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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-B
FOR REGISTRATION OF SECURITIES OF
CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Burnham Pacific Properties, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Maryland 33-0204162
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State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification No.)
610 West Ash Street, 16th Floor, San Diego, California 92101
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, $.01 par value New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. GENERAL INFORMATION
(a) The Registrant was organized as a Maryland corporation on March 25,
1997.
(b) The Registrant's fiscal year ends on December 31.
ITEM 2. TRANSACTION OF SUCCESSION
(a) Burnham Pacific Properties, Inc., a California corporation ("Burnham
California") is the predecessor of the Registrant. Burnham California had
securities registered pursuant to Section 12(b) of the Act.
(b) The transaction of succession (the "Merger") was accomplished by
merging Burnham California with and into the Registrant, a newly-formed wholly
owned subsidiary of Burnham California, pursuant to the terms of an Agreement
and Plan of Merger, dated May 6, 1997 (the "Merger Agreement"). The Registrant
was incorporated in Maryland on March 25, 1997 specifically for the purpose of
implementing the Merger and had conducted no business and had no material assets
or liabilities prior to the Merger. Burnham California has ceased to exist
under California law and the Registrant continues to operate the business of
Burnham California under the name Burnham Pacific Properties, Inc. Under the
Merger Agreement, each outstanding share of Burnham California's common stock,
no par value per share, was automatically converted into one share of the
Registrant's common stock, par value $0.01 per share, upon the effective time of
the Merger. The Merger did not result in any change in Burnham California's
business, assets or liabilities and did not result in any relocation of
management or other employees. For financial reporting and federal income tax
purposes, the Registrant is considered to be the same reporting person and the
same taxpayer as Burnham California. In addition to the Common Stock to be
registered, the charter of the Registrant authorizes the Registrant to issue up
to five million (5,000,000) shares of Preferred Stock, par value $0.01 per
share, and twenty million (20,000,000) shares of Excess Stock.
ITEM 3. SECURITIES TO BE REGISTERED
The total number of shares of Common Stock which the Registrant has
authority to issue is seventy-five million (75,000,000) shares, par value $0.01
per share. There are presently 23,427,452 shares of Common Stock issued and
outstanding, and no shares of Preferred Stock or Excess Common Stock issued and
outstanding. Presently there are no shares of Common Stock issued which are
held by or for the account of the Registrant.
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ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
COMMON STOCK
The description of the Company's Common Stock, set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Charter and Bylaws, each as amended and restated.
All issued and outstanding shares of Common Stock are fully paid and
nonassessable. Subject to the preferential rights of any shares or series of
Preferred Stock and to the provisions of the Company's Charter regarding Excess
Stock, holders of shares of Common Stock are entitled to receive dividends on
Common Stock if, as and when authorized and declared by the Board of Directors
of the Company out of assets legally available therefor and to share ratably in
the assets of the Company legally available for distribution to its stockholders
in the event of its liquidation, dissolution or winding-up after payment of, or
adequate provision for, all known debts and liabilities of the Company.
Subject to the provisions of the Company's Charter regarding Excess Stock,
each outstanding share of Common Stock entitles the holder to one vote on all
matters submitted to a vote of stockholders, including the election of
directors, and except as provided with respect to any other class or series of
stock, the holders of Common Stock will possess exclusive voting power. There
is no cumulative voting in the election of directors, which means that the
holders of a majority of the outstanding shares of Common Stock can, subject to
any rights of holders of Preferred Stock, elect all of the directors then
standing for election, and the holders of the remaining shares of Common Stock
will not be able to elect any directors.
See "--Restrictions on Transfer; Excess Stock" below for a description of
certain provisions of the Company's Charter designed to preserve the status of
the Company as a qualified real estate investment trust ("REIT"), that limit the
transfer of, and provide the Company with a right to redeem, shares of capital
stock (including shares of Common Stock) and that also provide for the
conversion of such stock to Excess Stock, in certain circumstances.
