<PAGE>
File No. 333-_____
As filed with the Securities and Exchange Commission on August 21, 1996
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
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 (I.R.S. Employer of
Incorporation or Organization) Identification No.)
610 WEST ASH STREET
SAN DIEGO, CALIFORNIA 92101
(Address of Principal Executive Offices)
(619) 652-4700
(Registrant's Telephone Number)
BURNHAM PACIFIC PROPERTIES, INC.
STOCK OPTION PLAN
(Full Title of the Plan)
--------------------
J. DAVID MARTIN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BURNHAM PACIFIC PROPERTIES, INC.
610 WEST ASH STREET
SAN DIEGO, CALIFORNIA 92101
(Name and Address of Agent for Service)
(619) 652-4700
(Telephone Number, Including Area Code, of Agent for Service)
--------------------
With Copy to:
William B. King, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities to be Amount to Proposed Maximum Proposed Maximum Amount of
Registered be Registered(1) Offering Prince Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, no par 775,446 shares $13.3066(2) $10,318,550.00 $3,559.00
value per share . . . 585,554 shares $12.3125(3) $7,209,634.00 $2,487.00
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Total 1,361,000 shares $17,528,184.00 $6,046.00
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</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Registrant's Stock Option Plan in the event of a
stock dividend, stock split, split-up, recapitalization or other similar
event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
determining the registration fee and is based upon the weighted average
price at which outstanding options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) of the Securities Act
solely for the purposes of determining the aggregate offering price and the
registration fee and is based upon the average of the high and low prices
of the Common
Stock as quoted on the New York Stock Exchange on August 15, 1996.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Pursuant to General Instruction E. of Form S-8, Burnham Pacific Properties,
Inc. (the "Registrant") hereby incorporates by reference the contents of the
registrant's registration statement on Form S-8 (No. 33-25431) as previously
filed with the Securities and Exchange Commission on November 21, 1988 (the
"Original Registration Statement"). This Registration Statement is being filed
to register an additional 1,361,000 shares of the Registrant's Common Stock
subject to issuance under the Registrant's Stock Option Plan, Amended and
Restated as of May 17, 1996 (the "Plan").
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 8. EXHIBITS.
(a) The following is a complete list of exhibits filed or
incorporated by reference as part of this Registration Statement.
EXHIBIT
3.1 Articles of Incorporation of the Registrant.* Amendments to the
Registrant's Articles of Incorporation adopted at the
Registrant's Annual Meeting of Shareholders on June 3, 1988.**
3.2 Amended and Restated Bylaws of the Registrant.***
5.1 Opinion of Counsel, Goodwin, Procter & Hoar LLP, as to the
legality of the securities being registered.
10.1 Burnham Pacific Properties, Inc. Stock Option Plan, Amended and
Restated as of July 26, 1993.****
10.2 Burnham Pacific Properties, Inc. Stock Option Plan, Amended and
Restated as of May 17, 1996.
23.1 Consent of Independent Accountants, Deloitte & Touche LLP.
23.2 Consent of Counsel, Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
[Remainder of Page Intentionally Left Blank]
- ---------------------------
* Incorporated by reference to the Registrant's registration statement
on Form S-11, dated June 1, 1987 (No. 33-14571).
** Incorporated by reference to pages A-4 through A-6 of the Registrant's
registration statement on Form S-4, dated March 7, 1988 (No. 33-20489).
*** Incorporated by Reference to Exhibit 3.2.2. filed with the
Registrant's 1993 Annual Report on Form 10-K.
**** Incorporated by reference to Exhibit 10.1 filed with the Registrant's
1993 Annual Report on Form 10-K.
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-8 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 this 16th day of
August, 1996.
BURNHAM PACIFIC PROPERTIES, INC.
By: /s/ J. David Martin
------------------------------
J. DAVID MARTIN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints J. David
Martin, Daniel B. Platt and Michael L. Rubin, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution, for him and
in his name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amendments to this Registration Statement, and to
file the same, with all exhibits thereto and 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 in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or her or his substitute, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Malin Burnham Chairman of the August 16, 1996
- ----------------------- Board of Directors
Malin Burnham
/s/ J. David Martin President, Chief August 16, 1996
- ----------------------- Executive Officer
J. David Martin and Director
/s/ Daniel B. Platt Executive Vice President, August 16, 1996
- ----------------------- Chief Financial Officer,
Daniel B. Platt Chief Administrative Officer
/s/ Philip L. Gildred, Jr. Director August 16, 1996
- --------------------------
Philip L. Gildred, Jr.
