the Participant and the remaining $52.63 treated as return of
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capital or capital gains distribution, or as gain from the sale or exchange
of such Participant's shares, as appropriate.
If the Participant makes an additional cash purchase of $100 effective on
the same date, the Participant is also deemed to have purchased shares
worth $105.26. The $5.26 is also deemed to be a distribution by the
Corporation to the Participant (with tax consequences similar to those
described in the previous paragraph), and the Participant's basis for these
additional shares will be $105.26.
When a Participant receives certificates for Plan Shares previously
credited to the Participant's account under the Plan, the Participant will not
realize any taxable income. However, a Participant who receives a cash
adjustment for a fraction of a share may realize a gain or loss with respect to
such fraction. A gain or loss may also be realized by the Participant when Plan
Shares are sold by the Participant. The amount of such gain or loss will be the
difference between the amount which the Participant realizes for the shares or
fraction of a share and the tax basis of the Participant in the shares.
The Corporation will comply with all applicable Internal Revenue Service
requirements concerning the filing of information returns, and such information
will be provided to the Participant by a duplicate of that form or in a final
statement of account for each calendar year. With respect to Participants
whose dividends are subject to United States income tax withholding, the
Corporation will comply with all applicable IRS requirements concerning the
withholding of such tax, and the amount of any cash distribution reinvested
will, in each case, be after reduction necessary to comply with the applicable
withholding.
The foregoing is only a summary of the federal income tax consequences of
participating in the Plan and does not constitute tax advice. Specific
questions should be referred to the Participant's tax advisor.
16. LIMITATIONS ON PARTICIPATION
In order to enable the Corporation to meet one of the requirements for
continued qualification as a REIT, the Corporation's Bylaws limit ownership by
any one person to no more than 9.8% of the Corporation's outstanding shares.
(See "Description Of Common Stock.") No shareholder may acquire any shares
pursuant to the Plan which exceeds this limit. Some shareholders may be
residents of jurisdictions where the Corporation may not legally or
economically offer its shares under the Plan. Accordingly, residents of these
jurisdictions may be precluded from participating in the Plan. The Corporation
has determined that it will limit additional cash purchases to Qualified
Participants as defined in Sections 2B and 4. In addition, the Corporation has
determined that it may limit shareholders to not more than 50 affiliated
Qualified Participant accounts. The Corporation has no present plans to limit
participation in the Plan by any record shareholder for reasons other than set
forth above, but reserves such right in the event that it determines such
limitation to be in its interest for any reason.
17. TERMINATION OR MODIFICATION OF THE PLAN
The Corporation reserves the right to terminate, suspend or modify the Plan
at any time. Specifically, it may change the price or the discount to be
charged for its shares (including the imposition of a different price for
shares sold under the additional cash purchase plan and the dividend
reinvestment plan), the minimum or maximum amount to be sold to any Participant
or the Participants who may participate in the Plan. The Corporation reserves
the right to exclude or
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limit the number of shares any Participant holding multiple accounts may
purchase for any reason, including a reason set forth in Section 16. Upon
termination, no further reinvestment of dividends will be made for a
Participant's account, and Participants will receive stock certificates for
whole Plan Shares held in their accounts and checks for the net proceeds from
the sale of any fractional shares, as in the case of a voluntary withdrawal by
a Participant from the Plan. No modification of the Plan will affect a
Participant's right to receive such stock certificate for the Participant's
whole Plan Shares (and appropriate proceeds for any fractional shares) upon a
Participant's withdrawal from the Plan.
The Corporation may also terminate the Plan when shareholder participation
in the Plan is below a minimum level of reinvestment that the Corporation may,
from time to time, establish as being uneconomic or inefficient to administer.
Further, the Corporation may temporarily suspend or terminate Participants'
right to purchase additional Plan Shares without suspending or terminating the
dividend reinvestment portion of the Plan.
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 LLP,
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 of Common Stock offered hereby will be passed
upon for the Corporation by Ronald R. Hrusoff, Esq. Mr. Hrusoff is General
Counsel of the Corporation and owns 11,200 shares of the Corporation's Common
Stock.
USE OF PROCEEDS
The Corporation has no basis for estimating either the number of shares of
Common Stock that will ultimately be sold pursuant to the Plan or the prices at
which such shares will be sold. The Corporation intends to add any proceeds it
receives from sales of its shares pursuant to the Plan to the general funds of
the Corporation to be available for general corporate purposes, including, but
not limited to, the making of additional investments and/or the payment of
outstanding indebtedness. The Corporation is unable to estimate the amount of
the proceeds that will be devoted to any specific purpose.