Subject to the Company's Charter regarding Excess Stock, all shares of
Common Stock have equal dividend, distribution, liquidation and other rights,
and have no preferences, appraisal or exchange rights. Holders of Common Stock
have no conversion, sinking fund or redemption rights, or preemptive rights to
subscribe for any securities of the Company.
Pursuant to the Maryland General Corporation Law ("MGCL") and the Company's
Charter, the Corporation generally cannot dissolve, amend its Charter, merge,
sell all or substantially all of its assets, engage in a share exchange or
engage in similar transactions outside the ordinary course of business unless
approved by the Board of Directors and the
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affirmative vote of holders of shares entitled to cast a majority of all the
votes entitled to be cast on such matters.
SUBJECT TO PREFERRED STOCK PREFERENCES
The Company's Charter authorizes the Board of Directors to issue up to
five million (5,000,000) shares of Preferred Stock ("Preferred Stock"), from
time to time, in one or more series, having such terms, preferences, conversion
or other rights, voting powers, restrictions, dividend rights, limitations as to
dividends or other distributions, qualifications, terms and conditions of
redemption as may be provided in articles supplementary filed by the Company
with the State Department of Assessments and Taxation of Maryland. Such terms
may provide the holders of any Preferred Stock or any series thereof rights to
receive dividends and payment on liquidation of the Company that are
preferential to the rights of holders of Common Stock and rights to vote with,
or separately from, the holders of shares of Common Stock as to all or various
specified matters.
RESTRICTIONS ON TRANSFERS; "EXCESS STOCK"
For the Company to qualify as a REIT under the Code, among other things,
not more than 50% in value of its outstanding capital stock may be owned,
directly or indirectly, by five or fewer individuals (defined in the Code to
include certain entities) during the last half of a taxable year (other than the
first year), and such capital stock must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months (other than the
first year) or during a proportionate part of a shorter taxable year. The
Charter of the Company contains provisions, designed to preserve the Company's
qualification as a REIT, that limit any holder from owning, or being deemed to
own by virtue of the attribution provisions of the Code, either (i) more than
9.8% (in value or in number of shares, whichever is more restrictive) of the
outstanding shares of Common Stock (the "Common Stock Ownership Limit") or (ii)
shares of capital stock having a value that is more than 9.8% of the value of
all outstanding capital stock of the Company (the "Ownership Limit"). The
Charter provides that each person (which includes natural persons, corporations,
trusts, partnerships and other entities) shall be deemed to own stock that such
person (i) actually owns, (ii) constructively owns after applying attribution
rules specified in the Code, and (iii) has the right to acquire upon exercise of
any rights, options or warrants or conversion of any convertible securities held
by such person. The fact that certain affiliated entities, such as separate
mutual funds advised by the same investment adviser, may own more than 9.8% of
all outstanding shares of Common Stock or of the value of all outstanding
capital stock in the aggregate will not of itself result in either the Common
Stock Ownership Limit or the Ownership Limit being exceeded, merely because a
single person may be considered to be the "beneficial owner" of such stock for
purposes of Section 13(g) of the Exchange Act. The Board of Directors may waive
either the Common Stock Ownership Limit or the Ownership Limit if evidence
satisfactory to the Board of Directors and the Company's tax counsel is
presented that the changes in ownership will not then or in the future
jeopardize the Company's status as a REIT.
