<PAGE>
As filed with the Securities and Exchange Commission on July 1, 1998
Registration Statement No. 333-
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)
Maryland 33-0204162
(State of Incorporation) (I.R.S. Employer Identification #)
610 West Ash Street
16th Floor
San Diego, CA 92112
(619) 652-4700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
BURNHAM PACIFIC OPERATING PARTNERSHIP, L.P. 401(K) RETIREMENT
SAVINGS PLAN AND TRUST
(Full Title of the Plan)
------------------------
J. David Martin, President and Chief Executive Officer
Daniel B. Platt Chief Administrative Officer and Chief Financial Officer
610 West Ash Street
16th Floor
San Diego, CA 92112
(619) 652-4700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copy to:
William B. King, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (2) Offering Price Per Share (3) Aggregate Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 100,000 $13.75 $1,375,000 $406
per share
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Plus such additional number of shares as may be required pursuant to the
Registrant's 401(k) Retirement Savings Plan and Trust Agreement in the
event of a a stock dividend, stock split, split-up, recapitalization
or other similar event.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933, as amended (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 for the Registrant's Common Stock, $0.01 par value per share as
reported on the New York Stock Exchange on June 29, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
Burnham Pacific Properties, Inc. (the "Registrant") hereby incorporates
by reference the documents listed in (a) through (c) below, which have
previously been filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(b) (1) The Registrant's Current Report on Form 8-K filed; January 14,
1998
(2) The Registrant's Current Report on Form 8-K filed; April 6,
1998
(3) The Registrant's Quarterly Report on Form 10-Q filed May 15,
1998; and
(4) The Registrant's Current Report on Form 8-K filed June 1, 1998
(c) The description of the Registrant's common stock contained in
its Registration Statement on Form 8-B filed on June 2, 1997.
In addition, all documents subsequently filed with the Securities and
Exchange Commission (the "Commission") by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officer.
-----------------------------------------
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
"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 to which they may be 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
connecting 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 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.
---------
(a) The following is a complete list of exhibits filed or incorporated
by reference as part of this Registration Statement.
2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C>
5.1 Opinion of Goodwin, Procter & Hoar LLP, as to the legality of the
securities being registered
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)
</TABLE>
Item 9. Undertakings.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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.
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(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.
3
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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.
(d) The undersigned registrant hereby undertakes to submit the Burnham
Pacific Operating Partnership, L.P. 401(k) Retirement Savings Plan and Trust
(the "Plan") and any amendments thereto to the Internal Revenue Service in a
timely manner and to make all changes required by the Internal Revenue
Service in order to qualify the Plan.
4
<PAGE>
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 11th day of May, 1998.
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, 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 or
her true and lawful attorney-in-fact and agent, for him or her, with full
power of substitution and resubstitution, for him or her and in his or her
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 or she 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.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ J. David Martin President, Chief Executive Officer May 11, 1998
- ----------------------- (Principal Executive Officer) and
J. David Martin Director
/s/ Daniel B. Platt Chief Financial Officer May 11, 1998
- ----------------------- (Principal Financial Officer)
Daniel B. Platt
/s/ Jeffrey R. Fisher Vice President Finance and May 11, 1998
- ------------------------- Treasurer (Principal Accounting
Marc A. Artino Officer)
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Malin Burnham Director May 11, 1998
- ----------------------
Malin Burnham
/s/ James D. Harper, Jr. Director May 11, 1998
- -----------------------
James D. Harper, Jr.
Director May 11, 1998
- ------------------------
James D. Klingbeil
/s/ Nina B. Matis Director May 11, 1998
- -----------------------
Nina B. Matis
/s/ Donne P. Moen Director May 11, 1998
- -----------------------
Donne P. Moen
/s/ Thomas A. Page Director May 11, 1998
- -----------------------
Thomas A. Page
/s/ Philip S. Schlein Director May 11, 1998
- -----------------------
Philip S. Schlein
/s/ Robin Wolaner Director May 11, 1998
- -----------------------
Robin Wolaner
</TABLE>
6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
the trustees (or other persons who administer the employee benefit plan) have
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 1st day of July, 1998.
WELLS FARGO BANK,
as Trustee of Burnham Pacific Operating
Partnership, L.P. 401(k) Retirement Savings
Plan and Trust,
By: /s/ Kevin F. Ward
----------------------------
Name: Kevin F. Ward
Title: Assistant Vice President
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered
23.1 Consent of Independent Accountants, Deloitte & Touche LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto)
24.1 Powers of Attorney (included in Part II of this Registration Statement)
</TABLE>
8
<PAGE>
EXHIBIT 5.1
July 1, 1998
Burnham Pacific Properties, Inc.
610 West Ash Street
San Diego, CA 92101
Re: Burnham Pacific Properties, Inc.
Registration on Form S-8 of Common
Stock and Interests in 401(k) 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 100,000 shares (the
"Shares") of Common Stock, par value $ 0.01 per share, (the "Common Stock"),
of Burnham Pacific Properties, Inc. (the "Company") and interests in the
401(k) Retirement Savings Plan (the "Plan") sponsored by Burnham Pacific
Operating Partnership, L.P. (the "Operating Partnership") and its
subsidiaries which may be issued pursuant to the Company's 401(k) Retirement
Savings Plan.
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the 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 option.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other that the laws of the United States of America and the Maryland General
Corporate Law, and also express no opinion with respect to the blue sky or
Securities Laws of any State.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares in accordance with the Registration Statement and
the Plan, the Shares will be duly authorized, validly issued, fully paid and
non-assessable.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities.
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,
/s/ Goodwin, Procter & Hoar LLP
---------------------------------
Goodwin, Procter & Hoar LLP
9
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Burnham Pacific Properties, Inc. on Form S-8 of our report dated February
12, 1998 appearing in the Annual Report on Form 10-K of Burnham Pacific
Properties, Inc. for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
June 30, 1998
San Diego, California
10
