<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 18, 1997
REGISTRATION NO. 333-10559
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
BURNHAM PACIFIC PROPERTIES, INC.
(Exact name of Registrant as specified in its Charter)
MARYLAND 33-0204162
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
610 WEST ASH STREET
SUITE 1600
SAN DIEGO, CALIFORNIA 92101
(619) 652-4700
(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
DANIEL B. PLATT
610 WEST ASH STREET
SUITE 1600
SAN DIEGO, CALIFORNIA 92101
(619) 652-4700
(Name, address, including zip code, and
telephone, including area code, of
agent for service)
Copy to:
WILLIAM B. KING, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.
Effective on May 27, 1997, Burnham Pacific Properties, Inc., a
California corporation (the "California Company") and the original registrant
under this Registration Statement, reincorporated as a Maryland corporation (the
"Company"). This Amendment to the Registration Statement is being filed pursuant
to Rule 414(d) under the Securities Act of 1933, as amended, in order to
effectuate the adoption of the Registration Statement by the Company as the
successor issuer to the California Company, to the extent applicable. The
Registration Statement shall hereafter be deemed to relate to that number of
shares of the Company's Common Stock, no par value per share, to which this
Registration Statement originally related (which number includes shares of
Common Stock previously registered on Form S-8 (No. 33-25431), incorporated into
the Registration Statement by reference).
The Company hereby incorporates by reference (i) its Annual Report on
Form 10-K for the year ended December 31, 1996 filed with the Commission on
March 25, 1997, (ii) its Proxy Statement dated March 31, 1997 for its 1997
Annual Meeting of Shareholders, (iii) its Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 filed on May 15, 1997, (iv) its Current Report on
Form 8-K/A dated January 31, 1997 filed on April 15, 1997, and (v) the
description of its Common Stock contained in its Registration Statement on Form
8-B filed on June 2, 1997.
All documents filed by the Registrant or the Plan pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. See instructions to Item 4.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law ("MGCL") permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (i) actual receipt of an improper benefit or
profit in money, property or services or (ii) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of Burnham Pacific Properties, Inc. (the
2
<PAGE> 3
"Company") contains such a provision which eliminates such liability to the
maximum extent permitted by Maryland law.
The charter of the Company authorizes it, to the maximum extent
permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(i) any individual who is a present or former director, officer, employee or
agent of the Company or of its predecessor, Burnham Pacific Properties, Inc., a
California corporation (the "Predecessor Corporation") or (ii) any individual
who, while a director of the Company or Predecessor Corporation and at the
request of the Company or Predecessor Corporation, serves or has served as a
director, officer, partner or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise. The Bylaws of the
Company obligate it, to the maximum extent permitted by Maryland law, to
indemnify (a) any individual who is a present or former director, officer,
employee or agent of the Company or Predecessor Corporation or (b) any
individual who, while a director of the Company or Predecessor Corporation and
at the request of the Company or Predecessor Corporation, serves or has served
another corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a director, officer, partner or trustee.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (i) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate
dishonesty, (ii) the director or officer actually received an improper personal
benefit in money, property or services or (iii) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation. In
addition, the MGCL allows a corporation to advance expenses to a director or
officer, provided that, as a condition to advancing expenses, the corporation
obtains (x) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the corporation as authorized by the bylaws and (y) a written statement by or on
his behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
- ------------
EXHIBIT NO. DESCRIPTION
3.1 Charter of the Company, as amended and restated May 6, 1997,
incorporated by reference to pages B-1 through B-13 of the Company's
Proxy Statement for its 1997 Annual Meeting, filed March 31, 1997.
3.2 Bylaws of the Company, incorporated by reference to pages C-1 through
C-13 of the Company's Proxy Statement for its 1997 Annual Meeting,
filed March 31, 1997.
3
<PAGE> 4
*5.1 Opinion of 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, incorporated by reference to Exhibit
10.1 filed with the Registrant's 1993 Annual Report of Form 10-K.
*10.2 Burnham Pacific Properties, Inc. Stock Option Plan, Amended and
Restated as of May 17, 1996.
**23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of this Post-Effective
Amendment).
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
- ----------------------
* Previously filed
** Filed herewith
4
<PAGE> 5
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefits
plan's annual report pursuant to 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 the 18th day
of July, 1997.
BURNHAM PACIFIC PROPERTIES, INC.
By: /s/ J. David Martin
-------------------------------
J. David Martin
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 J. David Martin and Daniel B. Platt, and each of them singly, his true
and lawful attorney-in-fact and agent, for him, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement,
and/or any Registration Statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, relating to additional securities of the
same class(es) as offered in an offering of Securities pursuant to this
Registration Statement, and to file the same and all exhibits thereto, and any
other documents in connection therewith with the Securities and Exchange
Commission, granting unto each attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Name Title Date
/s/ J. David Martin President, Chief Executive Officer July 18, 1997
- -------------------------- (Principal Executive Officer) and
J. David Martin Director
/s/ Daniel B. Platt Chief Financial Officer July 18, 1997
- --------------------------
Daniel B. Platt
/s/ Jeffrey R. Fisher Director of Finance and
- -------------------------- Treasurer (Principal Accounting
Jeffrey R. Fisher Officer) July 18, 1997
/s/ Malin Burnham Director July 18, 1997
- --------------------------
Malin Burnham
Director July , 1997
- --------------------------
James D. Harper, Jr.
6
<PAGE> 7
* Director July 18, 1997
- --------------------------
James D. Klingbeil
* Director July 18, 1997
- --------------------------
Donne P. Moen
* Director July 18, 1997
- --------------------------
Thomas A. Page
* Director July 18, 1997
- --------------------------
Philip S. Schlein
* Director July 18, 1997
- --------------------------
Richard R. Tartre
Director July , 1997
- --------------------------
Robin Wolaner
* By J. David Martin,
Attorney-in-Fact
/s/ J. David Martin
--------------------------
J. David Martin
7
<PAGE> 8
EXHIBIT INDEX
- ------------
EXHIBIT NO. DESCRIPTION
3.1 Charter of the Company, as amended and restated May 6, 1997,
incorporated by reference to pages B-1 through B-13 of the Company's
Proxy Statement for its 1997 Annual Meeting, filed March 31, 1997.
3.2 Bylaws of the Company, incorporated by reference to pages C-1 through
C-13 of the Company's Proxy Statement for its 1997 Annual Meeting,
filed March 31, 1997.
*5.1 Opinion of 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, incorporated by reference to Exhibit
10.1 filed with the Registrant's 1993 Annual Report of Form 10-K.
*10.2 Burnham Pacific Properties, Inc. Stock Option Plan, Amended and
Restated as of May 17, 1996.
**23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of this Amendment).
- -----------------------------
* Previously filed
** Filed herewith
<PAGE> 1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-10559 of Burnham Pacific Properties,
Inc. on Form S-8 of our report dated February 28, 1997 appearing in the Annual
Report on Form 10-K of Burnham Pacific Properties, Inc. for the year ended
December 31, 1996, and to the reference to us under the headings "Experts" in
the Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
San Diego, California
July 18, 1997