/s/ James D. Klingbeil Director August 16, 1996
- --------------------------
James D. Klingbeil
3
<PAGE>
/s/ Victor B. MacFarlane Director August 16, 1996
- --------------------------
Victor B. MacFarlane
/s/ Donne P. Moen Director August 16, 1996
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Donne P. Moen
/s/ Thomas A. Page Director August 16, 1996
- --------------------------
Thomas A. Page
/s/ Richard R. Tartre Director August 16, 1996
- --------------------------
Richard R. Tartre
/s/ Philip S. Schlein Director August 16, 1996
- --------------------------
Philip S. Schlein
4
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Articles of Incorporation of the Registrant.* Amendments to
the Registrant's Articles of Incorporation adopted at the
Registrant's Annual Meeting of Shareholders on June 3,
1988.**
3.2 Amended and Restated Bylaws of the Registrant.***
5.1 Opinion of Counsel, Goodwin, Procter & Hoar LLP, as to the
legality of the securities being registered.
10.1 Burnham Pacific Properties, Inc. Stock Option Plan, Amended
and Restated as of July 26, 1993.****
10.2 Burnham Pacific Properties, Inc. Stock Option Plan, Amended
and Restated as of May 17, 1996.
23.1 Consent of Independent Accountants, Deloitte & Touche LLP.
23.2 Consent of Counsel, Goodwin, Procter & Hoar LLP (included
in Exhibit 5.1 hereto).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
- -----------------------------
* Incorporated by reference to the Registrant's registration statement
on Form S-11, dated June 1, 1987 (No. 33-14571).
** Incorporated by reference to pages A-4 through A-6 of the Registrant's
registration statement on Form S-4, dated March 7, 1988 (No. 33-20489).
*** Incorporated by Reference to Exhibit 3.2.2. filed with the
Registrant's 1993 Annual Report on Form 10-K.
**** Incorporated by reference to Exhibit 10.1 filed with the Registrant's
1993 Annual Report on Form 10-K.
5
<PAGE>
[LETTERHEAD]
August 16, 1996
Burnham Pacific Properties, Inc.
610 West Ash Street
San Diego, CA 92101
Re: Burnham Pacific Properties, Inc.
Registration on Form S-8 of Additional
Securities Under Stock Option Plan
---------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to
the Securities Act of 1933, as amended (the "Act"), of 1,361,000 additional
shares (the "Shares") of Common Stock, no par value per share (the "Common
Stock"), of Burnham Pacific Properties, Inc. (the "Company") which may be
issued pursuant to the Company's Stock Option Plan following the amendment of
the Stock Option Plan adopted by the Company's Board of Directors on November
28, 1995 that authorized the addition of the Shares and the approval of that
amendment and of another amendment (collectively the "Amendments") by the
shareholders of the Company on May 17, 1996. As used hereinafter, "Plan"
refers to the Company's Stock Option Plan, Amended and Restated as of July 26,
1993 and "Amended Plan" refers to the Plan as amended by the Amendments and as
restated in the document identified as the Burnham Pacific Properties, Inc.
Stock Option Plan, Amended and Restated as of May 17, 1996.
We have acted as counsel to the Company in connection with the registration
of the Shares under the Act. We have examined the Plan and the Amendments; the
Amended Plan; the Articles of Incorporation and the By-laws of the Company, each
as amended to date; such records of the corporate proceedings of the Company as
we deemed material; the Registration Statement on Form S-8 under the Act
relating to the Shares; and such other certificates, receipts, records and
documents as we considered necessary for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that upon the issuance and
delivery of the Shares upon the exercise of options granted under the Amended
Plan and upon the Company's receipt of the consideration for the Shares provided
for in such options in accordance with the terms of the Amended Plan, the Shares
will be legally issued, fully paid and non-assessable shares of the Company's
Common Stock.
<PAGE>
Burnham Pacific Properties, Inc.
August 16, 1996
Page 2
We hereby consent to the filing of this opinion as part of the above-
referenced Registration Statement and to the use of our name therein.
Very truly yours,
Goodwin, Procter & Hoar LLP
286465.c1
<PAGE>
BURNHAM PACIFIC PROPERTIES, INC.
STOCK OPTION PLAN
Amended and Restated as of May 17, 1996
1. PURPOSE
This Stock Option Plan (the "Plan") is intended as a performance incentive
for the Directors, officers and employees of Burnham Pacific Properties, Inc.