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Any transfer of capital stock or any Security convertible into capital
stock that would create direct or indirect ownership of capital stock in excess
of either the Common Stock Ownership Limit or the Ownership Limit or that would
result in the disqualification of the Company as a REIT, including any transfer
that results in the Company being "closely held" within the meaning of Section
856(h) of the Code, shall be null and void, and the intended transferee will
acquire no rights to the capital stock. Shares of capital stock owned, or deemed
to be owned, or transferred to a stockholder in excess of either the Common
Stock Ownership Limit or the Ownership Limit will automatically be exchanged for
shares of Excess Stock that will be transferred, by operation of law, to a
trustee (to be named by the Board of Directors of the Company, but unaffiliated
with the Company) as trustee for the exclusive benefit (except to the extent
described below) of one or more charitable beneficiaries designated from time to
time by the Company. The Excess Stock held in trust will be considered as issued
and outstanding shares of stock of the Company, will be entitled to receive
distributions declared by the Company and may be voted by the trustee for the
exclusive benefit of the charitable beneficiary. Any dividend or distribution
paid to a purported transferee of Excess Stock prior to the discovery by the
Company that capital stock has been transferred in violation of the provisions
of the Company's Charter (a "prohibited transfer") shall be repaid to the
Company upon demand and thereupon paid over by the Company to the trustee. Any
votes of holders of shares of capital stock purported to have been cast by a
purported transferee prior to such discovery of a prohibited transfer will be
retroactively deemed not to have been cast and may be recast by the trustee for
the benefit of the charitable beneficiary, but said retroactive nullification or
recast of the vote of the relevant shares of capital stock shall not adversely
affect the rights of any person (other than the purported transferee) who has
relied in good faith upon the effectiveness of the matter that was the subject
of the stockholder action as to which such votes were cast.
Excess Stock is not transferable. Subject to the redemption rights of the
Company discussed below, the trustee of the trust may, however, sell and
transfer the interest in the trust to a transferee in whose hands the interest
in the trust representing Excess Stock would not be an interest in Excess Stock,
and upon such sale the shares of Excess Stock represented by the sold interest
shall be automatically exchanged for shares of capital stock of the class that
was originally exchanged into such Excess Stock. Upon such sale, the trustee
shall distribute to the purported transferee only so much of the sales proceeds
as is not more than the price paid by the purported transferee in the prohibited
transfer that resulted in the exchange of Excess Stock for the capital stock
purported to have been transferred (or, if the purported transferee received
such capital stock by gift, devise or otherwise without giving value for such
stock, only an amount that does not exceed the market price for such stock, as
determined in the manner set forth in the Charter, at the time of the prohibited
transfer), and the trustee shall distribute all remaining proceeds from such
sale to the charitable beneficiary.
In addition to the foregoing transfer restrictions, the Company will have
the right, for a period of 90 days during the time any Excess Stock is held by
the trustee, to purchase all or any portion of the Excess Stock from the trustee
for the lesser of the price paid for the capital stock by the original purported
transferee (or, if the purported transferee received such capital
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stock by gift, devise or otherwise without giving value for such stock, the
market price of the capital stock at the time of such prohibited transfer) or
the market price of the capital stock on the date the Company exercises its
option to purchase. Upon any such purchase by the Company, the trustee shall
distribute the purchase price to the original purported transferee. The 90-day
period begins on the date on which the Company receives written notice of the
prohibited transfer or other event resulting in the exchange of capital stock
for Excess Stock.
The Charter provides that if the foregoing transfer restrictions are
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the intended transferee of any Excess Stock may be deemed,
at the option of the Company, to have acted as an agent on behalf of the Company
in acquiring the Excess Stock and to hold the Excess Stock on behalf of the
Company.
These restrictions will not preclude settlement of transactions on the New
York Stock Exchange or any other stock exchange on which capital stock of the
Company is listed. The foregoing restrictions on transferability and ownership
also will not apply if the Board of Directors determines that it is no longer in
the best interests of the Company to continue to qualify as a REIT.
The Company's Charter requires that, upon demand by the Company, each
stockholder and each proposed transferee of capital stock will disclose to the
Company in writing any information with respect to the direct, indirect and
constructive ownership of shares of stock as the Board of Directors deems
necessary to comply with the provisions of the Code applicable to REITs, to
comply with the requirements of any taxing authority or governmental agency or
to determine any such compliance.