DESCRIPTION OF COMMON STOCK
The Corporation is authorized to issue 40,000,000 shares of no par Common
Stock. Each whole share, but not fractional share, is authorized to vote on
all matters entitled to be voted upon by shareholders as provided in the
California Corporations Code. Specifically, the shareholders may vote on (i)
the annual election of Directors; (ii) the removal of Directors; (iii)
dissolution of the Corporation; (iv) any action taken by the Directors to
merge, consolidate or otherwise amalgamate the Corporation with any other
corporation or real estate investments trust; and (v) the amendment of the
Articles of Incorporation or Bylaws.
Annual meetings of the shareholders are scheduled to be held within 150
days of the end of each calendar year and special meetings may be called by the
Chairman of the Board, the President, any two Directors, or by shareholders
holding at least 10% of the outstanding shares of Common Stock entitled to be
voted at the meeting.
10
<PAGE>
At each election of Directors, each shareholder is entitled to vote the
number of shares held by him or her for as many persons as there are Directors
to be elected, or to cumulate his or her votes by giving one candidate as many
votes as equals the number of shares held by him or her multiplied by the
number of Directors to be elected, or by distributing such votes on the same
principle among any number of 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 Common Stock.
Each share has equal dividend rights. Each share also has equal liquidation
rights. The shares 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 are transferable on the books and
records of the Corporation in the same manner as shares of any other
corporation.
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 shares. 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 the Corporation. The
Corporation may redeem any shares in excess of the limitations. 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 price as reported by a
national securities exchange for the 30 day period ending on the business day
prior to the redemption date. 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.
INDEMNIFICATION
The Corporation's Bylaws provide that the 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 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/her 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 shareholders of the Corporation
that the above standards have been met. The foregoing statements are subject to
the detailed provisions of Section 317 of the California Corporations Code.
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
11
<PAGE>
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."
Pursuant to these provisions, the Corporation has entered into
indemnification agreements with each of its officers and directors. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling the Corporation, the
Corporation has been informed that in the opinion of the Securities and
Exchange Commission, such indemnification's are against public policy as
expressed in the Act and therefore unenforceable.
12
<PAGE>
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and, if given or
made, such information or representations 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
securities to which this Prospectus relates or an offer to or solicitation of
any person in any jurisdiction in which such offer or solicitation would be
unlawful. The delivery of this Prospectus at any time does not imply that
information herein is correct as of any time subsequent to its date.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information 2
Incorporation of Certain
Documents by Reference 2
The Corporation 2
Automatic Dividend Reinvestment Plan 3
1. Purpose 3
2. Advantages 3
3. Administration 3
4. Shareholder Participation 4
5. Nominees for Beneficial Owners 5
6. Price of Shares 5
7. Purchases 5
8. Costs 5
9. Reports to Participants 6
10. Certificates for Shares 6
11. Withdrawal from the Plan 6
12. Stock Dividend, Stock
Split or Rights Offering 7
13. Voting of Shares 7
14. Sales and Transfers of Shares 7
15. Federal Income Tax Consequences 8
16. Limitations on Participation 9
17. Termination or Modification
of the Plan 9
Experts and Legal Opinions 10
Use of Proceeds 10
Description of Common Stock 10
Indemnification 11
</TABLE>
BURNHAM PACIFIC PROPERTIES, INC.
DIVIDEND REINVESTMENT PLAN
----------
PROSPECTUS
----------
DECEMBER 12, 1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses in connection with the issuance of the shares registered
hereby are set forth below.
<TABLE>
<CAPTION>
Item Amount
<S> <C>
SEC Registration Fee $10,690
Accounting Fees and Expenses 3,000
Legal Fees and Expenses 5,000
Printing and Reproduction 2,500
Miscellaneous $ 3,810
-------
Total $25,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
See "INDEMNIFICATION" in Prospectus.
ITEM 16. EXHIBITS
3.1 Articles of Incorporation of the Corporation, incorporated by reference to
Registration Statement No. 33-14571. Reference is also made to pages A-4
through A-6 of Registration Statement No. 33-20489 for amendments adopted
at the Corporation's Annual Meeting of Shareholders on June 3, 1988, and to
pages 9 and 10 of the Proxy Statement dated March 31, 1989, for amendments
adopted at the Corporation's Annual Meeting of Shareholders on May 2, 1989.