(the "Corporation"), to enable the persons to whom options are granted (the
"Optionees") to acquire or increase a proprietary interest in the success of the
Corporation. The Corporation intends that this purpose will be effected by the
granting of "incentive stock options" ("Incentive Options") as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") and
nonqualified stock options ("Nonqualified Options") under the Plan.
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan may be Incentive Options or
Nonqualified Options, but only options designated as Incentive Options by the
Committee at the time of their grant shall be deemed to be Incentive Options.
(b) The Plan shall be administered by the Compensation Committee of the
Board of Directors (the "Committee") of not less than three directors appointed
by the Board of Directors of the Corporation (the "Board"). None of the members
of the Committee shall be an officer or full-time employee of the Corporation.
It is the intention of the Corporation that each member of the Committee be a
"disinterested person" within the meaning of Rule 16b-3(c)(2)(i) as promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act") and an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder. The Board may from time to time remove
members from or add members to the Committee. Vacancies on the Committee shall
be filled by the Board. Action by the Committee shall require the affirmative
vote of a majority of all its members.
(c) Options may be granted under this Plan to any person who is a
Director, officer or employee of the Corporation or renders services to the
Corporation, as determined by the Committee, or as otherwise provided herein.
(d) Subject to the terms and conditions of the Plan, the Committee shall
have the power:
(i) To determine and authorize the issuance of options to be granted
to eligible persons under the Plan, to prescribe and amend the terms
and provisions (which need not be identical) of each option granted
under the Plan to such persons;
<PAGE>
(ii) To construe and interpret the Plan and options granted thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Committee may
correct any defect or supply any omission, or reconcile any
inconsistency in the Plan, or in any option agreement, in the manner
and to the extent it shall deem necessary or expedient to make the
Plan fully effective. All decisions and determinations by the
Committee in the exercise of this power shall be final and binding
upon the Corporation and Optionees; and
(iii) Generally, to exercise such powers and to perform such acts as
are deemed necessary or expedient to promote the best interests of the
Corporation with respect to the Plan.
3. STOCK
(a) The stock subject to the options granted under the Plan shall be
shares of the Corporation's authorized but unissued no par common stock (the
"Common Stock"). The total number of shares that shall be subject to options
under this Plan shall not exceed 1,800,000 shares, subject to adjustment as
provided in Section 7 hereof.
(b) Whenever any outstanding option under the Plan expires, is canceled or
is otherwise terminated, the shares of Common Stock allocable to the unexercised
portion of such option may again be the subject of options under the Plan.
(c) "Fair Market Value" of each share of Common Stock for purposes of the
Plan, unless otherwise determined by the Committee in any particular case, shall
mean the average closing price of the Common Stock as reported on the principal
stock exchange on which the Corporation's shares are listed for the ten trading
days immediately preceding the date of determination. The foregoing definition
as pertaining to exercise price of option or value of stock grants to
Independent Directors shall not be amended more than once in any six-month
period other than to comport with changes in the Code.
4. ELIGIBILITY
(a) Incentive Options may be granted to employees of the Corporation.
Nonqualified Options may be granted to any person who is a Director, officer or
employee of the Corporation or who renders services to the Corporation.
(b) No person shall be eligible to receive any option under the Plan,
either by grant or transfer pursuant to Section 4 hereof, if at the date of
grant or transfer such person beneficially owns in excess of 10% of the
outstanding Common Stock of the Corporation.
(c) No person shall be eligible to receive Incentive Options if the
aggregate Fair
2
<PAGE>
Market Value (determined as of the time the option is granted) of the stock with
respect to which such Incentive Options are exercisable for the first time by
such individual during any calendar year (under all plans of the Corporation and
any parent or subsidiary thereof as defined in Section 424 of the Code) exceeds
$100,000.