The Common Stock Ownership Limit and the Ownership Limit provisions of the
Company's Charter may have the effect of delaying, deferring or preventing the
acquisition of control of the Company. However, the Charter provides that the
Excess Shares and Ownership Limit provisions shall not apply to shares of
capital stock acquired pursuant to an all cash tender offer for all outstanding
shares of capital stock in conformity with applicable laws where not less than
two-thirds of the outstanding shares of capital stock (not including securities
held by the tender offeror and/or its affiliates and associates) are tendered
and accepted pursuant to such tender offer and where the tender offeror commits
in such tender offer, if the offer is accepted by the holders of two-thirds of
the outstanding stock, promptly after the tender offeror's purchase of the
tendered stock to give any non-tendering stockholders a reasonable opportunity
to put their capital stock to the tender offeror at a price not less than that
paid pursuant to the tender offer.
CERTAIN PROVISIONS OF MARYLAND LAW
The following summary of certain provisions of the MGCL does not purport to
be complete and is qualified in its entirety by reference to the MGCL.
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BUSINESS COMBINATIONS. Under the MGCL, certain "business combinations"
(including a merger, consolidation, share exchange, or, in certain
circumstances, an asset transfer or issuance or reclassification of equity
securities) between a Maryland corporation and any person who beneficially owns
10% or more of the voting power of the corporation's shares of capital stock or
an affiliate of the corporation who, at any time within the two-year period
prior to the date in question, was the beneficial owner of 10% or more of the
voting power of the then-outstanding voting stock of the corporation (an
"Interested Stockholder") or an affiliate thereof are prohibited for five years
after the most recent date on which the Interested Stockholder becomes an
Interested Stockholder. Thereafter, any such business combination must be
recommended by the board of directors of the corporation and approved by the
affirmative vote of at least (i) 80% of the votes entitled to be cast by holders
of outstanding voting shares of the corporation and (ii) two-thirds of the votes
entitled to be cast by holders of outstanding voting shares of the corporation
other than shares held by the Interested Stockholder with whom (or with whose
affiliate) the business combination is to be effected, unless, among other
conditions, the corporation's common stockholders receive a minimum price (as
defined in the MGCL) for their shares and the consideration is received in cash
or in the same form as previously paid by the Interested Stockholder for its
shares. These provisions of Maryland law do not apply, however, to business
combinations that are approved or exempted by the board of directors of the
corporation prior to the time that the Interested Stockholder becomes an
Interested Stockholder.
Pursuant to authority contained in the MGCL, the Company's Board of
Directors has adopted a resolution providing that the "business combination"
provisions of the MGCL shall not apply to the Company, reserving however the
right to offer, revoke or repeal such resolution if the Board of Directors
determines that such alteration, revocation or repeal is in the best interest of
the Company and its stockholders.
CONTROL SHARE ACQUISITIONS. The MGCL provides that "control shares" of a
Maryland corporation acquired in a "control share acquisition" have no voting
rights except to the extent approved by a vote of two-thirds of the votes
entitled to be cast on the matter, excluding shares of stock owned by the
acquiror or by officers or directors who are employees of the corporation.
"Control shares" are voting shares of stock that, if aggregated with all other
shares of stock previously acquired by that person, or in respect of which the
acquiror is able to exercise or direct the exercise of voting power (except
solely by virtue of a revocable proxy), would entitle the acquiror to exercise
voting power in electing directors within one of the following ranges of voting
power: (i) one-fifth or more but less than one-third, or (ii) one-third or more
but less than a majority, or (iii) a majority of all voting power. Control
shares do not include shares the acquiring person is then entitled to vote as a
result of having previously obtained stockholder approval. A "control share
acquisition" means the acquisition of control shares, subject to certain
exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions (including an undertaking to pay expenses),
may compel the board of directors to call a special meeting of stockholders to
be held within 50 days of
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demand to consider the voting rights of the shares. If no request for a meeting
is made, the corporation may itself present the question at any meeting of
stockholders.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the corporation may redeem any or
all of the control shares (except those for which voting rights have been
previously been approved) for fair value determined, without regard to the
absence of voting rights for the control shares, as of the date of the last
control share acquisition by the acquiror or of any meeting of stockholders at
which the voting rights of such shares are considered and not approved. If
voting rights for control shares are approved at a stockholders meeting and the
acquiror becomes entitled to vote a majority of the shares entitled to vote, all
other stockholders may exercise appraisal rights. The fair value of the shares
as determined for purposes of the appraisal rights may not be less than the
highest price per share paid by the acquiror in the control share acquisition,
and certain limitations and restrictions otherwise applicable to the exercise of
dissenters' rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction, or to acquisitions approved or exempted by a corporation's articles
of incorporation or bylaws.