3.2 Bylaws of the Corporation incorporated by reference to Amendment No. 2 to
Registration Statement No. 33-014571, and for amendment thereto to pages 3,
5 and 10-11 of the Corporation's Proxy Statement dated October 21, 1987.
Reference is also made to pages A-6 through A-8 of Registration Statement
No. 33-20489 for amendments adopted at the Corporation's Annual Meeting of
Shareholders on June 3, 1988.
4.0 Share certificate for Common Stock of the Corporation, incorporated by
reference to Exhibit 4.0 to Registration Statement No. 33-30489.
*5.0 Opinion of Ronald R. Hrusoff, Esq. as to legality of shares (including
consent).
II-1
<PAGE>
10.2 Form of Property Management Agreement with John Burnham & Company
(separate agreement for each property), incorporated by reference to
Exhibit 10.2 to Registration Statement No. 33-14571.
10.3 Stock Option Plan of the Corporation, incorporated by reference to
Exhibit A to the Corporation's Proxy Statement dated October 21, 1987 and
for amendment thereto to pages 10-13 of the Corporation's Proxy Statement
dated March 21, 1989.
*23.1 Independent Auditors' Consent - Deloitte & Touche LLP.
- - ---------------
*Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) of 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-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 the 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 11/18/94.
BURNHAM PACIFIC PROPERTIES, INC.
By: /s/ Malin Burnham
---------------------------------
Malin Burnham, 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 Malin Burnham 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 re-substitution, for him and in his name, place and stead, in
any and all capacities to sign any and all amendments (including post-effective
amendements) 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 things
requisite and necessary to be done to all intents and purposes as he might or
could do in person, hereby ratifying and conforming all at 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>
/s/ Malin Burnham President (Principal Executive 11/18/94
- - ------------------------------ Officer) and Director
Malin Burnham
/s/ Kim S. Kundrak Principal Financial Officer 11/18/94
- - ------------------------------
Kim S. Kundrak
/s/ Jeffrey R. Fisher Principal Accounting Officer 11/18/94
- - ------------------------------
Jeffrey R. Fisher
/s/ Philip L. Gildred, Jr. Director 11/18/94
- - ------------------------------
Philip L. Gildred, Jr.
/s/ Robert J. Lauer Director 11/18/94
- - ------------------------------
Robert J. Lauer
/s/ Thomas A. Page Director 11/18/94
- - ------------------------------
Thomas A. Page
/s/ Henry Rasmussen, Jr. Director 11/18/94
- - ------------------------------
Henry Rasmussen, Jr.
/s/ Richard R. Tartre Director 11/18/94
- - ------------------------------
Richard R. Tartre
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
-------------
Serial
Page #
------
Exhibit 5.0 Opinion of Ronald R. Hrusoff as to legality of Securities
(including consent)
Exhibit 23.1 Independent Auditors' Consent - Deloitte & Touche LLP
<PAGE>
[THE LETTERHEAD OF BURNHAM PACIFIC PROPERTIES APPEARS HERE]
November 18, 1994
Burnham Pacific Properties, Inc.
610 West Ash Street, Suite 1600
San Diego, CA 92101
Gentlemen:
The undersigned serves as counsel for Burnham Pacific Properties, Inc.
Burnham Pacific Properties, Inc. is filing a Registration Statement and
Registration on Form S-3 with the Securities and Exchange Commission with regard
to 2,000,000 shares of Burnham Pacific Properties, Inc. to be issued in
conjunction with the Dividend Reinvestment Plan.
It is my opinion that Burnham Pacific Properties, Inc. is a duly
organized corporation incorporated under the laws of the State of California and
is in good standing under said laws. Said corporation is authorized to issue
2,000,000 of its shares in conjunction with its Dividend Reinvestment Plan.
Upon such issuance, these shares will be validly issued, fully paid and non-
assessable. I consent to the use of my name in the Burnham Pacific Properties,
Inc. Registration Statement filed on Form S-3 and this opinion being attached
thereto as an exhibit.
Sincerely,
/s/ Ronald R. Hrusoff
Ronald R. Hrusoff
RRH:sm
<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.
/s/Deloitte & Touche LLP
San Diego, California
November 16, 1994