(d) Effective at the time of the election or re-election on or after May
3, 1994 to the Board of Directors of a Director who is not an employee of the
Corporation, (an "Independent Director"), each such Independent Director shall
automatically be granted a Nonqualified Option for 5,000 shares, such numbers to
be subject to adjustment as provided in Section 7. The purchase price per share
for the shares covered by options granted pursuant to this Subsection 4(d) shall
be the Fair Market Value of the Common Stock on the date of grant. Each option
granted pursuant to this Subsection 4(d) shall be immediately exercisable, shall
expire on the tenth anniversary of its grant or the second anniversary of the
death of the Independent Director if earlier, shall not be transferrable by the
optionee otherwise than by will or by the laws of descent and distribution and
shall be exercisable during the optionee's lifetime only by the optionee, but
after his death may be exercised by the legal representative or legatee of the
optionee. Options granted under this Subsection 4(d) may be exercised by
written notice to the Corporation accompanied by payment in cash or bank check
equal to the option price of the number of shares specified in the notice. The
provisions of this Subsection 4(d) shall also apply to the following
Nonqualified Options that have been granted to Independent Directors prior to
May 3, 1994; options for 1,000 shares to each Independent Director granted as of
the Annual Meeting of Stockholders of the Corporation in each of the years 1989
through 1993 and options for 4,000 shares to each Independent Director granted
as of July 26, 1993. The provisions of this Subsection 4(d) which affect the
price, date of exercisability, option period or amount of shares granted under
an option shall not be amended more than once in any six-month period, other
than to comport with changes in the Code.
Notwithstanding the prior paragraph of this Subsection 4(d), no further
options shall be granted to any person elected or re-elected as a Director of
the Corporation on May 17, 1996 or thereafter; but there shall be issued to each
Independent Director in lieu of any options that but for the provisions of this
paragraph would otherwise be automatically granted to such Independent Director
and in lieu of any cash retainer or meeting fees as a Director (but not in lieu
of reimbursement of out-of-pocket expenses incurred by an Independent Director
in performing his or her duties as such or in lieu of any cash compensation that
the Board of Directors determines appropriate for services as a Board or
Committee Chairman or for services to the Corporation other than as a Director)
the number of shares of Common Stock of the Corporation, at the times and
subject to the restrictions and other terms hereinafter set forth ("Restricted
Shares").
(i) There shall be issued to each Independent Director as of the last
day of each calendar quarter such number of Restricted Shares not in
excess of 1,000 (the maximum number approved by the Stockholders at
the 1996 Annual Meeting) as the Board of Directors may fix, the Board
having fixed on May 14, 1996 the
3
<PAGE>
number of Restricted Shares to be issued to each Independent Director
as of June 30, 1996 at 375 and the number of Restricted Shares to be
issued to each Independent Director as of September 30, 1996 and as of
the last day of each subsequent calendar quarter at 750. The number
of Restricted Shares to be issued to any Independent Director who
serves for less than a full calendar quarter commencing after June 30,
1996 shall be appropriately pro rated.
(ii) Restricted Shares shall be deemed to have been issued and
outstanding as of the last day of the applicable calendar quarter
whether or not any actual certificates are issued evidencing such
Restricted Shares; but, except upon the earlier termination of service
as a Director of the Director to whom Restricted Shares are issued,
such Director may not sell, transfer, assign, pledge or otherwise
dispose of any Restricted Shares during the first year after the date
of their issuance, more than one-third of the number of Restricted
Shares during the second year after the date of their issuance, or
more than two-thirds of the number of Restricted Shares during the
third year after the date of their issuance; and in no event may any
Restricted Shares be sold, transferred, pledged or otherwise disposed
of in violation of any applicable securities laws.
(iii) The Board of Directors may from time to time amend the
provisions of this paragraph of this Subsection 4(d), but not more
often than once every six months; provided, however, that such
limitation on amendment shall be applicable only so long as required
by Rule 16b-3(c)(2)(ii), or successor provision, under the Securities
Exchange Act, as amended, in order to exempt transactions in
Restricted Shares from the provisions of Section 16(b) of said Act.
5. TERMS OF THE OPTION AGREEMENTS
Each option agreement shall contain such provisions as the Committee shall
from time to time deem appropriate. Option agreements need not be identical,
but each option agreement by appropriate language shall include the substance of
all of the following provisions:
(a) Expiration. Notwithstanding any other provision of the Plan or of any
option agreement, each option shall expire on the date specified in the option
agreement, which date shall not be later than the earliest of (i) the tenth
anniversary of the date on which the option was granted, (ii) the ninetieth day
after termination of the optionee's employment by or rendering of services to
the Corporation for any reason other than the death of the optionee, or (iii)
the first anniversary of the date of the optionee's death.
(b) Minimum Shares Exercisable. The minimum number of shares with respect
to which an option may be exercised at any one time shall be 100 shares, or such
lesser number as is subject to exercise under the option at the time.
4
<PAGE>
(c) Exercise.