The Company's Bylaws contain a provision exempting any and all acquisitions
of the Company's shares of capital stock from the control shares provision of
the MGCL. The Board of Directors, however, by vote of two-thirds of its
members, has authority at any time, without stockholder approval, to repeal or
amend such exemption, whether before or after an acquisition of control shares,
if it determines that such repeal or amendment is in the best interests of the
stockholders of the Company. Alternatively, the Bylaws may be amended or
repealed by the affirmative vote of a majority of the Board of Directors and a
majority of all votes cast by holders of stock entitled to vote generally in the
election of directors.
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ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements.
Not Applicable
(b) Exhibits.
EXHIBIT NO.
1.1 Proxy Statement for 1997 Annual Meeting of
Shareholders of Burnham Pacific Properties, Inc.,
a California corporation, dated March 31, 1997.
1.2 Prospectus Supplement dated April 28, 1997 to
Prospectus dated March 25, 1997, filed
pursuant to Rule 424(b)(2), File No.
33-68712.
2 Agreement and Plan of Merger, dated May 6, 1997,
between the Registrant and Burnham Pacific
Properties, Inc., a California Corporation. This
Exhibit has been omitted pursuant to Exchange Act
Rule 12b-31. It is substantially identical to
APPENDIX A to EXHIBIT NO. 1.1 hereto, differing
only in that APPENDIX A to EXHIBIT NO. 1.1 had not
been signed and dated.
3.1 Articles of Amendment and Restatement of
Registrant, dated May 22, 1997 (the
"Charter"). This Exhibit has been omitted
pursuant to Exchange Act Rule 12b-31. It is
substantially identical to APPENDIX B to
EXHIBIT NO. 1.1 hereto, differing only in
that APPENDIX B to EXHIBIT NO. 1.1 had not
been signed by the President of the
Registrant.
3.2 Bylaws of Registrant. This Exhibit has been
omitted pursuant to Exchange Act Rule 12b-31,
being identical to APPENDIX C to EXHIBIT NO. 1.1
hereto.
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4.1 Form of Common Stock certificate, incorporated by
reference to Exhibit 4.0 to Registration Statement
No. 33-20489 and subsequently overprinted to state
"THE CORPORATION IS NOW INCORPORATED IN THE STATE
OF MARYLAND WITH $0.01 PAR VALUE PER SHARE."
10 Material contracts of Burnham Pacific Properties,
Inc., a California corporation, filed as
Exhibits 10.1 through 10.6 to that Registrant's
Form 10-K report for the year ended December 31,
1996 and as Exhibits 10.1 through 10.4 to its
Form 8-KA report filed April 15, 1997 (earliest
event reported January 31, 1997) are hereby
incorporated by reference.
* 21 Schedule of Subsidiaries of the Registrant.
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* Filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
BURNHAM PACIFIC PROPERTIES, INC.
Date: June 2, 1997 By: /s/ Daniel B. Platt
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Daniel B. Platt, Chief Financial
Officer
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EXHIBIT 21
Subsidiaries of the Company
SUBSIDIARIES AND JURISDICTION OF ORGANIZATION:
BPP/Valley Central, Inc. (Delaware)
BPP/Riley, Inc. (California)
BPP/Puente Hills, Inc. (Delaware)
BPP/Crenshaw Imperial, Inc. (Delaware)
BPP/Richmond L.P. (California)
BPP/Hilltop L.P. (California)
BPP/Pleasant Hill L.P. (California)
BPP/Van Ness L.P. (California)
BPP/East Palo Alto L.P. (California)
BPP/Valley Central L.P. (California)
BPP/Cameron Park L.P. (California)
BPP/Riley L.P. (California)
Ladera Center Associates, LLC (Delaware)