(i) Each option shall be exercisable in such installments (which need
not be equal) and at such times as designated by the Committee. To
the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the option expires.
(ii) In the event of a Change of Control of the Corporation (as
defined in (f) below), all options outstanding as of the date of such
Change in Control shall become vested and immediately exercisable.
(d) Purchase Price. The purchase price per share of Common Stock under
each option shall not be less than the Fair Market Value of the Common Stock on
the date the option is granted.
(e) Rights of Optionees. No Optionee shall be deemed for any purpose to
be the owner of any shares of Common Stock subject to any option unless and
until (i) the option shall have been exercised pursuant to the terms thereof,
(ii) the Corporation shall have issued and delivered the shares to the Optionee,
and (iii) the Optionee's name shall have been entered as a shareholder of record
on the books of the Corporation. Thereupon, the Optionee shall have full
voting, dividend and other ownership rights with respect to such shares of
Common Stock.
(f) Change in Control. For purposes of the Plan, a "Change in Control"
shall be deemed to have occurred if there has occurred a change in control which
the Corporation would be required to report in response to Item 1(a) the Current
Report on Form 8-K, as in effect on the date hereof pursuant to Section 13 or
15(d) of the 1934 Act, (whether or not the Company is then required to file such
report) or, if such regulation is no longer in effect, any regulations
promulgated by the Securities and Exchange Commission pursuant to the 1934 Act
which are intended to serve similar purposes. In addition, a Change in Control
shall be deemed to have occurred if, as the result of, or in connection with,
any tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing transactions,
the persons who were directors of the Corporation before such transaction shall
cease to constitute a majority of the Board of Directors of the Corporation or
of any successor institution.
(g) Transferability. Options shall not be transferable by the Optionee
other than by will or the laws of descent and distribution. Options may be
exercised during the Optionee's lifetime only by the Optionee.
5
<PAGE>
6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
(a) Any option granted under the Plan may be exercised by the Optionee by
delivering to the Committee or any officer of the Corporation designated by the
Committee on any business day a written notice specifying the number of shares
of Common Stock the Optionee then desires to purchase (the "Notice").
(b) Payment for the shares of Common Stock purchased by Directors,
officers, employees and persons who render services to the Corporation pursuant
to the exercise of an option shall be made either in (i) cash equal to the
option price for the number of shares specified in the Notice (the "Total Option
Price"), (ii) if authorized by the applicable option agreement, shares of Common
Stock of the Corporation having a Fair Market Value, equal to the exercise price
of the options being exercised, (iii) by tender of a recourse promissory note
payable to the Corporation in an amount equal to the exercise price of the
shares of the Common Stock purchased accompanied by a pledge agreement of said
stock, or (iv) any combination of the foregoing. Any promissory note tendered
pursuant to clause (iii) shall provide for an interest rate equal to the
Corporation's unsecured borrowing rate from time to time, all dividends on the
shares pledged to secure such note to be applied first to satisfy the interest
charges and then to reduce principal outstanding on the note with the repayment
schedule and maturity of such note, otherwise being as authorized by the
Committee.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If the shares of the Corporation's Common Stock as a whole are
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities of the Corporation, whether through merger,
consolidation, reorganization, recapitalization, reclassification, stock
dividend, stock split, combination of shares, exchange of shares, change in
corporate structure or the like, an appropriate and proportionate adjustment
shall be made in the number and kind of shares subject to the Plan, and in the
number, kind and per share exercise price of shares or other securities subject
to unexercised option or options thereof granted prior to any such change. In
the event of any such adjustment in an outstanding option, the Optionee
thereafter shall have the right to purchase the number of shares or securities
under such option at the per shares or per unit price, as so adjusted, which the
Optionee could purchase for the total purchase price applicable to the option
immediately prior to such adjustment.
(b) Adjustments under this Section 7 shall be determined by the Committee
and such determinations shall be conclusive. No fractional shares of Common
Stock shall be issued under the Plan on account of any adjustment specified
above.
6
<PAGE>
8. EFFECT OF CERTAIN TRANSACTIONS
In the case of (i) a reorganization, merger or consolidation in which the
Corporation is acquired by another entity or in which the Corporation is not the
surviving Corporation, or (ii) the sale of all or substantially all of the
property of the Corporation to another corporation, the Plan and the options
issued hereunder shall terminate on the effective date of such transaction,
unless provision is made in connection with such transaction for the assumption
of options theretofore granted under the Plan, or the substitution for such
options of new options of the successor corporation or parent thereof, with
appropriate adjustment as to the number and kind of shares and the per share
exercise prices, as provided in Section 7. In the event of such termination the
holders of said option shall have the election to (i) exercise all outstanding
options in full for at least 15 days prior to the date of such termination
whether or not otherwise exercisable during such period or (ii) upon the date of
termination to receive a cash payment for the cancellation of each option from
the Corporation equal to 150% of the difference between the exercise price and
the Fair Market Value of the Common Stock on the date of termination.
9. AMENDMENT OF THE PLAN
The Board may amend the Plan at any time, and from time to time, subject to
the limitation that, except as provided in Sections 7 and 8 hereof, no amendment
shall be effective unless approved by the shareholders of the Corporation in
accordance with applicable law and regulations at an annual or special meeting
held within twelve months before or after the date of adoption of such
amendment, where such amendment will:
(a) increase the number of shares of Common Stock as to which options may
be granted under the Plan;
(b) change in substance Section 4 hereof relating to eligibility to
participate in the Plan;
(c) change the minimum option price; or
(d) increase the maximum term of options provided herein.
Except as provided in Sections 7 and 8 hereof, rights and obligations under
any option granted before any amendment of the Plan shall not be altered or
impaired by such amendment, except with the consent of the Optionee.
10. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the shareholders of the Corporation for approval shall be construed as
creating any limitations on
7
<PAGE>
the power of the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of stock options
otherwise than under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
11. CONTINUANCE OF EMPLOYMENT
The Plan shall not impose any obligation on the Corporation to continue the
employment of any Optionee.
12. GOVERNMENT AND OTHER REGULATIONS GOVERNING LAW
(a) The obligations of the Corporation to sell and deliver shares of
Common Stock with respect to options granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(b) The Plan shall be governed by California law, except to the extent
that such law is preempted by federal law.
13. CONVERSION OF INCENTIVE OPTIONS TO NONQUALIFIED OPTIONS
The fact that the holder of an option, which at the time of grant was
designated or intended to be an Incentive Option, is not eligible for any reason
to take advantage of the provisions of Section 422 of the Code relating to
Incentive Options with respect to some or all of the shares of Common Stock
exercisable under said option shall not adversely affect the right of the
Optionee to exercise the option or to receive and hold such shares; and such
shares shall be deemed to be issued as if the original option had been
designated a Nonqualified Option rather than an Incentive Option.
14. EFFECTIVE DATE OF PLAN AND AMENDMENTS
The Plan was originally adopted by the shareholders at a Special Meeting
effective on November 20, 1987; amended by the shareholders at the Corporation's
Annual Meeting held on May 2, 1989; amended further by the Board of Directors on
November 28, 1990; further amended and restated in its entirety and approved by
the shareholders at a Special Meeting held on January 27, 1992. The Amended and
Restated Plan so approved by the shareholders on January 27, 1992 was further
amended and restated in its entirety by the Board of Directors effective as of
July 26, 1993, the amendment to Subsection 4(d) relating to the grant of options
for 4,000 shares to each Independent Director as of July 26, 1993 and to
increase from 1,000 to 5,000 shares for which options were automatically granted
to Independent Directors at the time of election or re-election on or after May
3, 1994 being subject to approval by the shareholders at the 1994 Annual Meeting
of Shareholders; and the shareholders approved such
8
<PAGE>
grant and increase at such meeting. The Board of Directors voted further to
amend the Plan on November 28, 1995, by increasing the number of shares subject
to the Plan by 800,000 to 1,800,000 shares and, on March 12, 1996 and May 14,
1996, by adding the second paragraph to Subsection 4(d) relating to the
quarterly issuance of not in excess of 1,000 shares to each Independent Director
in lieu of the grant of options pursuant to the first paragraph of Subsection
4(d) and in lieu of cash retainer or meeting fees to such Director, in each
case subject to approval by the shareholders at the 1996 Annual Meeting of
Shareholders; and the shareholders approved such amendments at such meeting on
May 17, 1996.
285667.c1
9
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Burnham Pacific Properties, Inc.:
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Burnham Pacific Properties, Inc. of our report dated March 11,
1996 appearing in the Annual Report on Form 10-K of Burnham Pacific
Properties, Inc. for the year ended December 31, 1995.
DELOITTE & TOUCHE LLP
August 19, 1996
San Diego, California
